Many people come in for consultations and say, "this is an uncontested divorce, we agree to everything." My spouse has already filed for divorce, and has now asked me to sign this "waiver of service" - should I?
The truth is that many people do not realize that there are many issues, legal issues, that need to be addressed, and resolved. They do not realize signing the Waiver of Service does several things and some of those things potentially could be bad.
What is Personal Service?
Every person in Texas that is involved in a lawsuit including a divorce is entitled to personal service of a copy of the lawsuit that was filed with the court.
Personal service is what people think of or is talked about on television as being “served.”
Personal service involves:
- a constable or a private process server coming up to you, saying your name, and asking for you to confirm that you are that person.
- The process server will hand you a copy of the documents and state, “you have been served with a lawsuit.”
- If you refuse to take the paperwork the process server can drop the paperwork on the ground and file an affidavit with the court that they served you with the divorce paperwork and you refused to take it.
What is a Waiver of Service?
Personal service is not the only way to bring a divorcing spouse under the power of the court so that the court can make orders regarding a married couple.
Alternatively, a person can waive their right to be personally served with a copy of the lawsuit by signing a Waiver of Service. The waiver of service must be signed in the presence of a notary, notarized, and then filed with the Court.
It basically says you do not want to be served by a process server or constable/sheriff or by certified mail sent by the District Clerk.
This partly means:
- One, you do not want the "citation" to be issued by the District Clerk.
- This means you will not need to be served and your clock to file what is called an "answer" will not start.
Why Would Someone Waiver Service?
Some reasons would someone waive service include:
- It costs money to serve the lawsuit
- It can be embarrassing to be served with a lawsuit
- Time if your and your spouse are agreed and cooperating it can save time
Waivers can have their benefits in an agreed divorce case, but it is important that you understand what you are agreeing to before you sign a waiver.
Should I sign a Waiver of Service?
I would strongly caution a spouse going through a divorce not sign a Waiver of Service.
One reason is that there different types of waiver of service and some are what is known as a universal “Waiver Service” which has clauses included in the waiver of service that will affect your rights in relation to the divorce or other court proceedings.
Some of the bad waivers out there that once you sign them amount to you telling the Judge in this case:
- that you do not want to be served by a process server or constable/sheriff
- You do not need to be made aware of any court dates and
- The Judge can sign whatever orders your spouse presents the judge without further notice to you in other words
- Your spouse wins
What Should I file instead of a Waiver of Service?
Generally it is a better idea to:
- File an answer and
- counterpetition in your case.
This is vital if there is something within the marriage that you may want to be confirmed yours.
There could be separate property, issues concerning children of the marriage, community property or even community debt that you are telling the Court you do not care what happens to it.
Signing a bad waiver of service is a serious issue. You can lose property rights, child custody rights, and can even take all the debt.
For those reasons and more you still think you should signing a waiver of service.
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.