Many people are scared to use a lawyer in a divorce because they think their situation is too simple or easy to justify paying for a divorce lawyer to provide help and guidance.
What many potential clients do not realize is that they are being penny wise and pound foolish. Some of the most expensive and costly mistakes I see are when someone is not represented by a lawyer.
In the past seven days, I have had two such consults that inspired me to write this blog. Each consult had their own unique story and outcome that demonstrated the high cost and consequences for simple mistakes that could have been easily avoided had the people I met been represented by a lawyer.
Waiver of Service – Means You Do Not Have to Be Served
Personal service is not the only way to bring a party to a case under the power of the court so that the court can make orders regarding those individuals.
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.
Recently, I met with a father and his new girlfriend who were confused about why his paycheck was being garnished for child support. He told me he barely made minimum wage and the amount the income withholding said he was supposed to pay. The amount was a lot more than what they would pay for a job making minimum wage.
The other sad thing was that it had only been a few months since the order was signed and he was already in the hole several thousand dollars because what he earned was not covering what he was supposed to pay in child support.
I was told by the father that he had never been served. My first thought was that maybe he had been served by some alternative means, which meant the case could more than likely be reopened.
The father had obtained a copy of the order against him and so I was able to take a look at it. What I observed was:
- No one involved in the case had used a lawyer
- The paperwork said that the father had signed a waiver
- The paperwork said that the father had agreed and signed the order
I asked the father to excuse me so I could go look up the case online. I went back to my office and looked up the case. Sure, enough the record showed that there was a waiver on file. I then looked the order again and flipped to the signature page and it looked like the father had signed the order.
I then went back and explained what I had looked up and showed him a printout showing the waiver of service and his signature on the order.
I explained that he did not need to be served because the court record showed he had waived service and agreed to the order. However, if that was not the case, we could file paperwork and subpoena the notary regarding his signature.
His girlfriend then turned to him and asked if he signed the paperwork. His response was he didn’t know. In my book, that is the wrong answer to that sort of question. I explained his options for fixing the order.
As I saw it, either:
- He had signed the order and did not bother reading what he signed
- The mother filled in the blanks after he had signed the order or
- The mother somehow convinced a notary to sign the documents saying the father had signed the waiver
In every option I gave him, it was going to cost him several thousand dollars—a lot more than it would have cost to hire a lawyer to get it done the first time correctly.
Beware of Standard Forms
That same day, I met with another unfortunate individual who should have hired an attorney. In her situation, she and her husband had been able to resolve the case amicably outside of court through mediation.
In the agreement, she and her husband were supposed to split his retirement account 50/50 using QDRO. The purpose of her consult was to find out how much my office would charge for drafting that document.
She had brought all the paperwork with her so I could review it. Once I saw the paperwork, I grew immediately concerned. She had:
- A Mediate Settlement Agreement (MSA) and
- A Final Divorce Decree
My concern was the divorce decree. It was not anything drafted by a lawyer. It was a standard form put out by a particular website on the internet that I am familiar with. One of the warnings on the form is NOT to use it to divide a retirement account and to instead hire an attorney to draft the decree when you are trying to divide a retirement account.
When I reviewed the Final Divorce Decree, my suspicions were confirmed. The Final Divorce Decree did not divide the husband’s retirement account but instead gave him 100% of the account. When I explained this to the wife, she was understandably upset. She thought she was hiring my office to help her with a closing to document to divide up the retirement account only to find out the divorce decree that was supposed to reflect the Mediated Settlement Agreement said something quite different.
This was another instance where having a divorce attorney would have protected an individual. The divorce lawyer would have made sure that the Final Divorce Decree that was signed reflected the agreement and that her ex did not accidentally or intentionally do anything sneaky.
Know What Forms to Use and the Correct Courtroom Procedure
One husband I met with recently had managed to divorce his wife on his own without the help of an attorney. He accomplished this divorce by default. A default divorce means he divorced his wife:
- First by giving her notice and
- After he gave her notice, she ignored it
Once this happened, his wife was able to reopen the case by:
- Hiring an attorney
- Stating the husband did not use the correct forms
- Stating the husband did not use the correct procedure in the divorce
One of the things the husband had failed to do was file an inventory and appraisement with the court and explain to the correct party why his division of the property was a just and right division. Had the husband followed the correct procedure, his ex may not have been able to reopen the divorce.
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Other Articles you may be interested in:
- $300 Divorce Cost a Man $100,000 in Texas
- Waivers - To sign or not to sign? The answer is don't do it!
- SUCH AN EASY DIVORCE? THAT HUSBAND MAY LOSE HIS HOUSE!
- The Cheap and Easy, Online Divorce Is Usually Anything But...
- Texas Divorce and Retirement & Employment Benefits by the Numbers
- How Much Will My Texas Divorce Cost?
- How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
Law Office of Bryan Fagan | Kingwood Divorce Lawyer
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 ar Kingwood, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Kingwood TX is 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 Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, 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.