The Dirty Trick of the Amicable Divorce

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.

The same people think that in order to keep things “amicable” or as long as things are “amicable,” they should avoid getting a divorce attorney.

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.

This is an update of an article I wrote in September of 2017. I felt compelled to do so based on a recent consult.

Each consult that I discuss in this article has their own unique story and outcome that demonstrates the high cost and consequences for simple mistakes that could have been easily avoided had the people I met been represented by a lawyer.

IF YOU DO NOT BRING IT UP YOU MIGHT NOT BE ABLE TO LATER

The lady I consulted with that inspired this update had a very sad story involving domestic violence. She wanted to be able to move away from her abuser.

However, in her divorce decree, there is geographical restriction that forces her to live near her abuser because of the children they have together. When I learned that her husband went to court to finalize the case, I was hopeful because there might be time to undo what had happened.

However, when I looked up the case and saw when the judge had signed the order, I saw she had missed the deadline to file a motion to reopen the case.

I then had to spend an hour explaining she was stuck living near her abuser, even though her ex-husband:

  1. Had choked her
  2. Had a family violence case pending against him
  3. Had hit her on multiple occasions
  4. Was not exercising his visitation

Res Judicata

The legal reason for this is because of “res judicata.” This means a matter has been adjudicated by a competent court and may not be pursued further by the same parties.

All the facts that could have helped her before the judge signed the order in most circumstances can not be brought up to change the order that was signed. The court only cares about new facts that occurred after the judge signed the order.

The Danger of Playing Too Nice

Unfortunately, in her case she was not represented by an attorney. She did not want to anger her husband by getting an attorney. She thought if she played it nice, she could get the divorce and move away after.

Another problem in her case was that she signed and cooperated with everything including:

  1. Signing a waiver
  2. Signing the final decree
  3. Going to court

She did not leave herself any wiggle room for undoing the divorce decree.

There is Still Hope

I did let her know that should some more bad facts occur, she could ask the court to modify the current order in regard to the children. I also let her know another possible reason to modify is if her ex-husband continued not to exercise his visitation.

Unfortunately, the lady I met with did not find much comfort in what I told her because it did not provide any immediate help to her and instead serves more as a cautionary tale to others.

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 was more than he made at his job.

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:

  1. No one involved in the case had used a lawyer
  2. The paperwork said that the father had signed a waiver
  3. 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:

  1. He had signed the order and did not bother reading what he signed
  2. The mother filled in the blanks after he had signed the order or
  3. 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:

  1. A Mediate Settlement Agreement (MSA) and
  2. 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 popular website. 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 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:

  1. First by giving her notice and
  2. After he gave her notice, she ignored it

Once this happened, his wife was able to reopen the case by:

  1. Hiring an attorney
  2. Stating the husband did not use the correct forms
  3. 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:

  1. The Dirty Trick of Spousal Spying in a Texas Divorce
  2. The Dirty Trick of Embarrassing your Spouse During a Texas Divorce
  3. The Dirty Trick of Damaging, Destroying, or Selling Marital Assets in Texas
  4. The Dirty Trick of Filing for Divorce in Another City
  5. The Dirty Trick of Moving Out of State with the Kids
  6. The Dirty Trick of Hiding Assets During Your Texas Divorce
  7. The Dirty Trick of Wasting Marital Assets or Going on a Spending Spree During Your Texas Divorce
  8. The Dirty Trick of Engaging in Spousal Starving During a Texas Divorce
  9. How Much Will My Texas Divorce Cost?
  10. How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
  11. How am I going to Pay for My Texas Divorce?
  12. Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
  13. 6 Mistakes that can Destroy Your Texas Divorce Case

Law Office of Bryan Fagan | Spring 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 Spring, TX Divorce Lawyer right away to protect your rights.

A divorce lawyer in Spring 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, 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.

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