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 to keep things "amicable" or as long as things are "amicable," they should avoid getting a divorce attorney.

Many potential clients do not realize that they are penny-wise and pound foolish. One of the most expensive mistakes I see is when a lawyer does not represent someone.

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 I discuss in this article has its 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 who inspired this update had a tragic domestic violence story. She wanted to be able to move away from her abuser.

However, in her divorce decree, a geographical restriction 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 noticed she had missed the deadline to file a motion to reopen the claim.

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

Had choked her
They had a family violence case pending against him
Had hit her on multiple occasions
He 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.

In most circumstances, all the facts that could have helped her before the judge signed the order can not be brought up to change the order that was signed. The court only cares about new facts 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:

Signing a waiver
Signing the final decree
Going to court

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

There is Still Hope

I let her know that should some more bad facts occur, she could ask the court to modify the current order regarding the children. I also let her know another possible reason to change 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 and instead served 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 court's power 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 release of service must be signed in the presence of a notary, notarized, and then filed with the court.

It says you do not want to be served by a process server or constable/sheriff or 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.

The father told me that he had never been served. My first thought was that maybe he had been helped 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, so I was able to 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 for looking 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 at 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 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, we could file paperwork and subpoena the notary regarding his signature if that was not the case.

His girlfriend then turned to him and asked if he had signed the paperwork. His response was he didn't know. That is the wrong answer to that sort of question in my book. 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 would 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 resolved the case amicably outside of court through mediation.

She and her husband were supposed to split his retirement account 50/50 using QDRO in the agreement. 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 popular website. One of the warnings on the record is NOT to use it to divide a retirement account and 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 gave him 100% of the report. 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 entirely different.

This was another instance where having a divorce attorney 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 independently 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 issued her statement, 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 proper 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 property division was a just and right division. Had the husband followed the proper procedure, his ex may not have been able to reopen the divorce.

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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer

The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding divorce, it's essential to speak with ar Spring , TX Divorce Lawyer right away to protect your rights.

A d ivorce lawyer in Spring, TX, is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC, 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.

The Dirty Trick of the Amicable Divorce