One of the most frequently asked questions that I hear is, “Can my spouse and I use the same attorney for our uncontested divorce?” The answer is no. Whether your divorce is contested or uncontested, an attorney can only represent one party.
I have decided this trick needs its blog because many of the divorce tricks we discuss could easily be prevented if both parties had been represented by an attorney experienced in family law and divorce.
Many couples know they will both hire the same lawyer because they agree on everything. The attorney will draft some short documents to sign, and they will be divorced.
A Texas divorce is more complicated than that.
What is involved in a Texas Divorce?
In its purest form, a divorce terminates a marriage in Texas, giving a married couple the legal right to marry another person.
Many people do not know that a divorce is a lawsuit that does more than end a marriage. A Texas Divorce takes care of three things:
- Property – divides marital assets and debts
- Children – determines the rights and duties of parents toward children, parental visitation, and establishes child support.
- Marriage – ends the marriage.
Why can’t we hire the same lawyer?
The big reason a Texas divorce lawyer can only represent one spouse is that there is a conflict of interest. What is best for one spouse is not necessarily best for the other spouse.
For example, what happens if a disagreement arises that neither spouse contemplated but which must be resolved? If the attorney who has been hired knows how to address the disputed issue and by doing so will benefit one spouse over the other, this would place the attorney in an ethical dilemma.
What if only one spouse hires an attorney?
If only one spouse hires an attorney, the retained attorney will only represent one spouse. I have seen this handled a few ways.
Do not think your spouse’s attorney also represents you
A spouse who has hired an attorney might try to get the other spouse to use their lawyer conveniently and to save legal fees.
However, the real motive is to gain an unfair advantage during the divorce process by having their lawyer “represent both sides.”
When couples agree they will only hire one lawyer, they must fully understand that the lawyer’s duty to diligently represent the client’s best interests and provide legal advice goes only to the spouse who hired the attorney and signed the representation agreement.
That spouse who hired the attorney gets all the benefits of the lawyer’s knowledge, experience, and guidance. The other gets nothing and is representing themselves.
I have seen parties where one spouse hired an attorney and drafted their agreement. For example, in a case where a husband was represented, and the wife did not have an attorney, the situation got resolved in mediation. The husband’s attorney drafted a final divorce decree that they believed accurately reflected what the parties agreed upon. The wife took the agreement to be reviewed by another attorney. The attorney informed her yes, the divorce decree did reflect the mediated settlement agreement, but it was slanted in favor of the husband.
In other words, even if something is drafted that accurately reflects what two spouses agreed upon, there are ways to draft that agreement in favor of one spouse over another. The husband’s attorney was looking out for his interest and not the wife’s.
An example of this could be if the husband were supposed to pay the wife $5,000. This could be placed in the decree he was supposed to pay her but never a deadline for that payment.
This might be done because if the husband ran into some financial troubles, he would have some breathing room to meet his obligation without getting in trouble with the Court.
Another example is drafting a deed transferring the wife’s interest to the husband but not drafting anything saying the husband has to get the loan out of the wife’s name or even pay the mortgage. If the husband stopped paying the loan, the wife would have no recourse against the husband.
It may be that both your spouse and their attorney are against you. This could mean they get:
- More property than you agreed upon
- Additional child support
- You have less visitation than you thought you had
- No decision-making rights to the children
Watch out for a Universal Waiver of Service
I have seen the problems occur with using the “exact attorney “when that attorney asks the non-client to sign a universal waiver.
Every person in Texas is entitled to notice of a divorce lawsuit. This is often accomplished by service of a copy of the lawsuit filed with the Court. However, 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 says you do not want to be served by a process server or constable/sheriff or certified mail sent by the District Clerk.
Should I Sign A Waiver of Service?
I would strongly caution a spouse going through a divorce not to sign a Waiver of Service.
One reason is that there are different types of waivers of service, and some are known as a universal “Waiver Service,” which has clauses included in the waiver of service that will affect your rights concerning the divorce or other court proceedings.
Some of the harmful waivers out there mean that once you sign them, you’re effectively telling the judge in this case:
- 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
- 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 something within the marriage that you may want to be confirmed as 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.
Signing a lousy waiver of service is a severe issue. You can lose property rights and child custody rights and even take all the debt.
For those reasons and more, do you still think you should sign a waiver of service?
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce“
If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: “13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them” Today!“
Other Articles you may be interested in:
- The Dirty Trick of the Common Law Marriage
- The Dirty Trick of Getting Your Spouse to Leave the Marital Home
- The Dirty Trick of Fake Emails and Electronic Evidence
- The Dirty Trick of the Unenforceable Visitation Order
- Dirty Divorce Trick – Turning into a Temporary “Helicopter” Parent
- The Dirty Trick of Spousal Spying in a Texas Divorce
- The Dirty Trick of Embarrassing your Spouse During a Texas Divorce
- The Dirty Trick of Damaging, Destroying or Selling Marital Assets in Texas
- The Dirty Trick of Filing for Divorce in Another City
- The Dirty Trick of Moving Out of State with the Kids
- The Dirty Trick of Hiding Assets During Your Texas Divorce
- Finding a Qualified Texas Divorce Lawyer
- Beware of Common Tricks and Pitfalls in Texas Divorce Cases
- What is the average retainer fee for a divorce lawyer?