Have you ever heard of the saying, “you just got served!”? This is a phrase that is used to tell other people that you have beaten them or gained an advantage over him or them. This is something that we hear with regularity on television and in movies. It may be less popular to say this now than it was perhaps a few years ago but I think that we still hear about getting served at least in a tongue-in-cheek fashion on an almost weekly basis.
The origin of this saying is relevant to the subject of Texas family law. Getting served with papers from a lawsuit is where we can truly begin to look at the origins of this saying. Many people assume that the beginning of the lawsuit takes place when you file for divorce. However, while that may be true in some regards it is truer than the case begins in earnest when you have served your spouse with the divorce paperwork. With that said, we should discuss what it means to serve divorce papers, specifically your original petition for divorce. From there, we can better understand what it means to proceed with the divorce and the process involving service.
Service of process or service of citation or what we talk about when serving divorce papers comes into play. This is true for any civil case. The person you are suing has a right to receive notice that you have filed the lawsuit against him, or her period make no mistake, you are suing your spouse for divorce. This is like if you had sued him or her for having injured you or for any other civil-related matter such as a contract dispute. The tricky part about providing notice to your spouse about the divorce is that you simply, in most cases, cannot knock on their door and tell them that they are being sued. Rather, you must provide him or her with the service process including the documents that were filed with the court.
Service of citation examined
Once you have filed your original petition for divorce with the family court you have taken the first step towards getting divorced. However, you will quickly find out that if you do not take additional steps from that point, you will not be able to get the divorce that you seek. Rather, you must be able to provide legal notice to your spouse about the divorce case that is now pending against him or her. Most of the time this is accomplished through serving him or her with notice.
When you file your divorce, whether, in person or online, you will likely be prompted to see whether you would like a citation issued. This is the step that we mentioned earlier in today's blog post involving the service of a citation for service of process. By choosing to have service of citation you are providing your spouse with the legal notice that you have filed for divorce against him or her. As we mentioned a moment ago, you cannot expect simply to tell your spouse that you have filed for divorce to allow your case to proceed from that point. Rather, your spouse has a legal right to receive notice of the divorce. He or she can waive their right to be served with a citation but unless he or she chooses to do so you must go through the process involving service citation.
I am referencing something called a waiver of citation regarding the person declaring that they do not need to be served with a citation. This can be accomplished by drafting a waiver of citation and providing it to your spouse. Your styles could take the form of a notary & the document in front of him or her. Once your spouse has had the four motorized you or she could file it with the court or simply return it to you and you could have it filed. From there, the clerk wouldn't know that there is no responsibility for you to have him or she served Personally.
To have a citation issued costs you a small amount of money depending upon the county where you live. If you are interested in learning the exact cost of having the clerk in your county issue you a citation you can log onto the county or district clerk’s website to request what is called a fee schedule. From there, you can learn this specific cost associated with having a citation issued by the clerk. However, if you can show the court that you lack the financial means to have a citation paid for by you then you should fill out an affidavit declaring that you are indigent. If the judge approves your application, then you would not have to pay for the filing fees associated with going through the divorce including for your citation.
Once you have filed your divorce petition and obtained a citation from the clerk the next step is to deliver that citation to your spouse. In many counties, you can simply request that a process server through the county serve the citation upon your spouse. This could be done through a constable or sheriff's department or even through a private process server that the county works with. A copy of the petition and the citation will be delivered by the process server to your spouse at whatever address he requests in your filing documents.
One question that the attorneys with the Law Office of Bryan Fagan receive with some regularity is about who may perform the service of citation. What most people are trying to figure out is whether it is legal to serve the document yourself or if you must hire someone to perform that service for you. The reality is that you may not serve this citation or divorce papers yourself. Well, this may seem simpler in your mind, the court wants to have some processes followed that do not involve informal service like that. Additionally, having spouses serve divorce papers upon one another might present somewhat of a sketchy situation as far as angry spouses confronting each other about a divorce. Process servers, constables, and sheriffs can act as middlemen to keep you and your spouse out of harm's way in an emotionally volatile situation.
What are some other ways to serve your spouse with notice of the divorce?
One of the questions that you may be asking yourself at this point is to what extent There are other options for service if personal service will not work. This could develop in a situation where, for example, you and your spouse have separated from one another years ago and now you do not know where he or she is. You have probably even attempted to provide some sort of good faith effort towards serving him or her personally at their last few addresses that were made known to you. However, you have been trying for months to serve him or her to no avail. What would your options be when it comes to providing him or her with notice that the divorce case so that you can proceed with your case and with your life?
Serving your spouse by mail is one such option. You can ask the clerk of your court to mail the citation and your divorce petition to your spouse by registered or certified mail, return receipt requested. This is a tricky method to use in that, if you are a spouse who refuses to sign for the document or has another person sign for him or her then service was not effectuated. This would mean that there would be no legal notice that was provided to you your spouse and it is not as if you could obtain a judgment against him or her because of there being insufficient notice. If your spouse is incarcerated, then you cannot use service by mail in Texas. Rather, you must hire A private process server or constable to serve your spouse while in jail.
Another method of substituted service in Texas is called service by publication or posting. This substituted service method can come in handy once again if you do not know where your spouse is but still need to provide him or her with notice of your having filed for divorce. This would mean publishing notice of your divorce in a newspaper or magazine or the area where you believe your spell last resided. However, to be able to serve your spouse in this manner you would need to have shown a family court judge assigned to your case that you have attempted to serve him or her personally but have been unsuccessful. If you have shown that you have attempted to have your spouse served traditionally but he or she has either been avoiding service or otherwise has not been able to be served, then the court can provide you permission to serve him or her by publication or posting.
What happens after a person has been served?
Once your spouse has been served with the citation and your original petition of divorce your case can truly begin in earnest. He or she will have approximately 20 days to respond to your original petition for divorce with an answer of their own. The answer is a simple document that will likely contest all the allegations that you made in your original petition. The process server or constable will complete a return of citation that allows the judge to know how and when your spouse was served.
Responding to an original petition for divorce
Now that we have walked through what it means to Serve a citation upon your spouse, we are going to put the shoe on the other foot. Let's assume that you were just handed divorce paperwork by a private process server or constable. In that case, how could you or should you proceed regarding this occurrence? What are the legal steps required of you and what are your obligations Under Texas law?
In your divorce case, you would be the respondent since you are the party who is responding to the original petition for divorce having been filed by your spouse. Your spouse would be the petitioner. The document that you would use to answer the original petition for divorce that was filed by your spouse is known as the respondent’s original answer. You may also choose to file an original counter petition if you intend to make allegations or seek specific relief independent of what your spouse is alleging in their petition. A court can only grant the relief that you asked for so therefore if you do not file a counter-petition, you would be limited in terms of what a court can award you in a divorce.
An answer is not an overly complex long legal document. Many answers better filed on behalf of respondents every day are no more than two pages. Most answers contain a general denial of the allegations made in your spouse’s original petition for divorce. He would likely also seek the court 2 divide up your community estate if you and your spouse were unable to do so through negotiation. Otherwise, an answer is merely a placeholder document that allows you to receive notice of future court dates in hearings in your case.
The deadline to file an answer is by the first Monday after the expiration of 20 days from the date that you were served with divorce papers. This gives you at least 20 days to file an answer with the court. This is an important deadline to meet given that a default judgment can be taken against you if you do not file an answer by this deadline. If that occurs, you would need to provide the court with an explanation as to why you do not file an answer in time. This is usually through a process called a motion for a new trial.
One of the major questions that you may be asking yourself at this stage of your case is whether you need to hire an attorney to represent you in the divorce. There is no legal requirement in Texas for you to hire a lawyer to proceed with the divorce. People get divorced every day in Texas without an attorney to represent them. However, you should consider the specific circumstances that you find yourself in and then whether it would be in your best interest in that other family to hire a lawyer.
In certain cases where you do not have any children under the age of 18 nor any property, then you may be able to proceed in your divorce without representation. I say this because the stakes are lower in your type of divorce in a divorce case that involves children, a significant amount of property, or both. There is a lot at stake in every divorce. However, you need to consider what is at stake in your case and whether you are willing to risk everything at stake by not having an attorney represent you.
Next, you can think about your case from the perspective of a person who may need assistance because you lack the time to devote to your case. This is not a judgment call on you regarding how you prioritize your time or otherwise choose to divide up the time you have in your life. Rather, this is simply an acknowledgment that most of us do not have additional time to set aside 2 learn about Texas family law sufficiently to represent ourselves in a divorce. As a result, if you have a family, children, work responsibilities, or anything else that would keep you from preparing adequately for a divorce then you should seriously consider hiring an experienced family law attorney to walk with you through that process.
These are only for receiving divorce paperwork. It can be disconcerting and intimidating to receive divorce paperwork from a process server or constable. Frankly, you may not know where to turn. However, you have options to pursue and can move forward to be able to protect your rights. meeting with an experienced family law attorney can be the best decision that you make regarding protecting yourself and moving forward with the best possible plan. Without a doubt, there is a lot at stake even in the Simplest of divorce cases. Rather than take a risk on the outcome of your divorce by not having your presentation why not reach out to one of our experienced family law attorneys to learn more about the divorce process and how your family can be impacted by it?
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Other Articles you may be interested in:
- What is an Original Petition for Divorce?
- Where do you go and what do you do in order to file a petition for divorce in Texas?
- What can a court do in response to a petition to lift a geographic restriction in Texas?
- Amending a Petition in a Texas family law case
- What is a counterpetition in the context of a Texas family law case?
- Serving your spouse with a Petition for Divorce
- What is Respondent's Original Answer in a Texas divorce?
- Tips for answering questions in a Texas family law deposition
- Car questions regarding your Texas divorce? Ride over here for some answers
- Answering questions in a deposition? Here are some hints to help you testify well
- Custodial and Noncustodial Parents: Answers to frequently asked questions
- Answering common child custody questions for Texas parents
- How to Draft and File an Answer to a Texas Divorce - Free Downloadable Forms
- Waivers - To sign or not to sign? The answer is don't do it!