The beginning of divorce is oftentimes the most difficult step of the case. It takes courage to be able to acknowledge problems in your marriage and to want to do something about those problems. Filing for divorce is not solely a legal issue, then. It involves navigating complex waters related to emotion, relationships, and the law. Knowing this is a crucial part of any divorce. The better you understand this issue the more likely you are to accomplish whatever goals you have set out for yourself.
When it comes to beginning a Texas divorce, you must file an original divorce petition. However, this cannot truly be said to be the catalyst for the divorce case. Rather, a divorce case begins in earnest when spouses are made aware of the petition having been filed. This involves a process called notice. Providing notice to your spouse of the divorce is a practical reality in your case. For this reason, it is not something that you should overlook.
In today’s blog post from the Law Office of Bryan Fagan, we are going to introduce the topic of providing notice to your spouse of the divorce. From there we will discuss an alternative to the traditional way of providing notice. Namely, the waiver of service. Additionally, we will get into greater detail on whether you should consider signing a waiver of service if you are the responding spouse in a divorce lawsuit. Any questions you have about this material can be addressed to the experienced attorneys with the Law Office of Bryan Fagan.
The importance of notice in a Texas divorce
As we just talked about, you must provide your spouse with notice when you file for divorce. As we mentioned a moment ago, this is a practical and legal step you must take. Many times, spouses do not discuss the divorce ahead of time. As a result, your spouse would have no understanding that you have filed for divorce until you provide him or her notice of doing so. This is why the attorneys with the Law Office of Bryan Fagan place such tremendous emphasis on noticing your spouse when the divorce petition is filed. Until then, your divorce cannot truly be said to have begun.
The standard way to provide notice to your spouse of a divorce filing is to personally serve him or her. Personal service in a divorce case involves hiring a private process server or constable to physically pick paperwork up from the courthouse. The process server or law enforcement officer wood approach your spouse in person to notify him or her of the divorce. With that notification is a copy of your divorce petition, a citation, and other documents filed with the case. Once completed, proof of service will be filed with the court.
Alternative methods of service
However, there are alternative methods of serving your spouse which are available in Texas. These alternative methods may be utilized in situations where your spouse is uncooperative and refuses to be served personally. A spouse avoiding service in a divorce is not at all uncommon. If this happens to you, then it is something that you need to identify quickly. The reason is that divorce cases that are filed but not acted upon may be dismissed in as little as six months. That means you must pay the fees again and start from the beginning of your case. This is not a desirable option for a budget-conscious divorce.
Requesting an alternative method of service
If you find yourself in a position where you need to ask the court for an alternative method of service, you first need to make sure that your process server is documenting their attempts at personal service. Ultimately, this probably means that your process server will need to complete an affidavit. An affidavit is a sworn statement under oath. The process server would tell the court the specific attempts he or she made to serve your spouse in person. This will give the court a better idea of the attempts made. A hearing can be held where the court can formally hear your arguments as to why an alternative method of service is necessary.
If the court grants your motion for an alternative method of service, you would need to be able to select from a limited range of methods to do so. One of those methods is to serve your spouse via publication. This means posting notice of your divorce in a magazine or newspaper in circulation in your area. It is no sure thing that your spouse will read that newspaper or magazine. However, at this stage of a divorce constructive notice to your spouse is likely the best you can do. The best option is to serve him or her personally. When that is not possible an alternative method of service is employed to keep your divorce from stagnating.
Posting notice to the courthouse steps
Another method of alternative service is to post notice of the divorce to the courthouse steps. Again, this is not something where a court has any reasonable belief that your spouse would ever come across that posting. However, when he or she has not made themselves available for personal service that may be the best alternative you have. Work with an experienced family law attorney to help determine what methods of service may be preferred by the court and may be most agreeable to your circumstances. Above all, do not file for divorce and then try for months and months to serve your spouse in person with no success.
Can your spouse avoid the divorce altogether?
The subject matter we have been discussing so far in today’s blog post begs the question of whether your spouse may be able to completely avoid the divorce altogether. Essentially, we are trying to figure out whether by ignoring or avoiding service your spouse can make it so the two of you remain married. This may be the good-natured desire of your spouse. He or she may be dead set against you all getting divorced. Therefore, in their mind avoiding service is the best possible route to take to prolong the marriage. Fortunately for you, this is not a real option. So long as you take steps to prevent it from being so. In a divorce, there are also methods to move your case along even after you have served your spells using one of these alternative methods of service.
What you are seeking is known as a default divorce. In a default divorce, one spouse does not respond to the divorce petition. The spouse has approximately twenty days once service has been effectuated to file an answer. Not filing an answer places that spouse and default. This is a tenuous legal position.
A default divorce allows you to create your final orders and submit them to the court. You do not have to seek out the input or negotiate with your spouse. Essentially, these are your ideal orders. So long as they do not violate Texas law or public policy a court is likely to grant them. That said, you still need to wait a specific period to go before the court with your default judgment. This allows your spouse even more time to come forward and participate in the divorce. If not, your default judgment will likely be granted.
Should you try and avoid the divorce?
Now, let’s put the shoe on the other foot. Suppose that you are the spouse who is in a position to respond to the divorce. You do not want to get divorced. That is the last thing you want to see happen. As a result, a friend has told you that it is OK if you stay with him for a few weeks to see if the case blows over. So, instead of going to your office to work you have asked your boss to allow you to work from home for the next two weeks. You also have taken enough clothes from your home to not have to go back to the marital residence. In doing this, you have negated two of the most likely places for you to have been served with notice of the divorce.
Your spouse tried the best that she could to provide you with notice of the divorce but could not locate you. Now, you all are in a position where she is proceeding with the divorce towards a default judgment. True enough, by staying with your friend and avoiding service you have not filed an answer. However, the question remains as to whether doing so is in your best interests. Even though you don’t know it, your friend is already incorrect about the divorce being delayed if you avoid service.
Ignore the divorce at your own peril
When it is all said and done, your spouse can certainly divorce you without you participating in the case. This is a dangerous position for you to be in. At least by participating in the divorce your desires in the case are made known to the court. You have an opportunity to present evidence and encounter the evidence of your spouse. By not participating you put yourself in a position where it is her word against yours. Your word is non-existent so she is the only person offering evidence. Imagine a football team showing up to the game and their opponent is not there. That team could march down the field every time with little effort to score as many touchdowns as they choose. Participating in a divorce allows you to go on offense and defense.
What is a waiver of service?
A waiver of service is a legal document that the responding party to the divorce may choose to sign. In a waiver of service, your spouse would acknowledge that he or she has received the divorce petition. However, rather than following through with their right to be personally served, that right would be waived. Hence the name, waiver of service.
In the context of a divorce, this is a powerful document. The waiver of service provides the court with an assurance that your spouse is aware of the petition having been filed. However, he or she declines the right to be served personally. This is not a common occurrence in a divorce. As such, there are additional details that you need to know when attempting to work with your spouse on signing a waiver of service.
First, your spouse must sign the document in front of a notary. The waiver would be notarized after a signature is made. Your spouse would also need to state clearly that a copy of the divorce petition has been received by him or her. Just like a return of service would be filed, the waiver of service must also be filed with the county or district clerk. This way proper record keeping may be maintained throughout the process of your case.
What motivates spouses to sign waivers of service?
A person has a right to be served personally with divorce papers. To waive a right provided to you would necessitate some sort of benefit coming out of the circumstance. If you are trying to work with your spouse on signing a waiver of service here are some reasons to talk to him or her about why signing the waiver may be in their best interest.
One of the most prominent reasons why signing a waiver of service may make sense is to save time. This may be a relevant factor if you and your spouse have been able to talk about the divorce beforehand. If you and your spouse have never talked about the divorce then it would not matter much on the time issue. However, when you two have spoken about the divorce and understand what is going to happen then there is no sense in wasting any time. By signing a waiver of service, you both choose to do away with the waiting requirements that become a part of personal service.
Starting the divorce with a mindset geared towards communication is another potential benefit of signing a waiver of service. So many divorces begin with acrimony and strife. Well, this is not true for every divorce case it is certainly true across many divorces. We know that spouses who work together in marriage tend to accomplish more. The same is true even in a divorce. By talking to your spouse about the divorce you may be able to save yourself time and stress. A waiver of service is a path toward this outcome.
Approaching the waiver of service as the responding spouse
Being approached by your spouse with the prospect of signing a waiver of service can be intimidating. First, he may be completely unaware of what a waiver of service is. It is not a commonly discussed topic nor is it always the easiest document to read. As a result, your first instinct may be to say no to signing the document.
A key point to understand is that by signing a waiver of service you are not agreeing to every part of your spouse’s divorce petition. You would still be able to participate in a divorce to contest the information contained in the petition. However, by signing a waiver of service you are potentially giving the idea to your spouse that you do agree with the lion’s share of what is included in the divorce petition. If this is not the perception you intend to give, then you may want to reconsider signing the waiver of service.
Another aspect of this discussion is that you need to read the waiver very clearly before signing it. In a typical waiver of service, you do not waive your right to be notified of any future hearings or divorce filings. However, some spouses have included language like this in their waivers of service. You may be biting off more than you can chew by signing the waiver of service.
Talk to a family law attorney with the Law Office of Bryan Fagan
For that reason, it is a good idea to consult with an experienced family law attorney before signing anything. Whether you are on board with the waiver of service or prefer to be served personally, an attorney can help you. Meeting with an experienced family law attorney can be the difference between achieving positive results in a divorce and suffering the consequences of the case for years to come. Thank you for joining us today on the blog for the Law Office of Bryan Fagan. Our attorneys post unique and informative content each day of the week here on our website.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
