Filing a lawsuit with the court means the work has just begun. After you have petitioned to the court, the next step is, if not, the most important one. That next step being serving the other party to the lawsuit.
Think about it, how difficult would it be if someone filed a lawsuit against you that you had absolutely no idea about. That would not be fair would it? The reason service of process is important is because it puts the opposing party “on notice” that someone is suing them. This gives the opposing party the opportunity to respond to the litigation and countersue the other if they wished to.
The question is: How exactly does someone receive notice about a lawsuit against them?
CIVIL PROCESS REQUEST
After filing, it is up to the petitioner (the person initiating the lawsuit) to begin the service of process. A form known as a civil process request is filed with the court, who in return gives a citation along with a copy of the petition and any other documents filed in the initial filing.
Methods of Service
In Texas, there are 4 methods defined in the Texas Rules of Civil Procedure laid out for giving a party legal notice which include: personal service, service by certified mail, substituted service, and publication.
Personal service is the most commonly used method of service and it means that a process server will physically hand deliver any petition to the opposing party. This is the best option to ensure the court that the other party has received notice of the divorce. Personal service can be executed by either a constable or sheriff or a private process server.
WAIVER OF SERVICE
With personal service the person being served is being brought under the jurisdiction of the court to allow that court to make orders regarding them. In the alternative, a person can waive their right to be served by personal service through this waiver of service. This waiver must be signed in the presence of a notary, notarized, and filed.
The effects of opting into a waiver of service does two things: (1) it lets the court know you do not want to be served in person, and this can save some hassle, time, and embarrassment. (2) It means the clock to file an answer will not start versus being personally served and then having 20 days to file an answer with the court.
Should I Use a Waiver of Service?
People choose to use personal service for several reasons. One reason being is that it costs money to serve a lawsuit. This is because not everyone can always be found easily, and process servers may have pricey fees for service. Process servers may charge fees for things like picking up the citation, waiting for the opposing party, and all the attempts they have made to find them or get in contact with them.
Secondly, the embarrassment of possibly being served in front of family, friends, or even at work can be spared if a waiver of service is used. The last thing a person would want is that humiliation, especially if they are being served in front of their children.
Lastly, it helps save time and money between the spouses if they have agreed and cooperated with each other because the time frame of service varies. This is because how fast a citation is given to you can depend on the court themselves. Courts schedules can put a delay in how fast the process goes. Notifying the other party in a more amicable fashion will help speed up the process and begin the 60-day tolling period all divorces must go through.
Should I Sign?
Before you sign a waiver service it is important that you understand the effects it can have on your case. Most of the time people who are asked to execute a waiver of service are without representation, meaning they have not had the time to hire a lawyer. This is a common dirty trick attorneys will turn to in an attempt to get the upper hand in the case. Although there are different types of waivers out there, most of the time they will be “bad” if you do not understand the legal language used. This is because attorneys will pressure you to execute a waiver of service quickly, not giving you time to understand. Most parties will be blinded by the fact that they will be saving money by avoiding hiring a private process server, but they might be giving up their important rights.
There is what is known as a universal waiver of service and it has clauses include that will greatly affect yours rights in the case and other proceedings. Therefore, it is important to have a qualified attorney go through the waiver and warn you of the potential effects. You should be wary because waivers can amount to you giving up your rights to be served by either a process server of a constable/sheriff, taking away your right to be notified of any court dates, and giving the okay for a Judge to sign orders without your notice, and lastly it may flat out let the opposing party win.
The Next Steps
Any person going through a lawsuit should be cautious of any waiver of service as it is not strongly advised unless you have had the opportunity to consult with an attorney. Instead, what a person should file is an answer and counterpetition. This is important to protect your property rights and child custody rights. If you have not be served yet but file an answer or counterpetition those filings will count as you are being provided with sufficient notice, eliminating the need for service of process and a waiver of service altogether.
Overall, it is important to know that you have a right to personal service and the other methods of service should personal service fail. There may be cost efficient reasons some may turn to when deciding if a waiver of service is right for them but understanding what rights they are giving up is even more important. That is why it is important to educate yourself whether that be with an attorney by your side. You should never sign any form without overlooking its contents.
If you still have questions regarding waiver of services or beginning the service of process step in your Texas divorce, please call our office to set up your FREE 30-minute consultation with an attorney. Our dedicated experts will let you know what you should do during this stressful time in your life.