Waiver of Service in a Divorce
Why Do I Have to Be Served?
When a family law case is filed, Texas law requires the person who files the suit (“Petitioner”) to notify the person against whom they filed the lawsuit (“Respondent”) that the case has started. The way to notify the Respondent is by serving them with a citation. A citation is the formal document issued by the court officially telling the Respondent that they are part of a family law case and have specific deadlines to meet.
Serving the Respondent generally means that a private process server, constable, or sheriff deputy will physically hand them the citation and the petition that started the case. This is a vital part of every family law case because the Petitioner cannot proceed with the case until the Respondent is officially notified that the case is happening.
The act of “getting served” has been extremely dramatized in TV and movies. In real life, it is not as intense as its media counterpart, but it can still be embarrassing to be served in public or at work, so many people prefer to handle this portion of the case as discreetly and privately as possible.
What Is a Waiver of Service?
A Waiver of Service is a document in which the Respondent tells the court that they received a copy of the petition, are aware of the case, and “waive” being served. This document is signed by the Respondent and notarized. A properly executed Waiver of Service filed into the case record has the same effect as filing an Answer after being served with a citation. This means that the Respondent is telling the Court that they are going to participate in the case and want to assert their interest in the subject matter of the case.
For a divorce case, the Waiver must include the Respondent’s mailing address.
It is very important to remember that the Waiver must be in writing and, according to Texas Rule of Civil Procedure 119, the Waiver must be notarized or it will not have any legal weight. The only Respondents who can sign a Waiver of Service with an Unsworn Declaration (not notarized) are Respondents who are in jail or prison at the time they sign the Waiver.
Why Would I Want a Waiver of Service?
Typically, a citation is served through a private process server, constable, or sheriff deputy who physically hands the citation and petition to the Respondent. Some people may find it embarrassing or a hassle to be physically served, especially when they are around other people. This is where the Waiver of Service comes in. A Waiver of Service can be used to avoid being physically served.
If the parties have been amicable, the Respondent knows about the case, and would rather waive being physically served, this is a good option to avoid the cost and time it takes to physically serve the Respondent. However, if the party does not sign and notarize the Waiver of Service within a reasonable amount of time, it may be a better option to serve them via a process server.
What if Someone Gives Me a Waiver of Service?
If the Petitioner or their attorney provide you with a Waiver of Service, you will need to read through it very carefully to make sure you are not giving up rights you would otherwise have as a Respondent. You should only sign and notarize the Waiver of Service if it says that you are making a general appearance in the case, that you want to be notified of all hearings and trials in the case, and that you do not want the Court to sign any orders without your signature.
If anything else is added, you may consider arranging to be served by a process server instead. A typical citation will not include those waivers compared to a Waiver of Service.
You should also be aware that the other party will be able to see your Waiver of Service so, if you have any safety concerns or any other reason for not wanting them to have your address, you should consider arranging to accept service from the process server instead.
What Happens After I Sign a Waiver of Service?
Once you sign the Waiver of Service, you should make sure it gets filed into your case with the Court. After signing and filing the Waiver, you should contact the attorney on the other side to discuss the next steps in the case and begin working toward a resolution of the issues involved.
Reach Out to Our Compassionate and Capable Legal Team
Whether you are thinking about filing for divorce or are a Respondent who has received a Waiver of Service, it is worth consulting with an experienced lawyer before taking any further steps. At Hunt Law Firm, PLLC, our competent team of litigators fully understand the complexities involved with a Waiver of Service. We are also deeply familiar with the court process and may advise you as to which option is best for your situation. We would be happy to speak with you further if you have questions regarding a Waiver of Service.
If someone is trying to get you to sign a Waiver of Service and you have any reservations, call Hunt Law Firm and we will go over all of your options with you. We have the expertise and resources to walk you through your situation and ensure that your interests are fully represented.
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