Articles Posted in Waiver of Service

Your spouse has filed for divorce but tells you that you guys can agree on everything and that you do not need an attorney.  They also tell you that you do not even have to be served by process server but instead that you can sign a “waiver”.  This means that you sign the document, accept the petition informally from your spouse, and you will not be formally served by a process server or constable.  Many people just sign the waiver without even knowing what it means or consulting with an attorney.  The reality is you probably do not want to sign this.  Reason being, when you sign this document you waive citation, filing an answer, and further notice in your divorce.  Thus, if your spouse wanted to they could proceed forward with whatever final orders that they wanted to present to the court giving you absolutely none of the property and/or no rights to your children.

An example of just how bad a waiver of service could be is found in Garduza v. Castillo from the 5th District Dallas County Court of Appeals.   In that case, the husband appealed a Dallas trial court’s opinion to allow a default judgment order against husband and in favor of wife.  The wife initially filed a pro se (not represented by an attorney) petition for divorce and represented to the trial court that she and her husband would agree on everything.  Husband then filed a waiver of service that waived everything—future notice of any hearings, citation, filing an answer, being a part of the case.  After that, the wife hired an attorney (because apparently she could not get that agreement) and they filed a couple of amended petitions seeking primary of the children, back child support, and other issues.  The wife and her attorney then proceeded forward to the default docket and presented an order to the trial court which was signed because the husband filed a waiver.  However, once the husband received a copy of the decree he was not very happy.  All of the orders were completely against what he and his wife had initially discussed and he was not in agreement with the trial court’s determinations.  Thus, he proceeded forward with an appeal.  He still did not get an attorney and filed the appeal himself.  The appeal was not properly filed; however, because the appellate court determined that husband was never “served” properly with the amended petitions this was sufficient to grant the appeal.  That is, the appellate court did recognize that husband filed a waiver of service.  However, the appellate court determined that wife filed two amended petitions and they were never “served” on the husband as required by Texas Rules of Procedure Rule 21a.  That is, once you sign a waiver or even if you are served by a process server, if the other party files any additional affirmative pleadings they must give you proper notice of this.  This is accomplished through sending the additional affirmative pleadings via certified mail return receipt requested.  The appellate court found that the wife did not do this and thus they could overrule the trial court’s orders.

Chances are you will not be as lucky as Mr. Garduza.  He genuinely skated by and got another bite at the apple from the sheer fact that his spouse filed amended petitions and failed to serve him those by mail.  If they had not filed amended petitions and just proceeded forward with what the wife wanted in the orders, this would not have been a successful appeal.   There are actually three morals to this story—always get an attorney to protect your rights and interests; do not sign a waiver unless you are absolutely certain of the orders that will be presented to the court AND you attend all hearings; and you have to be served by a process server with the initial pleading unless you sign a waiver of service and then all future notice goes to you by certified mail.  If you are facing this situation, contact an attorney at Guest & Gray today.