I recently had a conversation with other divorce attorneys in Tarrant County about uncontested divorce or no contest divorce in which the parties reach an agreement about the terms for the divorce rather than fight over the property and custody issues. While we all have different strategies one thing we agreed on the impact of waivers of service in these uncontested divorces.
In Texas a party to a lawsuit, such as a divorce, can use a waiver of service to ask the party sued to waive certain rights to notices in the lawsuit. These are common in uncontested divorces or no contest divorces where the expense of a process server and other notice requirements is wasteful. Today we will discuss in greater detail what a waiver of service is and whether a party should sign a waiver presented.
What is a Waiver of Service in a Texas Uncontested Divorce?
A waiver of service is an affidavit of the respondent waiving due process rights. Waivers of service almost always waive the right to service in the divorce. A waiver of service, particularly in a no contest divorce, may include additional waivers of due process rights. Another common waiver is waiving the right to notice of hearings or other proceedings. This may make sense in an uncontested divorce where the petitioner will go to court without a hearing date.
Sometimes in a no contest divorce the waiver waives the right to present evidence to the court. This allows the judge to grant the divorce without the respondent or the respondent signing the divorce decree. This is the most expansive waiver because it lets the court make any decision without input from the respondent.
A common variant will waive the right to present evidence if the respondent signed the proposed decree. That prevents the petitioner from presenting a decree with terms different from what the parties agreed.
When the respondent receives a waiver of service he or she must sign the waiver before a notary. Then the petitioner must file the waiver with the court. Often when I represent petitioners in a no contest divorce I will send a proposed waiver to the respondent. Then I ask the respondent to return it to me and I will file it with the court. That way I can make sure I know it is properly filed with the court.
Should I Sign a Waiver of Service in a Texas divorce?
Whether you should sign a waiver of service depends upon the facts of your divorce and the proposed waiver. Often if you have reached a good faith agreement on the terms of the divorce then you may not need to waste the money on service. Whether you should waive rights to notice of hearing or sign the proposed decree depends on a number of factors. When in doubt you should speak with a divorce attorney about your rights and how to best protect your interests.