Waiver of Citation
My husband wants me to sign a waiver of citation. I thought that signing the waiver means I don't get served papers from a constable or process server and I don't have to appear in court on the day the judge signs the decree. Recently I've been told that signing the waiver also means I basically give up my right to negotiate the final decree or have any ''say-so'' in what is included in it. My husband told me that it means I can't contest the original petition only, not the final decree. Which answer is correct? If I do sign the waiver but still go to court the day the decree is signed, am I allowed to contest it at that time if I find stipulations that I don't agree to, such as paying his lawyer's fees, paying court costs, etc.? Is there anything that protects me from his altering the paperwork after he and I negotiate everything?
2 Answers from Attorneys
Re: Waiver of Citation
You are partially correct. Signing a waiver means that a process server will not have to serve you. However, there is a safer way to accomplish this without compromising your rights, which is to file a proper Original Answer with the court. You should never consider signing the waiver if you have not received the Original Petition and possibly a proposed Final Decree as well. The biggest risk is that you might give up your right to be notified of the final hearing date, and you should never agree to that. It all depends upon the wording of the waiver, so be sure you read it carefully and understand it. The outcome of the case could be a default judgment (which you should avoid), an Agreed Final Decree, or a contested trial. If you do not show up to the final hearing and have no agreement, the opposing party might take a default judgment. If you have waived notice of the hearing, then a default judgment may be taken even though you were not even told about the date. The waiver doesn't mean you can't negotiate. If you have an agreement, then either you or your spouse must prepare the Final Divorce Decree for the signatures of both of you and the Judge. If your spouse alters the wording of the decree after you sign it, he is guilty of fraud, but you have the burden of proving that with proper evidence. If you have both signed the decree, only one party is required to attend the hearing, but it is highly recommended that you attend. The judge is not legally required to accept the decree, and the judge may alter it without your permission. If you do not agree to your spouse's proposed Final Decree, you must write your own version and prove it up with proper evidence at trial. A divorce is serious business, and not like TV where the judge just listens to each side and makes a decision. It is highly recommended that you hire an attorney.
Re: Waiver of Citation
If you don't trust your husband, then don't sign the Waiver of Service. If you read it, you will find that you are telling the Court that you do not want to be notified of any upcoming court dates.
If you sign it, then the burden will be on you to prove why the court should reverse it's ruling if you don't agree to the Final Decree of Divorce. And, you will probably have to pay his legal fees to re-open the case.
Also, be advised that you have 30 days after the Final Decree of Divorce is signed to contest it.
After that, it becomes final.
Hopefully, you see why you need an attorney now.
I see many people try to save money by doing it themselves only getting into a real mess.
If you live in the Houston area, you can call my office at 713-847-6000. I offer weekly payments. I don't flat-rate. Be sure to mention that you found me on lawguru.com