Tag Archives: Filing for Divorce

Looking back, looking forward: when dinosaurs and family law attorneys roamed the earth

I found myself trapped in a musty old law library last week. Seeing those aging tomes on the shelf sparked a tinge of nostalgia as I remembered the lawyers of my youth and how they were always hunkered-down over a stack of law books while scribbling notes on legal pads.

Without thinking much about it, I pulled the family law volume from the Texas Practice Series, a multi-volume encyclopedia of Texas law published in 1974. The passage I’m going to share here is so dated, so quaint in its reverence for family lawyers, and the legal profession, it’s sad.
It goes like this:

 

Lawyers studying and taking notes in libraryOn occasion “do-it-yourself” divorce kits and methods for obtaining “quickie” foreign divorces are advertised in newspapers and magazines. Although the effectiveness of these types of divorces varies according to the quality of the kit and the validity of the foreign decrees under the law of the state of domicile, there seems to be little doubt from court decisions in other states that the individuals selling these services are in violation of the law relating to the unauthorized practice of law. A New York Court, for example, was specific in identifying areas in which a layman selling the divorce kits would be liable for the unauthorized practice of law. If the layman were to give personal advice on how to use the materials or on how to deal with particular problems, he would be engaging in the unlawful practice of law; citing another case the court stated: “This is the essential of the legal practice – the representation and the advising of a particular person in a particular situation. The Florida Supreme Court has said that any instructions on how to complete the forms in a divorce “package,” or any instructions on how the forms are to be used, constitutes legal advice, with no distinction on the basis of personal dealing with the individual or whether instructions were provided for the general public.”
Time did not stand still in 1974, nor does it now. In it’s infancy, the internet was called an “information superhighway.” In this context, the word “information” is revealing as it makes no comment on the value of what’s being paraded before our eyes at warp speed. “Knowledge,” on the other hand, is an information subset, has been verified by multiple sources, and is reliable.

As for the DIY, or “Quickie-Divorce,” information came online in such a torrent and from so many sources, the State Bar of Texas and other state bar associations had to basically give up. What had once been the providence of qualified divorce lawyers now belonged to anyone with a computer and a printer. Problem was, as noted way back in 1974, some divorce kits were better than others. Family courts and the District Clerk were soon overwhelmed by the influx of litigants trying to stumble through the divorce process.

In 2012, the State Bar of Texas attempted to ease the burden on divorce courts by adopting a pre-approved set of forms for use in uncontested divorce cases. When properly completed, divorcing couples may use these forms to process their own divorce under Texas Divorce Law. While these forms can be helpful in some instances, the potential for misuse or mistake remains high.

When it comes to divorce in particular, and family law in general, many people are penny-wise and pound-foolish. When you go it alone with adivorce, some mistakes that are irreparable, and for those errors that can be corrected, the cost of such remediation is high. While much has changed in the practice of family law since 1974, visions of a kiosk-based divorce system remain nothing more than a futuristic pipedream and the need for an experienced divorce attorney remains high.

Child custody, child support and parenting plan development are important and very individual decisions for every divorcing couple. Additionally, division of community property and debt can affect you for years to come. At Schreier & Housewirth Family Law, we’ve spent 25 years helping Texas divorce and custody clients through life’s most difficult times.

How to tell your spouse you’re getting a divorce

So, you’ve decided it’s time to move forward with your divorce…. it’s the first of many decisions you’ll make as you unwind your marriage and move on. The next decision is how to tell your spouse you’ve file a petition for divorce in court.

Before you decide, you should know these few legal points. A divorce is a lawsuit like any other so specific rules of civil procedure apply. Foremost, is the requirement that the Respondent in a lawsuit be given proper legal notice that suit has been filed against him or her.

The most common way of providing proper notice is to have a state-approved process server personally deliver the divorce petition with a citation to the Respondent… this usually happens at home or at work. The citation explains to the Respondent that he has been “sued” for divorce and instructs that an answer must be filed with the court to avoid default. The process server executes a return of service and files it with the court as proof that the Respondent has been served as required by law.

When the lawsuit is as sensitive and emotionally charged as a petition for divorce, a stranger placing those papers in your spouse’s hands can be a polarizing moment. You may wish to consider an alternative.

At Schreier & Housewirth we often mail the petition to the Respondent spouse along with a waiver of service and an explanatory letter. This way, your spouse can process the news in private and without embarrassment. He/She simply needs to sign the waiver of service before a Notary Public and return it to our offices for filing with the court. This has the same effect as if he were formally served with the petition.

So, if you and your spouse are moving through divorce methodically and you do not have concerns about your spouse harming you, your children, or the marital estate, consider having him/her sign the waiver of service.

On the other hand, if you have concerns or have obtained a temporary restraining order at the time of filing the divorce, you will want your spouse served with the suit by a process server to help protect yourself and your children from harm.

Divorce is so much more than pulling forms off the internet. You need and deserve the counsel of lawyers who have devoted their careers to helping clients navigate divorce. At Schreier and Housewirth, we listen, we understand, and we represent.