I have been practicing family law for over 30 years and a most common inquiry when contacted by a divorce future client is – All I want is a simple “cheap” divorce from my spouse!
Obviously everything is relative in this world of ours. However, I have always strived to offer divorce clients an option to proceed with a divorce case without it costing my client a fortune in attorney fees and court costs. The answer to the question, “all I want is a cheap divorce”, is determined by the client.
On many occasions, a divorce client will call my office and tell my staff that all they need is a simple divorce without much cost. Once we start discussing the person’s estate, we many times discover that the client has a legally complex situation with community/separate property characterization, extensive retirement plans, and complex community liabilities.
True, some clients have a small or nonexistent estate and have agreed with their spouses that they will divorce with each other keeping their personal estates. So there is such a thing as a simple, cheap divorce. However, in most cases, there are issues that will require discovery and perhaps other processes such as sworn inventories in order to evaluate the community estate.
In many divorce cases, we are able to provide a client with a “flat fee” for an uncontested divorce. However, we make sure the client understands that the flat fee may be exhausted and hourly rates will be incurred by the client if the divorce case is not what they anticipated or what the client presented to us in order to divorce the client.
In all divorce petitions, the initial pleading must include the grounds for the divorce.
A petition in a suit for dissolution of a marriage is sufficient without the necessity of specifying the underlying evidentiary facts if the petition alleges the grounds relied on substantially in the language of the statute. Allegations of grounds for relief, matters of defense, or facts relied on for a temporary order that are stated in short and plain terms are not subject to special exceptions because of form or sufficiency. The court shall strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court’s own motion. Specific, derogatory, and inflammatory facts should be left out of a petition for divorce.
In the case of In re Marriage of Richards, the Court stated that a person’s petition for divorce does not prevent a spouse from obtaining facts necessary to prepare his or her defense through discovery. Once a party to a divorce initiates discovery, the costs of the divorce case will increase substantially due to the time and effort required to properly process divorce discovery.
One way a person to a divorce case can economize their case is by having the opposing party sign a waiver of service avoiding the other party from having to get process of service thru a process server or the Sheriff’s Office. A party to a suit for the dissolution of a marriage may waive the issuance or service of process after the suit is filed by filing with the clerk of the court in which the suit is filed the waiver of the party acknowledging receipt of a copy of the filed petition. The waiver must contain the mailing address of the party who executed the waiver. The waiver must be sworn before a notary public who is not an attorney in the suit.
This does not apply if the party executing the waiver is incarcerated. The Texas Rules of Civil Procedure do not apply to a waiver executed under this section to an incarcerated person. The party executing the waiver may not sign the waiver using a digitized signature. The law allows an unsworn declaration to be used by an incarcerated person “in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.” But in general, a waiver of service must be sworn before a notary public.
However, waiving service of an original petition for divorce does not waive service of an amended petition that seeks more onerous relief than the prior pleadings.
In any event, any person filing for a divorce, has the right and option to consider less onerous and less expensive procedures in obtaining a divorce. It is up to an experienced family law attorney to explain and discuss these procedures to the client to allow the client to proceed with the most effective and economically feasible way but not losing the requirements of a legal divorce.