For Better, Worse, Or Divorce Podcast

You’ve been served divorce papers. Now what? In this podcast episode, Brian Walters and Jake Gilbreath discuss what it means to be served and the initial happenings when a divorce petition has been filed.

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Podcast Transcript

  • Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
  • Brian Walters: This is Brian Walters. I’m here with Jake Gilbreath and today we’re going to discuss on the For Better, Worse, or Divorce podcast about what happens if you’ve been sued. So that’s when generally a constable knocks on your door or walks up to you or somebody does and hands you papers and says, hey, are you John Smith? Yes I am. Well here’s you’ve been sued and suddenly you’ve got these very scary looking legal papers in front of you. In this case, since you’re listening here, it’s probably because someone’s divorcing you or filing a child custody case or modification and it’s probably out of the blue or at least wasn’t expected in this manner and you don’t know what to do. So Jake, do you want to talk about what that means to be served and kind of the steps leading up to it and then we’ll talk about what you need to do next?
  • Jake Gilbreath: Yeah, and I always tell my client what you got to remember about a divorce or a child custody case is that it’s a lawsuit. It’s just no different than if Brian and I were driving down the highway and I rear ended Brian’s car and got sued for negligence. That’s a lawsuit, breach a contract, that’s a lawsuit. A divorce is a lawsuit and the way a lawsuit gets kicked off is there’s a petition filed. In our world it’s called a petition for divorce or if it’s just kids then it’s a suit affecting the parent child relationship most likely or a motion for enforcement or petition for enforcement, whatever the lawsuit is. It gets filed, it goes down to the district clerk for the, whatever county that’s filed in and that clerk’s going to issue what’s called citation most of the time.
  • Jake Gilbreath: So to put a quick pin in that there are cases, and this is actually pretty common where it’s not that thing you see on the movies where the constable or the process ever gives you the lawsuit. A lot of times we kick off our cases where gets sent with a waiver.
  • Jake Gilbreath: So the divorce petition gets sent informally to the other side saying this has been filed, please sign this document that says that you’ve got it so that you don’t have to get served by a constable because a lawsuit doesn’t start, the deadline and nothing can go forward until the other side has either signs a waiver saying they got the documents or is served and being served means that that citation that the clerk issued a process server, they’re constable or somebody that’s a process server hands that paperwork to the other side or in instances where they’re not able to physically hand it, there’s legal procedures to go through if you have to get somebody served another way. 99 out of a hundred times though somebody being served, it’s going to be somebody handed the paperwork saying you’ve been sued, here’s the paperwork and then they file that return of citation saying that person’s been served.
  • Jake Gilbreath: As you can imagine, that can sometimes be more complicated. Sometimes it results in very interesting stories, which is something for another day. But that’s what starts it, when you actually been served with it, that’s what starts it or you sign the waiver. Once you do that, then things, there’s certain timelines that go into effect. So it is important, obviously, it’s self serving, sounds self-serving, but it’s really important to go talk to a lawyer right away, particularly if you’ve been given a waiver. Those waivers are serviced because a lot of times clients call me and say my spouse or my spouse’s lawyer just sent me the divorce petition with a waiver of citation so I don’t have to get served. What’s that mean? And you should always consult with a lawyer before signing that waiver. 99 of a hundred times, it’s going to be a standard no problem waiver that says you’ve got the documents, you’re entering your appearance, you want to be notified of everything. It’s just not that big a deal.
  • Jake Gilbreath: I have seen in rare instances lawyers prepare waivers because you can sign a waiver that says, I don’t want to be notified of anything moving forward. You can default me, you can go down to the courthouse and get whatever court order you want. In the rare instance, but I’ve seen it happen several times in my career, people will receive a waiver and it’s a trick from the other side that essentially says I’m waiving all my rights and I don’t need to be notified and you guys just go default me in this lawsuit. Like I said, very rare but I’ve seen it. So you should consult with a lawyer before you even sign the waiver.
  • Jake Gilbreath: But let’s say you sign the waiver or you get served, let’s say you get served, you’re going to have deadlines to file an answer. It’s going to be, and it’ll be on there for district and county court. It’ll be on the citation. It’ll say you have 20 days plus the following Monday at 10:00 AM to file a response. And if you don’t, there could be a default order issued against you. I’ve had clients come to me that had default orders issued against them just because they just didn’t file an answer or didn’t think to. So it’s really important to consult with a lawyer right away.
  • Jake Gilbreath: And then, so for you Brian, when somebody’s coming in, let’s say they’ve actually been served, it’s not the situation where you’ve looked at the waiver they’ve actually been served. What are the next steps that you’re doing for them?
  • Brian Walters: Yeah, that’s a good point. So the first thing I’m going to look for is how, I guess serious or how pressing this is and kind of a subset of that is there anything in that group of documents that you’ve been served with that’s in order, that tells you you have to do something or you cannot do something? Because if you start doing things you’re not supposed to or are failing to do things, you’re supposed to and there’s an order that tells you to do it, then have very serious consequences even including going to jail potentially, but certainly serious financial consequences or it may so upset the judge that the rest of your case is going to be poisoned.
  • Brian Walters: So that’s really a confusing concept because there’s a difference between work called pleadings, which is a request by the person that’s suing you versus an order which is where the judge says, yeah, you’re going to do this or not do this. And it’s difficult for a layperson to tell the difference, not surprisingly, right? They’re not lawyers and one of the most common things that people get upset about is almost every Texas lawsuit pleading includes a request that the other side pay all of their fees, which is actually pretty rare that occurs.
  • Brian Walters: But it always says that because the form software we use to draft it is, has it and it’s probably negligence not to put it in there anyway unless your client tells you very specifically not to, so all lawyers put it in, but that’s just a request which probably won’t be granted. And so I get that all the time. My wife said I’m supposed to pay her attorney fees and she promised me this was not going to be a contested case and we were going to each pay our own attorney fees. Well, yeah. That’s probably her lawyer not communicating with her very well about that and not asking her ahead of time before filing it and not, I mean review beforehand or maybe she was lying to you.
  • Brian Walters: That’s possible too, but those aren’t too big of a deal, although those pleadings can give us a hint about what’s going to happen if it says and by custody for example, I think we’re going to reach an agreement or if we don’t have an agreement, let’s be joint managing and we’ll work this out. Well that’s one thing. If it says, on the other hand, I want to be the sole managing conservator and I don’t want you, the person who just got served, to see your children without a supervisor or at all, that’s big red flag, right? We probably have a problem at that point.
  • Jake Gilbreath: Yeah. You can read a lot if you’re experienced in your county and your opposing counsels and your court and everything like that, you can tell a lot reading between the lines in a petition, right? Sometimes I get them and I can tell it’s like, well they hired so and so. I know that lawyer, this is how he or she pleads in every single case. So they just check every single box under the sun. So don’t lose sweat on it until I lose sleep on it or don’t sweat it until I talk to them. And then sometimes yeah, you see it and you can kind of tell how serious they are just again, more because of the experience with the other side or how these things are actually pled, we can tell if it’s serious or not. I can predict pretty well how our case is going to go looking at the pleading.
  • Jake Gilbreath: But the other thing I was going to say, talking about when people see this stuff, a lot of times they see what’s called a request for a restraining order and that could range for how serious it is and sometimes it’s not that serious. So a lot of counties have what’s called a standing order attached to all petitions for divorce and the standing order essentially says there’s this automatic order that goes into effect that says here’s the things you can and cannot do while divorce is pending. Don’t go blow all the money, don’t go hide the child, don’t remove the child from the state of Texas, don’t spend money except for reasonable living expenses or attorney’s fees, whatever that means. And those are the rules and it’s automatically attached. And that’s the local rules and that’s attached in every single divorce petition. Some counties don’t have a standing order yet.
  • Jake Gilbreath: So what the lawyers have to do is go get, because the legal title of it is a restraining order saying you’re restrained from spending money except for reasonable living expenses or attorney’s fees. You’re restrained from hiding the child from the other parent. And so it comes across, and in our world, we look at it and go, oh that’s what we call standard injunctions. That’s not that big a deal, but if you don’t know that, you see I just got served the original divorce petition and temporary restraining order and it’s really scary.
  • Jake Gilbreath: Now having said that, sometimes it’s on the other extreme, right? You see these standard injunctions and there’s 50 standard injunctions and then the number 51 is restrained from all access or possessions of the child and that’s obviously way different and a much bigger issue. So it’s really important to read those things. I had one a few weeks ago that my client got served with and we couldn’t even tell, the judge had tried to hand write something on the restraining order and had tried to mark out some but then her copy didn’t mark it out and the way she marked it out, you couldn’t even tell if it had been scanned in weird and that’s why there was a mark out on the restraining order or had she actually tried to mark it out in this huge, when my client got served on Friday, huge scramble trying to figure out. And then finally on Monday found out that the court had actually tried to deny the restraining order or essentially take all the teeth out of it but had signed the wrong one. I mean it’s interesting, right?
  • Jake Gilbreath: But going back to the importance with that client contacted me, I think 7:30 at night on a Friday, was not a client at the time, had, 7:30 at night on Friday. And usually if I’m getting a phone call at 7:30 at night on a Friday, usually it’s an emergency and I’m going to be picking those up and talking to somebody. And it was and we got retained over the weekend. Then, Monday morning had it fixed. But that all goes back to a lawyer. It could be really serious. It could be normal in our world. No different than going to see a doctor. That thing, that lump that you see could be real serious or it could be benign, but you need to be talking to a doctor just like you need to be talking to a lawyer and we can give a lot of information to you just from the initial pleadings.
  • Brian Walters: Yeah, absolutely. I think that makes a lot of sense. So I think then the next step for somebody once they’ve figured out what’s on it by talking to a lawyer then is to figure out how to respond, right? And so can you talk a little bit about the requirements about responding and to a general lawsuit? And then now again, this goes to the order part of this, there may be a requirement that you have to respond much quicker in as little as three days. You may be in a courtroom and as little as three days. So if you want to talk about that.
  • Jake Gilbreath: You may getting served with what’s called a show cause order saying you’re ordered to appear at a hearing before your answer date. And that’s why it’s a court order because it’s a hearing before even that answer date, even when you don’t have that though, right? You get served with it and you look at it and you go, I got 20 days plus the following Monday, this has plenty of time. Or even the situation when you get asked to sign the waiver, you think I’ve got plenty of time. I understand somebody who’s had to hire lawyers myself. I mean, nobody wants to do it and there’s real temptation, right, to put it in your desk, not looking at just thinking, I’ll just deal with that in a couple of weeks, or I’ve got time and I’m just going to wait to consult with a lawyer. And I get that, right?
  • Jake Gilbreath: And I get hired sometimes, right? It’s the Friday before the Monday deadline and that’s fine. But I do encourage people, even if you’ve got time, consult with a lawyer right away, and I may consult with you and say, for strategic purposes, let’s wait till the last minute to file our appearance. Or if there’s a court order, if there’s a hearing coming up for strategic purposes, maybe I’ll say, let’s not make our appearance until the morning of the hearing and then show up when they’re thinking you’re not going to have a lawyer and then you show up with a lawyer prepared and ready to go. There may be strategic reasons why I tell you not to file your response right away, but there may be strategic reasons why I tell you to file it right away, even if you have time.
  • Jake Gilbreath: The most common that comes to mind is they’ll say, I’ve got time to file an answer. Well, okay, that’s fine. But if the other side, for whatever reason, needs to seek what’s called ex parte relief while your answer date is pending, they claim some emergency, right or wrong, they’re going to go down the courthouse and seek emergency relief based on affidavit, but seek emergency relief and not tell you about it or give you really short notice if there’s an emergency popped up. In some jurisdictions, in some counties, the courts will hear those ex parte. Ex parte means without the other side there, but they will not hear it if they see that you have a lawyer on the other side, 99 out of a hundred times. They’ve seen that you’ve retained a lawyer and that you’ve had an answer on file. The judge is not going to just go, even if the other side claims there’s an emergency, they’re not going to ex parte you. They’re going to hear from both sides. So it all just goes back to have that conversation.
  • Jake Gilbreath: I’ve had cases where I get hired on the day after that they’ve been served and then tell them to wait till the last minute to file their answer. I’ve had this other podcast, we’ve talked about this. There’s also deadlines that get triggered and everything once you file your answer. But then I’ve had them where they say, I hear you, we have time, but we really should get a response out. We should be the ones pushing to go to court or we should be the ones trying to move this case forward for whatever reason. It’s just a conversation. That conversation needs to take place in the initial consultation so you can make that decision.
  • Brian Walters: Yeah, I agree. So I think in summary, what I would say is if you’ve been served especially unexpectedly, a couple of things, don’t panic, but do read it, do look at it and see if you can as a layman try to figure out the basics. If it says real clearly or you think it says you’re not allowed to go back to your house, for example, those do occur, then don’t go back to your house. I mean that much more quicker, you ought to talk to a lawyer. But then the second thing is, yeah, talk to somebody who knows what they’re doing. We can usually tell you all that you need to know in one of our consultations probably in a very short period of time and get a strategy together for responding to it. I think that’s important too.
  • Brian Walters: And again, yeah, just don’t deny it or delay about it because there may be something in there, even if you say, hey, it looks to be only 20 days when it’s due, that might not be the case if there’s an order in there that expedites that, so probably sooner rather than later would make sense to me. But in the end of the day, it’s not a criminal matter, it’s civil. The court can, with good lawyer and with listening to your lawyer, at the end of the day, you’ll still be okay. And if you’re served, it certainly can be surprising and depressing and shocking, but you will get through it and you will be all right.
  • Jake Gilbreath: And we’ll be there.
  • Brian Walters: Right.
  • Jake Gilbreath: Like you said, to wrap up. I mean, it is not fun going through a lawsuit. It’s not fun if you’re the one doing the suing, but we’re going to get it together, go through it together. And fortunately it’s not our first divorce. A lot of our clients, it’s their first divorce, but for us it’s not our first and we’ll be able to help you through it. So yeah, I would say let’s wrap up with that.
  • Jake Gilbreath: So I guess I’ll let everybody know if we always do that if you like what you heard, please feel free to leave us a review. That’s very helpful for us. And of course, feedback is really, really helpful for us. We want to know what topics y’all want to hear about. We want to know what topics y’all don’t want to hear about. So you can always email And we appreciate everybody listening.
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