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My divorce petition and waiver were filed on the same date. What can I do?

Houston, TX |

Can I get the notary's record to prove they were done at different times and continue with the divorce? Husband refuses to sign anything else. We have one child. What can I do? I do not have money for an attorney. I tried serving him, but he's nowhere to be found.

Attorney Answers 3

Posted

I'm not quite sure what you mean about the different dates, but it sounds like you've run into a problem with the judge not being willing to accept the waiver of service because it doesn't appear to have been signed after the petition was filed. To get past that, you're going to have to be able to prove that you first filed the petition, then took a copy of the filed petition and gave it to him along with the waiver of service (which says that he acknowledges receiving a copy of the filed petition). If you instead got the petition ready to file, made a copy of the unfiled petition, gave that to him with the waiver, then filed the signed waiver and petition at the same time, I'm afraid that's not valid and there's no way to make it valid after the fact (but, only the service issue needs to be addressed, the petition should be okay). About the only options you have, unless he wants to file an answer or show up in court, are to get him a copy of the filed petition and get him to sign a new waiver of service based on that, or get him officially served (which costs you a little more, but doesn't require him to sign anything). Good luck.

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Posted

I meant different times not date. I filed the petition first and gave him a copy and waiver after. He got it notarized the same date which was probably a couple of hours after. Can I get the notary's records to prove the same date but different times?

M Elizabeth Gunn

M Elizabeth Gunn

Posted

Oh--almost forgot. If in fact you did do this the right way, and got the petition filed, then gave him a copy and got him to sign the waiver, yes, probably going back to the notary might be the only way to prove the timing. I don't think notaries usually record anything but the date of the notarization, so that might or may not work in your case. If you have an email or text to him saying something like "I got the petition filed this morning, and I need to come by and give you the copy so you can sign the waiver--I'll be there around 2:00", that might work, but getting that before the judge might be tricky for you.

Asker

Posted

Thanks!

Posted

If your husband signed the waiver then why do you need to locate him? Does it say his signature is required to finalize the divorce? If you haven't been able to serve him then you can request alternate method of service like having the process server post on his door. This may be over your head and you may be required to hire an attorney.

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Posted

The waiver and the petition were signed the same day so the court needs a new waiver showing that they were signed different dates. My question was, if I get the notary's statement or record will that be enough to prove to the court that the waiver was signed after the petition?

Jacqueline R. Kriebel

Jacqueline R. Kriebel

Posted

The notary's date on the waiver controls, not the date he wrote in. But yes, getting the notary's record would control.

Posted

Quite frankly, it is up to the judge on whether or not the waiver is acceptable. You can go to your court one morning and ask to approach the associate judge of your court and explain the situation. If the judge says that the Waiver of Service is unacceptable, then you have no choice but to either (1) have your husband execute a new one or (2) serve him.

If you cannot serve him, then there is a divorce by publication. These are complex and technical. Also, in Harris County the courts will appoint an attorney to represent your husband and YOU WILL PAY FOR THIS ATTORNEY before the divorce is granted. The cost varies but they can run anywhere from $500-$1,500.

If you have no money, there are pro bono organizations to assist you. Houston Volunteer Lawyers is one of the groups. Their phone number is 713-228-0732. Also, all the law schools in Houston have legal clinics. You can call them too.

Good luck!

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