Updated on August 23, 2022
As you may know, serving a copy of the Original Petition for Divorce to the Respondent is a mandatory part of the divorce process in Texas. If your spouse is not served, you cannot move forward with your divorce case.
But what if you cannot serve divorce papers because the Respondent is nowhere to be found? What happens if the spouse is evading service or otherwise cannot be located?
If you cannot find your spouse to serve divorce papers, contact a Lampasas County divorce lawyer right away.
What Is Considered a Diligent Search When Trying to Find a Missing Spouse?
When your spouse is missing and cannot be served with divorce papers, you will need to prove to the court that you put forth a good faith effort to find your spouse to serve them with a copy of the divorce petition.
You have conducted a diligent search when trying to find a missing spouse when you have taken all of the following actions to find your spouse:
Determined whether your spouse still lives at his or her last known address
Went to the spouse’s known place of employment
Reached out to your spouse’s friends, relatives, and even an employer (current or former) to ask them if they have any idea where your spouse is
Checked with the post office for any information regarding a forwarding address
Searched for your spouse on online databases that cover addresses and phone numbers
Investigated online to see if you can locate your spouse on social media or other platforms
Contacted the Department of Criminal Justice to verify that your spouse is not in prison or jail
Verified that your spouse is not serving in the military
Depending on the circumstances of your case, you may also need to take other steps in an attempt to find and locate your missing spouse to complete the service of process.
That is why it is advisable to consult with a Lampasas County divorce attorney to determine your best course of action when trying to serve your spouse who cannot be found.
What to Do If You Cannot Find Your Spouse to Serve Divorce Papers?
There are several ways to serve your spouse with a petition for divorce, but the preferred method is personal service, which is obviously not possible if you are not able to locate him or her. If you cannot find your spouse after a diligent search, consider the following options for serving your divorce papers:
Service by Certified Mail
When you cannot find your spouse to serve divorce papers, or if he or she evades service, you can try service by certified mail. The Respondent’s signature must be placed on the postal receipt card for the service by certified mail to be valid.
Service by Posting
In particular situations, you can serve your missing spouse by posting a notice in the appropriate courthouse, which is called service by posting. To qualify for service by posting, these specifics must apply:
You have attempted to but cannot find your spouse.
You and your spouse have no shared children who are minors and neither of you is pregnant. (Learn about divorce when a spouse is pregnant.)
Service by Publication
If the Respondent cannot be served divorce papers, the Petitioner can request the court to allow service by publication. Service by publication means publishing your service in the appropriate local newspaper (or via whatever mechanism is approved by the court). You can request service by publication by filing a motion and a sworn statement saying that this method would be reasonably effective to give the missing spouse notice.
Service by publication is only possible if the following statements are true of your situation:
The Respondent cannot be served divorce papers through personal service or certified mail.
The Petitioner has exercised all reasonable means to locate the missing spouse through a diligent search.
The Petitioner and Respondent have no children together.
The spouses do not have a lot of property subject to division.
How to File for Divorce by Publication in Texas
If you have exhausted all reasonably available means of locating your missing spouse, filing for divorce by publication may be your only way to get a divorce in Texas.
When your diligent search does not help you find your spouse, you can file an Affidavit for Citation by Publication along with the following materials:
A notarized statement establishing that you have exercised due diligence to find and locate your spouse but have been unable to find him or her (the statement must detail your good faith efforts to locate the spouse)
A Certificate of Last Known Address stating the Respondent’s last known address
A Military Status Affidavit, which acknowledges that the Respondent is not serving in the military
A Statement of the Evidence acknowledging that the Petitioner and Respondent meet the residency requirements, listing the couple’s community property and debts, and establishing other terms of the divorce
What Happens after Filing for Divorce by Publication?
Once the notice has been published in a local newspaper in the city or district where the Petitioner filed for divorce, newspaper staff will provide a return of citation, which certifies that the notice has been published according to legal requirements.
The return of citation will also be submitted to the court to let the judge know that the notice was published in the newspaper. If the Respondent does not respond to the notice within 30 days after the date of publication, the Petitioner can ask the court to set a date for a default divorce hearing.
When preparing for a default divorce hearing, it is essential to work closely with a Lampasas County divorce attorney. Contact a lawyer today to ensure that your petition is affirmed.
What Is a Default Divorce Judgment?
At the hearing, the Petitioner will be awarded a default judgment. Typically, the judgment affirms the Petitioner’s terms proposed in the Original Petition for Divorce.
Still, the judge will review the terms outlined in the original divorce petition before issuing a default judgment. The Petitioner’s terms must meet legal requirements under Texas Family Code.
Besides, the petition must be complete and accurate to be approved by the judge. If the judge finds that the petition is insufficient or inaccurate to grant a default judgment, the court will reschedule the hearing to give the Petitioner an opportunity to correct the mistakes.
Should You Get a Divorce by Publication in Texas?
The downside of seeking a divorce by publication is that the Respondent will have a right to request a new trial within two years after the date of the publication.
For this reason, it is highly advised to consult with a knowledgeable lawyer before seeking a divorce by publication if you cannot find or locate your spouse.
In many cases where one of the spouses is missing, divorce by publication is the only way to end a marriage. Typically, the process can take up to six months.
Consult with a Lampasas Divorce Lawyer Today
If you are moving toward divorce but are unable to find your spouse, it puts you in a serious bind that can be difficult to extricate yourself from. However, Brett Pritchard at The Law Office of Brett H. Pritchard—serving Lampasas, Texas—is a trusted divorce attorney with considerable experience helping clients like you successfully clear the hurdle of a missing spouse.