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. (Words of Wisdom from an Experienced Divorce Attorney)
What to Do if You Cannot Find Your Spouse to Serve Divorce Papers?
When you cannot find your spouse to serve divorce papers, or they evade 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.
If the Respondent cannot be served divorce papers, the Petitioner can request the court to allow 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 when:
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; and
The spouses do not have a lot of property subject to division.
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 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 done the following:
Determining whether your spouse still lives at their last known address;
Going to the spouse’s known place of employment;
Reaching 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;
Contacting the Department of Criminal Justice to verify that your spouse is not in prison or jail; and
Verifying 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 an attorney to determine your best course of action when trying to serve your spouse who cannot be found.
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:
A notarized statement establishing that you have exercised due diligence to find and locate your spouse but have been unable to find the missing spouse (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; and
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.
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 Petitioner 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 Divorce Lawyer Today
If you cannot find your missing spouse to serve them with divorce papers or your spouse simply evades service, do not hesitate to speak with a knowledgeable divorce lawyer in Texas.
Our experienced and results-driven attorneys at The Law Office of Brett H. Pritchard have the necessary expertise and resources to help you finalize your divorce if your spouse refuses to cooperate or cannot be found. Call 254-501-4040 to receive a consultation.