Texas Divorce Laws When a Respondent Cannot Be Located

By Heather Frances J.D.

The typical divorce process requires you to serve your spouse with divorce papers, but you may not be able to get the papers to your spouse if you don’t know where he is. However, that doesn’t mean you have to stay married. Though it is more difficult to divorce when you cannot locate your spouse, Texas laws on service by publication and posting make it possible.

The typical divorce process requires you to serve your spouse with divorce papers, but you may not be able to get the papers to your spouse if you don’t know where he is. However, that doesn’t mean you have to stay married. Though it is more difficult to divorce when you cannot locate your spouse, Texas laws on service by publication and posting make it possible.

Service Requirements

Generally, the Texas legal system requires notice to all parties involved in a lawsuit, including parties involved in divorce. This makes the process fairer since every party gets a chance to present his side to the court. If you know where your spouse is, you can complete your service requirements by having a sheriff or private process server hand him the paperwork. You also can satisfy service requirements if your spouse waives his right to service by signing a Waiver of Citation form in front of a notary or sending it by certified mail. All of these methods insure he actually knows about the divorce case, giving him a chance to respond if he wishes.

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Search Requirements

Texas law requires you to search for your spouse if you do not know where he is. It is not enough to simply say he moved and did not leave any forwarding information. You must perform a diligent search for him, though how much searching you must do may depend on the case and your judge. For example, you might call family and friends to see if they know where he is, perform an Internet search or look in phone books. Some courts may require you to hire a private investigator or attorney to look for your spouse if other methods are unsuccessful.

Service by Posting

If you cannot locate your spouse, even after diligently searching, you can ask the court to let you serve your spouse through alternative means. These alternatives may not ensure your spouse actually gets notice, so courts are unlikely to give you permission to use them unless you truly have no other reasonable methods to find your spouse. If you have no children from your marriage and no property to divide, you can serve your spouse by posting the petition for divorce on the courthouse steps. In theory, your spouse could see the posting, thereby receiving notice of the divorce. However, there is no need for you to prove that he actually saw the posting.

Service by Publication

If you have children from your marriage or property to divide, you cannot use posting as a method of service. However, your court may allow you to serve your spouse by placing a notice in an approved newspaper, called service by publication. You must fill out an Affidavit for Citation by Publication, sign it in front of a notary and file it with the court. Your court clerk can then issue a citation by publication for your case, sending it to the newspaper in the county where you filed your case and any county where your marital property is located. The clerk, constable or sheriff then completes a Return of Citation form to certify notice was properly published. While this accomplishes the service requirements under Texas law, your ex-spouse has up to two years after the divorce is final to ask for a new trial if he did not get notice, and he can ask for a new trial at any time if you do not search hard enough for him before serving him by publication.

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References

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