In some marriages, the problem is that the husband and wife cannot get out of each other’s hair. In other marriages, the issue is the exact opposite- one spouse has left the marital home and cannot be located.
It can be difficult to try and figure out what to do when you realize that a divorce is necessary for yourself and your family. If you find yourself in a situation like this, the attorneys with the Law Office of Bryan Fagan, PLLC are here to help.
Your spouse cannot be found-now what?
An option to divorce your spouse who has gone missing can be achieved by serving him or her with notice by publication. By this I mean that rather than serving your spouse with notice personally using a process server or law enforcement officer, a less direct means will be utilized. A judge must first approve of service by publication rather than by personal service.
In order to have a judge grant your request to have the service by publication attempted you must submit a sworn statement (statement under oath) that you have made every effort to locate your spouse. The court will typically appoint an attorney to attempt to locate the missing spouse and is charged with reporting back to the court on whether or not he or she has been successful.
Another method is to attempt service by certified mail. Unfortunately, you will only get credit for this service attempt if your spouse signs on the receipt card and returns it to you. This is another extremely unlikely method of service given that the spouse him or herself must sign for the divorce paperwork.
How does Texas define a good faith effort to locate your missing spouse?
The courts in Texas have attempted to define what effort is sufficient to show an attempt at finding your missing spouse and serving them with the divorce papers personally. Some straightforward examples of this include:
- Determining whether or not the missing spouse still lives at their most recent address.
- You can also check with the post office to see if a forwarding address had been provided in the event that your spouse has moved even on a temporary basis.
- Doing some research the old fashioned way, by contacting other family members of your spouse to see if they have any idea of where he or she is currently residing.
- Verifying that your spouse is not serving time in prison or serving in the military
After your searching attempts are complete
Once you believe that you’ve exhausted all resources available to you in locating your missing spouse you can then file a document with the court known as an Affidavit of Diligent Search. You will need to include each step and each method you utilized to locate your missing spouse and the relevant dates on which you attempted each one.
The document will ultimately be signed by you and notarized once complete so it is taken as if you were giving testimony to a judge under oath.
It is once you attempt to locate your spouse using the above methods, draft and file the Affidavit of Diligent Search and appear in court in front of a judge to explain your position that a Notice of the divorce by Publication will be permitted.
Once this is complete there is still more paperwork to fill out. Either you or your divorce attorney will need to complete an affidavit certifying that to the best of your knowledge what the most recent address of the missing spouse is.
An affidavit called the Service Member’s Affidavit must be completed as well. This is due to the fact that if your spouse is an active duty member of the United States Armed Forces then a judgment cannot be taken against them without their having answered a Petition for up to two years after their having been discharged from active duty.
Finally, a Final Decree of Divorce will need to be drafted and submitted to the court detailing the proposed division of the martial estate as well as a breakdown of the conservatorship, possession, access and visitation rights as to the children, if there are any.
Once this is all completed, and notice has been published in the newspaper a process server that you hire must complete a Return of Citation. This document certifies to the court that the notice appeared in a newspaper or other publication of record and the dates on which it was posted. It is only after these steps are accomplished that the missing spouse can be considered to have been served.
Completing a divorce after successful Service by Publication
After waiting the required thirty days after successful service by publication to see if your missing spouse will actually file an Answer to your divorce petition, you may contact the court and set your case for a hearing in front of the judge.
It is at this point that your case may proceed as a default judgment. The judge will review your proposed Final Decree of Divorce and make sure it meets the basic requirements of the law in Texas. If the document is insufficient in some way then the judge will likely ask that you return at a later date after the mistakes have been corrected.
All in all, a divorce in which service by publication is necessary can last anywhere between four and six months.
The Law Office of Bryan Fagan, PLLC: Southeast Texas family law attorneys
In case you weren’t able to pick up on the tone of this blog post I will conclude by saying that a divorce by publication is not something to be taken on without first exhausting every resource to locate your missing spouse and have service accomplished personally.
Even if your spouse is successfully served by publication he or she has two years to file a motion for new trial in the event that that they come into knowledge of the divorce by some means after it has been finalized. This is compared to the normal thirty days available to other litigants to file a motion for new trial.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested on regarding the default judgments include:
- How to Divorce Your Spouse in Texas When Their Whereabouts are Unknown
- What does a Default Judgment Mean in a Texas Divorce?
- What Happens if my Ex-Spouse Refuses to Sign the Final Decree of Divorce Revisited
- What if My Ex Will Not Sign the Final Decree in My Texas Divorce?
- I have been served with Divorce Papers – What do I do now in Texas?
- How to Draft and File an Answer to a Texas Divorce – Free Downloadable Forms
- 6 Tips – On How to prepare for a Texas Divorce
- 6 Mistakes that can Destroy Your Texas Divorce Case
- Waivers – To sign or not to sign? The answer is don’t do it!
- Roadmap of Basic Divorce Procedure in Texas
Law Office of Bryan Fagan, PLLC | Tomball, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Tomball, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Tomball TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Tomball, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.