Under the Texas Family Code, it is required that a spouse be notified when a family law case has been opened. This means they must be informed that you, the Petitioner, have asked the Court to do something that might affect the Respondent's (another spouse) legal rights.
The Petitioner, it is not enough for you to tell the Respondent (your spouse) about the lawsuit. You must follow the Texas Rules of Civil Procedure in giving legal notice.
Read on as we answer some of our most frequently asked questions regarding serving documents in a family law case.
Does my spouse have to get notified after I file my petition?
Yes, your spouse will need to be notified of the initial petition. This is usually done either by having your spouse served with divorce paperwork or getting them to sign a waiver of service.
How is my spouse or the Respondent notified?
It is up to the party filing the suit to ensure the proper steps are followed to notify their spouse or a respondent of the case.
There are several methods to notify your spouse of the case. Which one you are allowed to use will depend on the facts of your case.
What methods of service can I use to notify the other party?
There are four methods approved under the Texas Rules of civil procedure for giving legal notice or delivering divorce papers. Those include:
- personal service
- service by certified mail
- substituted service, and
What happens if I do not notify my spouse or the Respondent of the case?
Failure to notify the other party of the case can result in a delay of your case or, in some cases, dismissal of the case.
Do I have to serve the Respondent with the paperwork?
Any party to the case must be served with the initial court paperwork.
What happens after a respondent is notified of the filing?
Once a respondent is officially notified, there is a deadline to respond to the petition. If the deadline is missed, the Petitioner may be able to go forward and obtain a divorce or what they asked for in another family law case by "default."
What must paperwork be served?
Initial service or court papers should include:
- the citation, and
- a copy of your petition, and
- a copy of any other paperwork you filed with the petition
Can I serve the initial paperwork?
No. You will need to make arrangements with a sheriff, constable, or private process server.
How do I serve other paperwork after the initial court paperwork?
Typically, only the initial court papers must be served by a constable, sheriff, private process server, or court clerk. You can serve subsequent court paperwork to the other parties or if they have an attorney to their attorney via:
- Hand delivery
- Certified mail
- Fax or
- Electronic service
What if I don't know where to find my spouse?
In Texas, you must make every effort to notify your spouse of divorce proceedings. You cannot get a secret divorce. If you cannot find your spouse, you will still get divorced.
However, you will need to obtain permission from the Court to publish a notice of the divorce in the newspaper or post a notice in the courthouse. This is called a Motion to Serve by Publication or Posting.
However, be aware that a publication divorce takes longer, is more complicated, and is more expensive.
The Court will appoint an attorney to represent the missing spouse in many cases. This attorney tries to locate the missing spouse and then report to the Court of their progress. Additionally, the attorney fees for this lawyer representing your missing spouse will be your responsibility.
Can I serve my spouse on Facebook?
Family law Courts usually prefer that parties try and provide actual notice by first trying to serve a party to a divorce personally.
TRCP 109a allows a court to order a method other than publication if the different method would be as likely as a publication to give the Respondent actual notice. For these reasons, some courts have allowed service via Facebook.
The Texas Supreme Court said as much in In re E.R., 385 S.W.3d 552, 561 (Tex. 2012). The Court cautioned that "publication should be a last resort, not an expedient replacement for personal service."
What if my spouse will not sign the divorce papers?
If your spouse does not sign the divorce papers, you do not have an uncontested divorce.
In this case, your spouse will need to be served with the papers by a process server. This is an additional expense to hire a process server and have your spouse served.
What if my spouse is in prison or jail?
You will still be able to get a divorce. Your spouse may voluntarily sign the divorce papers agreeing to the divorce. If they do not, it will be necessary for them to be served with the divorce papers at their place of incarceration.
If attempts to serve my spouse do not work, what is my next step?
If a process server cannot serve your spouse, you can petition the Court to either serve your spouse via certified mail or by publication. Serving your spouse by certified mail means that we will mail a copy of the citation and petition to the last known address of your spouse, and that will trigger service.
The other alternative is to serve your spouse by publication, which means that notice of the filing of your petition will be published in a local newspaper or newspaper. Service by publication takes a little longer than the other service methods, as a more extended period must pass before the answer is due.
A default judgment can be entered if your spouse does not file an answer by the answer due date.
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Law Office of Bryan Fagan, PLLC | Houston, 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 essential to speak with one of our Houston, TX, Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the 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 Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, 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.