In the event that you are pondering whether or not to file for divorce it is also likely that your marriage is in bad shape. That may be the understatement of the century or about the least profound statement made on a lawyer’s website ever (and that’s saying something). You and your spouse may have had some knock down, drag out fights in your day over a myriad of subjects. Odds are decent that one of you has told the other that you never want to see that person ever again. Sound familiar?
If this is you then you are not alone. Divorces are much more common now than they were in generations past. What you maybe did not expect to encounter was literally never seeing your spouse again. It was a wish that you made in the heat of the moment and for a while you really didn’t mind not seeing your spouse. You were able to go about your business normally without the stress of seeing your spouse. Now that you actually want to move on officially from your marriage you’ve encountered a problem- how do you start a divorce when your spouse is nowhere to be found?
The attorneys with the Law Office of Bryan Fagan, PLLC would like to share some bits of advice with you on the subject of serving notice of a divorce on a spouse whom you cannot locate. It may seem like a hopeless and frustrating situation that you find yourself in but do not fret- our attorneys can guide you through a successful divorce no matter what your particular circumstances may be. That process starts by reviewing this blog post and walking with us as we explain this important issue in greater detail.
Should you even bother getting divorced if you cannot locate your spouse?
Ultimately this is a discussion that only you can answer for yourself. An attorney can advise you of the legalities that are related to either remaining married or getting a divorce from your spouse but we cannot tell you definitively that you need to try and reconcile or get a divorce from your spouse. Only you can make up your mind on that subject. However, an attorney with family law experience can help you contextualize the issues and help you to plan out how to get your divorce started on the right foot.
Keep in mind that just because your spouse is not physically in your home with you any longer does not mean that you are no longer married to him or her. The fact is that as a married person, unless you have a will stating otherwise, your spouse will stand to inherit any assets from you instead of other family members, friends or charities of your choosing. If you have been on bad terms with your spouse for some time and have not seen him or her in months or years it is probably the last thing you want in the world for him or her to stand to inherit significant sums or money or property from you upon your death.
Secondly, if your spouse is away from you and taking out debts in their name it is a possibility that you become responsible for those debts. This can be done legitimately through your spouse listing your name on an application for a loan or illegitimately through using your name and social security number without your permission. Either way, allowing your spouse an opportunity to do so prior to filing for divorce can cause you headaches at the very least and significant financial harm at the most.
Finally, consider your age when deciding just how speedy your divorce needs to be. If you want to begin to take out retirement benefits you may need to get your spouse’s permission first. Second- consider the situation if you want or need to sell your home. Most title companies in Texas will not allow a sale to go through unless it has your and your spouse’s signatures on closing documents. For these reasons, you probably do not want to wait around for your spouse to turn up before filing for divorce.
Actually getting a divorce from a spouse when you don’t know where that person is
As long as you have been a resident of the state of Texas for the preceding six months prior to filing for divorce, and a resident of the county that you are filing in for the preceding three months then you can file for divorce in Texas. The State is said to have jurisdiction over you. All you need to get a divorce is for the state to have jurisdiction over at least one of you.
While the method of serving your spouse (known as a the respondent in the legal world) that is most tried, true and preferred is personal service, there are other methods to consider. For the sake of clarification, personal service is when you hire either a private process server or a constable/sheriff to pick up divorce petition, citation and other documents from the courthouse once they have been filed and have them physically delivered to your spouse. Other methods of service that can be utilized are service by publication or service by posting the citation and petition to the courthouse steps.
If your spouse is a resident of Texas (as best you know) then a Texas family law court can issue orders in conjunction with a divorce that divide up personal property, real property and any other property that is a part of your community estate. Keep in mind that courts can also issue orders on these subjects even if your spouse is not determined to be a resident of Texas. All that a judge would need to get to this point is a determination that Texas is a state with which your spouse has had significant past contacts. Getting married in Texas, doing significant business in the state and having children that your spouse visits here are the sort of significant contact that a court would be looking for.
Service by publication
If you state to a judge that you cannot locate your spouse for service purposes he or she will likely tell you to keep trying to locate him or her. The reason is that courts need you to display due diligence in attempting to locate and serve personally your spouse with divorce papers. You cannot simply call your husband’s mother and ask her where he is living. You will need to show a judge (often through an affidavit) all of the effort that you have undertaken to locate your spouse.
Once you have done so most judges will appoint an attorney ad litem to the case whose sole job is to attempt to locate your spouse. The judge will request periodic updates in hearings to inform him of the progress (or lack thereof) on locating your spouse.
Once the judge is satisfied that all reasonable steps have been taken to locate your spouse then he or she will issue an order that allows your spouse to be served via substituted service. Often times this is in the form of service by publication. Your court’s clerk will contact a newspaper or magazine that will print a notice of the lawsuit for your spouse to theoretically see and be provided notice of your case. This is called “constructive” notice as opposed to the actual notice he or she would receive if they accepted personal service of the divorce paperwork.
It is not easy to divorce a missing spouse- seek help from an experienced family law attorney
There are a lot of steps that go into serving a spouse whose whereabouts you do not know. What I have discussed today is a just a fraction of the relevant information that is important in a case like the ones that we have talked about.