Let’s say that you and your spouse have been going through the motions in your marriage for many months. Neither of you is particularly happy in the relationship but neither have you been itching for a divorce. You are content where you are. The kids are happy with Mom and dad at home. You don’t want to rock the apple cart too much by pursuing a divorce. The situation you find yourself in may not be ideal, but it is comfortable. Why risk harming the kids and going through a lot of trouble for an unknown result?
However, after talking with some friends and your parents you start to change your mind on the whole “divorce” question. Now you are of the mind that you only have so much time on this planet and to spend much of it in an unhappy marriage would be doing nobody any favors. So, you start to plan for your divorce. You hire an attorney. You begin to come up with some reasonable goals for your case. Paperwork is filed. The case is official. The only thing left to do is to provide notice of the divorce to your spouse.
Notice is an essential part of the divorce process. Your spouse needs to be alerted to the fact that you have filed for divorce to have any legal obligation to respond or participate in the lawsuit. What we are going to discuss today is that notifying your spouse that you filed for divorce is not as simple as calling him or her on the phone or leaving a sticky note on the bathroom mirror. Rather, there is a legal process that must be followed correctly to provide proper notice.
Today’s blog post from the Law Office of Bryan Fagan is an important one given how a fast start in a divorce is important. By fast start, I simply mean avoiding mistakes, getting your paperwork filed correctly, and then starting the negotiation process. If you lose time on these steps from the outset of your case, you may well find yourself losing not only time but money. There are real-life considerations that you take your attention away from when you go through a divorce. The longer your divorce, the more time, energy, and money you must divert from things like your family and your work.
What to do when your spouse avoids the paperwork of a divorce
When we talk about divorce paperwork, we mean an Original Petition for Divorce, a Notice of Temporary Orders Hearing, and a citation. These are common documents filed with the court when you initiate the divorce. The citation will become important because it is the document that goes into the case file notifying the court that your spouse was successfully served on a certain day at a certain time. This is the proof that you and the court need to begin the clock on your divorce.
Once your spouse is served successfully, he or she would have until the first Monday after the expiration of twenty days after service to file their Answer. Failing to file an Answer technically puts him or her into default, meaning that you could file your divorce decree with all of the orders in your favor. This is not a situation that your spouse would want to be in.
In Texas, your spouse has a right to be personally served with notice of the divorce. Being served personally allows your spouse the time needed to think through the issues in your case, hire an attorney, and generally prepare for what the case looks like. The question that we need to deal with today is what could happen if your spouse tries to avoid service.
Avoiding service means that your case will be lengthened. How much longer your divorce would need to go on depends upon how long service is avoided and how quickly a court can rule on whether an alternative method of service will be allowable. What you can do is work with a professional process server to try and make sure that service is effective. For example, you can try to provide the process server with an address and location where you think that your spouse would be unlikely to be able to avoid service.
Throughout the process of attempting to serve your spouse, the process server will update you and your attorney. This will allow the two of you to gauge the likelihood of future attempts at service. If the process server believes that your spouse is close to accepting service, then you will be able to find that out. However, if the process server has attempted to serve your spouse at five different addresses and has been unsuccessful so far then that may be an indication that you all may need to try another method of getting service effectuated.
What is substituted service?
When you are not able to successfully serve your spouse with your divorce paperwork with personal service then you need to consider alternative methods of service. This could be done by filing a motion with the court notifying the judge of your attempts to personally serve your spouse. Typically, the judge would need to conduct a hearing on the matter to inquire about those attempts at service. You can provide additional detail for the judge so that he can better understand what efforts you have undertaken.
In some instances, if you know where your spouse has been living since you filed for divorce then you can notify the judge of that. He can then determine whether it would be prudent to allow you to leave a copy of the petition at that residence. For example, if you could testify to always seeing his vehicle parked in front of a friend or family member’s home then that would be a good indication that service could be effective in this way.
What your process server could do at that point is to stop by that home and leave a copy of the petition on the front door mat, in the mailbox or with any adult who lives in the home. What many people think about at this stage is that unless the paperwork is read and reviewed that service would not be effective. This is not the case. If service is completed it does not matter if your spouse throws away the paperwork or never reads it at all. As soon as the citation is completed by the process server and sent to the court the service will be officially completed for the divorce.
Does it make sense to try and avoid service?
When your spouse tries to avoid being personally served with the divorce papers it could mean a delay for your case. However, that does not mean that he can forever delay or avoid the divorce altogether. We can think about a divorce like a train coming down the tracks. You start the train off on its journey and it is up to your spouse to determine if he wants to jump aboard and go along for the ride. The point is that the divorce will move on regardless of whether your spouse participates.
From your perspective, you need to know that you can obtain a divorce from your spouse even if he does not participate. Once proof of service has been on file for ten days then you can go to the judge with a completed final decree of divorce. What the judge can do at that point is to approve your final decree of divorce. Your divorce would be over at that point. Your spouse could file a motion for a new trial in the future but otherwise, the divorce would be final once the judge signs your final decree of divorce.
What can your spouse do to challenge a divorce that he did not participate in?
Your spouse would have up to thirty days after the date the divorce decree was signed to file a motion for a new trial. Typically, a default divorce is relatively straightforward as far as arguing a motion like this. Your ex-spouse would need to point out that he was never personally served and had no idea about the hearing that occurred where your final decree of divorce was approved.
On the other hand, you would be able to present evidence on that motion for a new trial which goes through all your efforts to have him served personally and the ultimate method that was accepted by the court. Additionally, if you can provide evidence that your spouse knew of the divorce proceedings even incidentally then that will be relevant to the proceeding, as well. If a motion for a new trial is granted, then the divorce would start from scratch. However, a denied motion for a new trial would result in the final decree of divorce signed by the judge previously being upheld.
How avoiding service of process can impact your divorce case
Without a doubt, avoiding the service of the process will have an impact on your divorce case. The fact is that there are issues that will need to be sorted out in your marriage once the divorce case begins. If you pursue the divorce and maintain the case as being active, then you will not have a problem with getting the divorce completed. However, if you become frustrated with the issues associated with service you may be tempted to ignore the case. In that situation, a judge would likely dismiss the case at a certain point.
In the short term, you may have bills and other financial obligations that are not met so long as your divorce cannot proceed. For example, consider a situation where your spouse avoids service, and you are not able to locate him either. If he paid most of the household bills- your mortgage, your utilities, etc., then your household may be in for some difficulties. You would need to either secure employment if you are not working or tap into your savings. Credit cards would be another option but that is not something you could pursue for a long period.
Next, we would need to consider how the delayed divorce impacts your children. This is a major issue in a divorce that would need to get sorted out sooner rather than later. Children thrive on stability and consistency in their daily lives. Stability from the standpoint of knowing where they are going to be sleeping each night and that their daily lives are not going to be disrupted all that much by the divorce. Consistency is knowing that both mom and dad are going to be a meaningful part of their lives moving forward.
However, this is not possible when you consider that your spouse may be avoiding service in the divorce. In not living at home and not being able to be served your spouse may also be making himself not available to spend time with the children. Your children are going to have questions about the divorce and what their future looks like. The type of questions that your children will be asking will differ depending on their age. However, what you can do is help your child understand that divorce is a process and that you will be present for them just as you always have.
What you should not do is overpromise as far as what is to be expected with your spouse and co-parent. For example, you should not tell your children that your co-parent is going to be home soon or that your divorce may be avoided. Telling the kids that your divorce could be over with before long or putting a timeline on the process of any sort can be dangerous. The last thing you want to do is to provide information that may not be trustworthy to the kids. Then they will not know where to turn for information or stability during this time in their lives.
What you can do to avoid a situation where your spouse avoids being served
Ultimately, you will come to find out that there is only so much that you as an individual can do to prepare for a divorce. Problems occur during divorce cases. There are no two ways about it. Even when spouses agree on nearly everything and are not trying to delay or avoid the divorce it is a sure thing that problems will arise. This is especially true if your spouse has indicated that he does not intend to make himself available to be served.
Where can you go and what can you do when this happens? For starters, you can make a promise to yourself that no matter what your spouse does as far as avoiding service this is not going to impact how you approach the case. Your goals may need to be modified or temporarily changed but that does not mean that you should permanently change your attitude. This is true regarding your attorney, anyone working for your attorney, or a member of the judge’s staff if you go to court for a hearing.
It also means that you should not let your spouse’s behavior impact how you approach the case as a parent. You need to be present for your children. This means being physically and emotionally present. The kids may have their lives changed because of the divorce but their relationship with you does not have to change. If anything, your spouse not being in the picture should allow you to further make yourself a part of their lives. Use this opportunity to be the rock of stability in their lives. Your spouse is trying to sneak around to avoid service. All the while you can take the opposite perspective when it comes to being there for your children.
Plan your divorce while your spouse avoids service. There is no doubt that this delay can be used to your advantage when it comes to learning about the process, building a case, and then being ready when you are given the go-ahead from the court to prepare a divorce decree. Remember that once your spouse has been served through substituted service you can head to court in as little as ten days to finalize the case. As long as you have met these deadlines then you can get to a relatively efficient endpoint.
There are so many factors that weigh on a divorce when there is an issue related to service avoidance. When you have questions about getting your case off the ground that is when you need to be able to lean on experienced counsel. The attorneys with the Law Office of Bryan Fagan are equipped to handle this issue and any other that may come your way in a divorce.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody lawsuit.