Suppose that you have made up your mind to file for divorce from your spouse. This was not an easy decision to come to. It came only after much thought and effort which involved thinking through the issues and talking to trusted family members. However, you are now sure that filing for divorce is the best and most logical next step for your family to take. You are aware that potential roadblocks are involved and that the process can take some time. With that said, you are committed to following through and doing what it takes to end your marriage legally.
Your spouse already saw that the marriage ended some time ago from an emotional perspective. This was done by him leaving your home and moving away. Rather than trying to go through counseling or therapy your husband abruptly left the home leaving you with your two children. He has made little effort to reach out to you or your children during this time. No support for your children has been sent and he has missed both children’s birthdays in other family events.
Therefore, you feel confident that a divorce petition should not surprise him. However, you need to know how to move forward in this divorce. On a general level, you know the steps of a divorce. On a more practical level, you need to know where to begin. So, you decide to schedule a free-of-charge consultation with the Law Office of Bryan Fagan. You hope that you can learn more about the divorce process and how to complete it as quickly as possible.
Serving your spouse with notice of the divorce
The attorney with the Law Office of Bryan Fagan explains that the first step to beginning a divorce is to file an original petition. This is the document that introduces the court to you, your spouse, and your minor children if you have any. Once the petition is filed it needs to be served upon your spouse. He has a right to be personally served with notice of the divorce. Therefore, it is explained to you that a private process server or constable must pick up the paperwork from the courthouse and physically hand it to your spouse.
That all sounds good and well but you also have concerns about locating your spouse. Since he has moved out of the house you have not had any contact with him. He left no forwarding address. The children have not seen him. You have reached out to his employer who will not provide you with any information about an address he gave them. In short, you have no firm idea about where your spouse is living. This is a troubling development for you in the context of this case.
The next question you ask the attorney relates to options if you are not able to locate your spouse. You are not even sure if your husband worked at the same company he had while you were living together. With so much uncertainty you have concerns about this divorce moving forward. You even start to wonder if filing for divorce is even worth it currently. Fortunately, the attorneys with the Law Office of Bryan Fagan have walked with other clients through similar situations before.
Alternative means of notifying your spouse of the divorce
Your initial question to the attorney was whether you would need to provide notice of the divorce to your spouse if you could not locate him. After all, it is his responsibility to stay in contact with you, isn’t it? While your spouse leaving the home and providing no forwarding information is not ideal that also does not absolve you of the need to provide him with notice of the divorce. Rather, you learn that there are alternative methods of service that can be used in a situation like this.
One of those alternative service methods is known as service by publication. Publishing notice of the divorce means finding a newspaper in the county where your case is filed and providing constructive notice to your spouse. While this does not guarantee that your spouse will see the notice it provides an opportunity for him to become aware of the pending divorce lawsuit. There is also a public information website which is maintained by the state of Texas where notice must be published.
Another option for your case is known as service by posting. This allows you to provide constructive notice to your spouse of the divorce by posting a notice at the courthouse. However, not every divorce allows for service by posting. Specifically, if you have community property that needs abiding or have a minor child involved in the divorce then service by posting is not possible. The chances of your spouse being informed of the divorce by posting is even less than being informed of the divorce by publication.
Exercising due diligence and attempting to locate your spouse
It is important to keep in mind that you are not able to serve your spouse by publication without first exercising some degree of due diligence. Exercising due diligence in a divorce means that in your case will be delayed to a certain extent. That much is unavoidable when you are not able to locate your spouse. However, going about these steps the right way can certainly help when it comes to completing your divorce in the most time-effective manner possible.
A diligent search for your spouse means working very hard to try to find him. No matter if you are upset with your spouse or have no desire to work with him in the case you must try your best to find him. Looking through public records, hiring a private detective, and reaching out to friends and family. These are all examples of ways that you may show a court that you have exercised due diligence and attempted to locate your spouse. You will need to provide a court with proof of your due diligence. This is usually done in the form of an affidavit.
Once you have completed the affidavit it is time to schedule your case for a hearing. This hearing allows you to make arguments to the court about how the efforts you made were truly diligent and thorough. The court does not expect you to perform miracles. However, the court does expect you to try hard to fulfill your obligation. If the judge agrees you have performed your due diligence, then it will provide you with the opportunity to serve your spouse by publication.
Are there drawbacks to serving your spouse by publication?
Since service by publication is the exception rather than the norm in a divorce, it is reasonable to wonder whether there are drawbacks to this method. Of course, the number one drawback is that the chances of your spouse being notified of the horse are far less than by personal service. Remember that personal service involves your spouse being physically handed the divorce petition and other court documents. There are far fewer opportunities to view a newspaper or website.
Since the likelihood of your spouse becoming aware of the divorce is less with service by publication, he has two years to file a motion for a new trial. That is if you win a default judgment, and he then becomes aware of that judgment he may come back two years later and ask for a new trial. You know the likelihood, that the court will grant his request for a new trial, and you will have to start all over. For that reason, serving your spouse personally is the much better route to take even if it ends up taking you longer than anticipated.
However, if you truly are not able to locate your spouse then service by publication is a fine alternative. It is best to work with an experienced family law attorney during this time. There is a lot that can go wrong in a divorce at the beginning of her case. At the very least, you do not want to risk having your case delayed any more than it already has been. As a result, a family law attorney can help your case get moving toward a speedy conclusion sooner rather than later.
What if your spouse cannot be found?
Here is where the rubber hits the road. If your spouse cannot be located, then you would still have to wait a set amount of time as provided to you by the court. A judge would review the due diligence exercised in attempting to locate your spouse. When the judge determines that sufficient effort has been put forth, he will rule that notice has been provided. Keep in mind, however, that your spouse would have the ability to file a motion for a new trial within two years of the date your judgment is issued.
Once you have served your spouse with notice of the divorce you should begin to draft final orders for your case. These final orders will cover a range of topics related to your case such as child custody and property division. Even if your spouse is not going to be participating in the case you still need to be reasonable in how property is divided. No order created by you can be so one-sided as to be completely unfair to your spouse. If it is, expect the family court judge to ask you to come back later with a different court order.
When your spouse does not participate in the divorce this is otherwise known as a default judgment. Working with an experienced family law attorney in a default judgment case is important. Just because your spouse has chosen not to participate in the case does that mean that you can sleepwalk into any hearing? Rather having your order be ready for review from the judge matters. When it comes to being prepared for a divorce there is no better group of attorneys than those with the Law Office of Bryan Fagan.
What happens if your spouse does respond to your divorce petition?
Your spouse may become aware of the divorce petition having been filed. This may be from word of mouth or even the small chance he sees a notice published in the newspaper. In any event, once he becomes aware of the divorce he would need to file an answer to your petition. Not being aware of the divorce having been filed is different than knowing the divorce was filed and still not participating in the process. When it comes to filing motions for a new trial a court would likely view the situation much differently.
Once your spouse has filed an answer, the case begins to pick up speed. Now you are on a more traditional timeline for your divorce case. Negotiation should begin as quickly as possible between you and your spouse. The first major deadline in a case
revolves around a temporary orders hearing. In a temporary orders hearing you and your spouse would go to court and present evidence regarding a range of issues related to your case. The purpose of a temporary orders hearing is to create orders to govern your behavior during a divorce.
If going to court to have a family judge make decisions for you and your family during the case makes you uncomfortable and know that there are options to pursue. The 1st is to engage in informal settlement negotiations with your spouse. Another option that you should strongly consider is attending mediation. Mediation is one of the best-kept secrets of the divorce process. Here is more information about what to expect in mediation.
Mediation and its impact on your divorce
One of the great misnomers about the divorce process in Texas is that it always winds up in a courtroom. People in your shoes tend to think that there is no way out of a divorce other than going through the courts. However, that is simply not true. Rather, parties just like you can settle their divorce case outside of court with great frequency. One of the major reasons why mediation works is that it eliminates distractions. Focused energy on a shared goal is a major improvement over general negotiating conditions.
Think about all the difficulty you and your spouse have experienced in trying to reach a conclusion on various issues in the case. Exchanging text messages and offers via your attorneys is not a great way to conduct settlement negotiations. We are all prone to distractions from time to time. Work, family life, and social obligations exist. While we can try to block those things out, we can only do so much.
In mediation, you and your spouse (plus your attorneys) physically go to the mediator’s office. You are focused on the goal of settling your case- for temporary orders or final orders. Your mediator is likely to be a practicing family law attorney or former judge. Either person will be able to lend perspective as to how your judge is likely to rule on various issues relevant to your case.
Final thoughts on service by publication
Not being able to locate your spouse at the beginning of a divorce is frustrating. You are already frustrated with your spouse- otherwise, you wouldn’t be going through a divorce. Now that frustration level is escalating. Don’t give in to the frustration by throwing up your hands and giving up. There are ways to move forward in a divorce even if your spouse does not want to cooperate.
Service by publication is one of the main methods courts use to help people in your shoes push forward in a divorce. When you serve someone by publication it helps you pursue a finality to your case. If you are willing to show diligence in attempting to locate your spouse, then a court will consider your efforts. Do not give up. When you stop trying to locate your spouse you do nothing to advance your case. Your divorce- and your life- will continue to be stuck. Help yourself by doing everything you can to locate your spouse and prepare for your divorce.
The attorneys with the Law Office of Bryan Fagan are here to help you and your family. We know the frustration that you are going through. Our office has served many people in your position before. We know how to help your divorce case move forward. We do not simply copy and paste another person’s case strategy onto your own. Rather, we take an individualized approach to helping you prepare your case. We want what you want- to help you move your case, and your life, along,
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.