In yesterday’s blog post we details the steps that are involved with providing notice of your divorce lawsuit through a process called service. This is not a complicated topic but it is very important to your case. Because of its importance I recommend that you go back and read that post if you have not already done so.
Now that you have learned the ins and outs of personal service in a Texas divorce case we can begin our discussion on the other methods of serving notice to your spouse that you have filed for divorce from him or her. The important thing to keep in mind is that service is all about letting your spouse know what you are doing and providing him or her with an opportunity to respond with an Answer to your Original Petition for Divorce.
The entire process that I outlined yesterday and will continue to detail today can be done by yourself but it is recommended that you hire an attorney to walk you through the process and to do the lion’s share of the work him or herself. A pretty effective persuasive technique that I share with the folks who come into the Law Office of Bryan Fagan, PLLC for a free of charge consultation is that many of our clients started out representing themselves- until they discovered that the process was too time consuming or difficult to continue on their own. Also, consider that any mistakes you make along the way will cost you time and possibly money.
To learn more about divorce, service or to get answers on questions you encounter after reading today’s blog post please contact the Law Office of Bryan Fagan, PLLC for a free of charge consultation with one of our licensed family law attorneys.
Servicing divorce papers by registered or certified mail
While personal service is what is considered “best” by courts, you are able to serve your spouse with notice of your divorce in other ways as well. One of those methods is via the mail with a return receipt requested of having served him or her.
Essentially, the clerk of your court will mail the divorce paperwork (Petition for Divorce, Temporary Orders and Citation) to your spouse by certified mail, return receipt requested. Service will be successful in this method if your spouse receives the paperwork and returns the receipt with their signature included to the sender of the documents. The clerk of your court will then complete a Return of Service form that details when/where your spouse was served. That return of service will then be filed with the other documents in your case file.
Keep in mind that while this method may seem “easy” in practice it rarely is. The reason being is that you must be absolutely sure that your spouse will actually sign for the certified letter. Many times another person can pick up the letter and toss it aside or even in the trash, never to be found. If your spouse’s brother or roommate or co-worker signs the receipt and sends it back this will not count for effective service. The bottom line is that you can waste a great deal of time waiting to receive word back from the court hat your spouse was served.
Substituted service through a Court Order
In some instances it is not possible or practical to serve your spouse with notice of your divorce filing via personal service or certified mail. For example, if your spouse resides outside of the United States or if you do not know where your spouse is geographically it would be impossible to send a process server out to locate him or her without more information.
In situations like this you can petition the judge of your court for permission to serve your spouse with notice in other ways. To get this permission, however, you usually will have had to exhaust every resource you have available to you in serving him or her personally. This means doing research as to where he or she is, contacting family and friends of your spouse and having a process server attempt to serve him or her at their last known addresses or work locations.
Your request for substitute service must be included with an affidavit that details your attempts at serving your spouse personally. In the event that you do know where your spouse lives or works, but you just haven’t been able to personally serve him or her at those locations, the judge can agree to allow a process server to leave a copy of the divorce papers with anyone at that residence over the age of 16. This is the most common alternative method of service when you know where to locate your spouse.
Posting notice and Service by Publication
Two lesser utilized methods of service of your spouse are service by posting and service by publication. The reason that these methods are less utilized is that the chances of providing your spouse with actual notice of the divorce are very low by either method. The law allows constructive notice to be completed via these methods but this is basically hypothetical notice that is provided to your spouse. Basically, it could be argued that your spouse managed to come across the petition posted on the courthouse steps or in the newspaper for their area. It is very unlikely that actual, real notice has been provided to the extent that your spouse will be made aware of your having filed for divorce.
A key distinction to draw is that service by posting is usually only allowed by judges in the event that you and your spouse do not have any children together. A service attempt by publication is needed when you have children with your spouse. The reasoning here is that it is more likely that your spouse will be provided with actual notice by having your petition posted in a newspaper since theoretically it could be accessed on your spouse’s driveway or at a corner store. Unless your spouse finds him or herself at the courthouse it is likely that posting there would alert your spouse to anything going on related to a divorce.
What to do with the rest of the documents you file in your divorce?
Once you have served your spouse with notice of your divorce petition and the court has given you credit for having done so you do not have to go through all of these steps when you file additional documents in your case. The remaining documents can be served by you sending them directly to your spouse or to their attorney via email, fax or hand delivery.
At this stage, it is likely that you will have hired an attorney to represent you in the divorce and your spouse will have done the same. The practice of most family law attorneys is to file documents electronically as it is required by many counties in Texas. The electronic filing platform allows your spouse’s attorney to be provided a copy of the filing so additional steps do not need to be taken in order to provide notice of other documents having been filed. In our office, if documents are filed or provided to opposing counsel our client is then provided a copy as well to review and ask questions about if necessary.
Can’t locate your spouse? Come back to our blog tomorrow to read more about this subject
As it happens, you may find yourself in a position where you do not know where your spouse is at the moment you file for divorce. We touched on this possibility in today’s blog but in tomorrow’s blog post we will cover the topic in much greater detail. The options available to you as well as the methods you can undertake to locate your spouse will be covered as well.
If you have any questions about the topics that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We proudly represent our clients across the courts of southeast Texas and would be privileged to be able to speak to you about how we can help you as well.