A divorce case does not truly begin when you interview your attorney for the first time. It does not start at the time you hire the attorney. It still really hasn't started when your Petition for Divorce, the initial pleading in a divorce case, is filed. A divorce truly gets underway when you have notified your spouse that you have filed for divorce. Notice of your claim is done via service of process. Today's blog post from the Law Office of Bryan Fagan, PLLC, will discuss this important subject with you in detail.
Can you file for divorce and proceed without your spouse knowing?
This question may strike you as funny, but I have had clients ask this question before, so some of you may be wondering the same thing. The people who have asked me this question would like to know if they can get a divorce from their spouse without their spouse knowing that a lawsuit has been filed. Their reasoning for this can be based on a fear of their spouse's reaction or an inability to locate their spouse. Either way, the person wants to get a divorce but doesn't want to go through the effort of notifying their spouse.
Unfortunately for these folks, I have to answer them (and you) that notice is an essential part of the divorce process. Your spouse has a legal right to be notified of a pending divorce lawsuit. The papers that you and your attorney file at the outset of your case will usually be served formally upon your spouse by either a private process server or a constable. These folks will go to the courthouse, pick up the completed paperwork and drive to wherever your spouse is and serve them. The server will then report back to the courthouse once your spouse has been done with the service's date/time/location.
Exceptions to the need to serve your spouse with notice of your divorce
As with any issue related to the law, there are exceptions to the notice/service requirement that I laid out in the above section. You do not need to formally serve your spouse with notice of your divorce suit if they are willing to sign a waiver of service. A release of service does what you imagine it would; namely, it waives your spouse's right to be served with notice of the lawsuit. However, they tell the court their information and do not waive any future right to be notified of a court date.
Additionally, if your spouse files an Answer to your Petition without being formally served, they will not have to be served subsequently with notice. Typically, the order a case goes in is: Petition filed, Spouse served with information, Spouse files Answer. In some situations, your spouse could be made aware of the filing by you directly if you were to provide them with a copy of your Petition. If your spouse drafts and files an answer before being served, it is determined that he has been provided sufficient notice.
For today's blog post, we will assume that your spouse will not be willing to sign a waiver of service. The reason is that by signing a waiver of service, both sides understand that their case is uncontested and that all issues related to their divorce have been agreed upon. All that is needed is to wait the required sixty days for the divorce to be finalized and, in the meantime, to get a Final Decree of Divorce ready for the parties' signatures and the judge's.
If your spouse is unwilling or unable to sign a waiver of service, the remaining sections of this blog will detail what you can expect to encounter in your divorce case.
Are there specific documents that need to be served upon your spouse?
So far, I have alluded generally to divorce papers that need to be served upon your spouse, but I haven't been all that specific to tell you the names of the documents themselves. In this section, I will provide you with the particular documents that will need to be served.
First of all, a citation will need to be provided to your spouse. The clerk of your court will ready this document. It gives your spouse legal notice of the necessity to file an answer by the first Monday after the expiration of twenty days after the date that they were served. If a response is not filed, a default judgment can be entered against them, which means that you and your attorney can march down to the courthouse on the 61st day after you filed your Petition and get the judge to sign an order without your spouse having any say-so on its contents.
As we've already covered, an Original Petition for Divorce will be served upon your spouse as well. This Petition is a fundamental, short document that tells the court who you are, your spouse, and any children. The grounds for divorce that you are alleging will be included as well. Any other requests (other than a divorce) should be stated in the Petition. Examples of these requests are things like spousal maintenance and attorney's fees.
Finally, if you are requesting any temporary orders or a hearing on that subject, you must include those documents. Temporary orders are orders that are in effect for the duration of your divorce case until the judge signs off on your Final Decree of Divorce at the very end of your case.
Can you act as the process server?
You cannot serve your divorce paperwork on your spouse in any formal capacity. A court will not give you credit for helping the documents on your spouse because the law doesn't provide that right to you. For the court to mark down in the record of your case that your spouse was successfully served with notice, you must hire a process server, constable, or sheriff to help those papers upon your spouse.
The methods of service that are allowed under the law
There are multiple methods by which you can serve your spouse's notice of your having filed for divorce. However, it is essential to be aware that not all plans are created equal. I will begin to go through the different options available to you under Texas law and will continue to list and detail them in tomorrow's blog post.
The most preferable and common method of providing service to your spouse in your divorce is personal service. We have been discussing this method for the lion's share of today's blog post. Just to put a bow on this subject, your process server or constable will personally deliver the paperwork you have filed to your spouse and will complete a Return of Service to be filed with the court—the return of service details there where and when and of how your spouse was served.
Interested in finding out the additional methods that service can be completed in Texas? Head on back to our blog tomorrow to find out more
There are many other ways you can legally serve your spouse with notice of your divorce lawsuit, and we will detail those in tomorrow's blog post. Thank you so much for being so interested in reading today's post.
If you have any questions about what you've read, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free consultations with our licensed family law attorneys six days a week. We take great pride in meeting with and helping the people in our community. It would be an honor to meet with you to discuss your case and how we may assist you and your family during this stage in your lives.