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What should you do when you want a divorce but can't locate your spouse?

It’s 5:00 on the day that you file your Divorce Petition. Do you know where your spouse is? If you find yourself in a position where you want to get a divorce and in fact have already filed to get the divorce you seek you will need to provide your spouse with notice of your having filed for divorce from him or her. The problem of not having any idea where your spouse is can create a huge void in your case where you may not be able to proceed with your case as quickly or efficiently as you would like.

The reasons why you may not know where your spouse is can be varied. Many spouses flee their marital home due to domestic violence having occurred against him or her. Still others fear for the safety of their children and leave the home as well. Still others find themselves in a marriage that is not fulfilling and just decide to pick up and move in with a relative or friend rather to stay in a relationship that is not what he or she believed it would be. If your spouse were to move locations, change their phone number or otherwise make communication difficult you may go years between ever hearing from him or her.

Where does that leave you when you finally decide to get a divorce? Are you even able to get a divorce if you cannot locate your spouse? Today’s blog post from the Law Office of Bryan Fagan, PLLC will detail this subject for you. Before moving forward with your divorce case take a look at this information and hopefully you will find that it is helps you create a game-plan for your case.

When your spouse is gone what can you do to get a divorce in Texas?

A divorce does not have to be a mutually agreed upon solution to a failing marriage. In Texas, all you need to do to get a divorce is to want a divorce- for any reason at all. I always tell folks the reasons can range from “my spouse hits me,” to “my spouse chews their pork chops too loudly.” Whatever the reason you can get a valid divorce in Texas. However, the devil (as he so often is) is in the details when it comes to divorce.

If you cannot track down your spouse that is a potential problem in your divorce. The reason being is that Texas law requires that your provide your spouse notice of your divorce petition having been filed. It is not your spouse’s responsibility to check with you periodically to see if you still want to be married. No, you must take the initiative and provide him or her with notice of your having filed. If you have read the past couple blog posts from our office then you know that there are multiple ways to provide notice in Texas.

Service by publication comes in handy if your spouse goes AWOL

Suppose that you cannot find your spouse in order to provide him or her with personal service of your Divorce Petition. How would you go about serving papers upon him or her? Service by Publication is the likely method that you would attempt to employ after getting permission from your court to do so.

You must provide a sworn statement under oath (otherwise known as an affidavit) along with your Motion for Substituted Service to the judge and request a hearing date to present your arguments as to why service by publication should be allowed in your divorce case. It must be shown that you have attempt to serve your spouse personally. Any research that you have done as to where he or she might be must be included. Failed attempts by process servers and/or constables to serve your spouse should be noted as well.

Basically your judge will not want to allow service by publication unless it is an absolute last resort that must be made available after multiple unsuccessful attempts to serve him or her personally. It can take weeks and more likely months to work your case up to a point where service by publication would be allowed.

Attempt service by certified mail first

If you have any information about where your spouse may be residing or working your best bet may be to attempt to serve him or her with notice by certified mail. The clerk from your court can send a certified letter to your spouse providing him or her with notice of the divorce lawsuit. Keep in mind that service can only be completed using this method if your spouse signs and returns the receipt that is included with the certified letter. He or she could hypothetically read the notice, throw it away and not return the receipt to the clerk via mail.

If this method is unsuccessful and you and your spouse have no children then you may be able to request the judge for your petition to be posted to the courthouse steps as means to constructively serve him or her with notice of the divorce. This is typically only allowable if you and your spouse have limited amounts of property at stake as well. The reason being is that the likelihood that your spouse comes across this posting is basically zero so he or she will not be given any notice of the divorce proceedings in all actuality.

How can you show a court that you have been diligent in searching for your spouse?

A judge is not going to grant your request to serve your spouse by publication after one failed attempt at personal service or after a Google search revealed no information on the whereabouts of your spouse. More effort will need to be undertaken by you and your attorney first. The law in Texas refers to this effort as a diligent search.

A good faith, diligent search means that you must have expended some time, energy and money into locating your spouse. Remember, your judge prefers above any other option to have your spouse provided with personal, actual knowledge of your divorce petition. This allows him or her the best opportunity to respond with an Answer and to protect their rights.

To show a judge that you have been diligent you must detail in an affidavit and in your testimony that you have checked for any forwarding addresses left with employers or the post office for your spouse. In addition, if you have contact information for friends or relatives of your spouse you must have attempted to locate him or her through those resources. The internet is full of resources where you can put in a person’s name or social security number in order to locate their last known address and other information. Consider attaching these print outs to your petition for substitute service.

Finally, you need to verify that your spouse is not an active duty member of the United States Military and is not incarcerated in Texas. This information is readily accessible online.

Getting credit for your having served your spouse by publication

Once the judge has approved your request to serve your spouse by publication you should send in notice to the newspaper or magazine of what needs to be posted. Once this is done the publication’s editor will send back to your court proof of the posting. Your spouse is for all intents and purposes legally served with notice at this state and your divorce can proceed.

Questions about service by publication? Contact the Law Office of Bryan Fagan, PLLC

If you have any questions regarding the information that we have covered today please consider contacting the attorneys with the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with our licensed family law attorneys where your questions can be addressed and answered. From Channelview to The Woodlands our attorneys and staff take a great deal of pride in providing legal services for the people in our community. Thank you for your interest in this topic and in our office.


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