Let’s assume that you and your spouse have been going some rough past few months in your relationship. If it’s not one thing, it’s another when it comes to problems that you have been experiencing. Your finances have been in trouble since you lost your job. Your spouse won’t work with you on a budget. Your kids have been getting into trouble at school and you all can’t agree on what to do about it. On top of all that, your spouse has suspected that you are cheating on her with a woman from work. Not good times in your home and the end doesn’t seem to be anywhere near.
You were not surprised to get a phone call from your spouse a few days ago that she has hired a divorce attorney and is in the process of filing for divorce. She has told you that she wants to be amicable about the whole process and that for the sake of the children she hopes you will work with her on the divorce. While you understand that your marriage has been struggling in recent years you are not of the opinion that a divorce is necessary. If you could get a little more time then you are sure that the two of you could work out your problems together.
Without consulting with an attorney you leave the family house and move in with a friend. It’s all temporary, you tell yourself. Maybe you could even talk to her new attorney and see if she would talk some sense into your wife. Nobody would want a couple to get divorced if it could avoided, right? Then you get another phone call from your wife telling you that a process server is on his way to the house where you are staying. She wanted to avoid serving you with the divorce papers at work so she provided her attorney with your current address. She tells you that you can expect the process server to be there in about twenty minutes.
You have a decision to make. You can either accept the divorce papers and move towards a divorce sooner rather than later, or you can take some time to develop a game plan to save your marriage. You choose option two and out the door you go. You ask your friend to not answer the door for the process server. You head out the door minutes before the process server arrives. The decision to avoid being served with divorce papers has been made.
In today’s blog post from the Law Office of Bryan Fagan I would like to share with you some information on what it means to purposefully avoid being served with the divorce papers that have been filed against you by your spouse. Does it even pay for you to do so? How long can you actually avoid being served? Can the divorce go on without you if you don’t participate in the lawsuit?
What are you avoiding, anyways?
If you are hiding out somewhere in order to avoid being served with divorce papers you may as well learn what it is that you are avoiding in the first place. An Original Petition for Divorce, Citation, and Notice of Hearing for Temporary Orders are likely included in the “divorce papers” that your spouse is attempting to serve you with. The Original Petition introduces the lawsuit to the court, identifies the parties and tells the judge if your spouse is alleging any fault grounds for divorce. The citation will go back to the court as proof that you were served at a certain time and date. The notice of hearing and proposed temporary orders tell you that your spouse has requested a hearing date to have temporary orders established for the pendency of your divorce.
You have a right to be served personally with the divorce papers. You will then have notice of the divorce and can hire a lawyer to file an Answer and allege whatever you would like to in a counterpetition for divorce. Know in advance that you can stand by your feeling that the divorce is unnecessary and unwanted as far as you are concerned. However, all it takes is for your spouse to file for divorce and it will happen. Your spouse does not have to prove anything as far as why the divorce is justified. So long as she files the paperwork and follows the process she will get her divorce.
What you are doing by avoiding service of the divorce papers is delaying the inevitable. You can run to the ends of the earth and hide from society for the rest of your life. However, you will find that while you are hiding your spouse was likely able to get the divorce that she is seeking. Yes, divorces can be contentious. Yes, they can be completely unpleasant. Yes, they can even be expensive. However, it is best for you to participate rather than to sit on the sidelines. More on that later in today’s blog post.
By avoiding service of process, one thing that you are doing is delaying the end of the divorce. Whether you start participating in the process or not you are making the divorce take longer to complete than it otherwise would have. Maybe you don’t care about this since you don’t plan on ever allowing yourself to be served. However, your delaying the divorce cannot go on indefinitely. There are alternative means of having you officially served even if you are never handed or made aware of the divorce in any official capacity.
What happens after you avoid service for a few weeks after the petition is filed?
If you avoid service the next steps in the case will likely be determined by the judge. Let’s put ourselves in the position of your spouse and their attorney. Once the petition is filed and prepared by the clerk of the court for service, your spouse will hire a process server to head to the courthouse and pick up the paperwork for service upon you. Your spouse will give the process server the address where you are likely to be found for service.
Your spouse may call you ahead of time to tell you that you are going to be served, but I wouldn’t bet on it. Most of the time your spouse will want to catch you by surprise so that you can’t avoid being served. If you were hanging out in your underwear at your friend’s house it would be harder to make a hasty getaway had your spouse not phoned you ahead of time to tell you that you were about to get served with divorce papers.
So, while you avoid getting served your spouse and their attorney are getting updates from the process server on all their attempts to serve you. Eventually those attempts at service will become an affidavit of due diligence showing a judge that, yes, your spouse attempted numerous times to personally serve you with notice that the divorce has been filed. The process server will eventually sign the affidavit telling the judge that he attempted to serve you on multiple occasions and was unable to do so.
Substituted methods of service
If your spouse cannot personally serve you with divorce papers then she must go to the court and tell the judge about her efforts to do so. The affidavit that was filled out by the process server will be included along with a motion to have you served with a substituted method of service. There are multiple ways to do this. The most obvious one would be to have a copy of the petition with the citation left at the residence where you are staying. If, for instance, you told your ex-spouse that you were staying at the friend’s house and your car has been seen there every day for the past month it’s likely that the judge would allow your spouse to serve you this way.
The process server would come by the house, leave the petition on the door step, in the mailbox, or with your friend. At that point, it is inconsequential whether or not you actually read the paperwork, learn what your spouse is alleging and any other details of the case. All that matters is that the process server follow the instructions of the court and then report back to the judge with a citation showing that the method of service ordered by the judge was followed by him. Once that is accomplished, service will have been perfected and the divorce can proceed.
Other methods of service would be to have the divorce petition posted on the bulletin board outside of the courthouse or in a newspaper or other publication in your area. Actual knowledge of the lawsuit is not necessary for service to be achieved. Once you have been served you at a significant disadvantage.
Your spouse can now get a divorce via a default judgment
Your plan to avoid service was ostensibly put into motion in order to avoid getting a quick divorce so that you could work with your spouse on your marital issues. You may not have known that your spouse can get a divorce with or without your participating in the lawsuit. Now that you were “served” and that proof of service has been on file for ten days, your spouse can move to get a divorce.
First things first, she needs to have a final decree of divorce drafted. The final decree of divorce contains all of the court orders that a judge will sign off on and you and your spouse will have to live under. Issues primarily dealing with your children and your property are handled within the final decree of divorce. If you had chosen to participate in the divorce and not avoid service you could have at least been at the negotiating table when the terms of your divorce were determined. Now your spouse can come up with her own final orders and submit them to the judge without your having any say so.
This is known as a default judgment. Your spouse will need to file paperwork with the court in advance of a default hearing with the judge. She will need to show that you were served, that proof of service was on file with the court for at least ten days prior to the hearing and that a final decree of divorce had been made available to the court prior to your hearing date.
The end result is that any relief that you sought within your original petition for divorce can be granted in your favor. The court will likely grant the divorce, approve the language contained in the final decree of divorce and sign off on the document. You are left without any say in the matter.
What options do you have to contest a default divorce?
You have thirty days from the date that the final decree of divorce is filed in order to file a motion for new trial. Not being personally served with the divorce petition and having no knowledge of the proceedings is typically a good way to have the motion for new trial granted. However, if your spouse can produce evidence that you purposefully avoided service and had knowledge of the divorce proceedings the entire time it could happen that your motion for new trial is denied. At that point the divorce will be upheld.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in this 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 here in our office. These consultations are a great opportunity for you to ask questions and receive feedback about your particular circumstances. Thank you for spending part of your day with us today here on our blog. We hope that you will join us again tomorrow.