When you are attempting to file a court case that involves the other parent to your child it is necessary for you to provide notice to that parent. Simply put, you must tell that person what you are trying to do. If you never provide proof to the court that you provided that notice to the other party then your case can have no legal effect. You can file your case and have it on record in the courthouse, but until the other party is served you will not be able to do anything with your case.
Most of the time you can tell your attorney where to find your opposing party and a private process server or constable can have him or she served at that location. This is called personal service and it is the preferred method of service for courts across our state. The opposing party is provided with actual notice of the lawsuit, as opposed to constructive notice which means that it can be legally assumed that notice was provided when a court cannot be absolutely sure that notice actually was provided.
The point is that you need to be able to alert your opposing party to the filing of a lawsuit in which he or she is listed as a party. If you are filing a divorce, child custody case, or paternity cases you must serve the other parent in order to provide notice to him or her. This is a critical step in the process. If done improperly, or not done at all, it can severely hinder and delay your case.
If you cannot locate your opposing party to serve him or her there are options available to you under the law in Texas in order to provide legal notice to that person in the event that you want to file a family lawsuit. In today's blog post from the Law Office of Bryan Fagan, we will discuss a few of those options with you and how you can take advantage of them.
Notice provided via Service by Publication
The first alternative method of service that I would like to discuss with you today is called service by publication. This method can be implemented by having the notice of your lawsuit published in newspaper, magazine or other publication that has a readership in the area where you believe your opposing party resides.
However, it is not as easy as contacting the Houston Chronicle and asking them to publish your notice on the front page of the paper the second you have trouble locating your spouse or opposing the party. There are some steps you need to take to get to the point where you can serve via publication. We will discuss those steps now and provide some tips for you to get past them as quickly as possible.
Looking for your opposing party- what do you have to do?
A reasonable question to ask at this stage is how hard do you actually have to look for the opposing party? If he or she is purposefully hiding from you in order to make service difficult then it can be assumed that he or she will not cooperate with you whatsoever. In that case, you must first make what is known in the law as a diligent effort in searching for that person. This does not mean opening up your bedroom window and shouting the person's name. Rather, you must go through a more exhaustive search. The reason being is that you will eventually have to satisfy a judgment in getting him or her to allow you to serve your opposing party by publication.
Here are some of the basic requirements that come to mind. First, you must show the judge that you cannot find the person. This means that you don't know where the person lives and do not know where the person works, either. Phone numbers, email addresses or other ways to contact this person must also be unknown to you.
Next, you must have sought out other people that would possibly know any information that could lead you to find out where your opposing party is. You should keep track of the person’s name, their relationship to your opposing party and what that person told you.
Any attempts at serving the opposing party personally must be made known to the court as well. Finally, contacting the person’s previous employers, looking up their social media whereabouts as general internet search results would all be helpful to a show a judge that you performed the basic due diligence required.
Finally, a special requirement for the military must be satisfied as well. You must have shown that you searched for the person via the military’s Department of Defense website and requested confirmation that your opposing party is not an active duty member of the military. Similarly, you must be able to show that you searched the Texas Department of Criminal Justice to confirm that the opposing party is not incarcerated at this time.
The basic rule of thumb is this: you must show a judge that you really wanted to find the person. Only doing a few of the above steps is going to insufficient. You ought to really go through all the trouble of attempting to service him or her personally. If you fail, you can always show the judge that your best efforts went empty-handed. If your bank or serving a person by publication and do not go through all the trouble of the steps above it could delay your case as the judge may deny your request to have service performed by publication.
What are the downsides to having a person served by publication?
The first downside I can think of when it comes to serving a person by publication is that you may not actually provide notice to the other person that you are filing a lawsuit against him or her. What this allows that person to do is file a motion for new trial up to two years after a decision was issued by the judge. This is a long time to have your result hanging in limbo.
Also, the opposing party in your case could attempt to show the judge that you did not look hard enough for him or her. Suppose that there was something relatively simple that you overlooked in your search for him or her. If that method of tracking someone down- whether it is a public phone number, an email address listed on a website or even a Facebook profile that you did not pick up on, that could potentially ruin your chances of having the service by publication upheld years down the road. A motion for a new trial could be granted for a number of years down the road as a result. Imagine being a decade after the time you were granted a default judgment divorce due to your spouse having been served by publication and not issuing an answer. If your spouse were to somehow find out about the judgment and come back with a motion for a new trial to contest the results, that would probably be among the most frustrating things that could happen to you.
Is it necessary for you to hire an attorney to represent you in a case that involves service by publication?
All other things being equal, it is usually a good decision to have an attorney representing you in any kind of legal case. The fact is that you don’t deal with this subject matter in your daily life. An attorney is duty bound to provide you with advice that can assist you to the best of their and their profession’s ability. This means that your attorney must be able to advise you as well as the average attorney practicing in that field. Even inexpensive and inexperienced attorneys must provide you with a certain level of care.
Even if you don't hire your own attorney, the court will appoint an attorney to look for your spouse after you file a motion to have him or her served by publication. This attorney is known as an attorney ad litem. The attorney ad litem will conduct their own search for the other parent in addition to what you have already done. Their job is not to step on your toes, but to protect the other party to have a legal proceeding occur without notice to him or her. The court will likely have a number of attorneys ready to provide you so that one can be chosen to conduct this search.
How is service by publication actually performed?
You will need to first submit a request (called a motion) to the court to allow for you to serve the opposing party by publication in your divorce, child custody or paternity lawsuit. The court would set a date to hear your motion, appoint an attorney ad litem to attempt to locate the person and then would ultimately sign an order that allows for your service by publication in the event that nobody can track the person down.
Once you have your order from the judge, you will need to go to the clerk of your court and alert him or her to the fact that you need to have the person served by publication. A notice would be provided via citation from the court and published in a newspaper, magazine or other widely read/subscribed to publication in your area. Whichever person actually sends the citation into the publication will fill out a return of citation that certifies to the court that notice had been provided via publication and the date that the notice was published.
Wrapping up your case once the publication is achieved
You will need to wait approximately ten days (at least) to show up in court with a copy of the final orders in your case. The proof of service by publication must have been on file for at least this long for you to get what is known as a default judgment in your family law case. The orders need to be filed ahead of time with the court but you can bring a hard copy to the courtroom as well. Any paperwork that you filed with the judge ahead of time should come to court with you as well.
The final orders in your case will look like anyone else’s who went through the normal steps of serving the opposing party via personal service. The only difference will be your orders were drafted by you and have not been approved by the other side. You can hire an attorney to draft final orders for you if that is what you want to do. It will cost more money to have that attorney attend court with you as well.
A short hearing will be held on your judge’s uncontested docket that shows him or her that proof of service has been on file for a long enough time to conclude your case and that all required documents have been filed ahead of time. Once you go through the order with the judge he or she will grant the relief that you have requested and sign the document. Your case will be done- at least until a motion for new trial is filed.
Questions about service by publication? Contact the Law Office of Bryan Fagan
If you could not tell, getting a motion to serve someone by publication can be quite tricky. Even once you get past that point it is still not very easy to handle this type of case on your own. It can take much longer than an average custody or divorce case since the steps required of you are more in-depth and complicated.
In the meantime, if you have any questions about this subject matter please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with our licensed family law attorneys. These are a great opportunity to ask questions and receive direct feedback on your particular circumstances.