If you want to get a divorce but cannot locate your spouse, you may be able to get a divorce by publication in Texas.
Texas allows divorce by publication if a judge has certified that you have tried diligently to find and contact your spouse but have been unsuccessful.
Here, we discuss how to use service by publication in Texas if your spouse has moved and you cannot locate them.
What Is Divorce by Publication?
In the majority of Texas divorce cases, one spouse seeks a divorce by filing the appropriate forms with the court. Next, the spouse who is filing for divorce must let the other spouse know about the divorce action. This is done by providing the non-filing spouse with a copy of the petition for divorce and all other divorce papers.
Giving these papers to the non-filing spouse is called service of process. The filing spouse, the sheriff, or a hired process server can all complete service of process. Courts strongly prefer personal service, which is when someone hands the divorce papers directly to the non-filing spouse. Service by publication in Texas is a last resort.
You can pursue divorce by publication in Texas when the non-filing spouse cannot be located. After complying with court rules on divorce by publication, the spouse seeking a divorce can publish a notice of the divorce in a newspaper in the locality where the divorce proceeding is taking place.
This is called service by publication. If the missing spouse does not respond within thirty days, the filing spouse can proceed with the divorce hearing. The court will then enter a default judgment in favor of the filing spouse. This judgment enforces the divorce terms stated in the petition for divorce.
How Does Divorce by Publication in Texas Work?
Service by publication in Texas is permitted only after other forms of service—such as personal service and service by certified mail—have failed. In some cases, service by posting a notice in the courthouse may also be possible.
Texas courts permit service by posting if the parties seeking a divorce have no children and have total property below a certain value. Higher asset divorce cases and divorce cases involving children require divorce by publication if one spouse cannot be located. Divorce by publication in Texas has several steps.
DILIGENT SEARCH
Before permitting service by publication, Texas courts require the spouse seeking a divorce to try diligently to locate their ex. This diligent search effort should include:
- Checking the missing spouse’s last known address to see if they still live there;
- Asking the missing spouse’s family and friends if they know the spouse’s new address;
- Checking the post office where the missing spouse used to live for a forwarding address;
- Checking the post office and directories in any areas where the missing spouse may be living;
- Searching websites such as addresses.com for the missing spouse’s location;
- Contacting the Texas Department of Criminal Justice via phone or online to see if the missing spouse is in prison; and
- Taking any other search measures that make sense under the circumstances.
If the divorce-seeking spouse still cannot locate their ex, they may file an affidavit of diligent search. The affidavit of diligent search describes all of the efforts that the filing spouse made to locate their ex.
FILING
The petitioning spouse must file the following papers before they can publish a notice of divorce:
- Affidavit of diligent search, which describes the filing spouse’s search efforts;
- Affidavit for citation by publication, which asks the court to grant permission for a divorce by publication and states that the petitioning spouse attempted personal service;
- Certificate of last known address, which states the missing spouse’s last known address;
- Service members affidavit, which states that the missing spouse is not in the military (a spouse cannot initiate a divorce case against a deployed military member without a court order); and
- Statement of evidence, which requests division of marital property as the petitioner suggests in the petition for divorce and offers evidence supporting the suggested division.
PUBLICATION
After filing the proper papers with the court, the spouse seeking a divorce can publish a notice of the divorce in a local newspaper in the district, city, township, etc. where they filed the petition for divorce.
A member of the newspaper staff provides a return of citation. This certifies that the paper published the notice in a publicly circulated edition of the newspaper. The return of citation is also filed with the court.
If the missing spouse does not respond within thirty days, beginning with the date of notice publication, the spouse seeking a divorce can petition the court to set a hearing date for the divorce. At this hearing, the court will award the petitioning spouse a default judgment. The judgment will most likely affirm the divorce terms stated in the petition for divorce.
What Else Should I Know About Service by Publication in Texas?
While it may seem like an easy, conflict-free way to finalize a divorce, divorce by publication in Texas has some drawbacks.
Even after the court enters a default judgment against a missing spouse, the missing spouse can ask for a new hearing within two years of the judgment date if the filing spouse served them by publication. Service by publication in Texas could leave your divorce case up in the air for much longer than you would like.
In addition, if the missing spouse asks for a new hearing after receiving service by publication in Texas, they must have an attorney appointed at the final hearing. The spouse that published the divorce notice is responsible for the related attorney costs.
If you want a divorce in Texas, it is important to do everything you can to locate your spouse. See if they will agree to an uncontested divorce, or personally serve them with divorce papers.
If you have no other option but to begin a divorce by publication in Texas, you should contact an attorney to guide you through the process and make sure you follow all relevant court rules.
Contact An Experienced Austin Divorce Attorney
Knowing when to begin a divorce by publication and conducting and documenting a diligent search can be easier with the help of an experienced divorce attorney. Ben Carrasco is an Austin-based attorney with experience handling all types of family law matters. Mr. Carrasco has built his reputation on providing sophisticated legal advice and advocating passionately for his clients.