Traditionally, filing for divorce requires the filing spouse to serve their spouse divorce papers, usually at their address, but it can also be done elsewhere if necessary. However, you can begin the divorce proceeding without their participation if the Judge is satisfied that they had notice of the divorce proceeding or you tried to notify them.
If you have made reasonable efforts to locate your spouse but cannot find them, then you can make a request with the court for a Motion For Alternative Service.
A Motion to Serve by Publication or Posting would allow you to run a notice of your intent to divorce in a newspaper in the area where your spouse was last known to reside. Usually, you will need to run this notice for around three weeks, and your spouse will be given time to respond.
If your spouse does not respond to your notice, then the Judge may finalize your divorce by default. Even without your spouse’s participation, the court can enter orders regarding the dissolution of your marriage, such as child custody and property division.
Skillern Firm Divorce & Child Custody Lawyers has offices in Houston and Sugar Land, so arrange a consultation today at (713) 229-8855
The outcome of your divorce decree will have a big impact on your life. Decisions regarding child custody, property division, and spousal support can make a huge difference in your financial security and well-being going forward.
At Skillern Firm Divorce & Child Custody Lawyers, we will help guide you from start to finish. We are uniquely prepared to handle even the most complex cases, such as those involving estranged spouses. We will help you evidence your efforts to find your spouse to the Judge so that you can move forward with your divorce.
Our attorneys are dedicated to securing the best possible outcome in your divorce case so that you can move forward into the next stage of your life in confidence.
Skillern Firm Divorce & Child Custody Lawyers has offices in Houston and Sugar Land, so arrange a consultation today at (713) 229-8855
If you do not know where your spouse is, then matters are likely in a bad state. Ultimately, the decision is yours, but you should speak to an attorney who can advise you based on your specific circumstances.
It is important to be aware that just because you are physically separated, and you don’t know where your spouse is, it does not mean that your marriage has ended. In addition, while you are married, any assets you acquire belong equally to both of you and are subject to division when you eventually divorce. Your spouse could also inherit assets from you in the event of your death instead of your friends and family. If you have not seen or spoken to them in months or years, then this is probably not your choice.
At the same time, any debts your spouse acquires while you are married are also half yours, which means that you could become responsible for them.
Other important things to consider include whether you will be looking to take out retirement benefits any time soon, as you will need your spouse’s permission if you remain married. You will likely also need their permission to sell your home.
Even though the court no longer requires your spouse’s consent for a divorce to occur, you still need to file a divorce complaint or petition with the court. Depending on your unique situation, you may need to file no-fault divorce papers or fault divorce papers. Here’s a brief overview of the difference between these two documents.
No-fault divorce papers are a petition to divorce with nobody to blame for the divorce. In other words, it’s not your spouse’s fault that you’re filing for divorce, and your spouse doesn’t blame you for the dissolution of your marriage either. What you’re telling the court when you file no-fault divorce papers is there is an irreconcilable incompatibility that makes the continuance of your marriage impossible.
If you are filing fault divorce papers, you are claiming to the court that marital misconduct occurred. To be clear, something doesn’t have to be illegal to be considered marital misconduct. For example, in Texas, adultery is legal, but you can still file fault divorce papers citing infidelity as the grounds for divorce.
If you go this route, whether you’re claiming adultery, desertion or abandonment, sexual abuse, financial abuse, physical abuse, emotional abuse, or something else, you will probably end up with more of the community estate.
In order to file for divorce in Texas, either you or your spouse must meet the state’s residency requirements. In Texas, you must have lived in the state for at least six months, and you must have lived in the county where you plan to file for at least 90 days.
If you decide to file for divorce, then usually you have to serve your spouse the divorce papers, preferably someone who delivers it personally, such as a private process server or constable. However, if you have made reasonable efforts to find your spouse and failed, then you can ask the court for a Motion For Alternative Service.
If you believe that your spouse is a resident of Texas, or you can show that they had significant past contacts there, i.e. they got married, had children, or worked in Texas, then a Texas family law court can issue divorce action orders. Including dividing property and determining child custody.
The law does not give clear guidance on what you need to do, as it depends on individual circumstances. Ultimately, the Judge has the final say on whether they believe you have done a diligent search. Whatever you decide to do, you should provide proof of your efforts.
The Judge will review your affidavit and will sign an order either granting or denying your request. The order will either be given to you in a court hearing or mailed to you.
Some things you may want to consider doing to try and find your spouse include:
Once you’ve tried calling or texting your spouse’s friends and family members, you may feel like you have no choice but to hire a private investigator. However, you may have luck finding your spouse by visiting their last known place of employment. Even if they are no longer working there, their former employer may know where they are currently living or working.
If you have made a diligent effort to find your spouse to no avail, you can place a notice in a newspaper. When you file your divorce papers with the court, ask if there is a form you need to fill out to request service by publication. If there is, follow all of the instructions on the form exactly.
Typically, you will need to pay for a three-week ad in the local newspaper printed and circulated closest to the last known address of your spouse. Note, a divorce lawyer may be able to help you recuperate the cost of paying for the advertisement during your divorce proceedings. Also, be aware that there is precedent in Texas to notify your spouse of the divorce via social media, like Twitter or Facebook, or e-mail.
It is more common to serve your spouse via newspaper ad than courthouse posting. However, it is possible to post a notice at the courthouse located the nearest to the last known address of your spouse. If you’ve already made a good-faith attempt to find your spouse, ask the court how you would go about posting service when you file your divorce papers.
Once you file your divorce papers, you will have 60 days to serve your spouse. If you are unable to do so in that time frame, then you will need to file for a motion to extend the time. If you do not, your divorce case could be dismissed, and you would need to start all over again.
When you have the support of a divorce lawyer, they can help keep the process moving along and will understand when to ask for extensions.
The judge will determine what methods are appropriate based on your circumstances. Other than service by publication, the Judge may give permission for another alternative method such as by text, email, social media, delivery to someone at your spouse’s work, or by posting on the court’s website. The Judge could order for more than one method to be used to ensure that all reasonable steps are taken to try and inform your spouse.
If you tell a Judge that you are unable to locate your spouse, they will probably tell you to keep trying. You will need to show the court that you have done your due diligence in trying to locate your spouse to personally serve them the divorce petition. You will usually need to request permission to serve via publication by presenting an affidavit to show what efforts you have made to try and locate them.
An affidavit is a written statement confirmed by oath, where you will need to explain what you did and what responses you received. That includes a list of places you contacted and any documents you sent or received, as well as any mail that is returned as undeliverable.
You may also need an Affidavit of Military Service, which states that the missing spouse is not an active member of the military. If they are part of the military, then it could change the process, as service members have additional time to respond to a divorce case.
If the Judge is satisfied that you have made diligent efforts to try and is satisfied that all reasonable efforts have been made to find them, to no avail, then they will issue an order that allows your spouse to be served via a substituted servic
Often the alternative service is in the form of Service by Publication. The county clerk will contact a local newspaper or magazine that will print a notice that your spouse will hopefully see. This is known as a constructive notice, as opposed to an actual notice that they would otherwise receive in person. The notice must run for at least four weeks, and you must have proof that it was published. If your spouse does not respond, then at this point, you may be granted a default divorce.
If your motion is denied, then the Judge may tell you what else you need to do to try and find your spouse, so your next steps will be to follow their instructions. Other times they will only say that you have not done enough and you will need to figure out what else you need to do. Your divorce attorney will also be able to advise you on what you need to do next. Once you have taken additional steps, you will be able to file again.
If your spouse doesn’t file a claim with the court, you may request a default divorce. As long as your requests are reasonable, there is a good chance the divorce will be granted. However, if there are children who are minors involved, the court will take a closer look at your unique circumstances before making any decisions on child support or custody.
Once the court is ready to grant your default divorce request, you have the opportunity to get a final divorce decree copy. This is highly advisable. Keep in mind that the court may make you draft a “Notice of Entry of Judgment” document and mail it to the last known address of your spouse or post it like you posted the notice after filing the paperwork with the court.
If your spouse responds in the 21 to 27 days given to them by the court, the court cannot grant you a default divorce. Instead, you will need to get your case converted to a standard divorce or file your petition with the court again. Keep in mind, even if your spouse responds within the allowed timeframe, you may not need to work out the details of your petition in court.
If your spouse responds to your notice in a timely manner and you know where they are, you can ask them if they will agree to an uncontested divorce. An uncontested divorce is similar to a default divorce in that the process is relatively quick. For an uncontested divorce to occur, your spouse must agree to every request you made in the original petition.
Securing a divorce when you do not know where your spouse is can be complex, but an attorney can help guide you through the process and keep everything running smoothly.
At Skillern Firm Divorce & Child Custody Lawyers, we are proud of the personal service we provide. We will take the time to understand what is important to you so that we can help you secure the best possible future.
No one should face the divorce process alone, and we want to help.
Call us today to schedule a consultation with a family law attorney at (713) 229-8855
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