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When a Spouse Cannot Be Found in Texas
When one spouse wants to call it quits but cannot find his or her missing partner, or when he or she is hiding, divorce by publication comes into play. Divorce by publication happens only after a judge has been convinced, based on a sworn declaration, of the serving party's inability to find the Defendant after trying hard. Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without a leaving a forwarding address. In Texas, divorce by publication is not an easy route to go.
When the Respondent cannot or will not be found (and, therefore, cannot be served process by personal service, which is the preferred method), the Petitioner may attempt service by certified mail, which is only valid if the missing spouse's signature appears on the green postal receipt card. If someone else signs for him or her, the Petitioner must try again. If these two steps fail, the court may allow alternative service, which means the Petitioner files a sworn statement and motion the alternative service would be "reasonably effective to give the Respondent notice."
If the missing spouse has been served a copy of the Petition, the process server must complete a Return of Citation, which certifies receipt.
If the Petitioner cannot locate the missing spouse, and the parties have no children and limited property, the court may allow legal notice to be posted in the courthouse. This is called Service by Posting.
If this is not workable, the Petitioner must conduct what is termed a "diligent search" followed by Service by Publication.
Texas's Search Requirements and Process
Texas courts require a good faith effort by the Petitioner to prove that he or she has made a genuine search for his or her missing partner. This search entails:
In order to be eligible for a "Divorce by Publication", you must complete and submit an Affidavit of Diligent Search to the court. This document clearly outlines all of the actions you have taken to locate your spouse, essentially proving to the court that your spouse absolutely can't be found.
If you actively pursue locating your spouse through the methods outlined in the Affidavit of Diligent Search, and still can't locate your spouse, then a "Divorce by Publication" is your likely method of getting a divorce.
Filing for Divorce by Publication in Texas
If the search is fruitless, the Petitioner files an Affidavit for Citation by Publication and Diligent Search, a notarized statement affirming that the Petitioner has "exercised due diligence to locate the Respondent's residence and have been unable to do so" and with it, a Petitioner's Supporting Affidavit for Citation by Publication, a notarized statement that catalogues the efforts of the Petitioner to find the missing party. This affidavit also states that the Petitioner attempted personal service on the missing spouse.
The Petitioner must also file a Certificate of Last Known Address, which states the last known address of the missing spouse.
The Petitioner must also complete the Service Members Affidavit, which authenticates that the missing spouse is not in the military and does not enjoy any of the protections of the Servicemembers' Civil Relief Act.
And finally, the Petitioner files a Statement of Evidence, which argues his or her case and requests that "community property and debts of ...the marriage be divided as set forth in the Decree of Divorce.
After the notice is published in the newspaper, an agent of the publication completes and returns a Return of Citation, which authenticates that the notice appeared. The missing spouse can then be considered served.
The Petitioner then must wait 30 days, which is the time the missing spouse has to answer. After that the Petitioner may file for a hearing date for the divorce, which proceeds as a default.
Divorce by publication should be considered a last resort. A Respondent served by publication has up to two years to ask for a new trial, and must have an attorney appointed for him or her at the final divorce hearing. The cost of this requirement is borne by the Petitioner.
From start to finish, Service by Publication takes about three months.
Texas Service by Publication is described in Texas Rules of Civil Procedure, 99, 106 (a)(1), (a)(2), 106 (b), 109.
Copyright Notice: These Texas divorce laws above are copyrighted by Divorce Source, Inc. This abbreviated and revised version of the state laws has been compiled from applicable state laws and unauthorized reproduction in any fashion is prohibited. Violation of this copyright notice may result in immediate legal action.