In some marriages, the challenge is that the spouses can’t seem to stay away from each other. In other cases, however, the issue is quite different—a missing spouse who has left the marital home and cannot be found. When you realize that a divorce is necessary, it can be difficult to know what steps to take, especially if you’re unable to locate your spouse. If you find yourself in this situation, the attorneys at the Law Office of Bryan Fagan, PLLC are here to guide you through the process and help you navigate the complexities of a missing spouse scenario.
Your spouse cannot be found-now what?
You can opt to divorce your missing spouse by serving them with notice through publication. Instead of serving your spouse personally with notice using a process server or law enforcement officer, this method involves a less direct approach. A judge must first approve of service by publication rather than by personal service.
To request the service by publication, you must submit a sworn statement affirming that you have made every effort to locate your spouse. The court usually appoints an attorney to locate the missing spouse and report back on their success or failure.
Another method is to attempt service by certified mail. Unfortunately, you will only get credit for this service attempt if your spouse signs on the receipt card and returns it to you. This method of service is also extremely unlikely since the spouse must personally sign the divorce paperwork.
How does Texas define a good faith effort to locate your missing spouse?
The courts in Texas have attempted to define what effort is sufficient to show an attempt at finding your missing spouse and serving them with the divorce papers personally. Some straightforward examples of this include:
- Determining whether or not the missing spouse still lives at their most recent address.
- You can also check with the post office to see if a forwarding address has been provided in the event that your spouse has moved even on a temporary basis.
- Doing some research the old-fashioned way, by contacting other family members of your spouse to see if they have any idea of where he or she is currently residing.
- Verifying that your spouse is not serving time in prison or serving in the military
After your search attempts are complete
Once you’ve exhausted all available resources to locate your missing spouse, you can file an Affidavit of Diligent Search with the court. This document should detail every step and method you used to locate your spouse, along with the relevant dates of each attempt.
Once you attempt to locate your spouse using the above methods, draft, and file the Affidavit of Diligent Search, and appear in court in front of a judge to explain your position, you will ultimately sign and notarize the document, treating it as if you were giving testimony to a judge under oath. Subsequently, the Notice of the divorce by Publication will be permitted.
Further Paperwork
Once this is complete there is still more paperwork to fill out. Either you or your divorce attorney will need to complete an affidavit. It should certify what the most recent address of the missing spouse is to the best of your knowledge.
Active duty members of the United States Armed Forces must complete an affidavit called the Service Member’s Affidavit. Your spouse must respond to a Petition for judgment within two years of their discharge from active duty if they are still on active duty.
Next, you need to draft and submit a Final Decree of Divorce to the court. This document should detail the proposed division of the marital estate. If applicable, it should also provide a breakdown of the conservatorship, possession, access, and visitation rights concerning the children.
After completing these steps and publishing the notice in a newspaper, you must hire a process server. The process server will complete a Return of Citation. This document certifies to the court that the notice was published in a newspaper or other record publication and includes the dates it was posted. Only after these steps are completed can the missing spouse be considered to have been served.
Completing a divorce after successful Service by Publication
After waiting the required thirty days after successful service by publication to see if your missing spouse will actually file an Answer to your divorce petition, you may contact the court and set your case for a hearing in front of the judge.
It is at this point that your case may proceed as a default judgment. The judge will review your proposed Final Decree of Divorce and make sure it meets the basic requirements of the law in Texas. If the document is insufficient in some way then the judge will likely ask that you return at a later date after the mistakes have been corrected.
All in all, a divorce in which service by publication is necessary can last anywhere between four and six months.
In conclusion, dealing with a missing spouse in a divorce case can be complex, but it is not insurmountable. There are legal options to move forward with the divorce process, even if your spouse cannot be located. You may serve by publication or request a default judgment. It’s important to consult with an experienced attorney. They can help you understand your rights and guide you through the necessary steps. If you’re facing the challenge of a missing spouse, the legal team at the Law Office of Bryan Fagan, PLLC is ready to assist you. They will help you resolve your case efficiently and effectively.
The Law Office of Bryan Fagan, PLLC: Southeast Texas family law attorneys
If you haven’t picked up on the tone of this blog post, let me clarify. A divorce by publication is not something to take lightly. You should first exhaust every resource to locate your missing spouse. Service should be accomplished personally if at all possible.
If your spouse is served by publication, they have two years to file a motion for a new trial if they learn about the divorce after it has been finalized. This is different from the usual thirty days other litigants have to file a motion for a new trial.
Ebook
![Adobe Stock 62844981[2]](/?seraph_accel_gci=wp-content%2Fuploads%2F2023%2F09%2FAdobeStock_628449812.jpeg&n=ZoLGz1rB9EpXzbEKYFZug)
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in regarding the default judgments include:
- Top Alternative Methods of Service in a Texas Divorce
- Navigating Service by Publication in a Texas Family Law Case: A Practical Guide
- Unlocking Texas Family Law – Your Guide to Service by Publication and More
- What Happens if My Ex-Spouse Refuses to Sign the Final Decree of Divorce Revisited
- I have been served with Divorce Papers – What do I do now in Texas?
- How to Draft and File an Answer to a Texas Divorce – Free Downloadable Forms
- 6 Tips – On How to Prepare for a Texas Divorce
- 6 Mistakes that Can Destroy Your Texas Divorce Case
- Waivers – To sign or not to sign? The answer is don’t do it!
- Roadmap of Basic Divorce Procedure in Texas
Frequently Asked Questions
Deciding where to live after a divorce can be challenging. Consider factors like your financial situation, support network, and personal preferences. Seeking advice from a legal professional or counselor can help you make the best decision.
If you can’t locate your spouse in California, you may need to follow alternative methods of service, such as publication in a local newspaper. Consult with an attorney to ensure you’re following the appropriate legal procedures.
If your spouse is missing, it can complicate divorce proceedings. Consult with an attorney to explore legal options, such as attempting to locate them through various means, and discuss potential impacts on the divorce process.
In most cases, legal proceedings require proper notification. If your husband files for divorce without your knowledge, the court may make efforts to ensure you receive the necessary information and have an opportunity to respond.
Yes, you can still initiate divorce proceedings if you don’t know your husband’s whereabouts. Consult with an attorney to explore options for serving divorce papers and proceeding with the divorce process.
Transitioning to living alone after divorce can be financially challenging. Create a budget, explore housing options, and consider seeking financial advice to help you manage expenses and plan for your new living situation.
Yes, you can get a divorce without your spouse’s signature in Texas. However, the process may be more complex. Consult with an attorney to understand the legal requirements and steps involved in a divorce without your spouse’s consent.
The cost of serving divorce papers in Texas can vary. It depends on factors such as the method of service, the location, and any associated legal fees. Consult with an attorney to get an accurate estimate of the costs involved.
Law Office of Bryan Fagan, PLLC | Tomball, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Tomball, TX Divorce Lawyers right away to protect your rights.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
