How To Divorce Your Spouse If You Are Unable To Locate Them
If you have filed for divorce from your spouse, Texas Law states that you must notify your spouse and have them served. If you are on speaking terms and your spouse agrees to not be served, you can simply give them a “waiver of service” which will need to be signed and notarized. The “Waiver of Service” is not agreeing to the terms of the divorce, it is simply stating that they do not have to be served divorce papers by a process server, constable, or sheriff. If you know where your spouse is, you can easily hire a process server.
However, you may be in a situation where you are unable to find your spouse. Believe it or not, this is more common than you might think. We often have clients who are unable to find their spouse or have not seen or heard from their spouse in quite some time. This sometimes causes confusion, and it is not uncommon for people to assume they are unable to divorce their spouse if they are not in the picture. Luckily, this is not the case in regard to an out of the picture spouse. If you are unable to find your spouse, this does not mean you have to stay married. You have options to dissolve your marriage with divorce, but there are specific rules and guidelines that must be followed in order to do so. In this article, we will walk you through those options to help you prepare for your divorce with an absent spouse.
In the state of Texas, the judge will need to see proof that you have exhausted all possible means to locate your spouse. If you are able to show the judge that you have attempted to locate your spouse, then the judge will allow what’s called a Notice of Publication or a Notice by Posting. A Notice of Posting is where you can post the notice of your filing of divorce at the courthouse. If you cannot find your spouse and there are no children involved, you may be able to serve by having the notice posted at the courthouse. This is called service by posting.
You can serve by posting if:
- You cannot find your spouse;
- You and your spouse do not have any children under 18 or still in high school;
- The wife is not pregnant;
- The wife does not have any children under 18 who were born during the marriage with another man (unless the paternity of those children has been legally established); and
- You do not have any community property together.
If you are able to move forward with your divorce by posting, there are specific forms that you must complete and bring with you on the date of your final hearing. It is always best to meet with an attorney to ensure you have the correct documents and that they are filled out correctly. You are responsible for scheduling your final hearing, the court will not set this for you.
If you do not meet the requirements of service by posting, you may be able to serve by publication.
You must complete an Affidavit for Citation by Publication. There are separate affidavits depending on if there are children or community property involved. You can read the full rules of a Service by Publication in the Texas Rules of Civil Procedure 114 through 117.
If you serve your spouse through publication and you have children or community property of value, such as a house, etc, then you must hire an attorney ad litem to represent your spouse. You are responsible for hiring and paying the attorney ad litem. The attorney ad litem must also testify to being unsuccessful in locating your spouse. Each court establishes and maintains a list of all attorneys who are qualified to serve as attorney ad litem and are registered with the court.
In Texas, there is a mandatory 60-day waiting period and the soonest your divorce can be finalized is the 61st day.
The Law Office of Chad Zubi, PLLC offers free consultations, and we are here to help you through the process of your family law case. If you have a spouse you are unable to locate and would like to file for divorce, contact our office today and schedule a free consultation. If you are wanting to represent yourself in your divorce case, our firm also offers a “Legal Coaching” option. With legal coaching, we help to make sure you understand the process and the timeline, as well as let you know which documents you need to file and instructions on how to file them, as well as document review. This is a more affordable option but is typically recommended for less complicated cases such as an uncontested divorce where there are no children involved in the case and minimal community property.
Our law firm believes in educating our clients and making sure they fully understand their rights in a family law case, in order for our clients to make the best decisions. We understand how difficult a family law case can be and we are passionate about fighting for the best outcome for our clients. If you would like to speak with an experienced family law attorney regarding your divorce, you can book your free consultation here, call our office at 832-777-8924, or email Chad@chadzubi.com. Our client’s cases are handled with the utmost professionalism, care and diligence and we will fight for you!
We handle all family law cases, including Divorce, Uncontested Divorce, Annulment, Common Law Marriage, Military Divorce, Child Support, Child Custody, Adoption, Suit Affecting Parent Child Relationship, Modification of Orders, Enforcements, and more.
We serve clients in the following counties: Harris County, Montgomery County, Ft. Bend County, Brazoria County, Galveston County, Montgomery County, Polk County, San Jacinto County, Waller County, Liberty County and other counties surrounding the Houston area.
