What happens when somebody evades service in a Texas divorce?

eeoc lawyer discrimination in texasUnder the U.S. and Texas constitutions, all people receive due process. Among due process is the opportunity for awareness of claims brought against you in a court of law. To satisfy due process, the federal and Texas rules of civil procedure require a party sued to receive service of process. Lawyers generally take care of this process for clients.

Process includes two documents: (1) a certified copy of the petition by the plaintiff (or petitioner in a family law proceeding) against a defendant (or respondent in a family law proceeding); and (2) citation that explains that he or she has been sued and when a response must be filed. The most common method is by personal service in which a process server hands process to the party.

Some people think by avoiding personal service they can avoid having to deal with the lawsuit.

They are wrong.

Evading service in a Texas divorce

The Texas Rules of Civil Procedure (and the federal rules) provide parties alternative means to serve a defendant or respondent. A party can receive service by certified mail with no special permission but that is usually a less effective approach. The person can refuse to accept the certified mail or claim that he or she never received it. Certified mail is usually the best way to serve a business or other entity rather than an individual person. It is difficult for the business to claim it did not receive certified mail when signed for by an employee. If personal service is not effective then a party should ask the court to give permission for alternative service.

Motion for substitute service in a Texas divorce

The civil procedure rules permit a party to file a motion for substitute service asking the court for an order permitting an alternative means of service. With this court order, the party can serve the defendant or respondent in an alternative method. That alternative method satisfies the due process rights in almost the same capacity as personal service.

The most common forms of substitute service granted by courts include service to any person over sixteen years of age in the house or attaching the process to the front door of the confirmed residence of the defendant or respondent. If the location of the defendant or respondent is unknown then it is common to serve the party by publication. That means publishing notice of the lawsuit in the newspaper of record for the county in which the party lives or believed to live. Other forms of substitute service are less common but effective, such as first class mail or a private freight carrier. Some parties have even had permission to serve electronically through email or Facebook.

Granting a motion for substitute service in a Texas divorce

A court will generally only grant a motion for substitute service when the plaintiff or petitioner presents the motion with an affidavit detailing attempts made to verify the address of the recipient and multiple attempts made to serve the party with process. The more attempts at the correct address at various days and times, the more likely the court grants the motion. For example, if attempts occur at 3pm to a party not home then it is less likely the judge approves substitute service. It could easily be that the party works a normal 8-5 job and would never be home to accept service. If service was attempted at different times then it is more likely that substitute service will be granted.

error: Content is protected !!
Scroll to Top