Sometimes a married couple in Texas will decide to separate and eventually lose contact with each other. At some point one spouse decides he or she needs an uncontested divorce and not to fight over the terms of the divorce. The non-filing spouse has a right of due process under the federal and Texas constitutions to be notified of the divorce proceedings. The spouse not filing for divorce must be served with process (a copy of the petition plus citation). If the other spouse has moved on and started a new life somewhere else then finding that spouse for service may be a challenge.
The rules of civil procedure take this constitutional right seriously and have a procedure for the divorce to proceed. Let’s talk about that process.
Basic service rules in an uncontested divorce in Texas
In Texas when a party filing suit is unable to properly serve a respondent or defendant despite diligent efforts to serve the responding party, the court may grant the filing party the right to serve by alternate means. The typical form of alternate service for a missing spouse is service by publication. Service by publication requires the filing party to file notice of the divorce suit with the newspaper of record for the county for a period of time. If the other spouse does not enter an appearance in the divorce suit then the petitioner may proceed with a default divorce.
Service by publication
The spouse filing suit must make diligent efforts to locate the spouse to obtain permission to serve by publication. It’s not enough to just shrug and say you don’t know where he or she is. It’s also not enough to just ask around or look on Facebook. Judges consider each case and the efforts made. Often using a private investigator or background check service is necessary to show diligent efforts. Often social media or background check services will identify the missing spouse. Once located, service must occur through a process server (or other approved methods).
Service by publication in an uncontested divorce with kids
Another issue arises if the divorce involves minor children. Parents have constitutional concerns invoked by the involvement of children. Parental rights are fundamental rights protected by due process. This adds an additional requirement for the filing spouse in addition to making diligent efforts to locate the other spouse.
If the judge grants service by publication, the filing spouse must hire an attorney ad litem to conduct a thorough search for the missing spouse/parent. This protects their parental rights in the divorce. The filing spouse pays the cost of the attorney ad litem, not the court. If the attorney ad litem cannot find the missing spouse/parent then service by publication is sufficient for a default divorce. If the attorney ad litem finds the missing spouse/parent then service must occur.