You aren’t stuck being married to someone who is missing or unresponsive but there are certain steps you must take. Your spouse can refuse to respond to your petition. You might not be able to find them. Texas law still provides a way for you to get divorced.
A default divorce is issued when one spouse can't find the other, when the other spouse refuses to participate in the divorce action, or when both spouses agree to an uncontested divorce proceeding.
Meet Residency Requirements for a Divorce
To file for divorce in Texas, you must have lived in the state for at least six months. You must be a resident of the county in which the divorce petition is filed for 90 days or more.
Legally Serve Your Spouse with the Divorce Petition
Once you have filed for divorce, the next step is to make diligent efforts to obtain the current address of your spouse. When we find a current address, we will first attempt to personally serve your spouse. If that’s not possible, we can serve them by certified mail. Once they are served, we can continue with the divorce action.
If your spouse can’t be found, we’ll execute an Affidavit of Diligent Search. The affidavit, attached to the divorce petition filed with the court, outlines all the actions taken to find your spouse. A Supporting Affidavit for Citation by Publication and a Certificate of Last Known Address will also be filed with the petition. A Service Members Affidavit affirms the missing spouse isn’t a member of the military who enjoys specific protections. The Statement of Evidence will argue your case, including requests for community property and how to handle debts and other divorce matters.
Service by Posting
If locating your spouse isn’t possible, and you have no children or community property, the court may post a summons at the courthouse to satisfy the requirement of serving your spouse. If you have children or community property, however, you will need to make an additional effort. You must post a notice in a local publication in the town of your spouse’s last known address.
When community property or children are involved, you must also hire an attorney ad litem to look for your spouse.
These benchmarks must be met before your divorce can be finalized:
- It’s been 60 days from the date you filed your Petition for Divorce
- It’s been at least 27 days plus the next Monday since the notice was posted
- The Return of Citation from the publication has been filed in the clerk’s office for at least 10 days
Right to a New Trial
If your former spouse resurfaces within two years of the posting or publication, they can ask for a new trial. They can also make a claim that you didn’t truly look thoroughly for them.
Divorcing a Missing Spouse Is Complicated
Texas law provides the means to divorce a spouse who has disappeared, but the process is far from easy. A seasoned attorney is necessary to ensure that each step is properly taken so your divorce case isn’t unnecessarily delayed.
If you want to begin divorce proceedings but don’t know your spouse’s whereabouts, contact us today for a no-cost consultation. We can explain your options and answer your questions. Call (281) 990-6025 to schedule.