One of the most frustrating parts of a divorce case occurs before the case ever actually begins. Let’s suppose that you have made the decision to file for divorce and have even hired an attorney to help further that process. The next step in the process is to be able to serve notice upon your spouse that you have filed for divorce. Imagine going through the divorce process without your Spouse ever being aware of the case. Well, this is a bit far-fetched to imagine it is possible especially if formal legal notices are never provided to your spouse.
In Texas, if you file for a divorce from your spouse, he or she has a right to be able to receive personal notice of the lawsuit. For the most part, this means hiring a process server or constable to pick up the paperwork from the courthouse and to serve it upon your spouse. This assumes that you know where your spouse is physically and have an address or a location where he or she can be served. Otherwise, your divorce case may be delayed until the judge is satisfied that sufficient due diligence has been performed when it comes to providing notice to your spouse. Until then, you will have to go through the process of attempting to serve your spouse using all
There are circumstances under which a family court will allow you to serve your spouse using an alternative method to the standard personal service that we have just finished discussing. You or your attorney would need to file a motion for alternative service to be approved. Next, the judge would hold a hearing where you could submit the statement of facts as well as evidence regarding your attempts to personally serve your spouse with notice of the lawsuit. Next, if approved, the judge would allow you to employ a specific method of alternative service. In many instances, this is known as substitute service or posting of the documents.
Diligent attempts at personal service must first be attempted and documented. If you file a motion to be able to serve your spouse using an alternative method of service, you must disclose the documented attempts at traditionally serving him or her. The court is looking for a certain level of due diligence when approving an alternative method of service. You must show that you have attempted to contact your spouse on multiple occasions to discover an address where he or she can be served. Next, if you were able to obtain an address then you must show that a process server or constable attempted on multiple occasions to serve him or her at that address.
A great deal of the due diligence responsibility falls upon the process server that you select. For that reason, you should try to hire an experienced process server who understands what it takes to perform due diligence and who will be able to work with the information he provided. For instance, if your process server attempts to serve your spouse at the same location and at the same time each day then that probably will not meet the standard for due diligence. Having the process server attempt service multiple times is probably the best bet in terms of being able to meet the court standard for due diligence. Here are some examples of the ways that a court may look to prove due diligence in terms of attempts at service.
Being able to show a judge that you performed a basic level of due diligence is probably the most important part of having the judge approve your petition for an alternative method of service. In Texas, the law requires that you show that every reasonable measure was taken to get into contact with and then provide the necessary documents to your spouse from your divorce. Your attorney will likely have a relationship with a process server that he or she has worked with for many years. That is a good thing since your lawyer must be able to trust that the process server will use their best judgment when attempting to serve your spouse with notice of the divorce filing.
You will need to provide your attorney a list of addresses where your spouse may be found in order so that the process server can attempt to notify him or her of the divorce. Even providing addresses for relatives of theirs, places where he or she used to work and other locations where you know he or she frequents (bars, restaurants, church, etc.) are what you may need to do if you do not know exactly where your spouse is now. You need to cast as wide a net as possible to show a judge that you have performed the due diligence necessary to have your motion for substitute service approved.
In the back of your mind, you may know beyond the shadow of a doubt that your spouse won’t be found at any of those addresses. However, you need to submit the most likely places where your spouse can be found to meet the standard of due diligence required by Texas family court judges. The best-case scenario is that your spouse happens to be at one of those addresses at the time of day when the process server is present. Worst case scenario is that you are correct- your spouse is nowhere to be found- and then your process server must document the specific details of the failed service attempt in order so that your attorney can use that as evidence of due diligence performed.
Examples of due diligence in attempting to serve an individual
You may be curious to learn what a court will be looking for when determining whether proper due diligence has been displayed on your part when it comes to attempting to serve your spouse with notice of the divorce. While your attorney should be able to determine what is and what is not an example of due diligence in service attempts, if you are representing yourself then you will want to learn about what it takes for your process server to perform the basic due diligence that is required of him or her.
Your process server needs to be part process server and a part detective or private investigator. Learning about your spouse means asking you questions but also asking questions of people around the addresses where you will be sending him or her. For example, you may want to make sure that your process server is asking neighbors and people around the last known address of your spouse whether he or she has been seen recently. That may require some extra effort. Knocking on doors and asking people on the street is what I am thinking about.
This may begin with you and the process server doing some internet research to discover where to begin. If you have not been in contact with your spouse for months or even years, then you may be surprised at where he or she is living these days. It could be that your spouse is living around the corner from you or someplace very close. Or it could be that your spouse has moved across the city or even out of state. The pandemic has only added to the possibilities that your spouse could have moved clear out of the state of Texas to follow a job or find a job. The possibilities are endless. You need to have some computer skills to look up information about him or her and follow certain clues that you find. If you are not competent on the computer, then you may want to consider working with an attorney to help you in this regard.
Next, your process server needs to be able to follow the clues given by people in the community about the whereabouts of your spouse. If he or she learns that your spouse is frequently at a certain address between 4:00 pm and 10:00 pm then there had better be proof that he or she attempted to serve your spouse during that time window. Otherwise, it can appear that you are neglecting to follow up on the information that you have. That is the definition of not performing your due diligence.
From the perspective of a process server, due diligence is not the be-all to end all their occupation. It’s not as if you can look at all of this as a checklist to be completed on the way to filing a motion for substituted service. However, due diligence is a good way to look at the overall framework avoid a process server does daily in terms of their day-to-day activities. The process server needs to be diligent and needs to go about their job methodically and correctly.
Filing a motion for substitute service
Once You and your process server have gone through the trouble of attempting to serve your spouse Personally with notice then you need to consider what your options are in terms of being able to move forward with your divorce case. The reality is that merely filing your divorce case does not accomplish very much in the long run. You need to be able to ensure that your spouse has either an actual or constructive notice of the lawsuit. Actual notice is your spouse knowing that the divorce has been filed. Constructive notice means that your spouse could be assumed to have knowledge of the divorce based on the due diligence and attempts at service.
A motion for substituted service is asking the judge to allow you to the temp service upon your spouse and away from other than through the process server providing him or her with actual notice of the lawsuit. All the information that I have just provided you with is designed to help ensure that your attempts to have substitute service approved will be successful. Family court judges want you to serve your spouse personally. They do not want to necessarily have to resort to a substituted form of service. However, such a form of service will be considered if you have shown due diligence in attempting to serve your spouse using the traditional method.
In a hearing on your motion, you will be asked to provide evidence to the judge showing your attempts at due diligence. It may even be necessary to ask your process server to come into court to testify under oath about their attempts at the process. Or, your process server may simply be able to fill out an affidavit stating but their attempts at service were and the dates and times at which service was attempted.
Once the judge becomes satisfied that you have gone through the reasonable attempts to notify your spouse of the divorce personally then he or she will approve your motion for substituted service and then outline the methods that are approved. You should include an order approving substituted service along with your motion for substituted service. That way you can very quickly get the order written up and ready for the judge to review for their signature. Your attorney and a process server will need to review the order closely to determine the specific methods of service that were approved by the judge. A copy of the order needs to be served along with any of the other documents that would typically be served in a divorce scenario.
An important thing to remember is that personal service can still be attempted if you can find out additional information about the whereabouts of your spouse. Despite the challenges associated sometimes with finding a person, personal service is the most straightforward method of providing notice to a person about a pending lawsuit. Before we finish today’s blog post let’s walk through some of the methods of substituted service that may be approved in your divorce case.
Service by certified mail with return receipt requested
In this case, you may be able to have your case approved by service by certified mail if you are confident that your spouse will be present at the time of the service attempt. Additionally, your spouse would need to sign for the certified letter to indicate proof of service of the divorce papers. The clerk of the family court will send a certified letter to your spouse with all the divorce paperwork and a copy of the substitute service order.
Service by posting or publication
This is the primary method for substitute service that I believe would be implemented in your case if your spouse cannot be located. Posting the divorce paperwork means that you can go to the courthouse and then physically post the documents on a bulletin board or other location designated by the court for physical postings. You can ask the court or the clerk of the court for specific information on where the notice can be posted.
Service by publication means that you would need to find a publication- newspaper, magazine, or another source- in the area where your spouse is thought to have been last found and then put notice of the divorce in that magazine or newspaper. The thought behind this is that your spouse may be able to pick up a copy of the publication and flip to the page where your notice was posted and then find out about the divorce that way. The odds of this happening, in reality, don’t seem to be that great, but it is the best option when you cannot locate your spouse despite due diligence.
Keep in mind that your spouse may be attempting to miss the service attempts on purpose. Refusing to sign the receipt of a certified letter is the same as avoiding the divorce altogether. He or she may be under the impression that if no service can be completed then the divorce will be delayed or may not even happen. This, however, would be incorrect. He or she can delay the divorce for a limited amount of time by avoiding service but cannot do so forever. On top of that, it is in their best interests to participate in the case.
Finally, I hope that you can tell that based on the information provided in today’s blog post that serving your spouse may not be as easy as you would have been led to believe by others. It is not always as simple as having the process server find your spouse at your home and having him served there. There may need to be extra steps taken and even alternative methods of service utilized. For that reason, it is recommended that you hire an experienced family law attorney to help guide you through this process. There is no surefire way to handle every divorce case. However, an experienced attorney will be able to help guide you through the difficult parts of a case and to help you focus on what matters most to you and your family.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.