LEGAL RESOURCES
Divorce When a Spouse Cannot Be Located in Texas
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How Do I Divorce Someone I Can’t Find in Texas?
If you cannot find your spouse, you can still get divorced in Texas. A missing spouse does not have the power to prevent a divorce simply by disappearing, moving without providing an address, or avoiding contact. The problem, however, is that filing a divorce petition is only the beginning of the case. Your spouse generally must be properly served, and if you do not know where your spouse is located, additional steps may be necessary before the divorce can proceed.
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The most important thing is to start the process quickly. You should not file a divorce case and then allow it to sit for months while you try to figure out where your spouse went. Texas courts expect cases to move forward. If there is no activity in the case, the court may eventually place it on a dismissal docket, commonly called a DWOP docket, meaning dismissal for want of prosecution.
What Do I Do If I Don’t Know Where My Spouse Lives?
The first step is usually to make a serious effort to locate your spouse.
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When we ask a court to authorize an alternative method of service, the judge will want evidence explaining what has already been done to locate and serve the missing spouse. Simply stating that you do not know where your spouse lives may not be enough.
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The search will depend on the circumstances. It may involve attempting service at the spouse’s last known residence, investigating other addresses associated with the spouse, checking a known or suspected workplace, contacting people who may know where the spouse is living, reviewing available public records, examining social-media accounts, searching online sources, investigating known telephone numbers or email addresses, and using a private investigator or experienced process server when appropriate.
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The objective is not merely to say that your spouse cannot be found. We want to be able to show the judge exactly what was done to try to find them.
What Is Alternative Service in a Texas Divorce?
Texas Rule of Civil Procedure 106 allows a court to authorize alternative service under certain circumstances when ordinary methods of service have been unsuccessful.
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Typically, a process server first attempts to personally deliver the citation and divorce petition to the spouse or otherwise serve the spouse through a method permitted by Rule 106(a). If those efforts are unsuccessful, a motion can be filed asking the judge to authorize another method of service.
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Rule 106(b) requires the request to be supported by a statement containing specific facts showing the unsuccessful attempts at service. Depending on the evidence, the court may authorize the documents to be left with a person who is at least sixteen years old at a specified location or authorize another method of service, including electronically, that the evidence shows will be reasonably effective to give the spouse notice.
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This can be particularly important when a spouse appears to be avoiding a process server but continues to use a known telephone number, email address, social-media account, residence, or other reliable means of communication.
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Alternative service is not automatic. We need to provide the judge with evidence supporting the particular method of service we are requesting.
Can My Spouse Be Served by Email, Text Message, or Social Media?
Potentially. Texas Rule of Civil Procedure 106 permits a court to authorize service electronically when the evidence establishes that the proposed method will be reasonably effective in giving the Respondent notice.
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The important question is whether we can connect the particular email address, telephone number, social-media account, or other electronic method to your spouse and demonstrate that it is reasonably likely to provide notice.
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For example, evidence that your spouse recently communicated through a particular telephone number or continues to actively use a particular account may be relevant when asking the court to authorize electronic service.
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You generally should not simply send the divorce petition through social media or text message and assume that your spouse has been legally served. The method of service must comply with the applicable rules and, when alternative service is required, the court’s order.
What If I Truly Cannot Find My Spouse Anywhere?
If your spouse’s location genuinely cannot be determined after diligent efforts, citation by publication may become an option.
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Texas Rule of Civil Procedure 109 addresses service by publication when, after exercising due diligence, a party cannot locate the defendant or determine the defendant’s residence.
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Publication should not be viewed as an easy substitute for looking for your spouse. Before relying on publication, you should be prepared to establish what efforts were made to locate the missing spouse.
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The more complicated the divorce, the more important these issues can become. A divorce involving children, a home, retirement benefits, substantial debts, businesses, or other significant property may present issues that require particular attention when the other spouse has been served through publication and does not appear.
How Do I Prove That I Tried to Find My Spouse?
Documentation is important.
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If a process server attempted service multiple times, those attempts should be documented. If addresses were investigated and found to be outdated, that information should be preserved. If relatives were contacted, records were searched, or other investigative steps were taken, we want to be able to explain those efforts to the court.
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The goal is to create a record showing the judge that reasonable efforts were actually made to locate the spouse before requesting another method of service.
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This is especially important when publication is requested. A judge may scrutinize whether sufficient efforts were made to locate the missing spouse before allowing a case to proceed without ordinary personal service.
What If My Spouse Is Hiding From the Process Server?
Avoiding service does not allow a spouse to stop a Texas divorce indefinitely.
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A person may refuse to answer the door, change schedules, avoid known locations, or otherwise make personal service difficult. When that happens, the process server’s documentation can become particularly important.
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Repeated unsuccessful attempts can provide evidence supporting a request for alternative service. If there is evidence connecting the spouse to a particular residence, telephone number, email address, social-media account, or other method of communication, the court may authorize a method that is reasonably effective in providing notice.
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The appropriate response to someone avoiding service is not to stop trying. It is to document the attempts and, when the evidence supports it, ask the court for an alternative method of service.
Why Do I Need to Move Quickly?
Because the divorce case does not automatically remain pending forever.
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Texas courts have authority to dismiss cases for want of prosecution. Courts routinely maintain dismissal dockets for cases that have remained inactive or have not progressed sufficiently.
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If you file for divorce but cannot find your spouse, the case still needs attention. We should begin investigating the spouse’s location, make appropriate attempts at service, obtain documentation from the process server, and determine whether a motion for alternative service or citation by publication is necessary.
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If you have already received a notice that your case has been placed on a DWOP docket, you should address it immediately. Waiting until the dismissal date can create an unnecessary risk that the divorce case will be dismissed and have to be refiled.
Can I Get a Default Divorce If I Cannot Find My Spouse?
Possibly, but being unable to find your spouse does not automatically entitle you to a default judgment.
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First, your spouse must be legally served through a method permitted by Texas law and any applicable court order. The applicable deadline to answer must then pass. After that, the petitioner must still establish the evidence necessary for the court to grant the divorce and the requested relief.
There are also additional requirements that can apply when service is accomplished through publication. Texas Rule of Civil Procedure 244, for example, generally requires the court to appoint an attorney to defend a defendant who has been served by publication and has not appeared or answered, subject to the provisions of the rule.
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A default divorce involving a missing spouse therefore requires careful attention to both service and the procedures that follow service.
Can My Spouse Prevent Me From Getting Divorced by Disappearing?
Generally, no.
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A spouse cannot ordinarily prevent a Texas divorce forever simply by refusing to provide an address, avoiding a process server, or disappearing.
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Texas procedure provides methods for addressing defendants who cannot be personally served. Which method is appropriate depends on what we know about the spouse, what efforts have already been made to locate and serve the spouse, and what evidence can be presented to the court.
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The important distinction is that “I cannot find my spouse” does not mean “I do not have to serve my spouse.” Instead, it means we need to determine the legally appropriate method of accomplishing service and moving the case forward.
Fergus & Tomanka Can Help with Cases Involving Missing or Unlocatable Spouses
If you want a divorce but cannot find your spouse, do not allow the case to sit.
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We can investigate available information concerning your spouse’s location, coordinate attempts at personal service, document unsuccessful service attempts, determine whether alternative service is appropriate, and request citation by publication when the circumstances satisfy the applicable requirements.
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At Fergus & Tomanka, PLLC, we represent clients in Williamson County, Travis County, and throughout Central Texas in divorce and family-law matters. If your spouse cannot be located or appears to be intentionally avoiding service, we can work to get service accomplished and keep the divorce moving toward a final resolution.
Call (512) 291-6952 to set up a consultation with one of our attorneys OR simply Make An Appointment on your own!
These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.