I NEED A DIVORCE BUT DO NOT KNOW MY SPOUSE’S WHEREABOUTS.
A common inquiry with my office is for a divorce from the spouse; however, they can not find the spouse or do not know where the spouse is located. Fortunately, the law provides for a divorce by “posting” if the parties have no children and no appreciable property accumulated during the marriage. The court will still require an affidavit of due diligence to be filed with the petition for divorce in order to get the divorce judge to grant and approve the final decree of divorce.
A divorce with children and/or property where the spouse can not be found or the party does not know where the spouse is located will have to file a divorce with publication. A divorce with publication will mandate that the court will appoint an attorney ad litem for the party that can not be located.
The most practical way of getting a divorce is by having the other spouse sign a waiver of service and file it with the divorce case. If you can not get your spouse to sign a waiver of service, then you must get your spouse served with citation. Citation on the filing of an original petition in a suit for dissolution of a marriage shall be issued and served as in other civil cases. Citation may also be served on any other person who has or who may assert an interest in the suit for dissolution of the marriage.
Citation in a suit for dissolution of a marriage may be by publication as in other civil cases except that notice shall be published one time only.
The notice shall be sufficient if given in substantially the following form:
“STATE OF TEXAS
To (name of person to be served with citation), and to all whom it may concern (if the name of any per son to be served with citation is unknown), Respondent(s),
“You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10 a.m. on the Monday next following the expiration of 20 days after you were served this citation and petition, a default judgment may be taken against you. The petition of _, Petitioner, was filed in the Court of _ County, Texas, on the _ day of ___, against _, Respondent(s), numbered , and entitled ‘In the Matter of Marriage of _ and _. The suit requests _ (statement of relief sought).’
“The Court has authority in this suit to enter any judgment or decree dissolving the marriage and providing for the division of property that will be binding on you.
“Issued and given under my hand and seal of said Court at _, Texas, this the day of _, .“______________________
Clerk of the _ Court of County, Texas By _, Deputy.”
If the citation is for a suit in which a parent-child relationship does not exist, service by publication may be completed by posting the citation at the courthouse door for seven days in the county in which the suit is filed.
DOES THE COURT APPOINT AN ATTORNEY AD LITEM IF NO PROPERTY EXIST.
If the petitioner or the petitioner’s attorney of record makes an oath that no child presently under 18 years of age was born or adopted by the spouses and that no appreciable amount of property was accumulated by the spouses during the marriage, the court may dispense with the appointment of an attorney ad litem. In a case in which citation was by publication, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the suit as a part of the record.
Citation by publication is available in a divorce suit as in other civil cases. However, the procedure is substantially different from that set forth in Tex. R. Civ. P. 244.
In the case of Jones v. Jones, a trial court committed reversible error when it granted a default divorce on service by publication and without an ad litem in the absence of a sworn statement that the spouses had accumulated no appreciable amount of property during their marriage and without approving and signing a statement of the evidence.
As in other civil cases, the Family Code permits citation by publication. “Therefore, the [TRCPs] apply and [TRCP] 116 makes citation by publication proper if published in the county where suit is pending.”
We encourage our clients to pursue due diligence in locating a spouse in a divorce case especially a divorce case involving children and/or property. In any event, we will get a divorce for our clients. However, a divorce with publication will add substantial expense to the case. In the end, if the party does appear after publication, the case will proceed as if the party was served with citation and require a judge to certify and render the final judgment.