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Houston Family Law Attorneys: Attempting to locate your spouse in order to divorce them wouldn’t at first thought seem to be that difficult but for some clients of the Law Office of Bryan Fagan, PLLC this is exactly what has had to be done.
Ironically, many spouses walk into our office to find out more about how to get a divorce in Texas because they see too much of their partner. In some instances though it is the opposite problem that is in place.
Folks will walk into our office, sit down and tell one of our attorneys that they haven’t seen their spouse for some extended period of time. When a relationship becomes more of a liability than a benefit to a person, the author of this article will tell them, it is probably time to consider removing yourself from that situation.
How can this be done without knowing where the other spouse is? The purpose of this blog is to provide the basic information a person in that situation would need in order to get the divorce that they are seeking.
First things First
First and foremost, the beginning stages of the divorce would proceed as they typically do. The filing party will:
draft and file an Original Petition for divorce
pay the filing fees to the District Clerk and
then attempt to serve the Petition on their spouse personally as in most divorce scenarios
If, however, after diligent attempts at personal service the filing spouse is unsuccessful then other methods may be tried.
Citation by Publication
The most straightforward is to draft an affidavit of due diligence which tells the Court the dates, times and steps taken in order to serve their spouse personally.
If the Court agrees that every effort has been made to serve the person personally has been done, citation by publication is possible. The Texas Family Code under section 6.409 allows a party to serve their spouse by posting notice of the divorce on the courthouse door for a minimum of seven days.
Attorney Ad Litem
Houston Family Attorney: As will typically happen, no response from the missing spouse will be forthcoming at which time the Court will appoint someone called an attorney ad litem to the case.
This attorney’s job is to represent the interests of the missing spouse. This is done in situations where children are involved in the divorce and/or significant property interests are involved.
If neither of the aforementioned factors are present the filing party may submit another affidavit to the Court notifying them of this and the necessity of an ad litem attorney may be negated. This can save a great deal of time as the ad litem attorney would be charged with the task of going through their own steps of due diligence to locate the missing spouse.
An Attorney Ad Litem is an Additional Divorce Expense
While no more effort would be required of the filing spouse, this step would require a not insignificant amount of time for the ad litem attorney to do a proper “investigation”. Also, this attorney ad litem will need to be paid for their efforts, the costs of which are usually ordered to be that of the filing spouse.
Fees for this ad litem attorney are frequently between $500.00 and $1,500.00 so if a filing party can avoid the appointment of an ad litem attorney that will save both time and money.
If the ad litem attorney cannot locate the filing party’s spouse, they will report that to the Court detailing the due diligence they exercised in attempting to locate him or her.
After the Attorney Ad Litem Makes their Report
If the Court accepts this statement from the ad litem attorney, and the other requirements for a Divorce in Texas are met, the Court will grant the divorce without the appearance of the missing spouse. This is called proceeding to trial on a default basis.
If the ad litem attorney does manage to locate the previously missing spouse then the Court will order that the spouse be served personally with the divorce papers at the address where he or she was located.
Once personal service is completed the case would proceed as any other divorce case where the necessity to serve the person by publication was not needed. If the other spouse agrees to all of the terms that the filing spouse sets out for the divorce it would be an uncontested divorce.
If not, a contested divorce would commence whereby the parties would need to settle on the issues outside of court (often in mediation) or they would go to court and have a judge play tie breaker on any issues that cannot be agreed on.
Marriage can be difficult enough as it is without having to consider the possibility of having a spouse that would leave the marital residence without telling anyone where he or she was going. At first glance this situation may seem ideal for the spouse interested in divorce but uninterested in confronting their soon to be ex-spouse directly on any issue.
Publication Divorces Can Take Longer and Be More Expensive
Divorce Attorney in Houston: However, the time and money invested in a case such as this tends to far outweigh that of a standard divorce where the location of the parties to a divorce are known to one another.
In the event that you need an attorney to consult with you on a divorce where you do not know where to locate your spouse, the attorneys with the Law Office of Bryan Fagan, PLLC offer free consultations and years of experience in handling cases such as these. When time and money are at stake, professionalism and experience matter more than ever. Please contact the Houston divorce attorneys with the Law Office of Bryan Fagan, PLLC to learn more about our firm and how we can assist you and your family during your divorce ... Continue Reading
