I keep hearing that I have to ‘serve’ my spouse for a divorce. What does this mean?
First things first – a divorce is actually a type of lawsuit. And before you can sue someone, you have to first tell them what you want and why, and give them the opportunity to respond. So, your spouse must receive notice (formally called “service of process”) that you have filed suit, as well as notice of what exactly you are suing them for. In other words, you have to tell your spouse the legal reason, or “grounds,” for your requested divorce. If you don’t get your spouse properly served, your case can be delayed or dismissed.
How do I serve my spouse?
There are 6 ways you can serve your spouse for divorce in Texas. Don’t worry, we’ll explain each one.
- Waiver of Service Only (Specific Waiver)
- Personal Service
- Service by Registered Certified Mail, Return Receipt Requested
- Substituted Service by Court Order
- Service by Posting
- Service by Publication
- Waiver of Service Only (Specific Waiver)
Waiver of Personal Service Only
If you have an uncontested divorce, this is likely the best option for you. The respondent spouse can sign this form and it is filed with the Court. This form must be signed in front of a notary. Signing this form does not waive the respondent spouse’s other rights, such as the right to file an Answer or the right to be notified of developments in the divorce case. It only helps to avoid costs associated with formally serving the documents.
Personal service is fulfilled by either a constable, a sheriff, private process server, or court clerk. The server will deliver the divorce documentation to your spouse in person, and is required to provide a Return of Service form outlining when, and how, your spouse was served. Depending on the server, they will either file this Return of Service form with the Court or send it to you to be filed.
Service by Registered of Certified Mail, Return Receipt Requested
This option should only be used if you are sure the respondent spouse will sign for the certified letter. If the name is not written exactly as it is in your Original Petition for Divorce, you’ll be required to find another way to serve your spouse and pay the associated fees. For this method, a clerk or constable will mail the documentation to your spouse’s residence by certified mail with a return receipt requested. If the return receipt is signed and returned to the clerk or constable, they will then complete a Return of Service form and either file it with the Court or send it to you to be filed.
Substituted Service by Court Order
When you’ve attempted either personal service or service by registered mail and have been unsuccessful, and it is confirmed that your spouse lives, works, or can be found at the location where service was attempted, you can use this form. You ask the Court for permission to serve your spouse in another way by filing a Motion for Substituted Service along with a Rule 106(b) Affidavit from the constable, sheriff, or private process server that attempted service upon your spouse. If granted, the Order for Substituted Service gives permission for the server to either a) leave a copy of the divorce documentation with anyone over the age of 16 at the location of service, or b) another form of acceptable service specified in the Order.
Service by Posting
This method involves posting a notice about your divorce in an acceptable public forum in effort to provide notice to your spouse. Permission for this is only granted if:
- You cannot find your spouse despite your best efforts;
- You and your spouse do not have any children under the age of 18 or still in high school;
- The wife is not pregnant; and
- The wife does not have any children with another man that are under the age of 18 and were born during the course of the marriage (unless their paternity has been legally established)
You must file an Affidavit for Citation by Posting, which swears that you did your best to locate your spouse. You file it along with a Motion for Citation by Posting. If your request is granted, you will receive an Order on Motion for Citation by Posting, which outlines the manner in which your service by posting has to be carried out in order to be deemed valid.
You can use this guided form to complete the Affidavit and Motion for Citation by Posting.
Service by Publication
If you’ve tried absolutely everything in efforts to locate your spouse and were unsuccessful, and there are children (under the age of 18 or still in high school) involved, you can ask for permission to use this method.
- You will need to file an Affidavit for Citation by Publication (in a Divorce with Children), which provides details about the various ways you tried locating your spouse, along with a Motion for Citation by Publication (in a Divorce with Children).
- If granted, the Order on Motion for Citation by Publication (in a Divorce with Children) is signed by the judge.
- You then ask the clerk, constable, or sheriff to a) send the citation to a newspaper in the county where your case was filed, and b) issue a citation to Texas’ public information website. They will then fill out a Return of Citation form, which you ensure is filed with the clerk’s office.
You are responsible for the costs involved in service by publication. However, if: a) you’ve filed a Statement of Inability to Afford Payment of Court Costs, b) the cost of publication in the newspaper would cost $200+/week; or c) the jurisdiction where the party is being served doesn’t have a newspaper, you can serve by publication on Texas’ public information website alone.