When starting the divorce process, you may have heard the phrase “serving your spouse” with divorce papers. Getting divorced is a legal process that involves having to tell the person you are divorcing what you want and why, as well as giving them an opportunity to respond. Your spouse must receive notice that you have filed for divorce (service of process) and what exactly you want in the divorce. This includes telling your spouse the grounds, or reasoning, for the divorce. Giving your spouse the divorce papers in the correct way will make the entire process smoother and will reduce confusion. Texas has specific rules about how to serve someone with divorce papers. Following these rules is essential to keeping your divorce moving forward. If the divorce papers are not served properly, the divorce process may be delayed or stopped altogether.
First, you must have all initial legal paperwork completed before starting the process of serving your spouse. This includes the citation, divorce petition, and any other forms you and your divorce attorney have filled out as part of your initial petition. If there are children involved, disputes over property, or if there are other extenuating circumstances, there may be other paperwork you are required to fill out. Your divorce attorney will know the correct forms and pleadings to fill out and file before proceeding with serving your spouse with divorce papers. Your divorce attorney will also advise you that in Texas you are not allowed to serve your spouse with divorce papers yourself. There are multiple other methods, however, by which you can serve divorce papers on your spouse in Texas, including:
1. Waiver of Personal Service Only
If your divorce is considered uncontested, this may be the best option. A form waiving personal service of divorce papers can be signed by your spouse in front of a notary and be filed with the court. This must be a voluntary action by your spouse. It does not take away the respondent spouse’s right to file an answer or to be notified of developments as the divorce proceeds. This just avoids the cost of formal service of divorce papers by an outside entity if the divorce is uncontested.
2. Personal Service
This method involves a sheriff, constable, private process server, or court clerk delivering the divorce papers by hand to your spouse in person. The person delivering the papers will be required to provide a Return of Service form saying when, where, and how your spouse was served. Depending on the server, they can either send you/your lawyer the form to be filed or file the form directly with the court. This is the best method to ensure the papers are properly served. See Texas Rules of Civil Procedure, Rule 106(a)(1).
3. Service by Certified Mail with Return Receipt Requested
If you are certain your spouse will sign for a certified letter serving divorce papers, this method can work. A clerk or constable will send the papers via certified mail to your spouse’s residence with a return receipt requested. Your spouse will have to sign their name exactly how it is written on your original petition for divorce for this method to work. If the return receipt is signed properly and returned to the clerk or constable, they will fill out a Return of Service form and either send it to you/your lawyer to file or file it directly with the court. See Texas Rules of Civil Procedure, Rule 106(a)(2).
4. Substituted Service by Court Order
If your spouse chooses to dodge a process server or refuses to sign a return receipt for a certified letter and is essentially avoiding the divorce, you may be required to petition the court to have them served in another manner. Your divorce attorney will be able to help you through this process and make sure that you are serving your spouse in a way that follows all Texas laws. You will need to file 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 leave a copy of the divorce papers with a person over the age of 16 at the location of service or another form of acceptable service specified in the Order. See Texas Rules of Civil Procedure, Rule 106(b).
5. Service by Posting or Publication
In very rare cases, service by posting or publication may be required if the person requesting the divorce truly cannot locate their spouse. If there are no children involved, you may accomplish service by posting. If there are children involved in the divorce, you may accomplish service by publication. Permission for these methods of service is only granted if you have done your best to try to locate and serve your spouse via other means.
In general, only the initial divorce papers are required to be served on your spouse by a constable, sheriff, other process servers, or by mail. You are able to serve the rest of the subsequent papers during the divorce proceedings yourself; the best way to do this is to have your attorney communicate with your spouse’s attorney.
Brazoria County Divorce Lawyers
Terry & Roberts’ Brazoria County divorce lawyers work with our clients to establish divorce goals and reach the best possible outcome. When choosing a Texas family law attorney, it is crucial to ensure you select a lawyer or law firm with extensive knowledge of Texas divorce law. For clear, caring, and practical legal guidance to enable you to do what’s best for your family, contact us today.