The Inability to Serve Divorce Papers in Texas
By Jimmy Verner
Updated March 30, 2020
It's frustrating when the respondent in a lawsuit is dodging process, especially in a divorce case. Ordinarily, a divorce petition is served by hand-delivering it to the respondent. But the case can proceed even when the respondent is avoiding service of process. A petitioner can serve the respondent by having the process server tape the divorce petition to the respondent's front door, or by publishing a notice of the divorce suit in a local newspaper, with the permission of the court.
Filing for Divorce
The spouse seeking a divorce must file a petition with the court to initiate the proceedings in Texas. After the petition is filed, the clerk of court prepares a citation. The citation tells the respondent that a divorce suit has been filed and how long he has to respond. Both the petition and the citation are then served on the respondent.
The court clerk delivers copies of the petition and citation, either to the sheriff or constable, or to a private process server. In either case, that party is responsible for locating the respondent and handing him a copy of the paperwork. Alternatively, the petitioner can request that the clerk of court serve copies by certified or registered mail. However, if the respondent hides from the process server, it's unlikely that he will pick up his certified mail.
If the process server cannot find the respondent, the petitioner can request an alternative method of service by filing a motion with the court. The motion must include an affidavit from the process server, describing the efforts he made to serve the respondent. The court may then order that the petition and citation be left with a person at least 16 years old where the respondent lives, or by direct service in any other manner that would reasonably give the respondent notice of the suit.
Service by Publication
If the petitioner does not know where the respondent lives, the court may order service by publication. The petitioner must file a motion, supported by an affidavit, stating that he does not know where the respondent is or how to locate him. The court can then order that the respondent be served by publishing notice of the divorce in a local newspaper. If the respondent fails to file a response, the petitioner can request that the court grant the divorce by default. If service is by publication, however, the court must approve and sign a statement of the evidence presented at the default hearing.
Jimmy Verner, a lawyer since 1979, is Board-certified in family law and in civil trial law by the Texas Board of Legal Specialization. Verner practices family law in Dallas.