Providing notice of your intent to divorce is required in the state of Texas to begin the legal process of a divorce. This is otherwise known as “getting served” by your spouse or “serving” divorce papers to your spouse. There are several legal requirements for how to properly serve someone with divorce papers, otherwise the divorce process may be halted or delayed. One of the most important requirements is that you are unable to personally serve the legal paperwork yourself.
Option 1: Creating the Legal Paperwork
Before you serve your spouse with divorce papers, you must draft them or have an attorney draft them on your behalf. The required legal paperwork includes the divorce petition and citation.
Option 2: Waiver of Personal Service in Uncontested Divorces
In an uncontested divorce, or a divorce in which you and your spouse are in full agreement on everything from custody or separation of assets, you and your spouse can choose to waive personal service of the divorce papers. This can be done by you and your spouse by signing a waiver of service before a notary public, and filing the waiver with the court. An advantage to the waiver of service is that it avoids the cost of hiring a process server to properly serve the paperwork.
Option 3: Service via Personal Service
Personal service requires a person who is not a party to the divorce to physically serve the papers by hand to your spouse. This person is usually a private process server, a sheriff, a court clerk, or a constable. However, in Texas the only requirement is that the person must be 18 years of age or older and not be convicted of a felony or a crime of moral turpitude. The person serving the papers will need to file a Return of Service, providing the details of the service to include when, where, and how your spouse was served. If you have a lawyer then usually the lawyer can arrange for a private process server to serve these papers on your behalf. This is the most common way that individuals are served.
If the party being served is on active duty, then personal service is the only option of service. All active duty service members will receive an additional 90 days to respond to the suit, and they are able to delay any hearings until they return from deployment.
Option 4: Service via Certified Mail
Another option is to serve your spouse with certified mail with signature required and a return receipt requested which is sent via the postal service. Again, if you are party to the suit you cannot send this yourself, so it must be sent by a clerk of the court, sheriff, or constable. However, your spouse must sign the certified return receipt exactly as it appears on the divorce petition. Additionally, if you or your spouse are having a contentious divorce, they might refuse to sign the certified mail. Further, due to COVID-19, postal employees are not required to knock on doors when delivering a certified mail piece. The postal employee may elect to leave the letter in the mailbox instead. Once the return receipt is received by the clerk, constable, or sheriff, then they must fill out a Return of Service form and file it with the court, provide it to you, or provide it to your lawyer.
Option 5: Service via Publication
If you are unable to locate your spouse, then you may elect to serve your spouse via a posting or publication. Generally, you must put forward a good faith effort in locating your spouse. A posting may be utilized if no children are involved in the divorce. A posting is generally performed by posting on a board at the courthouse. However, if there are children involved in the divorce, then a posting may not be used and a publication is required. A publication is performed by posting in a newspaper. The Judge will then appoint an Attorney Ad Litem, whose job is to try to find your spouse to give them notice of the divorce. You will be required to pay the Attorney Ad Litem’s fees.
Option 6: Service via a Court Order
The final option is serving your spouse via a court order. This can occur if your spouse is refusing to sign a certified letter return receipt, is avoiding a process server, or is otherwise avoiding your good faith efforts to serve them. In order for the court to serve your spouse via a court order, you are usually required to petition the court and request the court serve your spouse via a court order. This is done by filing a Motion for Substitute Service and a Rule 106(b) Affidavit from whomever attempted to serve your spouse. If the court agrees to serve your spouse via a court order, then an Order for Substitute Service is granted. Then, whomever is serving your spouse, either a process server, sheriff, constable, etc., may leave a copy of the divorce papers with a person over the age of 16 at the location of service. It may be in your best interest to consult with an attorney if you must serve your spouse in this manner.
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