The following information is not legal advice and is not a substitute for legal representation by an attorney.
In the previous blog post, we discussed the general mechanics of filing the Petition for divorce – When you can file for a divorce in Texas, where you can file, what you can allege, and how much it will cost to file for divorce. In this post, we describe how the Petitioner (the spouse who filed the Petition) legally notifies their soon-to-be ex-spouse (the Respondent) that the Petition for divorce has been filed.
The Petitioner typically can notify the Respondent of the filing of the Petition in one of three** ways. First, a private process server or a county constable can personally serve the Respondent with formal notice that the Petition has been filed. Second, the Respondent can sign a document that is called a “Waiver of Service.” Third, if the Respondent (or their current address) cannot be located after a diligent search, the Petitioner can ask the court to order that the Respondent be served by publication or posting. Each of these methods is generally explained below.
Formal Service of Process. The first way to legally notify the Respondent is to personally serve them with the citation (a legal document prepared by the District Clerk that formally gives notice of the Petition). This method typically involves a fee. For personal service, you will provide the District Clerk with the address where you believe that your spouse can be served and request that a citation be issued. The District Clerk will then issue a citation, along with a copy of the Petition for divorce, to the Constable or Sheriff in the county where the Respondent will be served. If the Respondent will be served in a different county or if you want to have the Respondent served by an authorized private process server, the District Clerk will return the citation to you. (Private process servers often can serve the citation and Petition more quickly, because they do not have law enforcement responsibilities. Also, they can attempt to serve the Respondent at any place and time you believe they can be found, while a Sheriff or Constable may only attempt service at certain times of the day and week). It then becomes the Petitioner’s responsibility to deliver the citation and a copy of the Petition to the private process server. Personal service is considered complete when the process server hands the citation and Petition to the Respondent. Whoever serves the citation and Petition – whether it is a private process server, sheriff, or constable – must sign an affidavit for the Court that describes when and where they served the citation and Petition.
Waiver of Service. The second – and easiest – way to give legal notice to the Respondent is by using a Waiver of Service. With the waiver of service, the Respondent waives the requirement for the Petitioner to use a process server (i.e. Constable, Sheriff, or private process server) to formally serve them with a citation and a copy of the Petition. As the name suggests, a Waiver allows the Petitioner to give formal notice of the Petition to the other spouse without formal service.
The Waiver must be signed by the Respondent after the Petition for divorce has been filed with the court and the Respondent has been given a file-stamped copy of the Petition. Once the Waiver has been signed by the Respondent, it must be filed with the Court, where it must be on file with the Court at least 10 days before a divorce can be finalized.
Posting or Publication. The third method to notify the Respondent of the Petition for divorce is by posting or publication. For service by posting, the Petitioner asks the District Clerk to post the citation at the courthouse. After a certain amount of time has passed, the Clerk notifies the court that service by posting has been completed. A Court order is needed for service by posting, so this method should only be used if all reasonable means of service have been tried but the Respondent has not been located. Service by posting is usually done when no children or property are involved in a divorce.
Service by publication is accomplished in the official newspaper of the city where the Respondent was last known to have lived. After obtaining a Court order allowing this method, the Petitioner asks the District Clerk to issue notification of the filing of the Petition in the newspaper authorized by the Court. The Petitioner is responsible for any fees charged by the newspaper. Once the publication is complete, the Petitioner must file proof of the publication with the District Clerk.
The ins and outs of serving the Petition can be complicated. With The Goodman Law Firm, they don’t have to be. Contact us today for a consultation regarding your legal situation.
** There are other ways for the Petitioner to have the Respondent served. These three ways, however, are the most common.
~ The preceding information was adapted from Pro Se Divorce Handbook, created as a public service by The Texas Young Lawyers Association and The State Bar of Texas, 2014.