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missing spouse

When a married person wants to file for divorce but is unable to locate their spouse to serve them with the petition or complaint (lawsuit) for divorce, the spouse filing for divorce may be able to provide the required legal notice of the divorce filing by publishing a notice at the courthouse or in a local newspaper. This is a special type of service of process known as service by publication, and to use it, the spouse filing for divorce usually must file an affidavit (sworn statement under oath) detailing the diligent efforts made to locate the missing spouse, stating that the missing spouse is not on active military duty, and identifying the missing spouse’s last known mailing address.

After the notice of service by publication is published in the required place and manner—at the courthouse, in the local newspaper, or in a certain legal publication—the missing spouse has a specified period of time in which to respond to the petition or complaint for divorce. If the missing spouse does not respond after service by publication the court may proceed with the divorce and enter a default judgment resolving all issues in the divorce, including the division of marital property. A divorce granted following service by publication is sometimes referred to as a publication divorce. If there are children involved in a publication divorce there may be additional requirements and challenges for the court to be able to issue orders regarding child custody and child support.

Laws regarding service by publication vary from state to state and are usually located in a state’s statutes or rules of civil procedure. The court must have personal jurisdiction over a missing spouse to be able to enter orders that impose personal obligations on the missing spouse, such as paying child support or marital debts. For these reasons a spouse whose estranged spouse is missing should generally talk to a family law attorney sooner than later.

In Texas, when a spouse wishes to file for divorce but cannot locate their other spouse, they may resort to 'service by publication.' This method requires the filing spouse to demonstrate diligent efforts to find the missing spouse, including an affidavit stating such efforts, confirming the missing spouse is not on active military duty, and providing the last known address. The notice must be published in a local newspaper or at the courthouse, as directed by the court. The absent spouse has a certain period to respond once the notice is published. If there is no response, the court may grant a default judgment, finalizing the divorce and dividing marital property. This type of divorce is known as a 'publication divorce.' When children are involved, there may be additional requirements for the court to issue custody and support orders. Texas law requires personal jurisdiction over the missing spouse for the court to impose personal obligations like child support. Due to the complexities, it is advisable for the searching spouse to consult with a family law attorney to navigate the process.

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