How to Serve the Initial Court Papers (Family Law)
This article tells you how to serve the initial court papers in a family law case (such as a divorce, custody, modification, child's name change, or paternity case).
Yes. Each person named as a respondent in your petition (the form you file to start your case) must be served with the initial court papers.
Exception: A respondent does not need to be served with the initial court papers if he or she will voluntarily fill out and sign:
- a Respondent’s Original Answer form or
- a Waiver of Service Only (Specific Waiver) form (this form must be signed in front of a notary).
You can skip the rest of this article if each respondent will voluntarily fill out and sign an answer or waiver of service.
Each respondent must be served with the “initial court papers” which include:
- the citation (you will get this form at the clerk’s office when you file your case), and
- a copy of your petition (the form you file to start your case), and
- a copy of any other forms you file with your petition.
You can have a constable, sheriff, private process server, or the court clerk serve the respondent using one of these methods.
- Personal Service. (This method is best.)
The constable, sheriff, or private process server will:
- deliver the initial court papers to the respondent in person; and
- complete a Return of Service form that says when and where the respondent was served; and
- file the completed Return of Service with the court or send it to you to file with the court. (The Return of Service is proof the respondent was served.)
The respondent will NOT have to sign anything.
- Service by Registered or Certified Mail, Return Receipt Requested.
The clerk (or constable) will:
- mail the initial court papers to the respondent by registered or certified mail, return receipt requested; and
- if the return receipt (or “green card”) is signed by the respondent and returned to the clerk, the clerk (or constable) will complete a Return of Service form that says when and where the respondent was served, and
- file the completed Return of Service with the court or send it to you to file.
See Texas Rules of Civil Procedure, Rule 106(a)(2).
Warning! You should only use service by registered or certified mail if you know that the respondent will sign for the certified letter. If someone else signs for the letter or the respondent does not sign his or her name exactly as it is written on your petition, you will have to pay another fee and have the respondent served a different way.
- Substituted Service by Court Order.
You can ask the judge for permission to serve the respondent another way if the constable, sheriff, or private process server:
- has tried to serve the respondent in person or by registered or certified mail without success; and
- can confirm that the respondent lives, works, or can be found at the location where service was attempted.
You must file a Motion for Substituted Service and a Rule 106(b) Affidavit from the constable, sheriff or private process server. If the judge is convinced that the respondent can be found at the location where service was attempted, the judge can sign an Order for Substituted Service that authorizes the constable, sheriff, or private process server to:
- leave a copy of the initial court papers with anyone over 16 at the location specified in the affidavit or
- authorize service in any other manner that will be reasonably effective to give the respondent notice.
See Texas Rules of Civil Procedure, Rule 106(b).
- Service by Posting.
This method of service is used if you cannot find the respondent (after looking really hard), and there are no children involved. Read this article to learn more: Service by Posting (when you can’t find your spouse in a divorce without kids).
- Service by Publication.
This method of service is used if you cannot find the respondent (after looking really hard), and there are children involved. Read this article to learn more: Service by Publication (when you can’t find the other parent).
Getting the respondent served can be complicated. If you have questions, talk to a lawyer.
As a general rule, only the initial custody papers need to be served by a constable, sheriff, private process server or the court clerk. You can serve the rest of the papers yourself.
Send a copy of any papers you file in the case to each respondent. If a respondent has a lawyer, send a copy to the lawyer instead. You can use any of these delivery methods:
- Hand delivery
- Regular Mail or Certified Mail, Return Receipt Requested
- Commercial delivery service (for example FedEx)
- Electronic service through the electronic filing manager. (Note: This method is required if you electronically file (E-File) the Petition and the email address of the respondent or the respondent’s lawyer is on file with the electronic file manager.)
Exception: If you file an amended petition and the respondent has not filed an answer, you must:
- ask the clerk to reissue the citation and attach a copy of your amended petition, and
- arrange for the respondent to be served by a constable, sheriff, or private process server (with the new citation and amended petition).
It is currently unlikely in the state of Texas. While most Texas counties let parties serve legal documents electronically, this is not intended to be the citation, and it must be agreed to by the other side.
But check with your judge! If substituted service has not worked, ask your judge if you can have someone served through an alternative method. This is called alternative service. If you can show the judge that the alternative method you’ve come up with will successfully get the other party served, the judge may allow it. The bar is high to prove that social media is the best alternative method because of issues of privacy and ensuring the intended person actually received the notice.
Social media can also be helpful to build up proof that you know where the other party is located. If you can verify that the social media account is the other party’s account, the judge may use the proof that you have to allow service to a location that is indicated on social media.