Service by Posting (when you can't find your spouse in a divorce without kids)
If you cannot find your spouse and there are no children involved, you may be able to serve by having the notice posted at the courthouse. This is called service by posting.
You can serve by posting if:
- You cannot find your spouse;
- You and your spouse do not have any children under 18 or still in high school;
- The wife is not pregnant; and
- The wife does not have any children under 18 who were born during the marriage with another man (unless paternity of those children has been legally established).
You cannot serve by posting if there are children involved. See Service by Publication (when you can’t find the other parent).
To serve by positing, you must take a number of steps. These steps will delay your case significantly but they are required. Before serving by posting, the law says you must make a diligent search for your spouse. This means you must look really hard.
Use the steps set out in the Affidavit for Citation by Posting form as a guide when looking for your spouse. You should also use common sense. A diligent search must include the steps someone who really wants to find their spouse would take.
When you serve by posting, your spouse may not actually learn about your case. Because of this, the law says your spouse has 2 years to ask for a new trial.
In addition, if your spouse can show that you did not look hard enough before serving by posting then your spouse may be able to get a new trial no matter how much time has passed.
If you have questions, it’s important to talk with a lawyer before service by posting.
Fill out the following forms:
This form tells the judge that, even though you made a diligent search, you could not find your spouse. Fill it out completely and sign it in front of a notary.
This form tells the judge you want to serve your spouse by posting. Fill it out completely and sign it.
In some counties, you may need a court order before the clerk will issue citation by posting. If needed, you may use the Order on Motion for Citation by Posting to ask for a court order. You will ask the judge to sign this form to order you to serve by posting. Fill it out completely except for the judge’s signature.
Take the completed Affidavit for Citation by Posting and Motion for Citation by Posting forms and at least one copy of each to the clerk’s office where you filed the Petition in your case. The clerk will keep the original, stamp your copies, and give the copies back to you.
If your county requires a court order before the clerk will issue citation, ask the clerk when you can give your proposed Order on Motion for Citation by Posting (called Order for short) to the judge. You may be able to see the judge that day. Or, you may have to come back another day. Read the article TIPS for the Courtroom for information about going to court. After the judge has signed your Order, turn in the signed Order at the clerk’s office. Get a file-stamped copy of the Order for your records.
Tell the clerk you need to serve by posting. Ask the clerk, constable, or sheriff to post your notice for 7 days at the courthouse. The clerk, constable, or sheriff will fill out a Return of Citation that says when the notice was posted. Make sure the Return of Citation is filed in the clerk’s office.
If you and your spouse own property of significant value, such as a house, you must also hire an attorney to look for your spouse. This attorney is called an attorney ad litem. You are responsible for locating, hiring and paying for the attorney ad litem. This protects your spouse’s right to be notified about the case when there is property of significant value.
You can finish your case when:
- It has been at least 60 days since you filed your Petition for Divorce;
- It has been at least 27 days plus the next Monday after 10:00 AM since the notice was posted; and
- The Return of Citation has been on file at the clerk’s office for at least 10 days, not counting the day it was filed or the day you come to court.
Read the article TIPS for the Courtroom for information about going to court.
Note: If you had to hire an attorney ad litem to look for your spouse because you own property of significant value, set a date to meet the attorney at court. The attorney ad litem must testify that he or she tried to find your spouse.
If your spouse did not respond to (answer) the service by posting, ask the clerk’s office when the court hears uncontested divorce cases. Fill out these forms and bring them with you to court:
- The Final Decree of Divorce or any other orders you want the court to sign.
- Military Status Declaration (If your case is filed in Harris County, fill out a Military Status Affidavit instead. Sign it in front of a notary.)
- Certificate of Last Known Mailing Address
- Statement of the Evidence
Note: If you or the attorney ad litem find your spouse, you cannot serve by posting. See How to Serve the Initial Divorce Papers.