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Many people separate from their spouse without getting a divorce. This may be for financial reasons or simply a lack of interest in going through a divorce. Some people think they are legally separated after a certain amount of time. Texas does not recognize legal separation. Often times a spouse is unable to locate the other spouse when they are finally ready to file for divorce. This complicates matters of child support, child custody, property division and the divorce process in general. Below are common questions we hear from clients who find themselves unable to find their significant other. If you have further questions, contact Shawn M. Rudisel, your Houston divorce problem solver for a complimentary consultation.
Can I legally separate after a certain amount of time?
No. The amount of time apart has no effect on a person marital status. Once married, you are legally tied to your spouse until a divorce is finalized. Texas does not recognize a legal separation.
Can I still get a divorce if I can’t find my spouse?
Yes. Texas law has provisions for giving a party notice of a divorce suit even if they cannot be located. Once notice is properly given, a divorce suit can proceed without the missing spouse present.
Is it cheaper to get a divorce when my spouse in unable to be located?
No. Texas courts require that the missing spouse be served with notice of the divorce by publishing the suit in a newspaper. This is called “substituted service” and is generally more expensive than serving a party in person with divorce papers. Most courts will also require the appointment of an Ad Litem attorney to represent the missing spouse in their absence. An Ad Litem is mandatory if children are involved. The Ad Litem will bill the petitioner for divorce separately for work performed.
What is an Ad Litem Attorney and what do they do?
The Ad Litem is an attorney appointed by the Court to represent the interest of the missing spouse. The Ad Litem will file pleadings with the Court and will usually contact the party (petitioner) filing the divorce. They may send discovery (formal questions for the petitioner to answer) to assist in finding the missing spouse as well as other means available. See the statute that explains the duties of an Ad Litem (Texas Family Code Section 107).
What happens if the Ad Litem does not find my spouse?
The Ad Litem will report back to the court that they have exercised due diligence in attempting to locate the missing spouse and that the missing spouse could not be found. So long as all other requirement under the law are met, the Court will grant the divorce.
What happens if the Ad Litem locates my spouse?
If your missing spouse is finally located, the court will require that the spouse be served at there address or wherever they may be found. The spouses response to being served will determine if it will proceed as an uncontested divorce or a contested divorce. Remember, publication is simply a method of serving a party.