“Uncontested divorce” is a very commonly misunderstood term in family law. Most often parties confuse an uncontested divorce with what we at Evans Family Law Group call an “agreed divorce”.
While neither an uncontested or an agreed divorce have legal definition, at the Evans Family Law Group we refer to an “agreed divorce” as a process whereby both parties are in communication, are transparent in their exchange of information about their estate and the parenting plan for their children if any, and the entire process is amicable and resolved by agreement. For more information go to agreed divorces with the Evans Family Law Group.
Of course, a divorce is “uncontested” when both parties come to an agreement about the major issues of the divorce as outlined in the Original Petition for Divorce. However, people often believe their divorce is “uncontested”, simply because both parties have agreed to the terms of their divorce.
Situations Where Divorces are Uncontested or By Default
Yet, agreement from your spouse is not required and there are circumstances more common than you might realize, in which one spouse seeks a divorce and the other spouse is not available, unwilling to reply or work together, or a spouse for various reasons is unaware of their spouse’s whereabouts.
Imagine, for example, a scenario where a Wife and her Husband have been separated for a number of years, have no children, and no jointly acquired property between them, and they have completely lost contact with each other and have no known method to successfully communicate with him. Imagine that this spouse is now in a new relationship and wants to finalize her divorce.
Another example we recently experienced was a situation in which the parties initially began an amicable divorce process. Both Husband and Wife had filed papers with the Court to start the process, but very quickly the Wife suddenly, and without any advance notice to her Husband, dismissed her divorce petition with the Court and secretly returned to her home country located outside of the United States having left all of her belongings behind. She also left her laptop and cell phone behind and our client had no idea where in that part of the World she moved to, he had no means of communication with her, and she was no longer replying to email.
This is a scenario that we would call an “uncontested divorce” or a divorce by “default”.
Situations like this are more common that you might think. And, if you find yourself in a situation like this, you are not “stuck”. The Texas Rules of Civil Procedure and the Texas Family Code does set out a process that allows the divorce attorneys at the Evans Family Law Group to pursue and complete your divorce, even when your spouse does not agree and does not, for whatever reason, participate in the divorce process.
Citation, Process Server, and Substituted Service
Yet, due process requirements under both the Texas and United States constitutions require that the spouse not filing for the divorce be personally apprised and receive notice personally of the divorce matter being filed with the Court.
This is the process where a constable or process server personally locates the responding party and personally delivers the divorce paperwork filed with the Court to the spouse that did not file for the divorce. However, what can you do if the spouse filing for divorce is completely unaware of the residence of their spouse, in this example having separated and left many years ago?
In a situation like this, the law allows for what is known as “substituted service”. Rule 109 of the Texas Rules of Civil Procedure provides in short that when a spouse to a divorce suit states under oath in an affidavit that the residence of the other spouse is unknown and “after due diligence has been exercised” to locate the whereabouts of that spouse, the the spouse may request that the Court authorize a method of service through “publication” or otherwise by alternative means.
Methods of Alternative or Substituted Service in Texas
For many years, the default method of alternative service was by posting notice at the courthouse or by publishing notice in a local newspaper. More recently, with the obvious advancements in technology and social media, the Texas Rules of Civil Procedure have adapted as well to allow for basically any method of service that “would be as likely” to give that spouse actual notice of the divorce matter that has been filed with the Court.
This rule is found in Texas Rules of Civil Procedure 109(a) which states as follows:
“Whenever citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service, if the court finds, and so recites in its order, that the method so prescribed would be as likely as publication to give defendant actual notice.”
As a result, with the advancements in technology, examples of methods of alternative service may be:
(a) posting at an address where the spouse may reside or frequent;
(b) delivering the paperwork to a close friend or family member;
(c) delivering the paperwork to an employer or work colleague;
(e) Instagram, WhatsApp, Facebook, or other social media platform; or
(d) text message to known cell phone number;
(f) posting to the website with the Office of Court Administration https://www.txcourts.gov/
You may click here to see a sample of an Order on Substituted Service issued by the Court in one of our cases in which a party suddenly relocated to another country with the party’s children. While the names are all changed for privacy reasons, in this Order, you can see all of the methods of service the Court authorized in this particular case — utilizing almost every one of the sample methods mentioned above in one Order.
Notice with the Office of Court Administration
Last, effective July 1st, 2020 the law changed to allow substituted service to be published on the public information internet website of the Office of Court Administration which can be found at https://www.txcourts.gov/. See section 72.034 of the Texas Government Code.
Once citation has been issued and served on the other spouse, then while there are additional steps that are required to complete the divorce process these methods of alternative service allow a spouse to finalize a divorce in these types of situations wherein the other spouse does not participate in the process, otherwise known as an “uncontested divorce” or one in which the spouse defaults in the divorce process.
Do you still have to go to court in an uncontested divorce?
Yes, there will still be a hearing to finalize or what we in the practice of family law call “the prove up”. If the non-filing spouse has been served by substituted service and does not file an answer, the “prove up” will be what is called a default hearing.
At this hearing, your attorney will present testimony and documentation to support your the final terms of your divorce that you are requesting from the Court as the Court is required under the Texas Family Code to confirm the proposed division of the marital estate — even if after separation of 5 or more years – is “just and right” and, if children are involved, the parenting plan and child custody and child support arrangements are “within the best interests of the child.”
Strict Requirements of Service by Substituted Service
It should be noted, that once a Court issues an Order authorizing substituted service that the process server, constable, or service used to issue the substituted services must comply with the strict terms of the Order on Substituted Service and serve process exactly as set out in the Order of the Court.
It is a requirement that the process server, upon completing service by substituted service, file an affidavit with the Court confirming that the terms of the Order on Substituted Service were strictly followed and, at the default hearing, your attorney will present evidence to confirm the terms of the Order on Substituted Service were strictly followed. Because, if not, the Court may not allow you to proceed with your default prove up and finalize the divorce.
What happens after an uncontested divorce?
Once finalized by the Court, the provisions in your divorce decree — even if by default or pursuant to substituted service — will be confirmed by a court order known as the Final Decree of Divorce.
Property can be released, according to the provisions of the decree, child and spousal support should be paid according to those provisions, and your new parenting-time schedule should begin. And, if either spouse violates the order he or she can be brought back to court to show cause and can run the risk of being held in contempt of court.
If you have title to real property, a vehicle, or personal property where the title was shared with your prior spouse you may need to take additional steps following a divorce to cause the title to be transferred to you in your name alone and additional forms, steps, and process are required.
Contact Experienced Uncontested Divorce Attorneys at Evans Family Law Group
This process, while simple in concept, can actually be quite complex and requires the careful guidance of an experienced family law attorney. And, of course, every situation is unique, and when there are property issues and/or children are involved, there are additional required steps.
The divorce attorneys at the Evans Family Law Group are experts in situations like this and can provide professional and expert guidance. Contact Evans Family Law Group to get help today.