Disclaimer: Do not use website to substitute as legal advice. We advise that you hire a lawyer because this process is often complex, and challenging even for seasoned attorneys.
Something that they do not tell you on resources like wikihow is that a default judgement divorce (a divorce taken without the answer of one spouse) is among the more challenging types of divorce because of all of the procedural rules the court has to follow in order to grant the case. So, we suggest that you proceed with caution and care.
Step 1. Figure Out Where You Need to File Your Divorce
Most often, we will file the divorce in the District Clerk’s Office in the county of Texas that you have been living in for the last 6 months because you have jurisdiction in this county.
Step 2. Try to Find Your Spouse (Not Because You Will Have Success, but Because You Have to Show the Court that You Made An Effort to Locate Them
We actually need to look for your spouse, and then fill out an affidavit concerning your efforts to find your spouse. The Court must be able to determine in the end that you made enough effort to locate your spouse, but could not do so.
We will do the following:
Ask your spouse’s friends and family for information relating to your spouse’s location;
attempt to serve your spouse in person (if at all possible);
Call any previous employer of your spouse;
check telephone directories;
check facebook;
do a people finder search on the web;
look at property tax listings;
Check jail listings;
You should keep records of your efforts so that you can accurately fill out an affidavit reflecting our effords.. The affidavit will be filed with your Petition for Divorce as explained below.
Step 2. Write the Petition for Divorce & Civil Case Information Sheet, Download Your Standing Orders
In the Petition for divorce, we will fill out several items of information.
- Discovery Level
Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas Rules of Civil Procedure.
- Parties
This suit is brought by ____________Petitioner. The last three numbers of ___________license number are 535. The last three numbers of _____________Social Security number are [*_________*].
________________is Respondent.
- Domicile
Petitioner has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period.
- Service
THIS SECTION WILL STATE ONE OF THE FOLLOWING
OPTION 1: “Service will be rendered by Sheriff posting citation on the courthouse door.”
(use this above language if you can’t find your spouse and you don’t have children or real property together)
OPTION 2: “Service will be rendered by publication.”
(use this above language if you have children or property together, but you know that you cannot find your spouse)
- Protective Order Statement
No protective order under title 4 of the Texas Family Code is in effect, and no application for a protective order is pending with regard to the parties to this suit.
- Dates of Marriage and Separation
The parties were married on or about ____________________and ceased to live together as a married couple on or about December, 2013.
- Grounds for Divorce
The marriage has become insupportable because of discord or conflict of personalities between Petitioner and Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.
- Children of the Marriage
Petitioner and Respondent are parents of the following children of this marriage who are not under the continuing jurisdiction of any other court:
There are no court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting the children the subject of this suit.
Information required by section 154.181(b) of the Texas Family Code is provided in the statement attached as Exhibit [*_________*].
No property of consequence is owned or possessed by the children the subject of this suit.
Petitioner believes that Petitioner and Respondent will enter into a written agreement containing provisions for conservatorship of, possession of, access to, and support of the children. If such an agreement is made, Petitioner requests that the Court approve that agreement and adopt it as the Court’s order. If such an agreement is not made, Petitioner requests the Court to make orders for conservatorship of, possession of, access to, and support of the children.
- Division of Community Property
Petitioner believes Petitioner and Respondent will enter into an agreement for the division of their estate. If such an agreement is made, Petitioner requests the Court to approve the agreement and divide their estate in a manner consistent with the agreement. If such an agreement is not made, Petitioner requests the Court to divide their estate in a manner that the Court deems just and right, as provided by law.
- Request for Change of Name
Respondent requests a change of name to _______
- Prayer
Petitioner prays that citation and notice issue as required by law and that the Court grant a divorce and all other relief requested in this petition.
Petitioner prays that Petitioner’s name be changed as requested above.
Petitioner prays for general relief.
Respectfully submitted,
Step 3. Now, You Have All of the Documents to Start Your Divorce With a Missing Spouse. Time to File Them.
Now that we have all of the documents we need to file, we will set out to file them.
E-Filing for a Default Judgement Divorce (a divorce without a spouse).
First, we will click the New Case button.
Ensure that you select the proper category to file the divorce (Family/Juvenile – Marriage Relationship)
We will indicate the filing code when starting a divorce without a spouse is “Petition”
This part is tricky– make sure to select issue citation AND Service- Sheriff Posting. This is the proper way to order a divorce when you are going to serve your spouse and there are no children.
Then, we will attach the petition for divorce that you wrote, as a LEAD document. And the affidavit that you wrote, will be attached an ATTACHMENT.
Now, we will need to click the navy blue “Add Another Filing” button. The filing code will be petition for divorce. We will then attach our second lead document, which will be your request for issuance of service. The request form you will need for bexar county is located here:
http://gov.bexar.org/dc/Downloads/RequestforProcessForm.pdf
We will select courthouse door and sheriff:
Once you have submitted your petition, and paid your filing fee ($332.33 for cases without children), then congratulations you have just completed step 1 of getting your divorce done without a spouse.
Step 4. Wait 60 days from the date that we filed your Petition for divorce.
About 5 days after your posting is accepted, we will call the district clerk’s office and make sure that your notice of the divorce successfully posted. We cannot finish your case until at least 60 days have past since the case was filed, and until 10 days have passed since your notice of posting issues.
Step 5. Write the Default Divorce Decree, and Present it to the Court at Your Final Hearing
Note: Default Judgement Divorces Can Often Result in Successful Appeals by Your Spouse.
If you do get your divorce granted without your spouse, then it is possible that your spouse could come back later and try to re-open the terms of your divorce. Your spouse cannot change that you were in fact divorced, but who received what in that divorce could be re-opened.
I am Attorney Megan V. Cook, and I wrote this post. Please do not use a website for legal advice though. I do advise that you hire a lawyer. I would be honored to help you.
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