Substituted Service In Divorce Cases The Right Way
Most often we picture a person in a divorce getting notice of their divorce by having a stranger hand them papers and say “you’ve been served.”
But, what happens if a spouse wants a divorce and cannot serve the spouse because they do not know where the spouse is?
A process is required called “substituted service.”
The following snippet is from a 2021 Texas divorce case where the substituted service was defective and the Court of Appeals explained what they would require to find the substituted service correct.
Why Does How You Serve Someone In a Divorce Really Matter?
If you do not properly follow the service rules, your divorce will not be granted at the end of the case, OR it will be granted and then later your ex-spouse can undo the case by appealing it.
In other words, this is the court explaining what you have to do to proceed with your divorce against your spouse if you cannot serve them because you do not know where they are.
Here is a link to the complete case:
Here is the Texas Court explaining everything you need to know to serve someone when you cannot hire a process server to hand them the physical divorce papers.
For a default judgment to withstand direct attack, strict compliance with the rules governing service of process must affirmatively appear on the face of the record. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); Lytle v. Cunningham, 261 S.W.3d 837, 839-40 (Tex. App.-Dallas 2008, no pet.). If the record fails to show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, then the attempted service of process is invalid and of no effect. Lytle, 261 S.W.3d at 840; Garrels v. Wales Transp., 706 S.W.2d 757, 758 (Tex. App.-Dallas 1986, no pet.); see also Wilson, 800 S.W.2d at 836 (“Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him.”). When the attempted service of process is invalid, the trial court does not acquire personal jurisdiction over the defendant, and the default judgment is void. Lytle, 261 S.W.3d at 840; see generally TEX. R. CIV. P. 124. There are no presumptions favoring valid issuance, service, and return of citation in the face of a direct attack on a default judgment. Primate Constr., Inc., 884 S.W.2d at 152; Wilson, 800 S.W.2d at 836.
Because Gill obtained a no-answer default final decree by substituted service, she had the burden to show Singh was served in the manner required by the applicable rule or statute. See Dolly v. Aethos Commc’ns Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.-Dallas 2000, no pet.). Virtually any deviation will be sufficient to set aside a default judgment on appeal. Id.; see also LaRose v. REHJ, Inc., No. 05-17-01348-CV, 2018 WL 6521804, at *3 (Tex. App.-Dallas Dec. 12, 2018, no pet.) (mem. op.). Strict compliance is particularly important when substituted service is issued under rule 106(b). Dolly, 10 S.W.2d at 388.
Under Rule 106, when service of process by personal delivery or by certified mail is unsuccessful, the trial court may, “upon motion supported by affidavit,” authorize alternative methods of service. TEX. R. CIV. P. 106(b). The motion must be supported by an affidavit “stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found,” and stating the specific facts showing that traditional service has been attempted “at the location named in such affidavit but has not been successful.” Id. Upon such a showing, the trial court may authorize service: (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit (the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found); or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit. Id.
An affidavit supporting a motion for substituted service under rule 106(b) must state “specifically the facts showing that service has been attempted” by means specified in rule 106(a) “at the location named in such affidavit.” Id. Gill’s affidavit stated only that Gill did not know where Singh could be found. Her attorney’s affidavit recounted e-mail and telephone conversations with Singh in which he refused to provide his location. Neither affidavit, however, stated facts showing that service under rule 106(a) had been attempted. See id; Harrison v. Dallas Court Reporting Coll., Inc., 589 S.W.2d 813, 815 (Tex. Civ. App.-Dallas 1979, no writ) (process server’s affidavit not showing how many attempts at service were made or the times at which service was attempted was inadequate to support substituted service); Coronado v. Norman, 111 S.W.3d 838, 842 (Tex. App.-Eastland 2003, pet. denied) (affidavit failing to state dates and times service was attempted is insufficient to support substituted service); see also In re J.M.I., 223 S.W.3d 742, 745 (Tex. App.-Amarillo 2007, no pet.) (affidavit merely detailing respondent’s attempts to avoid service was inadequate to support substituted service).
Moreover, the affidavits do not exhibit the diligence necessary to support substituted service. “[I]f personal service can be effected by the exercise of reasonable diligence, substituted service is not to be resorted to.” In re E.R., 385 S.W.3d 552, 564 (Tex. 2012) (quoting Sgitcovich v. Sgitcovich, 241 S.W.2d 142, 147 (1951)). “A diligent search must include inquiries that someone who really wants to find the defendant would make, and diligence is measured not by the quantity of the search but by its quality.” Id. at 565. Here, there is no indication that Gill’s diligence included searching public data or “`obvious inquiries’ a prudent investigator would have made,” such as attempting service by mail to obtain a forwarding address or locating and contacting other persons who would likely have information about Singh, beyond Singh’s immediate family in India. Id. (citing In the Interest of S.P., 672 N.W.2d 842, 848 (Iowa 2003), for list of “obvious inquiries”). Consequently, we conclude the affidavits in support of Gill’s motion for substituted service failed to meet the requirements of rule 106(b) and the trial court improperly ordered substituted service. See Dolly, 10 S.W.3d at 388. Accordingly, we sustain Singh’s first issue.
Singh contends in his second issue that the trial court abused its discretion in granting the divorce on the basis of fraud. Having sustained his first issue, however, we conclude that the trial court lacked personal jurisdiction over Singh, and we need not address Singh’s second issue.
Because Gill’s motion for substituted service failed to meet the requirements of rule 106(b), the trial court improperly ordered substituted service and did not obtain personal jurisdiction over Singh. Accordingly, we reverse the trial court’s final decree of divorce and remand the case for a new trial.
Singh v. Gill, Tex: Court of Appeals, 5th Dist. 2021