Divorce is not a private matter. It is a type of litigation. This means one spouse must sue the other to obtain a divorce, even if the parties amicably agree to do so.
And as with any lawsuit, the spouse filing for divorce must legally serve the other spouse. This usually is not too difficult to accomplish if both spouses live in the same area. But what about a situation where, say, you live in Galveston and your estranged spouse has moved to a foreign country following your separation? You can still file for divorce here in Galveston, but how do you serve your spouse abroad, particularly if you don’t know his or her exact address?
What Is “Citation by Publication,” and How Does It Apply to Divorce Cases?
The short answer is that you publish a notice in the newspaper. This is known in Texas law as “citation by publication.” Basically, you file an affidavit with the court explaining that you conducted a diligent search to find your spouse and failed. You may need a court order before actually proceeding with citation by publication.
If the other spouse responds to the notice–or you subsequently locate and serve them the divorce lawsuit–then the case proceeds like any other. But if the other spouse fails to respond, Texas civil court rules require the court to “appoint an attorney to defend the suit” on their behalf. This is known as an “attorney ad litem.” The attorney ad litem will then represent your spouse in the divorce case as if they had been hired by them directly.
Note that the appointment of an attorney is mandatory, not optional. A Texas appeals court recently affirmed that point in a case, Jackson v. Jackson involving a scenario like the one hinted at above. Here, a husband and wife married while living in the Asian country of Kyrgyzstan. Shortly after the birth of the couple’s son, the husband relocated to the U.S. and has not seen his wife or child since.
Three years later, the husband filed for divorce in a Texas court. He attempted to serve the lawsuit on his wife at her last-known address in Kyrgyzstan. When he did not receive return of service–an acknowledgment that she received the lawsuit–he filed an affidavit for citation by publication. However, when the wife never responded to the notice, the Texas court granted the husband a default judgment.
The wife appeared in court afterwards and moved for a new trial on the grounds the judge failed to appoint an attorney ad litem as required by the Texas civil rules. The judge denied this motion, but the Court of Appeals reversed, noting the trial court “failed to comply with its mandatory duty to appoint an attorney ad litem.” The wife was therefore entitled to a new trial.
Let Our Houston Divorce Lawyers Help You
Like any legal process, divorce requires you to complete certain tasks in a particular order. An experienced Galveston divorce attorney can make sure you do not make any critical mistakes along the way. If you need help with any divorce-related legal matter, contact the Law Offices of Tad Nelson & Associates in Galveston and League City today by calling (281) 843-9776.