A spouse who cannot be located does not trap you in a marriage. Texas provides a path — substituted service, service by publication, or posting — but the court will require proof that you genuinely tried to find them first.
Try Everything Else First
Courts expect ordinary service to be attempted before anything unusual is authorized. If personal service fails, the next step is usually a motion for substituted service — leaving papers with someone over 16 at the residence, posting on the door, or serving by email or social media where the court finds it reasonably effective.
The Diligent Search Affidavit
Publication requires a sworn affidavit describing your efforts in detail. Judges look for a real search: last known addresses and employers, contacts with relatives and friends, postal and voter records, motor vehicle and property records, military status checks through the Department of Defense database, incarceration searches, social media, and skip-trace or investigator results. A thin affidavit gets denied and costs you weeks.
Service by Publication or Posting
Section 6.409 governs citation by publication in a divorce, and it has a useful quirk: notice is published one time only. Where the case involves no parent-child relationship, subsection (d) allows service to be completed instead by posting the citation at the courthouse door for seven days, which is far less expensive than newspaper publication. Because Texas moved much of this online, some counties also publish through a statewide public information website.
The Attorney Ad Litem
When a spouse is served by publication and does not appear, the court ordinarily appoints an attorney ad litem to represent the missing party’s interests, and you will generally be responsible for that fee. There is an important exception. Under § 6.409(e), if the petitioner or the petitioner’s attorney swears that no child under 18 was born or adopted of the marriage and that no appreciable amount of property was accumulated during the marriage, the court may dispense with the ad litem appointment. In that situation a statement of the evidence approved and signed by the judge is filed with the papers of the suit.
What a Publication Divorce Can and Cannot Do
The court can end the marriage. What it can do about property and support is limited: without personal jurisdiction over the absent spouse, the court’s power over out-of-state property and money judgments is constrained. This is a common reason to consider a status-only divorce, ending the marriage now and reserving property issues. See also venue and jurisdiction.
Setting Aside a Publication Divorce
A spouse served only by publication has an extended window to seek a new trial after learning of the judgment. That is a good reason to document the search thoroughly and to have the decree drafted so it can withstand a later challenge.
Frequently Asked Questions
Can I get divorced in Texas if I cannot find my spouse?
Yes. After a documented diligent search, the court can authorize substituted service, service by publication, or posting.
How much does a divorce by publication cost?
More than a standard case. You may pay for publication or posting plus an attorney ad litem, though Section 6.409(e) lets the court skip the ad litem where there are no children of the marriage and no appreciable property.
Can the judge divide property if my spouse never appears?
Only within limits. Without personal jurisdiction over the absent spouse, the court’s authority over property and money judgments may be restricted.
Texas Statutes Referenced
- § 6.409 — Citation by Publication
- § 6.408 — Service of Citation
- § 6.4035 — Waiver of Service
- § 6.305 — Acquiring Jurisdiction Over Nonresident Respondent
- § 6.308 — Exercising Partial Jurisdiction
Related Pages
Talk With a Texas Divorce Attorney
A missing spouse is an obstacle, not a dead end. Let us map the fastest route. Call 713-955-6182 or contact The De Leon Law Firm.