Texas Flag
Texas Divorce Laws

FAQ: What If a Process Server Can’t Give You Divorce Papers?

Michael Tierney
November 13, 2022

The divorce process is much more complicated than it might seem on the surface, even with amicable divorces. The process can be remarkably challenging and can evoke strong feelings of animosity toward someone you once cared about deeply. You are forced to come to terms with the end of the marriage and negotiate certain divisions to ensure both spouses can resume life after the divorce.

Most people do not realize that the process leading up to the divorce proceedings can be just as complicated as the case itself. A great deal of preparation goes into a divorce that cannot be overlooked or neglected if the claim is going to be successful.

Most of the preparation required for a divorce claim involves filing the appropriate paperwork to begin the process. The local court needs to be informed of the desire to get divorced, and their spouse requires similar notification.

Regardless of whether you consent to the divorce, the paperwork is essential to valid divorce proceedings.

Once the petition for divorce is delivered to the spouse being divorced, the process can begin in earnest. This has led some to believe that an effective tool for avoiding divorce is avoiding the papers needed to inform them and request their consent. The validity of this technique might not be as straightforward as some might believe.

What is a Process Server?

If you have never been divorced, you might not be familiar with what a process server is and the role they play in divorce proceedings. When filing for divorce, the first step in getting the process started is filing a petition for divorce to inform the courts and the spouse of the intent. In certain situations, one spouse is unable or unwilling to deliver the divorce papers to their spouse for safety or personal reasons.

When this situation arises, it is within the rights of the filing spouse to have a representative deliver the papers on their behalf. These representatives are trained professionals specifically tasked with informing individuals of legal action being taken against them.

Process Server Delivering Papers

These representatives are known as process servers since they serve the paperwork that begins the process of legal action. Process servers are not exclusively legal professionals or professionals employed by your local court. Each state has certain restrictions regulating who can be a process server, but they are seldom restrictive.

The only universal restriction on process servers is that they must be an unbiased party with no stake in the case. Aside from this, any adult can serve so long as they meet the state's requirements. Even law enforcement officials are allowed to act as process servers and deliver the papers to the subject of the documents.

While virtually anyone is permitted to act as a process server, there are licensed officials capable of serving the papers on the filer's behalf. It is generally recommended for those filing legal paperwork to utilize the services of one of the licensed process servers. Ultimately, the decision of who the filer uses as a process server lies with them so long as they follow the state's laws in their selection. To many, the sight of a process server is something they want to avoid, and they might try to do exactly that.

Can a Process Server Be Avoided?

If you know your spouse's intent to file for divorce, you might try to take steps to prevent the process from moving forward. Some think avoiding the process server is an effective technique to neutralize divorce. This can include avoiding the areas you normally frequent where the process server would look for you.

This tactic is often believed to effectively prevent divorce proceedings from advancing, but this is far from the truth.

Solution Avoiding the process server will not do anything to prevent your spouse from moving forward with the divorce. It simply forces them to take an alternate approach to inform you of their desire for divorce.

Process Server Delivering Divorce Papers

If the process server cannot locate you and deliver the divorce papers, your spouse is permitted to request the right to notify via publication. This means funding a post in a newspaper or in the courthouse to try and inform you of their divorce intent. This is the next step of a genuine effort to locate and notify you of their desire for divorce.

A publication is a little more difficult to avoid since they are more widespread and have a greater reach than a process server. Some believe that ignoring the publication will accomplish the original goal of avoiding the process server. This will not be any more effective than successfully avoiding a process server.

Ignoring or avoiding divorce paperwork will only enhance your spouse's power in divorce proceedings. If they reasonably attempt to inform you of the divorce but cannot reach you, they are given a form of executive power to advance the divorce process. This is known as defaulting on the divorce, which negatively affects you and gives your spouse the majority of the power in the divorce process.

What is Divorce Default?

Divorce proceedings are supposed to allow both parties to present their case and negotiate asset division, alimony payments, and other details that impact post-marital life. Allowing the divorce proceedings to go into default takes away the majority of your power to present your side of the negotiations.

Solution Failing to acknowledge the summons and file the appropriate response paperwork allows your spouse to petition the court for default and issue a divorce without you.

Defaulting on a divorce eliminates any opportunity to negotiate a favorable divorce settlement and entitles your spouse to walk away without any consequence.

Person Filing For Divorce

A default divorce is not necessarily as simple as that, especially since the requirements and particulars vary by state. Nevertheless, default divorce ultimately favors one spouse over the other and leaves you at a disadvantage as a divorcee. Allowing a divorce to go into default is not something you should ever allow if you want to ensure an equitable distribution of assets. It is usually better to acknowledge the divorce summons and follow the process by exercising the same rights as your spouse.

Allowing the divorce to go into default could cost you custody or visitation to any children you share with your spouse. It can also eliminate any chance of spousal support and loss of assets automatically awarded to the spouse who followed the proper procedure. If the process server and other methods cannot reach you or you fail to acknowledge the summons when it arrives, you are placed at a severe disadvantage in the divorce proceedings.

You might be worried if you could not receive the notice from the process server or missed the publications through genuine communication issues. Fortunately, there is still hope if a default divorce has been issued.

Can a Default Divorce Be Reversed?

The prospect of a default divorce can severely impact your post-marital life, even if the circumstances leading to a default judgment were born of a genuine inability to respond. In situations where a default judgment has been rendered when you were unaware of your spouse's attempts to divorce you or could not respond, you might be interested in finding a way to reverse the judgment.

Solution Fortunately, such a reversal is possible, and you might be able to get a second chance at going through the proper divorce proceedings.

However, this option is limited by a few details that might prevent you from seeking an overturned judgment.

Some states in America allow the non-filing spouse to appeal a default judgment on divorce. Overturning a default divorce judgment is known as having the judgment "set aside" so the divorce proceedings can start fresh. Unfortunately, not every state in the country permits you to have a default judgment set aside. In the states where it is possible, you must be able to provide a valid reason for why you were unable to participate in the original proceedings.

Appealing Default Divorce

What qualifies as a valid reason in the eyes of the court is very strict, and you will not be granted this second chance if you ignore the summons. The circumstances that qualify as a valid reason are:

  • Mistakes: If you failed to answer the original summons due to a mistake or excusable negligence, you might be able to have the judgment set aside. A valid mistake includes situations where the document did not reach you because of something beyond your control. Seeing the form and forgetting about it does not qualify.
  • Misconduct: If you failed to answer the original summons due to someone's actions actively inhibiting your ability to respond, you might be able to have the judgment set aside. Misconduct includes an official withholding the paperwork or leading you to believe that a response is not necessary.
  • Lost Document: If you failed to answer the original summons because you never received the papers, you might be able to have the judgment set aside. While this might be rendered moot if the publication reaches you, never receiving the summons can lead to the judgment being set aside.

There are other potential causes for the courts to set aside a default judgment, but they will vary by state. Those listed above are only a few that might transcend state lines. If you feel you meet the requirements, you must file the petition to overturn the decision within the appropriate timeframe. The deadlines for when you can file for the judgment to be overturned will vary depending on the state and the reason for your request.

For example, in Nevada, you have 6 months from when written notice of the judgment is filed if you are basing your request on a mistake. The other reasons for your request might have different deadlines, but such information is best acquired from your local courthouse to ensure the most accurate information.

Ultimately, it is possible to have a default judgment set aside. If you are successful in having the default judgment removed, the court will reset the divorce proceedings to the beginning. This means you and your spouse will have to undergo all the normal steps involved in a divorce, including negotiations and filing the proper paperwork. Undoing a default judgment is akin to hitting the reset button on the legal process of divorce.

Learn the Law

Divorce is a legal proceeding that most people are eager to avoid and will do anything to ensure they do. When a process server delivers the summons for divorce proceedings, you are legally obligated to respond if you want to have any say in the divorce. It can be tempting to avoid the process server since there is a misconception that such action will stop the divorce process in its tracks.

Unfortunately, divorce can proceed without the defendant spouse and cost them greatly. If a process server greets you, the best course of action you can take is to accept the summons and respond to it within the designated timeframe of your state's laws. Otherwise, you risk handing your spouse rights and assets that are rightfully yours.

Person Learning Divorce Law

Despite the requirement of responding to divorce summons, the process is no less difficult, even if you are compliant. Many divorce cases bring out the worst in couples experiencing animosity before the initial petition. In these circumstances, your spouse might attempt to use underhanded techniques to steer the divorce proceedings in their favor.

This is not to say such misconduct is inevitable, but that your spouse's personality can affect how honest they are during divorce proceedings. Because of the complexity of divorce, some dishonest practices can effectively lead you down the wrong path.

You can fight divorce law's complexity by enhancing your knowledge of divorce proceedings and certain tactics less honest individuals might employ. This information can be crucial in protecting you during divorce and preparing you for certain scenarios you might encounter. We realize that this situation is highly unpleasant and that you might be struggling with what is happening. We only hope the information in this article was of some assistance, and we highly urge you to check out our other articles for further knowledge.

We encourage you to share this article on Twitter and Facebook. Just click those two links - you'll see why.

It's important to share the news to spread the truth. Most people won't.

Written By:
Michael Tierney

Leave a Reply

Your email address will not be published. Required fields are marked *

Get Our Divorce Newsletter
Subscribe to receive information, free guides and tutorials