Family Law: Divorce, Marriage, Children, Elderly

  • Divorce, Separations & Annulments
  • Divorce Settlement Agreements
  • QDRO orders
  • Guardianships of Minors, Elderly & Incapacitated Persons
  • Paternity
  • Child Custody
  • Child Support
  • Adoptions
  • Prenuptial and Postnuptial Agreements 
  • Child Welfare Cases 
  • Grandparent Rights
  • Name Changes 

Probate Administration & Litigation

  • Probate of Estates and Administration
  • Will Contests
  • Guardianship of Minors and Incapacitated Persons
  • Guardianship Alternatives
  • Guardianship Litigation
  • Small Estate Administration
  • Intestate Succession
  • Independent Administration
  • Muniment of Title Proceedings
  • Court Supervised Administration
  • Estate Tax Returns
  • Claims Against Estate

Wills, Trusts & Estate Plans

  • Estate & Gift Tax Avoidance
  • Business Succession Planning
  • Wealth Preservation
  • Health Care Directives
  • Medical Powers of Attorney
  • Simple and Complex Wills
  • Trust Planning
  • Effective Use of Insurance
  • Planning for Incapacity
  • Charitable Giving & Legacy Planning

 

Can I Divorce If I Can't Locate My Spouse?

Yes.   When couples split, one or both of them may not tell the other spouse where they have moved.     Since the other spouse is out of their lives, legally divorcing the other may become less of a priority for both spouses than it should. Sometimes couples wait years to divorce for this simple reason.   However, unless is reconciliation possible, that is probably a mistake.  Some mistakenly believe they need to locate their estranged or missing spouse first.  That is simply not the case. 

Why divorce if my spouse is no longer around?

Financial and other problems with remaining married to an estranged spouse

Apart from the personal reasons for one to seek a divorce (e.g. being able to legally remarry), there are numerous reasons to avoid putting it off.   First, even if the spouse seems long gone, they might appear unexpectedly. When that happens, they often have the same rights and duties as if they had never left including the right to be financially supported by the other, the right to inherit from the other, the right to exercise of parental rights of minor children, and even the right to obtain medical information and rights upon disability of the other spouse.  Often times, finances can be negatively impacted by the delay.   Accessing retirement plan funds and transferring real estate often requires a spouse's signature.   It is also not unheard of for an estranged spouse to obtain loans that the other spouse may end up responsible for repaying.  

You may have to pay more taxes by remaining married to an estranged spouse

"Married filing Jointly" will always be a preferable filing status than "Married Filing Separately".  However, if you spouse is not around or unwilling to sign the return, you can't file jointly.  Consequently, while you are still married, you will be required to file tax returns with a "married filing separately" filing status.  This tax status almost always results in the greatest tax liability for the taxpayer.  Filing as a "single" or "head of household" is simply not available to those legally married.  Claiming either such tax status may even constitute fraud if the taxpayer is still legally married.   Remember, there is no common law divorce even if the marriage was created by common law.  Only divorce or death of your spouse will allow you to return to those more favorable filing status.  Marital status is a legal status, not a mindset that can be changed by simply wishing it were so.

How do I get a divorce if I don't know where my spouse lives?

Texas courts, like courts in other states, have jurisdiction to dissolve the marriages of its own citizens residents even if the court does not have jurisdiction over the other spouse.   In addition, if the other spouse cannot be located, service can be achieved by alternative methods such as by publication rather than by personal service.

For example, if you were married in another state and then moved to Texas, you can seek a divorce in Texas even if your spouse has no connection whatsoever with Texas.   The rub is this--while Texas courts may dissolve the marriage itself, any additional orders pertaining to ancillary matters (e.g., division of property, alimony or spousal support, child custody and support) may not be effective against the other spouse.

When can Texas courts issue property and child custody orders effective against my spouse?

Family courts in Texas may issue property orders against Texas residents. Orders will generally be effective over nonresidents only when they have significant contacts with Texas such as when the couple was married in Texas or when the other spouse lived with you in Texas prior to separating.   In the case of parenting issues, Texas typically has jurisdiction to make child custody orders if the child in question has lived in Texas for the previous six months so long as no other court has issued custody orders regarding that child.

Can My Spouse Divorce Me In Another State Without My Knowledge?  

Perhaps. Your spouse would need to serve you with the paperwork, (petition, citation, summons, etc. ) if they know how to find you.   However, in the case of a missing spouse, Texas and other states allow for alternative means of service such as by publication.   So, if your spouse doesn't know where you are or how to contact you, they may have opted to serve you by publication which you may not have known about.

Your spouse should have made reasonable efforts to serve you.  They most likely had to sign an affidavit describing the efforts they made and why an alternative means of service is necessary.   Given there may be little incentive to make great efforts to locate a  missing spouse if the other spouse simply wants the divorce and child custody orders, it is possible they may have merely claimed to have made adequate efforts to locate and serve you but then served you by publication.   If you have no connection to that state that issued the order, you may be able to challenge portions of those orders, especially those pertaining to division of property and spousal support orders.

What do I do if I divorce and then later locate my spouse?

If you do not need any additional orders, your divorce is complete.   However, if you need orders for alimony, or division of property and debts, or other orders, contact us to determine if you can pursue those court orders in Texas courts or if you need to seek relief in another state.

What do I do if I do not know if my estranged spouse is still alive?

Once separated, you may not actually be notified if your estranged spouse passes away.  If you suspect this is possible, you should discuss the situation with us to determine what options may be available to you along with the risks and benefits of those options. 

Meet the Owner

David W. Chowins

Business Portrait DWC 2018

David Chowins is an attorney with over twenty years experience. He estsblished his own law practice Chowins Law Firm in the Fall of 2000 after several years practicing tax litigation and business law with two of the nation's largest law firms.    

Although tax and business law was his focus at the start of his career, David now focuses on estate planning, family law, guardianship law, and probate law.  These areas often include litigation of various types including, divorce and child custody cases, probate challenges, guardianship litigiation, among other types of cases.

David also serves as both Attorney Ad Litem and Guardian ad Litem where he is tasked by the court to represent parties that have a stake in the litigation but are not present or to advise the court as to the best interest of those who can not advocate for themselves such as minors, incapacitated persons and others who may not be in a position to advocate for their own best interests.   

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