The first step in a family law case is to draft your pleadings and then file your lawsuit. When you file your lawsuit, bring at least four copies to the courthouse. The district clerk will stamp all four copies with the date and time the suit was filed. The clerk will keep one copy for the court's file and return the other three copies to you.
When you file a family law suit, you are called the PETITIONER. Your opposing party, usually a spouse, ex-spouse, or co-parent, is called the RESPONDENT.
The next step is to follow the Texas Rules of Civil Procedure for officially notifying the respondent of the lawsuit you just filed. The following sections explain the most commonly used options for accomplishing that. It is very important that the respondent receive proper notice. Without proper notice to the respondent, the court cannot take any action on your lawsuit.
Waiver of Service
When you file your suit, go to the law library to get a "Waiver of Service" form. Send the respondent a copy of the petition you filed along with the Waiver of Service form.
If the respondent signs the Waiver of Service, he or she is not agreeing to accept any of your terms. He or she is just acknowledging that you have filed a lawsuit. The main benefit to the Respondent is that if he or she signs the Waiver of Service, you will not have to send a law enforcement officer to the respondent's place of employment or home to serve him or her with a copy of the lawsuit.
If the respondent signs the Waiver of Service and it is notarized, you must bring it back to the clerk's office and file it with the court's papers. (Keep a file-marked copy for yourself.)
Once this is done, the respondent has been brought into the suit and the court can proceed with your case. If the respondent refuses to sign, you must serve him or her using one of the methods described below.
WARNING ABOUT DO-IT-YOURSELF SERVICE
While the waiver of service can save you some money and be less embarrassing for the respondent, you should be very careful in personally delivering these documents to the respondent. If you think there is any chance that the respondent will become violent, angry, or uncontrollably upset DO NOT PERSONALLY BRING THE PAPERS TO THE RESPONDENT. Either mail them or use one of the methods below for serving the respondent.
Using the constable to serve the respondent is the least expensive way to formally serve the respondent. Constables stay busy and it can take them a while to serve a respondent in a civil suit.
To get the constable to begin trying to serve the respondent, return to the clerk's office with one of the file-marked copies of your petition and ask for constable service. The clerk will collect a fee from you and take the copy of your petition. The clerk will then issue the citation and forward it to the constable for service.
If the constable is able to serve the respondent, the constable will sign a return of service form and file it with the court. You should go to the clerk's office and get a copy of the return of service. Having it in the court's file is sufficient, but if the file is lost or destroyed, you will be glad you made a backup copy for your files.
Once the return of service has been filed, service is complete and the court may take action in your lawsuit.
Private Process Service
Private process service is much like constable service except that (1) the private process server works for you, not the county, and therefore you have more control over what hours the process server works and how hard he or she tries to serve the respondent; and (2) the private process server may charge you 4 or 5 times more than constable service.
If you hire a private process server, give him or her one of your copies of the lawsuit and as much information as you can about how to locate the respondent.
What if the Respondent Cannot be Served?
If the private process server or constable is not able to serve the respondent, ask him or her to file a Rule 106 Affidavit for Substituted Service with the clerk. After the affidavit is filed with the clerk, file a motion for substitute service with the district clerk. When you file the motion for substitute service, include an order for the judge to sign.
Once the judge signs the order granting substitute service, the respondent is as good as served and the court may take action on your suit.
If the process server or constable cannot complete an affidavit for substitute service, you may have to serve the respondent by publication. If you come to this point, if you haven't already done so, you should hire an attorney because the requirements are exacting and any mistake will bring our lawsuit to a halt.
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