When filing a divorce, the first question is usually, “Where do I file”? Please read the outline below for a basic review of venue and divorce jurisdiction in Texas.
A suit for divorce may be filed in Texas so long as at least one of the spouses have lived in Texas for at least 6 months and has lived in the county of filing for at least 90 days (Tex Fam. Code, Section 6.301). Only one party to the suit must meet this requirement.
Example: Husband and wife separate. Husband remains in Harris County, Texas and wife moves out of state. Wife decides to file for divorce one year later. Wife may file in her state of residence, assuming she meets that state’s requirements, or she can file in Texas because husband has been domiciled in Texas for six months and has been a resident of Harris County for 90 days (Tex. Fam. Code, Section 6.302).
Now lets assume under the example above that husband wants to file for the divorce in Texas. He may do so but he must have “personal jurisdiction” over the wife. Personal jurisdiction is the court’s power over a party to a lawsuit. Husband would have to show the court that 1.) Texas is the last marital resident of the spouses and that the suit for divorce was filed within 2 years of the spouses separation or 2.) there is a constitutional basis for jurisdiction under State or Federal law (Tex. Fam. Code, Section 6.305). The second prong is commonly proven by demonstrating to the court that the out of state spouse has meaningful ties to the state i.e., has worked in Texas, owns property in Texas, is served in Texas or has other “minimum contacts” with the state.
Children Must Be Included
When there are children involved in a divorce and no other court has rendered an order regarding the children, they must be included in the divorce suit (Tex. Fam. Code, Section 6.406). Often times, separated parents file a suit for child support or visitation instead of divorce. When this happens, a court renders and order of support, thus becoming the court of continuing and exclusive jurisdiction over the children. If the spouses file for divorce at a later time, they cannot include the children in the suit for purposes of changing the terms of the prior child support order.
Example: Parents separate and file a child support case in Harris County, Texas. The child support case is finalized ordering supports payments and visitation. A year later, the spouses file for divorce. They will include the children in the divorce but will not be able to change the provisions of the child support order. In order to alter the child support order, they would need to file a separate law suit to modify that order.
If one spouse files a suit concerning the child and the other spouse files for a divorce in a different county, both suits must be joined with the divorce court having jurisdiction (Tex. Fam. Code, Sections 6.406 and 6.407).
Example: Parents separate and wife moves to San Antonio. She later files for child support in Bexar County, Texas. Husband learns of the suit and decides to file for divorce in Harris County, Texas. Even though wife filed first, husband’s suit will be dominant and wife’s suit must move to Harris County.
Subject Matter Jurisdiction
Subject matter jurisdiction is the court’s ability to hear a certain type of case or subject matter. In order for the court to render orders regarding children, the court must have subject matter jurisdiction over the children. A Texas court can make orders regarding children if:
(1) Texas is the home state of the child when the divorce is filed or was the home state of the child within six months of filing for divorce and the child no longer lives in Texas but one of the parents still reside in Texas.
(2) No other state as acquired jurisdiction as described by (1) above or a court of another state has declined jurisdiction because Texas is a more appropriate forum, and:
(A) the child and at least one parent have significant connections with Texas; and
(B) there is substantial evidence available in Texas regarding the child.
(3) all courts having jurisdiction (1) or (2) above have declined to exercise jurisdiction on the ground that a Texas court is a more appropriate forum.
(4) no other court has jurisdiction under (1), (2), or (3) above (Tex. Fam. Code, 152.201).
Example: Spouses marry in Georgia and have a child. Upon separation, husband moves to Texas. After six months in the state and 90 days in Harris County, husband files for divorce against wife. Husband will be able to divorce in Texas (assuming the court has personal jurisdiction over the wife) however Texas will not have subject matter jurisdiction over the child. In short, they can divorce in Texas but cannot render orders regarding the child.
This above is a quick look at venue and jurisdiction in Texas and is not meant as legal advice. This area of family law is very complex and has some very important federal law implications. If you have question regarding the topic above, contact your Houston divorce lawyer, Shawn M. Rudisel, for a complimentary consultation today.
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