Sometimes when a husband and wife begin to argue, the foundation that keeps their relationship together crumbles and the parties separate. As these marriages fail spouses may return to live with family, while their partners stay at the marital residence. US divorce laws might cause you to wonder: can you file for divorce in Texas?
When parties decide to actually divorce where do they file? The movement from the marital state to another state by one or more of the parties may create multiple jurisdictional issues that may need to be resolved.
US Divorce Laws Examined
In order for the court to render orders the parties are required to adhere to, the court is required to have jurisdiction over the parties.
Prior to going into “personal jurisdiction” or jurisdiction over the parties it is important to examine jurisdiction in a broader sense.
Subject Matter Jurisdiction
Subject matter jurisdiction refers to the court having jurisdiction over the nature of the case and the type of relief requested by the party: specifically, the ability of the court to order a person to conduct themselves in a certain manner, or the status of things. To put it a different way, the court either does, or does not, have jurisdiction to hear an issue. This issue is based entirely on the presence or absence of a particular factor or issue.
If the external issue is not present, then there is a jurisdictional defect. This might create a situation where the court has no power to hear the case. If the court issues an order where the court lacks “subject matter” jurisdiction then the order is void.
The second type of Jurisdiction is personal jurisdiction, which refers to a court’s power to bring a person or entity into its adjudicative world: specifically, the court’s ability to have power over the person or entity. Does the court have jurisdiction over the person’s personal rights?
In relation to a divorce, the court will have subject matter jurisdiction over the marriage, so long as the court has personal jurisdiction over both the petitioner and respondent to the divorce.
Can You File for Divorce in Texas?
If you have no connections to Texas, but your spouse moved to Round Rock, Texas, with your children, which state has jurisdiction or authority over the divorce?
This issue may be very complicated. Whether your spouse may file for a divorce in Texas depends on several factors:
- Did your spouse intend to make Texas his/her home?
- Has your spouse been a resident of Williamson County, Texas, for 90 days prior to filing for divorce?
- And was your spouse a resident of the state of Texas for at least 6 months prior to filing the divorce?
A suit for divorce may be filed in Texas by either your spouse or yourself as long as either party has been a domiciliary of Texas for six months prior to filing the divorce and was a resident of where the divorce is being filed, for at least 90 prior to being filed. The issue gets even more complicated if the party files for divorce early. The case may have to be abated until the proper amount of time has elapsed. The spouse would then be required to file an amended petition for divorce, which would create a new date for the filing of the divorce.
If your wife moved to Texas with the intent to live there and make it her permanent home then she may satisfy the domiciliary requirement. Also, if your wife has a physical address in a Texas county with a good faith intent to remain, and make that county her home, then she may satisfy the residency requirement for filing a divorce as well. If these requirements are met then your divorce may be attained in Texas.
With that settled, the issue of personal jurisdiction arises as to the non-resident spouse.
If your spouse moved to Texas, and you have never lived here, then the court cannot exercise personal jurisdiction over you based on Texas being the location of your last marital residence. However, that is not the end of the calculation. The court may also be able to exercise personal jurisdiction over you if you have availed yourself to the power of the Texas Court system by making “minimal contacts” with the State of Texas.
If you have no other connection to the State of Texas, other than your spouse moving to Texas, then that relocation alone does not support Texas courts having jurisdiction over issues such as dividing marital property or spousal maintenance.
Your spouse may file for divorce in the State of Texas and the court may grant your spouse’s request for divorce even if the court lacks personal jurisdiction to impose an obligation on you or divide your marital assets.
Depending on the fact pattern, multiple states may have the authority to hear your divorce. The United States Supreme Court appears to recognize adjudications of status as an exception to the requirement of minimal contacts discussed above.
Consult With an Attorney
As you can see, US divorce laws can be a complicated matter. If you have questions about divorce in Williamson County, call the Round Rock Law Office of Clifford Swayze at 512-920-5080. We serve Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.