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After much reflection and counsel, you have decided to move forward with a divorce. Whether the divorce process is amicable or contentious, the first step is to file your petition with the appropriate court that has jurisdiction to hear your case. It is important to determine which court has jurisdictional rights because if a case is filed in a court that does not have jurisdiction, the court will not accept the case or eventually dismiss it outright. Many couples incorrectly believe that they must divorce in the state where they were married. In order to file for divorce in Texas, either party to the suit must satisfy residency requirements: specifically, either party must be a domiciliary of Texas for the preceding six-month period and a domiciliary of the county in which the divorce case is filed for the preceding 90-day period. (Texas Family Code §6.301). “Domiciliary” in this case means a person who lives primarily in the specific state and county.
Please note the importance of the “either party” distinction. This means that so long as one spouse has lived in Texas and the desired county for filing for six months and 90 days respectively, the other spouse may file in Texas. To illustrate this principle, please allow me to introduce you to Jeff and Jessica Jefferson. Jeff and Jessica have been married for two years but lately their union has been anything but rainbows and butterflies. After a particularly nasty row, Jessica decides to go stay with her parents in Boston while Jeff continues to reside at the marital residence in Austin, Texas. This living situation continues for the better part of a year before Jeff and Jessica both decide that they are ready to divorce and move on with their lives. Jeff has lived in Austin his whole life—certainly longer than the six month and 90 day residency requirements to pass jurisdictional muster. Jessica would prefer to file in Texas, a community property state, over Massachusetts, not a community property state. Can Jessica file in Texas? The answer is a resounding YES! May Jessica file in a Travis County court? Also YES! Jessica may do so because her current spouse, Jeff, satisfies the jurisdictional requirements under section 6.301—even if she no longer does.
The Texas Family Code also allows for non-residents to file in Texas under specific circumstances. For instance, if the petitioner (the party filing the initial divorce petition that begins the divorce process) is in the military, they may file in Texas if they served on one or more military instillations in Texas for the last six months and at a military instillation in a Texas county for the last 90 days. In this situation, the petitioner would be considered a Texas domiciliary, and a Texas court in the appropriate county would have jurisdiction to hear the case. Let’s pretend that Jessica is in the Air Force and is stationed at Lackland Air Force Base in San Antonio, Texas (Bexar County). Prior to being assigned to Lackland, Jessica and her husband Jeff lived in Boston, Massachusetts. Jessica has been stationed at Lackland for over a year. With these facts, should Jessica decide to divorce Jeff, a Bexar County court would have jurisdiction to hear the case despite the fact that Jessica and Jeff previously lived in Massachusetts. Should Jeff decide that he wants to file for divorce, he can also file in Texas because his spouse, Jessica, has been stationed in Texas for the requisite time period.
Although it seems like a basic concept, determining jurisdiction can get a little bit complicated. If you have questions about where to file your divorce action, contact Gray Becker, PC.
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