Written by attorney Curtis W. Harrison II

Can You File For Divorce in Texas if Your Spouse Does Not Live in the State?

A number of questions have recently been posted regarding a Texas resident’s ability to file for divorce when the other spouse does not reside here. Can it be done? The answer is a qualified yes.

A divorce may be filed and maintained in Texas if either party to suit has been a resident of the state for 6 months and the county of suit for 90 days. (Texas Family Code §6.301). If one spouse meets this requirement, then the Court has jurisdiction over the case. When the court has jurisdiction of at least one party to the divorce, it maintains jurisdiction to dissolve the marital relationship because it is an in rem proceeding (Fox v. Fox, 559 S.W.2d 407, 410 (Tex. App.—Austin, 1977, no pet.). “In rem" is just a technical term used to identify legal proceedings against a thing as opposed to a person. In this situation, the “thing" is the status of the marriage relationship. “A trial court has jurisdiction over the marital status of its citizens that is not defeated by its lack of personal jurisdiction over their spouses." (Hoffman v. Hoffman, 821 S.W.2d 3, 5 (Tex. App.—Ft. Worth, 1992, no pet.).

Of course, there is a catch. Even though the judge may have the power to grant the divorce, that doesn’t automatically mean that the judge has the power to divide assets and liabilities, or render orders regarding the children. In order to do that the court must also obtain personal jurisdiction over both spouses. Personal jurisdiction over a non-resident party may be acquired only if this state was the last marital residence of the parties and the suit is filed before the second anniversary of the date on which the marital residence ended; the person is served with process while within the borders of the state; or if there is any other basis consistent with the constitutions of the state and the U.S. (Texas Family Code §6.305).

It is also important to note that one spouse cannot manufacture personal jurisdiction over the other spouse by his or her own unilateral acts. For example, one spouse may not “leave the other, move to another state in which neither has lived, buy a home or open a bank account or store a stock certificate there, and by those unilateral actions compel the other spouse to litigate their divorce in the new domicile….One spouse cannot, solely by actions in which the other spouse is not involved, create the contacts between a state and the other spouse necessary for [personal] jurisdiction" over the non-resident or the in-state property in question. (Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998).

Nevertheless, a court may exercise jurisdiction over those portions of the suit for which it has authority. (Texas Family Code §6.308). That means that if one spouse meets the residency requirements a divorce action can be successfully maintained and finalized in Texas. The statutes and cases clearly authorize a Texas resident to maintain a divorce action in rem to declare resident’s marital status.

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