This is Farrah Najmuddin Lang with a family law update. If you file a suit for the first time, or if no other court has rendered a final order, then no court has continuing, exclusive jurisdiction and the case will be referred to a family court or a court with authority to determine family matters within the appropriate county.
In most cases, wherever a family proceeding is commenced, that court will have continuing, exclusive jurisdiction. You cannot file the same proceeding in another county if your case has already been initiated somewhere else. A judge will decline to hear the issues of the case if there is another court that already has jurisdiction.
However, if you believe that your case has been initiated in an improper county, you do have some options to try to have your case moved to the appropriate court. For instance, in a suit to modify or with a motion to enforce, which usually deal with either possession and access of the child or child support, if the child has been living in another county for at least six months preceding filing of the suit or the motion, the court is required to transfer the case to the county where the child is residing.
If the child has been living in a different county, but it has not yet been for at least six months, the court may use its discretion to transfer the case for the convenience of the parties and witnesses and in the interest of justice.
In situations where one party files for divorce first in another country, there are still a few options you have to bring your divorce to Texas. The primary advantage of having your divorce in Texas is that Texas is a community property state, so there is a higher likelihood that there will be an equitable division of property, which may not be the case in other countries.
If a party has filed for divorce in another country, but you believe that your case should be heard in Texas, you will have to appear before the judge and present your argument as to why Texas is the appropriate jurisdiction. Factors that the judge will consider include, but are not limited to: whether the parties live in Texas, how long they have lived in Texas, if the parties have assets in Texas, and if the children of the marriage live in Texas. Your goal is to establish that you, and the issues of your case, have some contacts with the state of Texas. Based on your contacts with Texas, the judge will determine if jurisdiction is proper in Texas.
If you are on the other side of this situation and you have filed for divorce in another country but the other party has filed the same case in Texas, then you must file a motion to abate, which I will distinguish from a plea to the jurisdiction. A motion to abate is the appropriate tool to show the judge that your case is already pending in another jurisdiction, whether it is a different county, a different state, or a different country. A motion to abate is used to ask the judge to dismiss the case that was filed second because the same case is already pending somewhere else.
A plea to the jurisdiction, on the other hand, is used if you believe the case should have been filed in a different court. There are two main bases for a plea to the jurisdiction: 1) subject-matter; and 2) personal. A plea to the jurisdiction based on subject-matter should be filed if you believe that the issues of the case are outside of the authority of the court. For example, if a party files a personal injury or a debt collection case in family court, you can file a plea to the jurisdiction based on subject-matter because family courts sometimes do not have jurisdiction to hear and rule on matters regarding personal injury or debt collection.
A plea to the jurisdiction based on personal jurisdiction should be filed if you believe that the court does not have jurisdiction over you, as a person. For a Texas court to have personal jurisdiction over you, you must be a resident of Texas for the preceding six months and you must be a resident of the county where the case is filed for the preceding ninety days.
Both a motion to abate and a plea to the jurisdiction may be filed in conjunction with your first pleading, which in most cases is an answer or a response. For more information, please call our office. This is Farrah Najmuddin Lang with a family law update.
For more information on Family Law check out these link below:
Filing for Divorce in Texas
Divorces in Texas: Basic Information, Steps and Frequent Concerns
Divorce in Texas
By: Mrs. Farrah Najmuddin Lang serves as Associate Attorney at Alimohammad & Zafar PLLC and focuses on family law, and civil litigation.
Before coming to Alimohammad & Zafar, PLLC, Mrs. Lang was a judicial intern for the Honorable Laura Carter Higley, Justice of the First Court of Appeals, an intern for the Harris County District Attorney’s Office, Appellate Division, and a graduate fellow for Children at Risk. Additionally, Mrs. Lang also worked for the Honorable Judith Zaffarini, of the Texas State Senate, during the 81st Legislative Session.
She earned her Juris Doctorate at the University of Houston Law Center and served as an Articles Editor for the Houston Journal of International Law. Prior to law school, Mrs. Lang earned a Bachelor of Arts in Philosophy with a minor in Political Science from Baylor University in Waco, Texas, where she was a President’s Scholarship recipient. Mrs. Lang is a member of the State Bar of Texas and the Houston Bar Association. She serves on the Gender Fairness and Administration of Justice Committees. Mrs. Lang serves as Associate Attorney at Alimohammad & Zafar PLLC and focuses on family law, and civil litigation.
Disclaimer: This article is not meant as specific advice regarding a person’s individual case. An attorney should be consulted. This article does not create an Attorney-Client relationship.
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