Divorce Jurisdiction in Texas

Where do I File my Divorce?

Subject Matter Jurisdiction

In the United States, including Texas, subject matter jurisdiction refers to a court's authority to hear and decide cases of a particular type or subject matter. In the context of divorce cases, subject matter jurisdiction is typically based on state laws.

In Texas, the subject matter jurisdiction for divorce cases is determined by the Texas Family Code. According to the code, a Texas court has subject matter jurisdiction to grant a divorce if at least one of the spouses meets the residency requirements. Generally, either the petitioner (the spouse filing for divorce) or the respondent (the other spouse) must have been a resident of Texas for at least six months prior to filing for divorce. Additionally, the petitioner must have been a resident of the county where the divorce is filed for at least 90 days.

For example: Spouses are married and reside in Travis County for ten years. One spouse moves out of state. The spouse who moved out of state can still file in Travis County as their spouse has been domiciled in Texas for more than 6 months, and a resident of Travis County for 90 days.

If these residency requirements are met, a Texas court has the authority to hear and decide the divorce case, addressing matters such as property division, child custody, child support, and spousal support. It's important to note that subject matter jurisdiction is separate from personal jurisdiction, which determines whether the court has authority over the individuals involved in the case.

Personal Jurisdiction

Using the example above, if the spouse who remains in Texas files for divorce in Travis County, the court must have personal jurisdiction of the out of state spouse. Personal jurisdiction is the court’s power over a party to a lawsuit.

The spouse filing 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. 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.

Can Jurisdiction Requirements be Waived?

It is possible that lack of personal jurisdiction can be waived, but not subject matter jurisdiction. For example, if neither party meets the requirement of being domiciled in Texas for 6 months, and being a resident of the county they file in, the court does not have jurisdiction to grant the divorce.

Jurisdiction can be a complicated matter. If you are unsure where you should file your divorce, please contact contact Deitchle + Simone for further information.