Getting Divorced in Texas

Walters Gilbreath, PLLC

Let’s start with an example. Imagine :

Harold and Julie have now been married for 13 years. During their second year of marriage, they had twins: one boy and one girl. They also purchased a home right outside of a major Texas city. Harold is a network engineer. He typically works a lot of hours during the week. Although he is often tired, he takes pride in being able to provide a comfortable lifestyle for his family. In his free time, he enjoys spending time with his children, traveling and searching the internet.

Julie is a district manager for a major retail chain. She loves trying new things out. Julie drops the children off at school and assists them with their homework in the evening. In her free time, she likes to spend time with her family, especially her children.

Unfortunately, the last year of Harold’s and Julie’s marriage has been nothing short of miserable for the couple. They argued consistently over finances. During the last three months, Harold became increasingly disengaged with the marriage.

The couple attended marriage counseling to try to salvage the marriage because they were both hesitant about what a divorce would mean for their family. The marriage counseling did not work and now they have made the decision to divorce. How can Harold and Julie go about getting a divorce in Texas? We will discuss the following basic provisions that govern divorce actions in Texas below.

Where Should You File For Divorce?

Now that Harold and Julie have decided to get divorced, they need to decide where to file one. They should file for divorce in the county where they have resided for three months prior to filing for divorce.

Specifically, according to the Texas Family Code section 6.301, “A suit for divorce may not be maintained in The State of Texas unless at the time the suit is filed either the petitioner or the respondent has been:

  • A domiciliary of this state for the preceding six-month period; and
  • A resident of the county in which the suit is filed for the preceding 90-day period.”[1]

So what does all this mean? Let’s discuss these requirements in detail. The first requirement means that parties seeking to get divorced must live in Texas for six months before filing for divorce. In our context, this means that in order for Harold and Julie to file for divorce in Texas, they need to live in Texas for six months. Harold and Julie meet that requirement.

The next requirement means that before Harold and Julie can file for divorce in Texas, they must reside in a Texas county for ninety days. Let’s say for example that Harold and Julie lived in Harris County, Texas throughout their marriage. Harris County would be the proper place to file for divorce because they both lived in Harris County prior to filing for divorce.

Texas courts have noted the following, “Residency must be established as of the date the suit for divorce is filed; it is not enough that ninety days of residency will pass during the pendency of the divorce proceeding.” In re Milton, 420 S.W.3d at 252 (citing In re Rowe, 182 S.W.3d 424, 426 (Tex. App.—Eastland 2005, orig. proceeding)). “The public policy behind these requirements is to prevent forum shopping by divorce litigants.” Id. (citing Reynolds, 86 S.W.3d at 277). In re Paul, No. 10-16-00004-CV, 2016 Tex. App. LEXIS 4766, at *6 (App. May 5, 2016)

Do You Need to File a Temporary Restraining Order (TRO)?

Moving on, Let’s add some facts to Harold and Julie’s situation. Let’s say that right after they filed for divorce Harold begins to sell some of their assets. Julie does not receive any money from the sale of assets. What should Julie do? Julie should file for a restraining order. A restraining order prevents someone from doing something.

A restraining order may be filed at the same time that a divorce petition is filed. However, it is not always needed. If the decision to divorce was not amicable, Harold and Julie, and perhaps you may want to consider filing a temporary restraining order. Parties who choose to divorce should always discuss the option of a restraining order with their attorney.

Pursuant to the Texas Family Code section 6.501, a restraining order may be filed for the preservation of the property of spouses as well as for the protection of the parties as necessary, including an order prohibiting one or both parties from engaging in activities such as:

  • Threatening a person or the other party in any manner; or
  • Placing a telephone call, anonymously at an unreasonable hour; or
  • Intentionally, knowingly or recklessly causing bodily injury to the other party; or
  • Taking any action to terminate or limit or charge credit cards in the name of the other party.

There are other activities that may be restricted by a temporary restraining order. You should speak with an attorney to determine if your needs correlate to the statutorily named activities in the Texas Family Code.

“Getting Divorced in Texas If Your Spouse Lives Out of State?”

A: The general answer is yes.

According to the Texas Family Code, if the person seeking a divorce is a resident of Texas at the time the divorce is filed, then the court may exercise personal jurisdiction over the spouse that lives out of state if:

(1) this state is the last marital residence of the petitioner and the respondent and the suit is filed before the second anniversary of the date on which marital residence ended; or

(2) there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.

A court acquiring jurisdiction under this section also acquires jurisdiction over the out of state spouse in a suit affecting the parent-child relationship.

So what does all of this mean? Let’s change Harold’s and Julie’s situation again. Let’s say that prior to them filing for divorce, they were separated for an entire year. Julie lived in Texas and Harold lived in Louisiana. Can Julie file for divorce in Texas? Yes. Julie can file for divorce in Texas because she and Harold were married in Texas and the suit was filed before the second anniversary of the date on which marital residence ended.

Summary

A suit for divorce may be filed in Texas if either party has been a domiciliary of this state for the preceding six-month period and a resident of the county in which the suit is filed for the preceding 90-day period. Also, a Texas resident can file for divorce against an out of state resident in Texas.

Citations

[1] Texas Family Code Section 6.301

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