Where Should I File for Divorce?

Walters Gilbreath, PLLC

“Where should I file for divorce ” is one of the frequently asked questions by the client to their Attorneys. Generally, you should file for divorce in the county of your residence. However, the answer may be a bit different depending on your circumstances. Additionally, there are other requirements that must be met prior to you filing for divorce. Most of the time people will know what county they should file for a divorce in already. However, in some situations, the assistance of an attorney may be needed in order to determine the proper county to file in. We will talk about those requirements a little more below.

If you are ready to proceed with a divorce, and your divorce has not been filed yet, the best option may be for you to file the suit first. If you do, there is a chance that you will be able to establish where the case will be tried. If you do not file your suit in the proper county, this could cause unnecessary delays in the litigation as well. For example, in Texas a divorce won’t be granted in less than 60 days from the initiation of the suit. If it is granted before then, (and I have only witnessed this once or twice) you can expect to jump over major hurdles in order to accomplish what you want.

Consider this Example to Understand “Where Should I File for Divorce”

Sunil and Sandy Patel were married ten years ago. They have two beautiful children. They live in a cozy suburb right outside of Houston, Texas. Sunil is a senior engineer at a major oil company. He generally works about ten hours a day. In his free time he likes to build video games and spend time with his children.

Sandy is an architect in Texas. She works a typical eight hour day. She usually drops the kids off at school and she’s at home in time to greet the children when they get off the bus. In her free time she likes to read books and garden.

The first six years of the Patel’s marriage was nothing short of blissful. They thoroughly enjoyed one another and the process of starting a family. However the last three years have been extremely rocky for the Patel’s. They attended marriage counseling but it didn’t help.

Last month, they made the difficult decision to divorce. They have separated and live in different counties. Where should they file for divorce? Sunil and Sandy should file for divorce in the county where they reside. Let’s discuss the requirements of filing for divorce in Texas a little more in depth. We’ll start with the residency requirement.

Residency Requirement

First, Sunil and Sandy need to determine their county of residency. So what is residency? The concept of residency is simple concept. It merely means what its root word implies. Residency in its legal sense means where parties involved in lawsuit reside or live (and intend to remain). Let’s say for example, that Sunil and Sandy both live in Katy, Texas. The part of Katy that each lives (resides) in is in different counties – Sunil in Fort Bend County and Sandy in Harris County.

Once Sunil and Sandy determine their correct county of residence, they must also ensure that they meet the residency and domiciliary requirements enumerated in the Texas Family Code. So what are the residency and domiciliary requirements?

The residency and domiciliary requirements are seemingly simple to meet. Specifically, a couple seeking to divorce in Texas must be domiciled in Texas for six months prior to filing for divorce. Both Sunil and Sandy meets this Texas domiciliary requirement for divorce as they have been living in the State for over ten years now.

Now what about the appropriate county to file the divorce petition in? Once a couple determines that they meet the domiciliary requirement they must also insure that they file for divorce in the county that they have resided in ninety days prior to filing for divorce. Sunil and Sandy – both have lived in Fort Bend County for over ten years, before Sandy moved to Harris County 50 days ago. They clearly meet the domiciliary requirement for Fort Bend County, but not for Harris County. Only Sunil in Fort Bend County qualifies, so any divorce would have to be filed (by either of them) in Fort Bend County. In 40 more days, the divorce could also be filed in Harris county by Sandy.

Statutory Definitions

To reiterate the above discussion, the domiciliary requirement is a fact based inquiry. It will really be determinate on the length of time an individual or couple spends in Texas.

Furthermore, according to the Texas Family Code, Section 6.301, a suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been:

  1. a domiciliary of this state for the preceding six-month period; and
  2. a resident of the county in which the suit is filed for the preceding 90-day period.

Case Law

For an example of how this works in real life, see Gutierrez v. Davila, No. 04-09-00745-CV, 2010 Tex. App. LEXIS 9469, at *1 (App. Dec. 1, 2010) [ Where the husband filed for divorce without having met the six month residency requirement at the time of filing. The trial court granted a divorce. On appeal, the trial courts decision was reversed.

A suit for divorce is not properly filed unless at the time the suit is filed the petitioner or respondent has been a domiciliary of the state for the preceding six-month period and a resident of the county in which the suit was filed for the preceding 90-day period. Tex. Fam. Code Ann. § 6.702 (2006). It is not sufficient for time to pass during the pendency of the suit. Tex. Fam. Code Ann. § 6.301 controls a party’s right to maintain a suit for divorce and is a mandatory requirement that the parties cannot waive. Residency requirements prescribe the qualifications that must be met before a court may grant a divorce. Parties cannot waive the residency requirement.

Getting Jurisdiction Over a Non-Resident Respondent

Moving on, let’s change Sunil and Sandy’s circumstances a little. Let’s say that once they decided to get a divorce, Sunil accepted a new job opportunity in a neighboring state. He leases an apartment in that state. Can Sunil and Sandy still seek a divorce in Texas? The answer is yes, the Patels can still file for divorce in Texas. How can this happen when Sunil now lives in a different state?

A Texas court can exercise personal jurisdiction over an out of state party to a divorce suit when the out of state party was married in Texas and the divorce was filed before the second anniversary of the date on which the litigants separated. So what does personal jurisdiction mean?

Personal jurisdiction is a legal term. It simply means that a court has authority to issue a binding judgment over a person. Keeping Sunil and Sandy in mind, they can file for divorce in Texas because they were married in Texas. Also, the date of separation (one month before filing) is less than the second anniversary of their separation.

Statutory Definitions

Moreover, pursuant to the Texas Family Code, Sec. 6.302, If one spouse has been a domiciliary of this state for at least the last six months, a spouse domiciled in another state or nation may file a suit for divorce in the county in which the domiciliary spouse resides at the time the petition is filed.

Also, according to the Texas Family Code, Sec. 6.306, If the petitioner in a suit for dissolution of a marriage is a resident or a domiciliary of this state at the time the suit for dissolution is filed, the court may exercise personal jurisdiction over the respondent or over the respondent’s personal representative although the respondent is not a resident of this 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 respondent in a suit affecting the parent-child relationship.

Case Law

For a real-life example of how this works, see Yuryeva v. McManus, No. 01-12-00988-CV, 2013 Tex. App. LEXIS 14419, at *11 (App. Nov. 26, 2013) [ Where a divorce decree was entered that included a property division. The wife appealed the verdict. She argued that she was not a resident of Texas when McManus filed for divorce and that the divorce should have been transferred to California. In her counter-petition for divorce, Yuryeva did not make a special appearance or otherwise contest the court’s personal jurisdiction.

Nor did she offer evidence that the last marital residence was outside of Texas. See, e.g. Aduli, 368 S.W.3d at 813-17 (holding evidence sufficient that trial court had personal jurisdiction when last marital residence was in Texas). To the contrary, in her counterpetition, Yuryeva admitted that she was a Texas resident. The court held that even though Yuryeva lived in California, Texas had jurisdiction to issue a divorce decree.]

Let’s move on and discuss one more issue that may concern an out of state party who is involved in a divorce that was filed in Texas.

Exercising Partial Jurisdiction

What does, “exercising partial jurisdiction” mean? It basically means that a Texas court can make a final ruling regarding people or property in the state. In regards to our context, this usually means that if a court cannot exercise authority over an out of state party in a divorce action, the court can make a final ruling regarding property that is in the state.

Summary

What county do you file your divorce in? Most of the time, you will be fine filing for divorce in the county of your residence. Also, prior to filing for a divorce, you should make sure that you and your spouse lived in Texas for six months prior to filing for divorce. In addition, prior to filing in the county of your residence, you should ensure that you have lived in that particular county for ninety days.

If one party to the divorce suit lives out of state or out of the U.S., then certain requirements must be met in order for a Texas court to issue a binding divorce decree. If you have questions about whether or not you can file for a divorce in Texas, you should contact an experienced family law attorney

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