Can You Divorce If Your Spouse Left Texas?

When marriages head south, some spouses strike out on their own before they obtain a divorce decree. It isn’t unusual for one spouse to head off to live with their family, possibly in another state. This raises an interesting question: where can you file for divorce? Do you need to file in the state where your spouse has moved to? Or can you file in Texas? Below, our League City divorce lawyer examines the laws surrounding which court has jurisdiction to hear a divorce case.

Texas Residency Requirement

Texas Family Code § 6.301 lays out the general residency rule for filing for divorce in our state. A court in Texas cannot hear any divorce case. Instead, you must satisfy the residency requirement. Either the petitioner filing or the respondent must have been:

·         Domiciled in Texas for the previous six months

·         Resided in the county where the suit is filed for the preceding 90 days

Let’s say you have lived in League City for the past year. Your spouse has gone to live in California. You can still file for divorce in Texas because you have lived in the state for the past 6 months and you resided in Galveston County for the past 90 days. This gives the court the power to hear the divorce, even if your spouse is out of state. You will then serve the divorce paperwork on your spouse in California so that they must respond to the petition.

You could even file in Texas if the situation were reversed. Maybe you went to Florida to live with your family when you decide to divorce. You can file in League City so long as your spouse has lived in Texas for the preceding 6 months and in Galveston County for the preceding 90 days. It doesn’t matter if you’ve left the state.

Child Custody Disputes Across State Lines

Texas is one of 49 states that has signed onto the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA for short. This law has helped simplify and clarify whether a court has jurisdiction to hear a child custody case. It could come into play if you have a child custody dispute as part of your divorce.

For example, the children might be living with you when you file for divorce and custody in Texas. Meanwhile, the child’s other parent has filed for custody in Wisconsin. The UCCJEA prevents fights between courts over jurisdiction. The two judges will usually confer with each other to determine which court should hear the case according to the principles laid out in the UCCJEA.

The UCCJEA prefers jurisdiction in the child’s home state. This would be the state where the child has lived for the past 6 months. So if the children are with you in Texas, then this is where the case will typically get heard.

Sometimes, parents move around so much that there is no “home state” under the law. In that situation, judges look for a significant connection to a state. The UCCJEA is helpful because you should never find yourself in a situation where no court can hear your child custody dispute.

It is possible to use the UCCJEA to ask a judge to transfer a divorce case to a more appropriate forum. For example, your spouse might have filed for divorce first in Washington, which does not have a residency requirement. It is burdensome to travel to Washington for your divorce hearings. If you have child custody issues as part of the divorce, your lawyer can ask the Washington court to transfer jurisdiction to a court here in Texas. Judges will consider many factors, such as where the evidence is located and where the children are currently living.

Does it Matter Which Court Hears the Divorce?

Yes. Traveling is burdensome, time consuming, and makes divorce more stressful. What’s more, each state has different divorce laws. You might want to take advantage of Texas divorce law because it is advantageous to you.

You should consult with an attorney if either you or your spouse has left Texas. We can help you decide important issues, such as where to file for divorce and/or custody. We also know how to provide proper notice to your spouse so that any divorce decree is effective.

Call Us for Help

The lawyers at Tad Nelson and Associates have tackled many complicated divorce or child custody cases. You can rely on our expertise in solving divorce disputes and protecting your rights in court. Contact us to schedule a consultation.