Jurisdiction
Trying to figure out which court you should file your petition for divorce can be confusing. Jurisdiction is the term used by the courts to determine if they have the right to make orders on a case.
Personal Jurisdiction
If you have lived in Texas for at least 6 months, then Texas’ courts have jurisdiction to hear your case. The court must also have jurisdiction over your spouse in order to proceed, this is called personal jurisdiction. In order to have personal jurisdiction over your spouse, they must be a Texas resident. If they are not a Texas resident you can file in Texas if:
- Has met constitutional guarantees of due process.
- Is properly served with process while in Texas.
- Waives service of process.
- Makes a general appearance.
In Texas there is a process in which you can serve an out-of-state resident for a Texas case, called long arm jurisdiction.. In order for the long arm jurisdiction to be used, the following must apply:
- Petitioner, or the filing party, is a resident or domiciliary of Texas when the divorce is filed.
- Petitioner and respondent’s last marital residence is Texas.
- The action is filed within two years after the date the marital residence ended.
- Court’s exercise of jurisdiction over the non-resident would be compatible with the standards of fair play and substantial justice.
Subject Matter Jurisdiction
In addition to personal jurisdiction for the state, you must also file a divorce action in the proper type of court, one that has the right to hear the subject matter of divorce. Each county has their own rules for which court is proper to file the divorce. Usually, when you file the petition with the county district clerk they will place it in the proper court for you, but you must make sure you file the action in the proper county. Usually a county district court will hear divorces, but sometimes it can be a county court. In larger counties, i.e. Harris, they have specially designated family courts.
Venue
Filing the case in the proper county or venue, can be confusing if the parties live in different counties. Either spouse can file in the county where they have resided for 90 days. This is true, even if the other spouse has never set foot in that county. I have seen many cases where the marital residence was in one county, the parties separated and one spouse moved across the state. Once 90 days passed, they filed for divorce and the other spouse had to travel to the other county, making it hard to get witnesses to travel and testify. There is a procedure to transfer venue, but it is not always an easy thing to get granted.
