Monday, July 24, 2006

where to file

Okay, we know the grounds for filing for a divorce, but where do we file? The Texas Family Code Section 6.301 sets out the general requirements for filing a divorce in Texas. In order to maintain a suit in Texas, either the person filing the divorce OR the person being sued for divorce must have resided in the State of Texas for six (6) months and in the county where the divorce is filed for ninety (90) days PRIOR TO THE DATE THE DIVORCE IS FILED.

There are two important notes in the above paragraph. First, a divorce can be filed where either the person filing the divorce lives in Texas or where the person being sued for divorce lives. For example, husband and wife separate and Husband moves to Fort Worth in January 2005. Wife stays in Dallas County, Texas where the family had resided. Husband wants to file for divorce. He can file in Tarrant County because he has resided in Texas for 6 months and Tarrant County for 90 days prior to filing, or he can file in Dallas County because his wife has resided in the State of Texas for 6 months and Dallas County for the 90 days prior to his filing.

The second important note is how the time is calculated. The determining point in time is the date the request for divorce is filed. In my above example, let’s say that Husband had a really bad new years eve and decided to move to Fort Worth on January 1, 2006, leaving his hung over spouse behind. Later, say the first week of March 2006, he decides to file for divorce. In this example, Husband has lived in Texas for 6 months, but has only lived in Tarrant County for approximately 60 days. For purposes of filing for divorce, in the first week of March, he would file in Dallas County because his wife has had residency there for 90 days PRIOR TO THE DATE THE DIVORCE IS FILED. If he waited until on or after April 1, 2006, he could file in Tarrant County. If he cannot wait that long, he has to file using his wife’s residency because he has not established residency anywhere else. He is a man with no home.

Another little side note... let’s say Husband has lived in Tarrant County for 90 days and files for divorce in Tarrant County. Once he filed in Tarrant County, he can move to any other county he likes and the suit will be maintained in Tarrant County. You do not have to continue to live in the county where you file; you just have to live in that county for 90 days prior to filing the suit.

These same rules stated above still apply when a party lives out of state as well, with one small exception. For example, in the above scenarios, Husband moves to Oklahoma City instead of moving to Tarrant County. He moves on January 1, 2006 and decides he will file for divorce on July 1, 2006. Even though he is now a resident of Oklahoma, he can file for divorce in Dallas County because Wife has lived in the state of Texas for six (6) months.

You may notice that I did not mention anything about the ninety (90) days in the above scenario. That is the difference between both parties being in state and one party being out of state. It is irrelevant how long Wife has lived in Dallas County; Husband can file in the county where she resides at any time as long as she has lived in Texas for 6 months prior to his filing. By example, again, Husband moves to Oklahoma City on January 1, 2006, and on the same day Wife decides to move to Austin with her family. Husband decides to file for divorce on January 3, 2006. He could file in Travis County (Austin) against Wife because she has been a resident of Texas for 6 months prior to his filing for divorce.

Military personnel – Where would a person in the armed forces or other government job that requires relocation, outside the control of the party, file for divorce? Persons stationed outside Texas, who consider Texas their home state, can file for divorce in Texas in the county where they consider themselves to reside. Many times that place will be where their parents live, or other family member. The requirements of six (6) months in Texas and ninety (90) days in a Texas county are deemed met even though the party is stationed elsewhere.

The second situation for military personnel is those stationed here in Texas. They can file for divorce in Texas as long as they meet the six month and ninety day requirements discussed above.

Divorces are typically filed in the District Court of the given county. In certain situations a divorce may have to be filed in another court such as a probate court, but those cases are few and far between. Some counties only have one district court, while others have multiple district courts. In multiple district court counties, the clerk of the district courts determines which district court the case will be assigned to, for instance the 301st District Court or the 330th District Court.

The document that begins the divorce suit is the Original Petition for Divorce. This document is simply a request made by the person filing the divorce to the district court to do certain things that the person filing the petition has requested. It is not an order, but simply a request for the court to take action. Many times a person will think that because their petition asked that the spouse not be allowed to sell property, for instance, that the spouse is prohibited from selling property. That is incorrect. The petition for divorce may ask the court to do that, but the court has not ordered anybody to do or refrain from doing anything. The court does that through orders, which will be discussed later.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

12 comments:

old school client said...

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Anonymous said...

My spouse just bought a house while our divorce is still pending. Is that legal? Is that possible?

Anonymous said...

I make less than my spouse and she will have primary custody of our child but I will have the child 2-4times per week (overnight) Will I still be responsible for the 20% of child support to her? After my bills are paid I will be left with close to nothing before the 20% is taken out. STRESSED OUT!!!!

Chris Schmiedeke said...

Keith - yes it is possible for her to do that...but she just bought you a house as well. The home is community property as is the debt. I would be interested to know what she paid down on the house as that was part of your money that she used.

Chris Schmiedeke said...

anonymous - yes you will be responsible for the 20% child support if she is the primary caregiver. Sorry to be the bearer of bad news.

Anonymous said...

Have a dilema in Lubbock Texas. I have a child support order that the ex refuses to pay. She has never worked and never plans to really so I cant garnish wages. The judgment is 8 years old and the obligor has remarried to a man with a sucessful business.Can I enforce this child support judgment against any of the obligors spouses assets or income since Texas is a community property state. If so I will have to do it soon because the child turns 17 in less than a year and I know the State Child Support Enforcement Agency will still be bogged up in government red tape with my daughter left out in the cold.
Secondly will I, or can I renew it before the expiration date like a standard Judgment if I need more time to follow through on enforcing it myself?
any help is greatly appreciated,
Rick

Anonymous said...

My niece, who is active duty military and leaving for the war the end of the month, has been married since 5/4/08. She found out last week her new husband has been involved with someone in his platoon(he's also active duty military)and he did not want to marry her but did anyway. No explanation.

Could this be grounds for an annulment (possibly fraud?) or would it not meet the requirments and need to be filed as an actual divorce. As they are both leaving for overseas the end of the month, time is of the essence in handling this situation.

Thanks for any help.

Chris Schmiedeke said...

Anonymous, it sounds as if she would need to file for a divorce. You can read my other posts on annulments, but it does not sound as if she fits that category.

As I tell everyone, your niece should contact a lawyer where she is at and consult with them.

They could probably file before they left, but they would need to be available for any potential hearings where they file. Again, a local lawyer would be of much better help than I.

Good luck.

Anonymous said...

Divorce from my husband;

1) His 2003 to 2008 4 affairs? adultry.
2) interference in child custody 1989 but I didn't find out what happened until 2002 .tort.
3) His herpes; he knew but didn't tell me before we wed; on tape confession; tort.
4) possible fraud on the estate. tort.
5) may be cruelty the of my beaten horse, his drinking and 4 wrecks and yelling threats of suicide and burning down our home; all on audio tape? I can't leave my home or have friends or family relationships. cruelty.
6) invasion of my privacy by his friends and family via employment of my storage, doctors etc. tort.
7) 2003 car wreck on perpose links to his family and 1st affair. This links by address to his 2003 girlfriend/affair and his family. My lower back still hurts. I can't clean much.
8) He forged my signature 3 time. I have copies
9) His family and friends are trying to frame or entrap me in a felony 1st time 2006 for money from his company which another family membert took then 2007 at the barn where my horse was hurt too much. The taperecorder stopped them. Address of people theatening me link to my brother and my husbands family.
10) I have cancer and he withhold money for meds, medical and food. Cruelty.
11) He's living with a convicted prostitute 1 year. Bigamy.
12) He leaves me in our home with 4 gas leaks and won't fix it. 8-19-08 He owns a gas business and did nothing. On going neglect of gas leaks 1998, 2005, 2008. Natural gas is methane.

Married 20 yrs, no kids, 2 homes, 6 cars, 4 street bikes and
travel trailor. $140k in bank which he holds.
$150k+ home paid off 1989.
His 20% of million dollar family DBA/Inc.

I am chronically ill do to little food and I have not worked in
10 years, 1997.

No prenup.

We are ready.

Anonymous said...

I was married for 11 years. Left her two years ago. when I when to file for divorce, I found out she was still married to her ex. If I press bigamy charges do I still need to file or does our marrage not count?

Anonymous said...

my partner and I want to get married but he's alredy married. His wife left him and the kids for another man almost 10 yrs ago. She's still living with the other man & his kids. my partner talked to her about a divorce so that we can get married but now she refuses to cooperate. what can we do. They have not been together in years and she's doing this to be spiteful. What can we do???

Anonymous said...

My name is ALISON from England, would want to tell you all that i was able to put an end to my divorce issue and restore my marriage again, because i never wanted it to happen. i don't know what came over my husband that he was filling for divorce, i tried to talk him out of it when he told me and he didn't listen to me, i had no other option than to seek for the help of a spell caster and now am glad i did. Because if not for the help of spell, i don't know what would have become of me by now because i loved my husband so much that i couldn't stand loosing him. The spell worked like magic with the way and manner my husband change and started showing love instead of the divorce he was planning. i just too happy that everything is in place for me now. I would gladly recommend the use of spell to any one going through marriage problems and want to put an end to it. [ agbalaxy@gmail.com was were i got the help to restore my marriage]