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!