Many of my potential clients are concerned with filing first in their
Texas divorce case. Many of them have the impression that if they are not the first to file,
they will be at a disadvantage in their case. In many cases this is generally
not the case when both spouses are represented by divorce lawyers.
However, there are some exceptions to this rule. One of those is when the
spouses are in different cities. In such a case filing first can provide
a real strategic advantage.
In today’s blog topic, we will focus will be on how choosing the
battle ground of where to file for divorce can impact
Texas divorce proceedings when spouses live in different counties.
Choosing Which County to File In
In most divorce cases, there is not an option on where to file a divorce.
This is because Texas Family Code Section 6.301 sets out the residency
requirements for filing for divorce. Those requirements are that at least
one spouse must have been:
- a domiciliary of this state for the preceding six-month period; and
- a resident of the county in which the suit is filed for the preceding 90-day period.
What this section basically says is that if both spouses live in the same
county in Texas then there is only on option on where the spouses can
file. However, if spouses live in different counties then there is possibly a choice.
Why should I care if the divorce is in one county or another?
There are a number of reasons why choosing one county over another can
make a difference. One of the biggest reasons is when the counties are
several hours apart such as Bexar County versus Harris County. In such
a case this would mean:
One spouse would have a much more convenient forum for their divorce. While
their spouse would have to make a trip that takes hours back and forth
whenever there is a court hearing.
The distance can also create additional costs such as time off work, fuel
costs, or having to rent a hotel whenever they are required to travel.
Local Attorney or Attorney in City where Case is Filed
Another decision the spouse who must travel will need to make is whether
to hire an attorney near them who will have to travel or an attorney in
the county where the divorce is filed. Either choice will have pluses
If they hire an attorney them it will be more convenient to meet to discuss
and prepare the case. However, whenever there is a hearing they will be
paying that attorney to travel which can be costly. This attorney may
also not be as familiar with the local rules for the divorce court in
If they hire an attorney in the county where the divorce is filed meeting
that attorney to prepare will be more inconvenient. However, they will
not be paying that attorney as much for travel and that attorney is more
likely to be familiar with the local rules for the divorce court in that county.
The Race to the Courthouse
If both spouses are aware that the divorce is coming and that they are
living in separate counties, then it may be obvious that they need to
race to the courthouse so they can control where the divorce proceedings
will take place.
The Dirty Trick in Action
One example of this trick in action is in a case where we represented the
husband. His wife left him and moved to San Antonio where here parents
were immediately filed for divorce and got him served.
The husband then contacted and hired our firm. We then immediately filed
for divorce and got her served.
What happens when there are two divorce cases pending in Texas?
The issue is whether or not:
- the Husband, is entitled to seek a divorce in one Texas county when
- the wife filed first in a different Texas county.
As a general rule, when suit would be proper in more than one county, the
court in which suit is first filed acquires dominant jurisdiction to the
exclusion of other courts. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d
245, 248 (Tex.1988).
Any subsequent suit involving the same parties and the same controversy
must be dismissed if a party to that suit calls the second court's
attention to the pendency of the prior suit by a plea in abatement.
Exceptions to the Rule
There are three exceptions to the rule:
- Conduct by a party that estops him from asserting prior active jurisdiction;
- lack of persons to be joined if feasible, or the power to bring them before
the court; and
- lack of intent to prosecute the first lawsuit
See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988).
Clawson v. Millard, 934 S.W.2d 899, 901 (Tex. App. 1996) Husband asserted in the second court
(Galveston) that even though Wife filed for
divorce in Houston first, the Galveston court had dominant jurisdiction because exceptions
to the general rule of dominant jurisdiction applied.
Husband claimed that Wife was estopped from relying on the fact that she
filed first in Harris County because she waited four and one-half months
to have Husband served with citation in the Houston suit, and that by
the time Husband was served, he had already filed for divorce in Galveston
and had previously served Wife with citation.
The Galveston court agreed and ruled in favor of Husband.
Plea in Abatement
One way to combat your spouse filing in another city is to file a plea
in abatement in that court. This basically ask the court to place your spouses
divorce case on hold.
Some valid reasons for filing this motion can include:
- The three exceptions listed above as well as
- Your spouse not meeting the residency requirements for filing for divorce
in the first place in that city.
In the example I gave above where the wife ran off to San Antonio and immediately
filed for divorce one of the reasons we asked for a plea in abatement in the
Texas divorce case she filed was that she did not meet the residency requirements.
Additional Costs and Expenses
We ultimately were successful in getting the wife’s divorce cased
abated. However, the whole matter created additional costs. This was because:
- there had to be an additional hearing in San Antonio over the abatement
hearing as well
- as preparations and gathering evidence to prove that she did not meet the
90-day residency requirement
- Additional filing fees and pleadings prepared for that hearing
One thing we did to try and help save our client money was to reach out
to a local San Antonio attorney to handle that hearing. This saved our
client some money in regards to not having to pay for an attorney to travel
to and from Houston for that hearing.
Our client also was saved a great deal of frustration of having to handle
a divorce case in San Antonio versus locally for him in Houston. Whereas
as when it was determined that Houston had the dominant jurisdiction over
the case the wife for a time tried to combat the case from San Antonio
as well as hired a San Antonio attorney to fight the case in Houston.
Seek Legal Advice Immediately
If your spouse is threatening to move to another city or has already moved
to another city, you will want to seek legal advice from a
Texas divorce lawyer immediately to go over your legal rights. This not a situation you want
to take lightly.
The consequences of delay are severe. You do not want to be fighting your
divorce case in another city.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
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Law Office of Bryan Fagan | Spring Divorce Lawyer
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with ar
Spring, TX Divorce Lawyer right away to protect your rights.
divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing
a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Spring, Texas,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and