Eligibility for Divorce in Texas: Complete Guide to Requirements and Qualifications

Eligibility for Divorce in Texas is often the question that surfaces late at night, when the house is quiet and the weight of uncertainty feels heavier than usual. A spouse may be sleeping in the next room—or not at home at all—and the same thought keeps returning: Can I even start this process yet, or am I stuck waiting? Eligibility for Divorce in Texas isn’t just a legal concept buried in the Texas Family Code; it is the doorway to regaining control, clarity, and peace of mind when life feels suspended in limbo.

At The Law Office of Bryan Fagan, PLLC, we meet people at this exact crossroads. Parents, professionals, and long-term partners come to us not just asking how to file, but whether they are legally allowed to file at all. Texas law, including the residency requirements under Texas Family Code §6.301, sets firm rules about when a court has the authority to act—and filing too early or in the wrong place can mean dismissal, lost time, and added emotional strain for an already exhausted family. Understanding eligibility from the beginning helps prevent unnecessary setbacks and gives families a clear path forward.

Founded by Bryan Joseph Fagan, a South Texas College of Law graduate and recognized authority in Texas divorce and custody law, our firm is built on a simple belief: people deserve to understand their options before making life-changing decisions. Through compassionate counsel and straightforward education, we help families move from uncertainty to confidence. In the sections ahead, you’ll learn what eligibility for divorce in Texas really means, why it matters so much at the start of a case, and how getting it right can bring calm and direction during one of life’s most difficult transitions.

Key Takeaways

• At least one spouse must live in Texas for six months and in the filing county for 90 days before you can file a divorce petition—only one spouse needs to meet both residency requirements
• Texas recognizes no fault divorce based on “insupportability,” meaning you do not need to prove wrongdoing to be eligible; however, fault grounds may affect property division and spousal maintenance
• Filing before meeting residency requirements results in automatic dismissal because courts lack subject-matter jurisdiction—a defect that cannot be waived
• Eligibility for divorce does not guarantee jurisdiction over all issues—child custody may require separate UCCJEA analysis, and out-of-state real property needs additional proceedings
• Consulting a Texas divorce attorney before filing prevents costly mistakes that cause 20-30% of initial family law case complications

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What Does “Eligibility for Divorce in Texas” Mean?

Eligibility for Divorce in Texas is about more than simply deciding that a marriage is over—it determines whether a Texas court has the legal authority, known as jurisdiction, to hear your case and issue a final divorce decree. Under Texas Family Code §6.301, at least one spouse must meet strict residency requirements before a judge can dissolve a marriage. If those statutory requirements are not satisfied, the court is legally prohibited from moving forward, no matter how long the spouses have been separated or how strongly both parties want the divorce to be finalized.

It is also important to understand the legal distinction between eligibility and grounds for divorce. Eligibility answers the threshold question of whether the court can hear your case at all, while grounds for divorce explain why the marriage is ending. Texas allows both no-fault and fault-based divorces under Chapter 6 of the Texas Family Code, but those grounds only matter once eligibility has been firmly established. Without meeting eligibility requirements first, the court never reaches the issue of fault, property division, or custody.

To see how this plays out in real life, consider two common scenarios. One spouse has lived in Dallas County for several years and now seeks a divorce based on adultery. Because the residency requirements under §6.301 are met, the court has jurisdiction and the case can proceed. Contrast that with someone who recently relocated to Texas after separating in another state. Even if the marriage is clearly insupportable under Texas Family Code §6.001, the court must dismiss the case if the required residency period has not yet been satisfied. The law does not provide exceptions for urgency, inconvenience, or emotional readiness.

The consequences of filing before you are legally eligible can be costly and frustrating. A dismissal for lack of jurisdiction forces you to start over once residency requirements are met, often adding months of delay and additional filing fees. Attorneys at The Law Office of Bryan Fagan, PLLC regularly help families avoid this setback by confirming eligibility before a petition is filed and by explaining how residency timelines actually work under Texas law. For a deeper breakdown of these rules, you may find our guide on Texas residency requirements for divorce especially helpful, along with related resources available throughout the firm’s family law education library at bryanfagan.com.

Residency Requirements for Divorce Eligibility

Texas law prioritizes residency as the primary eligibility factor for divorce. These requirements exist to prevent forum shopping—where couples rush to states with favorable divorce laws—and ensure Texas courts handle cases with genuine connections to the state.

Six-Month Texas Residency Requirement

Under Texas Family Code Section 6.301, at least one spouse must have been a domiciliary of Texas for the preceding six months before filing a divorce petition. This is not merely about physical presence; it requires establishing Texas as your permanent home—the place you intend to return to even after temporary absences.

Brief trips outside the state do not interrupt your residency status. A Houston businessperson traveling weekly for work maintains Texas residency if Houston remains their domicile. However, intent matters significantly. Courts examine the totality of circumstances, looking for evidence like:

• Texas driver’s license
• Texas voter registration
• Texas tax filings
• Utility bills and lease agreements
• School enrollment for children involved

Consider Michael, who works as a contractor and spends months on projects across the country. Despite extended absences, his family home is in San Antonio, his vehicles are registered in Texas, and he files Texas tax returns. He remains eligible to file for divorce in Texas because his domicile never changed.

Contrast this with Jennifer, who moved to Austin temporarily for a two-year work assignment but maintained her California driver’s license, voted in California, and told friends she planned to return. Despite living in Texas for over six months physically, a court might find she never established Texas domicile.

Ninety-Day County Residency Requirement

When evaluating Eligibility for Divorce in Texas, meeting the statewide residency requirement is only the first step. Texas law also imposes a strict county residency rule, requiring that at least one spouse has lived in the county where the divorce is filed for a minimum of 90 days before filing. This venue requirement exists to ensure that divorce cases are handled by courts with a meaningful connection to the parties, rather than being filed in a county chosen solely for convenience or perceived advantage. Together, the six-month Texas residency requirement under Texas Family Code §6.301 and the county residency rules form the foundation for a court’s authority to hear a divorce case.

Filing in the wrong county can create serious setbacks. Under Texas Family Code §6.307 and the Texas Rules of Civil Procedure, a divorce filed in an improper venue may be transferred to the correct county or dismissed outright. Either outcome can delay the case by several months while residency is reestablished or the petition is refiled. Attorneys with the Law Office of Bryan Fagan, PLLC regularly help families avoid these delays by confirming venue eligibility before any paperwork is submitted, sparing clients unnecessary stress, expense, and lost time.

Only one spouse must satisfy both the six-month Texas residency requirement and the 90-day county residency requirement. For example, if you have lived in Harris County for only two months but your spouse has lived there for several years, your spouse’s residency alone is sufficient to establish proper venue in Harris County. Similarly, if your spouse lives in another state but you personally meet both Texas and county residency requirements, you may file in your county without waiting for your spouse to relocate.

Venue questions often become more complex when one or both spouses have moved recently. If you moved from Travis County to Montgomery County and have lived in Montgomery County for only 60 days, you typically cannot file there yet. However, if you maintained qualifying residency in Travis County during the applicable lookback period, you may still be able to file in Travis County instead. Disputes over where residency truly exists are common and can quickly derail a divorce if not handled correctly. For a deeper look at how courts resolve these conflicts, our firm’s guide on how to handle residency disputes in a Texas divorce explains what judges consider when competing residency claims arise.

Because venue errors can delay even the most straightforward divorce, working with an experienced Texas family law team can bring clarity and confidence to the process. Our attorneys routinely help families analyze residency timelines, anticipate potential disputes, and select the correct filing county from the start. You may also find it helpful to review our broader explanation of Texas divorce filing requirements, which places county residency rules in context with the overall divorce process and reinforces how careful preparation protects your future.

Grounds for Divorce and Eligibility

While residency determines whether Texas courts have jurisdiction, grounds for divorce provide the legal basis for dissolving the marriage. Texas offers seven grounds for divorce, including both no fault and fault-based options under Texas Family Code Chapter 6.

No-Fault Divorce Eligibility

The primary no fault divorce ground in Texas is “insupportability,” defined as the marriage having become insupportable due to discord or conflict of personalities with no reasonable expectation of reconciliation. Unlike what some states call irreconcilable differences, Texas uses this specific statutory language.

Over 90% of Texas divorce cases proceed on insupportability alone. This ground:

• Requires no proof of wrongdoing by either spouse
• Eliminates the need for evidence of fault
• Simplifies the divorce process significantly
• Allows both agreed divorce and contested proceedings

For eligibility purposes, no fault divorce means you qualify to file without demonstrating that your spouse did anything wrong. You simply need to establish residency and assert that the marriage cannot be saved.

Fault-Based Divorce Considerations

When discussing Eligibility for Divorce in Texas, it is important to understand that Texas law recognizes both no-fault and fault-based grounds for ending a marriage, but those grounds serve a different purpose than eligibility itself. Under Texas Family Code §§6.001–6.007, fault grounds include cruelty that renders living together insupportable, adultery, abandonment for at least one year, living apart for three years, felony conviction with imprisonment, and confinement in a mental hospital for at least three years due to a mental disorder requiring substantial care. These grounds explain why a marriage is ending, but they do not determine whether a court has the authority to hear your case in the first place.

Fault-based allegations do not change your basic ability to file for divorce once residency requirements under Texas Family Code §6.301 are met. However, they can significantly influence the outcome of the case after eligibility has been established. One of the most common areas affected is property division. Texas Family Code §7.001 requires courts to divide community property in a manner that is “just and right,” and proven fault—such as adultery or cruelty—may justify awarding a disproportionate share of the marital estate to the innocent spouse.

Spousal maintenance is another area where fault can matter. While eligibility for maintenance is governed by Texas Family Code Chapter 8, courts may consider marital misconduct when determining whether support is appropriate and, if so, the amount and duration. In some cases, fault can also affect attorney’s fees, as courts have discretion to order the at-fault spouse to pay some or all of the other party’s legal costs when equity and fairness require it.

Choosing to pursue fault grounds is a strategic decision that should be made carefully. Fault must be specifically pleaded in the divorce petition and, if challenged, proven by a preponderance of the evidence. This often increases litigation costs and complexity, particularly in cases where residency or timing issues are already in play. Attorneys at the Law Office of Bryan Fagan, PLLC frequently counsel clients on whether asserting fault is likely to produce meaningful benefits or whether proceeding under no-fault insupportability under Texas Family Code §6.001 is the more efficient path forward.

For families navigating moves, timing concerns, or uncertainty about where and when to file, understanding how fault interacts with residency rules is especially important. Our firm’s step-by-step resource on navigating filing for divorce while transitioning residency in Texas offers practical guidance on coordinating eligibility, venue, and strategy during periods of transition. You may also find additional clarity in our broader discussion of Texas divorce grounds and procedures, which explains how fault and no-fault options fit into the overall divorce process while keeping eligibility front and center.

Special Situations Affecting Eligibility for Divorce in Texas

Complex family circumstances can create eligibility questions that require careful analysis. Military families, cases involving out-of-state spouses, and recent relocations each present unique considerations.

Military Families and Eligibility

Texas Family Code Section 6.303 accommodates military families whose deployments might otherwise interrupt residency. Active-duty personnel maintain Texas residency despite deployments if they declare Texas as their home of record. Evidence establishing military residency includes:

• Military orders listing Texas as home of record
• Texas driver’s license maintained during service
• Texas voter registration
• LES (Leave and Earnings Statement) showing Texas

This means a military spouse deployed overseas for 18 months remains eligible to file in Texas—or their spouse can file here—provided Texas was properly established as the service member’s domicile. The Servicemembers Civil Relief Act provides additional protections, potentially allowing service members to postpone proceedings, but it does not eliminate Texas jurisdiction.

Approximately 10% of Texas divorce cases involve military families, making these rules particularly important for the substantial military population in areas like San Antonio, El Paso, and Killeen.

Out-of-State or Missing Spouses

One spouse can file for divorce in Texas even when the other spouse lives elsewhere or cannot be located. Texas courts maintain jurisdiction over the marriage itself if residency requirements are met by the filing spouse.

Service of process becomes the primary challenge with absent spouses. Options include:

• Personal service through a private process server in the other spouse’s state
• Substituted service if personal service fails
• Service by publication after due diligence under Rule 106

However, there is an important distinction. While Texas can grant the divorce decree, personal jurisdiction over the other spouse for property division or financial support requires additional steps. If your spouse never appears and you obtain a default divorce, you may face limitations on dividing property or establishing child support without separate proceedings.

Recently Moved to Texas

When evaluating Eligibility for Divorce in Texas, recent relocation is one of the most common issues that creates confusion and frustration for families eager to move forward. Texas law is very clear that residency requirements must be satisfied before a court has the authority to act. Under Texas Family Code §6.301, at least one spouse must be a domiciliary of Texas for six months and a resident of the county of filing for at least 90 days. These requirements are jurisdictional, meaning they cannot be waived for convenience, financial strain, or emotional hardship. Filing before meeting them results in mandatory dismissal because the court lacks subject-matter jurisdiction, a defect that cannot be cured after the fact.

To put this into practical terms, consider someone who relocates from California to Austin. That individual must first establish Texas domicile by living in the state for six months. After that, they must also satisfy the 90-day county residency requirement in Travis County if they plan to file there. While the six-month state requirement and the 90-day county requirement can overlap once Texas domicile is established, the county clock still matters. If a person moves directly into their intended filing county and stays put, the shortest possible timeline is typically 90 days. However, if someone moves within Texas after establishing state residency—such as relocating from one county to another—the 90-day county requirement restarts in the new county.

Because these rules are strict, misunderstandings about residency can derail an otherwise straightforward divorce. Courts have no discretion to overlook these requirements, even when both spouses agree to proceed. Attorneys with The Law Office of Bryan Fagan, PLLC routinely help families map out filing timelines so they avoid dismissal and unnecessary delay. For readers wondering whether any narrow exceptions might apply, our detailed discussion of exceptions to residency requirements in a Texas divorce explains the limited circumstances—such as certain military situations—where the analysis can differ.

Relocation often comes with stress, uncertainty, and competing priorities, which is why having accurate legal guidance matters. By understanding how Texas courts interpret residency and venue rules, families can make informed decisions about when and where to file. Additional guidance can also be found in our broader educational resource on Texas residency requirements for divorce, which places recent moves into context and helps families protect their time, resources, and peace of mind.

Jurisdiction Over Children and Property

Eligibility to divorce does not automatically mean the court can decide everything. Jurisdiction over children and property involves separate legal frameworks that may limit a Texas court’s authority.

Child Custody Jurisdiction

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in Texas Family Code Chapter 152, child custody jurisdiction typically belongs to the child’s “home state”—where the child lived for six months immediately before filing. If your children lived in another state for six months prior to your divorce filing, Texas may grant the divorce but lack authority to make custody decisions.

This creates scenarios where:

• Texas grants the divorce
• Another state determines custody and child support
• Temporary orders may be available for emergencies, but permanent decisions wait

When children are involved, analyzing UCCJEA jurisdiction is essential before filing.

Property Jurisdiction

Texas can divide all community property and debts acquired during marriage if both spouses are Texas residents when filing. This community property state framework considers most assets and debts accumulated during marriage as considered jointly owned.

Complications arise with:

• Real property outside Texas: A vacation home in Colorado requires ancillary proceedings in Colorado courts
• Retirement accounts with out-of-state plans: May need a qualified domestic relations order coordinated across jurisdictions
• Separate property claims: Property owned before marriage or received as gifts/inheritance

Interstate property issues can increase divorce costs by 20-50% and extend timelines significantly.

Common Mistakes That Affect Divorce Eligibility

Eligibility errors cause 20-30% of initial family law case complications, according to experienced Texas family law practitioners. Understanding these pitfalls helps you avoid costly delays.

Filing before meeting residency requirements: The most common mistake. Courts will dismiss your case, requiring refiling after you meet the six-month/90-day thresholds. You waste filing fees (approximately $300-400) and delay your final decree by months.

Filing in the wrong county: Choosing your county based on where you were married rather than where you currently reside triggers mandatory venue transfer. This adds 90 days or more while the case moves to the proper court or you establish new county residency.

Confusing temporary presence with domicile: Courts examine intent, not just physical location. Without documentation proving you consider Texas your permanent home—Texas tax returns, voter registration, driver’s license—your eligibility claim may fail.

Assuming eligibility without verifying: Either you or your spouse must meet requirements. If you both recently moved from different states, neither may qualify yet.

Overlooking military and interstate complications: Military deployments, absent spouses, and children who recently moved create jurisdiction questions that party fails to consider until the case is already delayed.

Ignoring child custody jurisdiction: Filing for divorce without analyzing whether Texas has UCCJEA authority over your children can result in a divorce decree that does not resolve custody—forcing separate proceedings elsewhere.

These mistakes can invalidate your entire case. Refiling delays average three to six months, plus additional court costs and attorney fees.

How to Confirm Your Eligibility Before Filing

Before submitting your divorce petition to the clerk’s office, work through this systematic verification process.

Step 1: Review residency timelines Calculate backward from your intended filing date. Have you (or your spouse) lived in Texas for at least six months? In the filing county for at least 90 days? Use calendars and documentation to confirm exact dates.

Step 2: Gather residency documentation Collect proof establishing your Texas domicile:

• Two years of Texas tax returns
• Texas driver’s license history
• Utility bills in your name at Texas addresses
• Lease agreements or mortgage documents
• School enrollment records for minor children
• Voter registration confirmation

Step 3: Determine grounds for divorce Decide whether you will proceed on no fault insupportability or assert specific circumstances warranting fault grounds. While this does not affect basic eligibility, it shapes your divorce petition and potential strategy.

Step 4: Analyze jurisdiction over children and property If you have children involved, determine where they have lived for the past six months. For significant assets—especially real property or retirement accounts in other states—identify potential jurisdiction complications.

Step 5: Confirm proper county selection Verify that either you or your spouse meets the 90-day county residency requirement in the county where you plan to file.

Step 6: Consult a Texas divorce attorney An experienced attorney can verify jurisdiction, identify potential issues, and ensure your case proceeds efficiently from the start.

Why Legal Guidance Matters for Divorce Eligibility

An experienced Texas divorce attorney provides essential verification before you file, preventing the dismissals and delays that derail cases filed without proper analysis.

Attorneys confirm eligibility by:

• Verifying residency timelines against Texas Family Code requirements
• Analyzing complex domicile questions for mobile professionals
• Assessing UCCJEA jurisdiction for child custody matters
• Identifying property jurisdiction issues before they become problems
• Reviewing military status and applicable protections

Consider David, a contract worker who spent months traveling between Texas, Louisiana, and Oklahoma. His attorney analyzed utility records, tax filings, and lease documents to establish that Texas remained his domicile despite frequent travel. Without this analysis, David might have filed in the wrong state—or had his Texas filing challenged.

Legal representation also prevents strategic mistakes. While no fault divorce is available to everyone meeting residency requirements, an attorney advises when fault grounds might benefit property division or spousal maintenance outcomes. This strategic guidance ensures you understand all options before committing to an approach.

For families facing domestic violence, attorneys can expedite proceedings. The mandatory 60-day waiting period from filing to final decree under Section 6.702 may be waived in family violence cases with a felony conviction or protective order, allowing faster finalization for safety.

Why Choose the Law Office of Bryan Fagan PLLC

Understanding Eligibility for Divorce in Texas is often the difference between a smooth legal process and months of unnecessary delay, and this is where experienced guidance truly matters. The legal team at the Law Office of Bryan Fagan, PLLC has spent years helping families across Texas navigate the residency, jurisdiction, and procedural rules that determine whether a court can move forward with a divorce. These requirements, grounded in Texas Family Code §6.301 and related jurisdictional statutes, are not merely technicalities—they are mandatory legal thresholds that must be met before any judge can issue orders affecting your marriage, property, or children.

Our attorneys routinely assist clients facing complex eligibility scenarios that demand careful legal analysis and strategic planning. This includes military families dealing with deployments and domicile issues under Texas Family Code §6.303, interstate divorces where one spouse lives outside Texas, and cases involving children that trigger jurisdiction questions under the Uniform Child Custody Jurisdiction and Enforcement Act in Texas Family Code Chapter 152. We also frequently handle high-asset divorces involving out-of-state real estate, retirement accounts, or business interests, where eligibility and jurisdiction must be coordinated with property division rules under Texas Family Code §7.001.

Families throughout Harris County, Montgomery County, Galveston County, and surrounding communities turn to our firm because they want clarity during a stressful time. Questions about whether you can file, where you should file, or whether Texas courts even have authority over your case can create significant anxiety. The attorneys at Bryan Fagan’s firm understand that uncertainty and work to replace it with clear answers, compassionate communication, and a realistic plan forward.

From your first consultation, our legal team focuses on confirming eligibility, spotting potential jurisdictional problems early, and mapping out a path toward resolution that aligns with your goals. Whether you are pursuing an agreed divorce or preparing for contested litigation, addressing eligibility at the outset helps prevent dismissals, delays, and added costs. For those seeking a broader overview of what lies ahead, our resource on the Texas divorce process walks through each stage step by step, while additional guidance can be found in our educational article on how to file for divorce in Texas. Together, these resources reflect our firm’s commitment to educating families, protecting futures, and helping clients move forward with confidence and peace of mind.

Actionable Checklist: Confirming Your Eligibility for Divorce in Texas

Use this checklist before filing your divorce petition:

☐ Verify six months of Texas residency Confirm that you or your spouse has lived in Texas as your domicile for at least six months before filing

☐ Confirm 90 days of county residency Verify that you or your spouse has lived in the filing county for at least 90 days

☐ Gather residency documentation Collect Texas driver’s license, tax returns, utility bills, lease agreements, and voter registration

☐ Determine grounds for divorce Decide whether to proceed on no fault insupportability or assert fault grounds

☐ Confirm jurisdiction over children If minor children are involved, verify Texas is their home state under UCCJEA

☐ Assess property jurisdiction Identify any out-of-state real property or retirement accounts requiring special handling

☐ Consult a Texas divorce attorney Schedule a consultation to verify eligibility and develop your case strategy

Conclusion

If you’re still reading, it likely means you’re standing at a crossroads—wanting clarity, but also wanting reassurance that you’re not about to take a wrong step. That’s completely understandable. Divorce is rarely about just paperwork and deadlines. It’s about regaining your footing, protecting your future, and creating a path forward that feels steady instead of rushed or uncertain.

Understanding eligibility is one of those quiet but powerful steps that can change everything. When you know where you stand under Texas law, the fear of “what if I mess this up?” starts to fade. You’re no longer guessing or waiting for something to go wrong—you’re making informed choices, on your own terms, with confidence.

Working with an experienced Texas family law attorney can make that difference even clearer. A knowledgeable legal guide doesn’t just tell you what the law says; they help you apply it to your life, your timeline, and your goals. At The Law Office of Bryan Fagan, PLLC, that’s what we aim to do every day—simplify the complicated, answer the questions you’re hesitant to ask, and help families move forward with clarity and peace of mind.

If you’re wondering whether now is the right time to take the next step, consider this your sign to pause, breathe, and get answers before you act. Whether that means scheduling a consultation, gathering information, or simply feeling more confident about your options, you don’t have to figure it out alone. Sometimes, the most empowering move is simply deciding to get clear before moving on.