What happens if I file for divorce in Texas but my child lives somewhere else?

Say that you and/or your spouse have resided in Texas for the past six months (sufficient for the state to have jurisdiction over your divorce) and you have filed for divorce here. However, your child has been living with a relative in another state or country and has never set foot in the state of Texas.

Given these facts, the Texas court in which your divorce is filed does not have jurisdiction over your child in order to issue orders that have to do with rights, duties and even child support.

The issue is that a court needs to have subject matter jurisdiction over the parties involved in the legal proceeding and if your child has never resided in Texas then that raises an issue as to whether or not its orders on subjects related to the children are actually enforceable.

If there is a child involved in a divorce and there are no other courts that have issued an order regarding the child then that means that the child must be included in the divorce lawsuit. On occasion you will see a situation where parents will separate and one parent will go to court and ask the judge to issue an order that forces the other parent into paying him or her child support The court that renders a decision will then become the court that has exclusive jurisdiction over the child. This means that if a divorce is filed later on the child will need to be included in the divorce but that divorce court cannot change anything previously decided in the child support court.

If this whole scenario seems a little too “lawyer’y” for you I can’t say that I blame you for feeling that way. However, I think that I can illustrate this point by telling you a story of two people who tried to get a divorce in Harris County and how their case ended up.

Two persons, two countries and one child

A husband and wife, both of Mexican descent but living in Harris County, were going through difficult times in their marriage and eventually the husband filed for divorce here. He filed an original petition for divorce that asserted that the divorce was due to a discord of personalities (i.e.- a “no fault” divorce). The couple had a child together and the father wanted to be named as the conservator of the child who has the right to designate the child’s primary residence.

The mother and the child were both living in Mexico at the time the father filed for divorce. The father had been sending money to help support the child in Mexico. The mother filed a waiver of service with the court indicating that she is waiving her right to be served with the divorce papers by a process server.

However, the mother provided no additional documentation to the court to show where the child was living and because of this the divorce case was dismissed here in Texas. The father believed that this dismissal was done in error and decided to appeal the case to an appellate court in Texas to see if he could get the divorce reinstated.

What does a court need to establish jurisdiction over a divorce in Texas?

For starters, at least one of the two persons getting the divorce need to have been a resident of Texas for at least six months prior to the filing of the original petition for divorce. In addition, for whatever county the divorce is filed the spouse must have been a resident there for at least the prior three months. Meeting that requirement satisfies the jurisdiction requirements for the divorce. A divorce court can make rulings on issues related to property and other non-child related activities of the divorce.

That still leaves us with the question as to when a Texas court has the jurisdiction has the ability to render judgments on child custody, support and other matters integral to the child. Here are the situations that allow the court in Texas to proceed on child related issues:

  1. the child must have resided in Texas at the time of the beginning of the divorce proceeding or have lived in Texas for a six month period before the divorce began
  2. the court of another state or country either lacks the ability to make decisions regarding the child or is unwilling to exercise jurisdiction
  3. it is determined by the court of another state that Texas is the more appropriate venue for deciding issues relating to the child and 1) the child and at least one parent have significant connections with the State of Texas, and 2) there is substantial evidence available in Texas regarding the child

If we take the above bullet-points into consideration, if the father from our story did not provide any proof to the court as to where his son was living currently (with an address for reference) and did not specify where the child had resided over a period of the past five years then it is likely that the court finding it did not have jurisdiction over the child was probably valid.

This is true even if the mother signed a waiver of service. The signing of the waiver does not waive the need for the Texas court to have jurisdiction over the child involved in the case.

Status Divorce

That is not to say that the court could not have granted a divorce only that the court could not have made any orders regarding the child.

Questions on divorce when a spouse lives abroad? Contact the attorneys with the Law Office of Bryan Fagan, PLLC

I will fully admit that this sort of subject matter (no pun intended) is not overly interesting and can actually be tough to understand. If you believe that any of the above scenarios are relevant to you and a divorce that you’ve been thinking of filing it is best to speak to a lawyer prior to proceeding with the divorce. The attorneys with the Law Office of Bryan Fagan, PLLC are equipped to help you and your family accomplish whatever goals you’ve set for yourself. Consultations are free of charge and are available six days a week.


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. I Am Already Divorced. Can My Ex Divorce Me in Another State?
  2. Where in the world did I file this case? Jurisdiction in Child Custody Cases
  3. Where do you file a divorce in Texas and what are the steps after filing?
  4. Can I get a divorce even if my spouse lives in another country?
  5. The Effect of Divorcing a United States Citizen While a Non-U.S. Citizen
  6. I am Not a United States Citizen and Live in Spring, Texas Can I file for Divorce?
  7. How to Divorce Your Spouse in Texas When Their Whereabouts are Unknown
  8. The Dirty Trick of Filing for Divorce in Another City
  9. The Dirty Trick of Moving Out of State with the Kids
  10. Children’s Passports and International Travel after Texas Divorce

Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with a Spring, TX Divorce Lawyer right away to protect your rights.

A 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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