out-of-state spouse

When a married person wishes to file for divorce but their spouse has moved to another state, the spouse filing for divorce may be able to file in the state where the spouses last lived together—if there hasn’t been too much time elapse since the spouses lived together in that state. This limitation on the time in which the spouse must file for divorce is generally due to the requirement that the court have personal jurisdiction (authority) over a missing spouse to be able to enter court orders that impose personal obligations on the missing spouse—such as paying child support or marital debts—and the former spouse must be a resident or a recent-enough resident of the state for the court to exercise such jurisdiction.

If the spouses have children and if the children are living in another state (with the other spouse or with other persons), the spouse seeking to file for divorce may be required to file in the state and county where the children reside if the children have lived in the other state for some prescribed period of time (6 months, for example).

When a married person wants to file for divorce but is unable to locate their spouse to serve them with the petition or complaint (lawsuit) for divorce, the spouse filing for divorce may be able to provide the required legal notice of the divorce filing by publishing a notice at the courthouse or in a local newspaper. This is a special type of service of process known as service by publication, and to use it, the spouse filing for divorce usually must file an affidavit (sworn statement under oath) detailing the diligent efforts made to locate the missing spouse, stating that the missing spouse is not on active military duty, and identifying the missing spouse’s last known mailing address.

Laws regarding a divorce court’s jurisdiction over a spouse living in another state (personal jurisdiction) and jurisdiction over child custody matters (subject matter jurisdiction) vary from state to state. These laws are usually located in the state’s statutes—often in the family code or domestic relations code. For these reasons a spouse whose estranged spouse is living in another state or whose whereabouts are unknown should generally talk to a family law attorney sooner than later.

State Statutes for the State of Texas

Federal Statutes