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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.

In Texas, when a married person wishes to file for divorce but their spouse resides in another state, the filing spouse may still be able to file for divorce in Texas if the couple last lived together in the state and not too much time has passed since then. This is to ensure that the Texas court has personal jurisdiction over the non-resident spouse, which is necessary for the court to issue orders regarding personal obligations like child support or marital debts. The non-resident spouse must be a resident or have been a recent enough resident of Texas for the court to have jurisdiction. If the couple has children who have been living in another state for at least six months, the divorce may need to be filed in the state and county where the children reside. If the filing spouse cannot locate their partner, they may use service by publication after filing an affidavit showing diligent search efforts and confirming the missing spouse is not on active military duty. The laws on personal jurisdiction and child custody jurisdiction vary by state and are typically found in the state's family or domestic relations statutes. It is advisable for someone in this situation to consult with a family law attorney to understand the specific requirements and time limitations for filing for divorce in Texas.

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