Military service members who seek a Texas divorce attorney often find themselves faced with several jurisdictional issues. The term "jurisdiction" means the Court's authority to excercise power over a case and/or over the parties to the case.
There are two types of jurisdiction--subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction means that the Court has to have the authority to make a determination in that type of case. For instance, the Uniform Child Custody Jurisdiction and Enforcement Act, a version of which has been adopted by virtually all the states in the U.S., states that a state court does not have jurisdiction to make a child-custody determination if the child has been residing in some other state or country for more than six months at the time the case is filed. That means that a Texas Court would not have "subject-matter jurisdiction" over such a case, and has no authority to hear the case, even if both parties agree for the Court to hear it. This is an over-simplification, since there are several exceptions to the six-month rule, but the purpose of mentioning it was solely to explain the meaning of the term "subject matter jurisdiction".
In contrast, the term "personal jurisdiction" refers to the Court's authority to order an individual to do something--i.e., to exercise power over that individual. Texas divorces often involve parties who are in other parts of the country, or the world for that matter, especially when military service members are involved. The U.S. Supreme Court has ruled that the U.S. Constitution requires that certain conditions be met before a court in one state may exercise jurisdiction over a person residing in another state. The Texas Family Code lists certain conditions which have "passed constitutional muster" which automatically confer Texas jurisdiction over an out-of-state litigant. The general rule considers whether or not the out-of-state litigant has availed himself/herself of the privileges of that state, or otherwise committed any acts such that he or she should not be surprised to be sued in Texas.
In the divorce context, a Texas divorce attorney is often approached by military service members who have been stationed in Texas for a while, but whose spouse resides in another state. If the attorney determines that Texas does not have personal jurisdiction over the absent spouse, he or she must advise the client of that fact. All that being said, lack of personal jurisdiction over the out-of-state spouse will not prevent the resident spouse from getting divorce. Texas courts have held that the divorce is a "status determination" and does not require personal jurisdiction over the absent spouse. However, personal jurisdiction IS necessary for the Court to divide property. Therefore, when the Court lacks personal jurisdiction over an out-of-state spouse, the Court may be limited solely to granting the divorce. Division of property (and anything else which requires personal jurisdiction) may then have to be decided at a later time, possibly in a different state.
Obviously, lack of personal jurisdiction can cause major complications to a Texas divorce. If your spouse resides outside of Texas, be sure your attorney is familiar with personal jurisdiction issues.
A related issue to jurisdicion is addressed in the special rules concerning where a military service member may file for divorce. The Texas Family Code provides that a divorce may not be maintained by an individual who has resided in Texas for less than six months, UNLESS that person is currently enlisted or commissioned in active duty military service and is absent from the state for that reason.
This has been held to mean that a service member who has been deployed or stationed in another state, or another country, can still maintain a divorce suit in Texas if the service member claims Texas as his home state of record with the military. This is NOT a hard and fast rule--one Texas appellate court has held that claiming Texas as the service member's home state of record is NOT in and of itself sufficient to confer jurisdiction in Texas. Therefore, depending on the Court your divorce is decided in, you may be required to show that you are in fact a resident of Texas, and that you would be living in Texas if not for your active duty military service.
J. Michael Clay is a family-law attorney in San Antonio, Texas, whose practice centers on family-law issues including divorce and its related issues, such as property division, post-divorce spousal maintenance (alimony), child custody, and child suppport, as well as original suits affecting the parent child relationship, including original suits for child custody, child support, and visitation, and enforcement and modification suits in child custody, child support, and visitation cases.
J. Michael Clay is licensed to practice law in all state courts in the State of Texas, and in federal courts in the Western District of Texas.
Not certified by the Texas Board of Legal Specialization in any particular area of law.
Will help me advise my American expat clients in London. Thanks
Posted by: London Divorce Lawyers | August 21, 2007 at 01:42 PM
I will be adding this to my news letter.
Posted by: http://www.londondivorcelawyers.co.uk | August 21, 2007 at 01:44 PM