You can file for an out of state divorce in Texas as long as you or your spouse meets Texas residency requirements. The Texas court can end the marriage on that basis alone. Whether it can also divide your property, order support, or decide custody is a separate question that turns on your spouse’s ties to Texas and where your children have been living.
Who Qualifies to File in Texas
Texas requires that at least one spouse has been domiciled in the state for the six months before filing, and has lived in the county of filing for the 90 days before filing.1State of Texas. Texas Family Code Section 6.301 – General Residency Rule for Divorce Suit Only one of you needs to meet both thresholds. If you live in Texas and your spouse has moved away, you file in your Texas county. If you are the one who moved away and your spouse still lives in Texas, you can file where your spouse lives.
Military assignments do not break Texas residency. A Texas domiciliary who is stationed elsewhere continues to count as a Texas resident, and the same applies to a spouse who accompanies the service member. A service member who was never a Texas resident but has been stationed at a Texas installation for at least six months, with 90 days at a base in the filing county, qualifies as a Texas domiciliary for divorce purposes, and so does the accompanying spouse.2State of Texas. Texas Family Code Section 6.304 – Armed Forces Personnel Not Previously Residents
What the Court Can Actually Decide
Residency lets Texas dissolve the marriage. Ordering your out-of-state spouse to pay support, hand over property, or split a retirement account is different. Those orders require the court to have personal jurisdiction over that spouse.
Texas Family Code Section 6.305 lets a Texas court reach a nonresident respondent in limited circumstances, the clearest of which is that Texas was the last state where the couple lived together as spouses.3State of Texas. Texas Family Code Section 6.305 – Acquiring Jurisdiction Over Nonresident Respondent The constitutional floor is that the nonresident must have minimum contacts with Texas so that being sued here is not fundamentally unfair.
If the court cannot reach your spouse personally, you may still get what is called a status-only divorce. The judge ends the marriage but leaves property division and support for another day, often in the state where your spouse lives. Decide this early. If your spouse has no meaningful ties to Texas, filing here may end the marriage cleanly but force you into a second case elsewhere to sort out money.
Serving a Spouse in Another State
Your spouse must receive formal notice before the case moves forward. Three routes are common when the spouse is out of state.
Personal Service
You arrange for a process server or the sheriff’s office in your spouse’s county to hand-deliver the petition and citation. It takes coordination across state lines, but it creates a clean record.
Waiver of Service
If your spouse is cooperative, they can sign a Waiver of Service before a notary and mail it back for filing. The waiver cannot be signed until at least one day after you file the petition, and it must include your spouse’s mailing address.4Texas Law Help. Waiver of Service Only (Specific Waiver) – Divorce Set B Any notary in your spouse’s state works. This is usually the easiest path when both spouses agree the marriage is over.
Substituted Service or Service by Publication
When your spouse is avoiding service, the court can approve an alternative, such as leaving documents with someone over 16 at their last known address. If you truly cannot locate your spouse, you can ask for service by publication. That requires an affidavit describing every effort you made to find them, followed by a notice published in a local newspaper once a week for four weeks. The court appoints an attorney ad litem to represent your absent spouse’s interests. Publication service also limits what the court can order, because you cannot get personal jurisdiction over someone you could not find.
The Answer Deadline, Default, and the 60-Day Wait
Once served, your spouse has until 10:00 a.m. on the first Monday after 20 days from the service date to file an answer.5Texas Law Help. I Need a Divorce – We Do Not Have Minor Children A late answer still counts if filed before the divorce is finalized.
If nothing comes back, you can ask for a default judgment. The judge proceeds without your spouse’s input, which means your spouse loses any say over how property and debts are divided and, if there are children, over the custody arrangements the court enters.6Texas State Law Library. Answering Divorce Papers Out-of-state divorces often end this way when the other spouse has moved on and ignores the paperwork.
Either way, Texas imposes a mandatory 60-day waiting period. The court cannot grant the divorce until at least 60 days after the petition was filed.7State of Texas. Texas Family Code Section 6.702 – Waiting Period The waiting period is waived only when the respondent has a family violence conviction or deferred adjudication involving the petitioner, or when the petitioner holds an active family violence protective order.
Custody When Children Live in Another State
Custody has its own jurisdictional rulebook. Under the Uniform Child Custody Jurisdiction and Enforcement Act, which Texas has adopted, the state with authority to enter initial custody orders is the child’s home state: the state where the child has lived with a parent for the six consecutive months before filing.8State of Texas. Texas Family Code Chapter 152 – Uniform Child Custody Jurisdiction and Enforcement Act – Section: Subchapter B General Provisions For a child under six months old, the home state is wherever the child has lived since birth.
If your children have been living with your spouse in another state for six months or more, that state is their home state. A Texas court can grant your divorce but cannot enter custody or visitation orders. You would need to open a separate custody case where your children live.
Child support is governed by the Uniform Interstate Family Support Act. UIFSA lets states establish support broadly, but the state that issued an existing support order keeps exclusive jurisdiction to modify it until the obligor, the obligee, and the child have all left that state. If another state already issued a support order and someone involved still lives there, Texas generally cannot change it.
Property Located in Another State
Texas is a community property state, and a Texas court can divide community property wherever it sits, including out of state. The limit is enforcement. The judge can order your spouse to sign a deed, split a retirement account, or hand over an out-of-state bank account, but a Texas court cannot directly transfer title to real estate in another state. If your spouse refuses to cooperate, you may need to take the Texas decree to a court in that state to enforce it.
Financial accounts are usually the easier piece, because banks and brokerages honor court orders from other states. Real estate is where problems arise. Getting your spouse to sign a deed as part of the settlement, before the decree is entered, avoids a separate lawsuit later.
All of this assumes personal jurisdiction over your spouse. Without it, none of these property orders are available, no matter where the property is located.
If Your Spouse Is an Active-Duty Service Member
The Servicemembers Civil Relief Act lets an active-duty spouse who has been served request a stay of at least 90 days when military duties materially affect their ability to participate.9Office of the Law Revision Counsel. 50 US Code 3932 – Stay of Proceedings When Servicemember Has Notice The request must include a letter from the service member explaining the conflict and a letter from the commanding officer confirming that leave is not authorized. Further stays are available if the conflict continues. Requesting a stay does not waive the right to challenge the court’s jurisdiction later, and the protection covers custody proceedings as well as the divorce itself.