When a marriage ends, it's common for one of the spouses to move. Whether a spouse moves to Texas or away from Texas, many individuals end up in a situation in which they want to file for divorce in Texas but their spouse lives in another state or country. When your spouse doesn't live in Texas, then you have to figure out whether Texas courts have personal jurisdiction over your spouse.
Personal jurisdiction is the power of a court to render a judgment that binds a person. The reason personal jurisdiction exists is so that you can't be dragged into court in a state with which you have no contacts. By way example, if you've never been to South Dakota and have had nothing to do with South Dakota, then you shouldn't be forced to be a party to a case in South Dakota.
In Texas, a court can dissolve your marriage even without personal jurisdiction over your spouse, but the court can't do much more regarding your spouse. Without personal jurisdiction over your spouse, a Texas court cannot divide marital assets and debts or order spousal maintenance. Those issues, which are a significant part of any divorce, would need to be resolved in a court that has personal jurisdiction over your spouse.
There are two situations in which Texas courts have personal jurisdiction in a divorce case over a spouse who doesn't live in Texas. In both situations, the spouse filing the lawsuit must live in Texas. First, Texas courts have personal jurisdiction over a nonresident spouse if Texas is the last marital residence of the parties and the divorce is filed before the second anniversary of the date on which marital residence ended. The term "last marital residence" suggests a permanent place of abode by the spouses. In other words, the couple should not have intended to separate when they acquired the residence, and there should have been more than just occasional visits by one spouse to the residence.
Texas courts can also exercise personal jurisdiction over a non-resident spouse using any basis consistent with the constitutions of Texas and the United States. This is a "catch-all" standard that can include many different situations. Because this article is for the public, I'm not going into a legal analysis of this standard. Instead, I will list three specific and common situations that Texas courts have held fall within this standard: (1) if the spouse is personally served with citation while physically in Texas; (2) if the spouse has a long-standing business in Texas; or (3) if the spouse purchased real estate in Texas. The common thread in all three situations is that the non-resident spouse put themselves in a position to benefit from the laws of Texas.
Keep in mind that there are also procedural miss-steps that can grant a Texas court personal jurisdiction over a non-resident spouse. If you're a non-resident spouse who's been sued for divorce in a Texas court, your first step should be to file a "special appearance" with the court. A special appearance is a pleading that challenges the court's personal jurisdiction over you. If a non-resident spouse files anything other than a special appearance first, then that non-resident spouse waives their right to claim the Texas court doesn't have personal jurisdiction. Many non-resident spouses are dragged into a Texas divorce because they sent a one-page letter to the court saying they need more time or don't agree with their spouse's claims.