A British expatriate can divorce in Texas if either spouse has been domiciled here for 6 months, so long as the party has also been a resident of the particular county in which the divorce will be filed for at least 90 days. This requirement is jurisdictional, but a temporary absence from the state of Texas will not defeat jurisdiction. Even where one or both of the parties has a dwelling or other property in Great Britain, or any other country, for that matter, that will not diminish a Texas court’s jurisdiction over the divorce.
Jurisdiction is often disputed where the parties are expats from another country, however, where jurisdiction is questioned, it is generally a simple matter to prove domicile by testimony in Texas. And documentary evidence, including rental contracts, driver’s licenses, local utility bills, club memberships, receipts for payment of Texas property taxes, may provide additional evidence for a British expat to establish domicile in Texas sufficient to support jurisdiction in Texas.
It should be noted that while Texas may have jurisdiction, a court can still choose not to hear a case based on the doctrine of forum non conveniens, which means ‘inconvenient forum,’ and so if you are an expatriate divorcing in Texas you should consult with a lawyer who is knowledgeable about international divorce issues to determine whether to urge this issue, or how to defend against it.
It often comes as a surprise to expats that Texas is one of the few jurisdictions in the world where a trial by jury is available for a divorce or custody case. Trial by jury in a Texas family law case is available on particular issues—including fault grounds, child custody, relocation of the child’s home, and characterization and valuation of property.
Texas recognizes no-fault divorce, but divorce may also be filed on fault grounds, including cruel treatment and adultery. Fault grounds may be considered by a Texas court as justification for a disproportionate division of community assets, although fault is not usually a basis for establishing support or maintenance except where there has been family violence.
If an expat’s divorce is filed in Texas, it will be governed by Texas law regardless of the place of the marriage or the laws of other marital residences. There is one exception to this rule, and that is where the parties signed a written marital property agreement (a prenuptial agreement) and that contract contains a choice of law clause naming the laws of another jurisdiction (usually the law of the expatriate’s home country, though not always). In that case, Texas will construe the marital property agreement according to the choice of law provision. But even with a marital property agreement with a choice of law clause, the remaining issues will be governed by Texas law.
Unlike in England, the divorce process in a Texas divorce is not a separate process from the child custody process. All claims – whether financial or child-related – have to be dealt with in the divorce itself.
Expatriates should be aware that the United States is a signatory to the Hague Convention on Child Abduction. Thus, if an parent relocates with the child or children to another Hague signatory country (such as Great Britain, The Netherlands, France, and so on), without the consent of the other parent or the approval of a Texas court, the parent left behind may seek orders for the child’s immediate return to Texas. The key issue in a Hague Convention case is the question of the child’s habitual residence, not the child’s country of origin or nationality.
The Texas Family Code governs all child custody, care and visitation arrangements as well as child support, and a determination of what is in the best interest of the child will control the result. Parents are usually awarded particular parental responsibilities and rights that come from the Texas Family Code.
There is a presumption in Texas that both parents will be joint managing conservators. However, even with joint conservatorship, one parent may be awarded more or different rights and duties concerning the children, and child support is still awarded to the primary parent. The non-primary parent will typically receive a standard possession order (from the Texas Family Code) which provides generous possession times and is presumed to be in the best interest of the children. There are still cases in which a joint conservatorship is not awarded, for instance, in certain cases involving family violence or other situations that may pose a danger to the child but those cases are becoming rare.
Options for Texas expats living abroad
A Texas expatriate can divorce in the Texas courts if the other party meets the domicile requirements set forth above or if either party is only temporarily absent from Texas (such as military spouses).
Texas law allows couples to enter into a marital property agreement governing the property of the marriage. The requirements for enforceability in Texas are:
- The agreement must be in writing;
- The agreement must be signed by both parties;
- The agreement must not be unconscionable when made.
If no marital property agreement is entered into by the couple, then Texas community property law regime applies.
The community property law of Texas is a system by which the courts consider that the community estate owns all the assets and liabilities, except for any separate property owned by either party. Upon divorce, property of the marriage is presumed to be community, however, if property is established as the separate property of either party– by clear and convincing evidence– the court may not divide the proven separate property asset or assets. The outcome of any Texas property cases involving questions of separate property will depend on the issue of what is and is not separate or community property. The joint, or community estate, is divided by the court at the time of divorce. The law in Texas provides that the court must make a division of community property that is “just and right,” which is usually close to a 50/50 split.
A spouse can apply for spousal maintenance if they are divorcing in Texas and have been married for 10 years or more. Maintenance is determined in accordance with Texas law, regardless of the domicile of either party on the date of marriage. However, the Texas courts rarely award generous spousal maintenance as the maintenance statutes specify that the amount and duration of maintenance is depending on the receiving spouses’ “minimum reasonable needs,” which are calculated after allowing for the property division and what the recipient can earn through employment. The end result is that maintenance (the Texas equivalent of alimony) is seldom awarded in Texas, and when it is, it is not often generous.
Conclusion for Expatriates seeking divorce
Whether you are a British expatriate residing in Texas, or a Texas expatriate residing abroad, careful consideration should be given as to where to file and what jurisdiction would be the best jurisdiction for the divorce proceedings. Jurisdiction is infinitely complex, and poor advice can lead to questionable results, potentially costly disputes, and unnecessary litigation. Getting jurisdiction right may well ensure the best possible outcome.
Contact us at (713) 766-5355 for confidential advice if you are a British expatriate residing in Texas, or if you are a Texas expatriate requiring assistance. Diggs & Sadler has also represented expatriates from such places as: Canada, Mexico, Europe, South America, the Middle East and the Far East—from virtually every corner of the globe.
With thanks to Alexandra Tribe at Expatriate Law for her assistance with the preparation of this article. Alexandra may also be contacted at info@expatriatelaw.com for advice on divorce through the English courts. In Texas, contact Cynthia Diggs at (713) 766-5355 if you are an expatriate in Texas requiring advice on Texas family laws or a Texan expatriate living elsewhere.