British expat divorce in Texas
A British expatriate can divorce in Texas if either spouse has been domiciled there for 6 months. It is also necessary for the party to have been a resident of the particular county in which the divorce will be filed for 90 days. This requirement is jurisdictional, but a temporary absence from the state of Texas will not negate jurisdiction. The fact that one or both of the parties may maintain a home or other property in Great Britain or any other country will not diminish the court’s jurisdiction over the divorce.
Where jurisdiction is questioned, it is generally a simple matter to prove by testimony. Additionally, rental contracts, driver’s licenses, local utility bills, local club memberships, payment of state property taxes, and the like may all contribute to the proof needed for a British expatriate to establish domicile in Texas.
Texas may have jurisdiction, but may still choose not to hear a case based on the doctrine of forum non conveniens, or inconvenient forum, and so if you are a Texas expatriate divorcing in Texas it is important to consider whether to urge this issue, or conversely, how to defend against it.
There is no minimum requirement in terms of the duration of the marriage, as there is in England.
Another significant difference in a Texas divorce is that Texas is one of the few jurisdictions in the world where a trial by jury is available on particular issues—including child custody, relocation of the child’s home, and characterization and valuation of property.
Texas recognizes no-fault divorce at this time, but divorce may also be filed on fault grounds, including cruel treatment and adultery. Fault grounds may be considered by the court as justification for a disproportionate award of community property, although fault does not usually serve as a basis for establishing support or maintenance except in particular cases of family violence.
If the 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. The only exception to this rule is where the parties have signed a written marital property agreement for the disposition of all or some of their property and that contract contains a choice of law clause. In such a case, Texas will construe the agreement according to the choice of law provision therein. Even so, the remaining issues will be governed by Texas law.
Unlike in England, the divorce process is not separate from child custody. All claims – whether financial or child-related – have to be dealt with in the divorce itself.
The Texas Family Code governs all child arrangements including child support, and the best interests of the child are always paramount. Parents are usually awarded a series of parental responsibilities and rights as a matter of course. There is a presumption in Texas that both parents will be joint managing conservators. Even with joint conservatorship, however, one parent may be awarded more or different rights and duties with respect to the children, and child support is still generally paid to the primary parent. The non-primary parent usually has a Texas standard possession order with generous possession times, which comes from the Texas Family Code. 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.
The United States is a signatory to the Hague Convention on child abduction. Therefore if an expat parent relocates with the child or children to another Hague signatory country (such as England, France, Germany, etc.), without the consent of the other parent or the court, the parent left behind may seek orders for the child’s immediate return to Texas.
Options for Texas expats living abroad
A Texas expatriate can divorce in the Texas courts 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.
Generally speaking, under community property law of Texas, 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 proved to be the separate property of either party by clear and convincing evidence, then the court may not divide such proven separate property. Many Texas property cases therefore turn on the issue of what is and is not separate or community property. The joint, or community estate must be divided by the court upon divorce in a just and right manner.
Aside from the property division, in certain circumstances a spouse can apply for spousal maintenance if they are divorcing in Texas, and this will be determined in accordance with Texas law, regardless of the domicile of either party upon the date of marriage. However, the Texas courts rarely award generous or long term spousal maintenance as the maintenance statutes specify that the payment and amount of maintenance is to be based on the receiving spouses’ “minimum reasonable needs,” after taking into account what the recipient received in the property division and what the recipient can earn in the workforce. There is an emphasis in Texas on encouraging both parties to support themselves.
Whether you are a British expat residing in Texas, or a Texas expat residing abroad, careful consideration should be given as to where would be the best jurisdiction to commence divorce proceedings. Jurisdiction is complex, and the wrong advice can lead to costly disputes and unnecessary litigation. Getting jurisdiction right ensures the best possible financial outcome.
Contact us for confidential advice if you are a British expatriate residing in Texas, or if you are a Texas expatriate requiring assistance.
With thanks to Cynthia Diggs at Holmes, Diggs & Sadler in Houston, Texas for her assistance with the preparation of this article. Please contact Cynthia at [email protected] or 713-802-1777 if you are an expatriate in Texas requiring advice on Texas family laws.