Q: Texas Divorce - Personal jurisdiction over non-resident spouse

A: Your question concerns what is called "tag". "tagging", or "transient" jurisdiction. One traditional way in which a court can acquire personal jurisdiction over a defendant is by personal service of process within the jurisdiction. "Tagging" raises the question of just how sacrosanct that principle of personal jurisdiction is.

In the very famous case Grace v. MacArthur, the defendant was served while onboard a commercial airplane flying over the State of Arkansas. https://law.justia.com/cases/federal/district-courts/FSupp/170/442/2360727/

That case pushed a pause button on whether personal service of process within the jurisdiction alone comports with the the two-part test required by the Due Process Clause of the 14th Amendment which allows a court to exercise personal jurisdiction over a defendant only if (1) the defendant has minimum contacts with the forum state, and (2) it is reasonable to require the defendant to defend the lawsuit in the forum state.

Some jurisdictions still hold that personal service of process within the jurisdiction alone is sufficient to comply with these requirements. Others--including the Fifth Circuit--have rejected the notion of "tagging" jurisdiction. The United States Supreme Court has not directly addressed the issue. The closest it has come was Burnham v. Superior Court of California back in 1990 which notably did not have a majority opinion and the plurality opinion was only joined in full by three of the nine justices. That is indicative of just how controversial is issue can be.

In Texas, some intermediate appellate courts have held that personal service of process within Texas was sufficient in a particular while acknowledging that there may be circumstances (including when a defendant was tricked into coming to Texas) that can defeat the exercise personal jurisdiction. The Supreme Court of Texas has not yet squarely addressed this question.

It is important to note that in Texas (contrary to many other jurisdictions including federal courts), the burden of proof is on the defendant to show he does not have minimum contacts with Texas or it is reasonable to require him to defend the lawsuit in Texas. The defendant will have to raise a basis and prove why personal service of process in Texas does not satisfy Due Process in your particular situation.

The facts that you are married, that you moved here with your husband's knowledge and consent, and that your husband is coming here to visit you works in your favor. This is not a situation in which your husband is travelling from Florida to California and has stopped at an airport in Texas for only a few hours to change planes. While my opinion is not a 'firm yes', I would give you a 'likely yes' unless there are other facts and circumstances not mentioned in your question.