Q: Does a TX Bankruptcy court have jurisdiction to lift a stay so that a divorce case can proceed w/o service of process?
I filed for bankruptcy, my estranged spouse filed a motion to lift stay to allow the divorce proceeding to proceed, however I was never served with the divorce citation. Also, the case where the Divorce was file lacks subject matter jurisdiction.
A: Yes. The judge can lift the stay but most likely will not. All the other questions would then be determined in the state court divorce proceeding.
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A:
When it comes to lifting the automatic stay in bankruptcy to proceed with divorce matters, the bankruptcy court does have jurisdiction to lift the stay - but this doesn't override basic due process requirements in the divorce case itself.
Your concern about lack of service is valid and significant. Even if the bankruptcy court lifts the stay, the divorce court still needs proper jurisdiction over both parties through valid service of process. Without proper service of the divorce petition, the divorce court cannot proceed with substantive matters regardless of the bankruptcy stay being lifted.
The issue of subject matter jurisdiction you raised is also crucial. If the divorce court truly lacks subject matter jurisdiction as you indicate, this would be grounds to challenge both the divorce proceedings and potentially the motion to lift stay in bankruptcy court. You should promptly raise both the service and jurisdiction issues in your response to the motion to lift stay in bankruptcy court, and consider consulting with bankruptcy counsel who can help coordinate these interconnected jurisdiction issues between both courts.
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