Question:
I have lived in Texas for the past 20 years but recently had to leave the state for a 10-month period. I returned last month, but I would like to know if my time out of state means I don’t meet the residency requirement to file for divorce in Texas?
I believe you have to be a resident of the state for 6 months to file for divorce. Do my 20 years of living in the state county or will I have to start over the 6-month period from the time I returned from out of state?
Answer:
Under the Texas Family Code, specifically section 6.301, a petition for divorce may not be filed unless the petitioner or the respondent has been a domiciliary of Texas for the proceeding six-month period, and either the petitioner or the respondent has resided in the county in which the suit is filed for the proceeding 90-day period. Tex. Fam. Code § 6.301 and § 6.302. Such residency and domicile requirements outlined above are a mandatory prerequisite for filing a suit for divorce and cannot be waived.
To establish domicile, a person must live in Texas with the intention of making it his or her permanent home. In determining a person’s domicile, the court will analyze various factors. In determining whether the party is a domiciliary of Texas, the court will likely consider the party’s stated intentions, voter registration, payment of personal taxes, place of residence, place of driver’s license, and place of business.
Generally, a party’s testimony that he or she meets the residency requirements is sufficient unless it is challenged by the opposing party.
Additionally, “temporary” absences from the county or Texas do not affect the party’s right to maintain a divorce action. Such absences do not necessarily break the chain of the residence requirement or change the party’s domicile.
The Texas courts have found it to be unrealistic to construe the residency statute so as to require the petitioner to have lived during the entire six month period in the state or county under all circumstances before bringing suit for divorce.
However, whether the absence from Texas is to be considered “temporary” by the court would depend on the facts and circumstances surround each individual case.
From your question I cannot tell whether the mother currently lives in Texas as well. With that being said, if the mother does live in Texas and has been domiciled there for the past six months, then the father, as the petitioner, will be able to file for divorce in the county in which the mother lives, regardless of whether he meets the domicile and residence requirements.
On the other hand, and to answer your question, you still may be able to prove that you have been domiciled in Texas for the required six month period and that your ten-month absence was “temporary.”
However, you will still need to meet the 90-day residency requirement if you intend to file for divorce in the county in which you currently reside, if such county is different that the respondent’s.
Please be advised that my answering of this question does not constitute an attorney-client relationship. You should contact an attorney in your area for more information.
Cordell & Cordell has men’s divorce lawyers located nationwide.
Jennifer Hankinson is a Staff Attorney in the Dallas, Texas office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Hankinson is licensed in the state of Texas. Ms. Hankinson received her bachelors’ degrees in both Finance and Political Science from Santa Clara University in Santa Clara, California. She later received her Juris Doctor from Gonzaga University School of Law in Spokane, Washington, where she graduated Cum Laude.
