Before you can file for divorce in Texas, you have to satisfy a few requirements. The Texas Family Code requires that you meet general residency requirements. A suit for divorce may not be maintained in Texas unless two things are true when the suit is filed.
Requirement 1: Domiciliary of Texas for Six Months
The first requirement is that either the petitioner or the respondent in the case must be, at the time the suit is filed, a domiciliary of Texas for the preceding six-month period. This means that for six months before the filing of the divorce suit, one of the parties must be a domiciliary of Texas. A domiciliary of Texas is a person whose domicile is in Texas. A person’s domicile is the specific place that the person lives in while intending to make it their fixed and permanent home. A person may have only one domicile at a time. So, if you or your spouse have lived in Texas for six months before filing for divorce and that person has intended that Texas be their fixed and permanent home, this first requirement is satisfied.
Can a person change their domicile? Yes! Remember, a person can only have one domicile at a time. For example, if you live in Minnesota, then Minnesota is your domicile because it is the place you live while intending to make it your fixed and permanent home. But, if you move to Texas, live in Texas, and make Texas your permanent home, then your domicile has changed from Minnesota to Texas. To file for divorce in Texas, you must be a domiciliary of Texas for at least the six-month period before filing. Essentially, this means that if you change your domicile to Texas and your spouse has not already lived in Texas for six months, you will have to wait six months before you can file for divorce.
Requirement 2: Resident of Filing County for Ninety Days
The second requirement is that either the petitioner or the respondent in the case must be, at the time the suit is filed, a resident of the Texas county in which the suit is filed for the preceding ninety-day period. This means that for ninety days before the filing of the divorce suit, one of the parties must be a resident of the county where the suit is filed. Residence and domicile are not the same thing. A person may have several residences at one time, but a person can only have one domicile at a time. For example, if you spend nine months of the year at your home in Harris County and the three months of the summer at your vacation home in Galveston County, then you have two residences. A person’s residence is a place where the person lives and is physically present at a given time. So, if you or your spouse have lived in and are physically present in a particular Texas county for at least ninety days before filing the suit in that Texas county, this second requirement is satisfied.
What if my spouse is trying to cheat the system to meet the residency requirement? Living in one place and claiming a home in another place, or having a fake domicile in Texas while actually living in another state, does not fulfill the residency requirement. Similarly, residency must be actual. This means that one of the parties must be actually physically and continuously living in the particular Texas county that the suit is filed in and have a good faith intent to make that Texas county their home.
Can I use my spouse’s domicile and residence to meet the two general residence requirements? Yes! The Texas Family Code says that either the petitioner (the party filing the suit) or the respondent (the party who did not file the suit) must meet the requirements. If you do not meet the requirements, but your spouse has lived in Texas for at least six months and in a particular Texas county for at least ninety days, you are free to file for divorce in the Texas county in which your spouse lives. It is important to note that either you or your spouse can meet these requirements, but the Texas Family Code does not require that you both do.
Do I have to continue to live in the same Texas county once the suit is filed? The simple answer is no. Once the case is filed, the petitioner may leave the Texas county in which they filed. The Texas Family Code does not require that the petitioner continue to maintain their residence in the Texas county where the divorce is pending. But, keep in mind that other restrictions might impact your decision to move out of the Texas county in which the suit was filed during the pendency of the case.
Consider a geographic restriction. After you file for divorce, it is likely that your or your spouse will request the court provide you with a Temporary Orders hearing. The purpose of a Temporary Orders hearing is to put an order in place to for the parties while the case is pending — especially as it relates to children. One thing that court might do at the Temporary Orders hearing is order a geographic restriction placed on the primary residence of the children. This restriction is usually something like the Texas county in which the children live primarily and all Texas counties that touch that Texas county (contiguous counties). If you are designated by the court as the parent with the exclusive right to designate the primary residence of the child, and your child’s primary residence has been restricted to a particular few Texas counties or one Texas county only, you should consider if you want to move out of the Texas county in which you filed. For example, imagine that you, your spouse, and your child have all lived in Harris County for the last five years. You file for divorce in Harris County because you meet both of the general residency requirements (you have been a domiciliary of Texas for at least six months and you have lived in Harris County for at least ninety days). You and your spouse attend a Temporary Orders hearing in front of the judge, and the judge orders that your child’s primary residence be restricted to Harris County. The judge also designates you as the parent with the exclusive right to designate the primary residence of your child. You really want to move to Travis County in the Austin area while the case is pending. You are free to move to Travis County while the case is pending, but your child is not. Even though you have the exclusive right to designate your child’s primary residence, and you are free to move out of Harris County (the county where the suit was filed), your child’s residence must remain in Harris County.
To learn more about meeting your residency requirements in Texas, consult with one of our attorneys.