Hi! I woke up this morning and saw that I had two questions from clients regarding the residency requirement when filing for divorce.
If you are confused by terms like jurisdiction, venue and residency after surfing the web for answers on this, you are not alone!
The topic is a very complex one in many cases.
But, the residency requirement in Texas says–Unless you are in the military, you have to live here to file your divorce here.
Or, your spouse has to live here, and then you can file the divorce here.
The residency requirement, also known as the venue statute, is simple.
You must live in Texas for 6 months and in your county for 90 days when you file the divorce.
Residency is a question of physical location, unlike domicile which involves questions of intent of the person, and where they consider “home” to be.
If you haven’t lived here, but your spouse meets the residency requirement, you can file on the basis of your spouse’s residency.
What if I Just Moved Here, Is There Any Way I Can File Now?
Yes. According to Whitman v. Whitman, you can file the divorce now, even if you do not meet residency. But you can’t finish the divorce yet. When you do meet residency, 6 months from when you moved to Texas, you can file an amended petition that properly lists your residency has been met.
This is important because it changes the timeline of things.
Most people read the rules and believe you must physically move to Texas, and then wait 6 months until you file the divorce. Then you must wait 2 more months before finalizing the divorce. But, Whitman v. Whitman says you can file the divorce immediately, and then once you do meet residency, you can simply amend your petition and finalize the divorce immediately.
Thus rather than waiting 8 months total for the divorce, you wait 6 months.
Judges and Lawyers Can Be Unpredictable On Residency Questions
Importantly, laws are subject to interpretation, and some judges may proceed with their decisions regarding your divorce differently than your lawyer expects them to. For instance, a judge may not agree with the finding in Whitman v. Whitman. Also, McCaskill v. McCaskill shows that when a divorce case is finalized, but residency was not met at the time of filing, that the court will not void the divorce afterwards despite the fact.
Most Conservative, Plain Route to Take
File the divorce only after you (or your spouse) has lived in Texas 6 months and in your particular county for 90 days.
Second Most Cautious Route To Take
File the divorce now, but do not attempt to finalize the divorce until you meet residency (or until your spouse does)