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Albin Yates Balius Roach, Attorneys at Law

Advancing Integrity. Preserving Truth.

Here for you, here to help.

214-423-5100

First Things First: When and Where You Can File for Divorce

Posted by on under Family & Divorce Law.

At the beginning of every divorce case, you must first ask yourself “where do I file?” and “when can I file?” Texas has strict requirements regarding which County the divorce suit can be filed in and when it can be filed.

Under Texas Family Code 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. These requirements are a mandatory prerequisite for filing a suit for divorce and cannot be waived by the parties.

What does it mean to be a domiciliary of Texas?

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 concluding 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.

What if you left Texas for a brief period then returned?

A “temporary” absence from the county or the State of Texas does 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 court’s 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.

So for example, if you lived in Collin County from January 2014 to January 2015 and then moved to Denton County, Texas and wanted to file for divorce in Denton County, Texas, you could not do so in that County until you have lived in Denton County for the required 90 day period prior to the filing.