General Residency Rules for Divorce Suit
The requirements of Texas Family Code §6.301 are required to maintain a divorce suit in the State of Texas. Texas Family Code §6.301 states:
“A suit for divorce may not be maintained in this state unless at the time
the suit is filed either the petitioner or the respondent has been:
(1) a domiciliary of this state for the preceding six-month period;
(2) a resident of the county in which the suit is filed for the
preceding 90-day period.” (emphasis added)
Tex. Fam. Code §6.301.
Although section 6.301 is not itself jurisdictional, it is akin to a jurisdictional provision because it controls a party’s right to maintain a suit for divorce and is a mandatory requirement that cannot be waived. In re Green, 385 S.W.3d 665 (Tex.App.—San Antonio 2012, orig. proceeding) (citing Reynolds v. Reynolds, 86 S.W.3d 272, 276 (Tex.App.—Austin 2002, no pet.) (relying on Oak v. Oak, 814 S.W.2d 834, 837 (Tex.App.—Houston [14th Dist.] 1991, writ denied); See also In re Lai, 222 S.W.3d 645, 648 (Tex. App.—Dallas 2009, no pet.). Therefore, a trial court cannot maintain a suit for divorce unless the residency requirements are met. Reynolds, 86 S.W.3d at 276.
When determining where a person resides, volition, intention and action are all elements to be equally considered. See Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964). In order to be a resident, there must be an intention to establish a permanent domicile or home, and the intention must be accompanied by some act done in the execution of the intent. Wilson v. Wilson, 189 S.W.2d 212, 213 (Tex.Civ.App.—Fort Worth 1945, no writ).
A mere constructive residence will not satisfy this statute. (emphasis added) Cook v. Mayfield, 886 S.W.2d 840, 842 (Tex.App.—Waco 1994); Beavers v. Beavers, 543 S.W.2d 720, 721 (Tex.App.—Waco 1976, no writ); Wilson v. Wilson, 494 S.W.2d 609, 611 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ dism.); Struble v. Struble, 177 S.W.2d 279, 285 (Tex.Civ.App.—Amarillo 1943, no writ). It requires an actual, physical, continuous living in the county of suit by one of the parties for the period specified, coupled with a good-faith intent to make that county home. Id.
The continuity of residence is not broken by a simple, temporary absence from the county. Beavers, 543 S.W.2d at 721; Therwhanger v. Therwhanger, 175 S.W.2d 704, 707 (Tex.Civ.App.—Eastland 1943, no writ).
Although “domicile” and “residency” are often discussed as being one in the same, they are, in fact, two separate requirements and the terms have different definitions. Essentially, “domicile” differs from “residence” in that “domicile” looks to intent, in addition to a physical presence in a particular locality.
More importantly, both requirements must be satisfied pursuant to Texas Family Code §6.301 in order to maintain a suit for divorce in Texas.