2020 Georgia Code
Title 19 - Domestic Relations
Chapter 5 - Divorce
§ 19-5-2. Residence Requirements; Venue

No court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce, provided that any person who has been a resident of any United States army post or military reservation within this state for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to the United States army post or military reservation; and provided, further, that a nonresident of this state may file a petition for divorce, in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.

(Ga. L. 1890-91, p. 235, § 1; Ga. L. 1893, p. 109, § 1; Civil Code 1895, § 2431; Civil Code 1910, § 2950; Code 1933, § 30-107; Ga. L. 1939, p. 203, § 1; Ga. L. 1950, p. 429, § 1; Ga. L. 1958, p. 385, § 1.)

- Venue for divorce cases, Ga. Const. 1983, Art. VI, Sec. II, Para. I.

- For article, "Divorce: Residence and Domicile Requirements in Georgia," see 7 Ga. St. B.J. 455 (1971). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).

JUDICIAL DECISIONS

Section's requirements as to domicile.

- Law required that plaintiff in divorce action must be domiciled in this state for the statutory period before the institution of the action, but did not require in addition that the plaintiff shall have actually resided in this state during such period. Williams v. Williams, 191 Ga. 437, 12 S.E.2d 352 (1940); Williams v. Williams, 226 Ga. 734, 177 S.E.2d 481 (1970).

- There was no provision of law extending the requirements of this statute to the application of the wife for alimony and attorney's fees. Lee v. Lee, 154 Ga. 820, 115 S.E. 493 (1923).

Legislature has established a statutory residency requirement of six months before divorce proceedings can be brought, but has not extended this requirement to alimony proceedings. Chalfant v. Rains, 244 Ga. 747, 262 S.E.2d 63 (1979).

"Resident" as used in statute was equivalent to domicile. Darbie v. Darbie, 195 Ga. 769, 25 S.E.2d 685 (1943).

Term "resident" meant "domiciliary." Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

"Domicile" refers to single fixed place of abode with intention of remaining there indefinitely, or the single fixed place of abode where a person intends to return, even though the person may in fact be residing elsewhere. Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972).

Residence in county for six months is all that is required to give the court jurisdiction of a plaintiff's petition for divorce. Tate v. Tate, 220 Ga. 393, 139 S.E.2d 297 (1964).

It requires both act and intent to establish residence, and either without the other is insufficient. Lorance v. Lorance, 216 Ga. 754, 119 S.E.2d 342 (1961).

To effect change of domicile there must be avowed intent and actual removal. Temporary absence from the county by a person who has no family does not operate to change the person's domicile. Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413 (1939).

Party who enters United States on temporary visa does not lack legal capacity to establish domicile in this state for the purposes of a divorce suit. Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972).

Question of domicile is ordinarily mixed question of law and fact, and is for jury determination. Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972); Campbell v. Campbell, 231 Ga. 214, 200 S.E.2d 899 (1973); Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).

- One filing petition for divorce must allege and prove that one has been bona fide resident of the state for the length of time required by law. Jurisdiction of the subject matter cannot be conferred by consent. Dicks v. Dicks, 177 Ga. 379, 170 S.E. 245 (1933); Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135 (1941); Tate v. Tate, 220 Ga. 393, 139 S.E.2d 297 (1964).

Plaintiff in divorce action carries burden of proving jurisdiction of the court, and this duty is no less incumbent upon the defendant who asks for alimony; in neither instance can jurisdiction be conferred by consent or by waiver. Jones v. Jones, 181 Ga. 747, 184 S.E. 271 (1936).

This provision as to venue in divorce cases is mandatory and jurisdictional, and as against demurrer (now motion to dismiss) should be alleged, and must be proved, nor can jurisdiction be conferred on the superior court of a different county by waiver or consent. Wade v. Wade, 195 Ga. 748, 25 S.E.2d 683 (1943).

- Provisions of state law which authorize parties in certain cases to waive jurisdiction do not apply to divorce action. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).

Parties by plea or otherwise cannot waive jurisdiction so as to dispense with proof in the court that the plaintiff had been a bona fide resident of this state for 12 months (now 6 months) before the suit was filed. Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135 (1941).

Allegation of jurisdictional requirements was essential to applications for divorce. Owens v. Owens, 189 Ga. 338, 5 S.E.2d 883 (1939); Rice v. Rice, 223 Ga. 363, 155 S.E.2d 393 (1967).

It is necessary to allege the correct venue and to make affirmative proof thereof. Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807 (1939).

- Personal jurisdiction over the defendant is not a prerequisite to the grant of a divorce by a Georgia court. A party seeking a divorce must show only that the trial court had jurisdiction over the res of the marriage which results from his or her domicile in the state for the six-month period preceding the filing of the action. Abernathy v. Abernathy, 267 Ga. 815, 482 S.E.2d 265 (1997).

Failure to make proof of venue will render verdict for divorce subject to be set aside by proper procedure, and such proof is essential, even though the absence of this jurisdictional averment may be supplied by amendment. Wade v. Wade, 195 Ga. 748, 25 S.E.2d 683 (1943).

- Trial court's finding that a wife was not a resident of DeKalb County, Georgia, and the court's order dismissing her DeKalb County divorce case were affirmed since the parties had sold their home in Georgia six months before the divorce was filed, and the wife's tax forms stated that she did not maintain a home in the United States, but rather that her bona fide residence was in South Africa; although the wife claimed that she intended to return to DeKalb County, the trial court properly applied the principle that the testimony of a party who offered herself as a witness in her own behalf at trial was to be construed most strongly against her when the testimony was self-contradictory, vague, or equivocal. Conrad v. Conrad, 278 Ga. 107, 597 S.E.2d 369 (2004).

- When there was an absence of a proper allegation of "time of residence," a necessary jurisdictional allegation, an action for divorce was subject to the general demurrer (now motion to dismiss) on the ground that no cause of action was alleged, and the prayers for temporary and permanent alimony being incidental to the suit for divorce on the ground of cruel treatment, cannot be maintained as an independent action, but must fall with the divorce suit. Mullally v. Mullally, 199 Ga. 708, 35 S.E.2d 199 (1945).

- Trial court's finding that a husband in a divorce case failed to establish that he was a domiciliary of Georgia was error and was reversed since the husband and the wife had maintained a marital residence in Georgia for at least five years before the wife returned to Britain, where the husband continued to maintain his domicile in Georgia and intended to remain in Georgia, and where the husband, an Irish citizen, had obtained permanent resident alien status, had designated himself a year round Georgia resident on state tax returns, and had declared himself to be a non-resident of Britain for tax purposes. Cooke v. Cooke, 277 Ga. 731, 594 S.E.2d 370 (2004).

Even though the wife did not have sufficient minimum contacts with Georgia for the trial court to exercise jurisdiction over issues related to alimony, division of marital property, and attorney fees, the trial court had jurisdiction pursuant to O.C.G.A. § 19-5-2 to grant the divorce sought by the husband since the husband had lived in Georgia for at least six months. Ennis v. Ennis, 290 Ga. 890, 725 S.E.2d 311 (2012).

- Trial court had jurisdiction to grant a divorce, as opposed to the State of New York trial court wherein the wife petitioned for a divorce, because there was some evidence to support the trial court's findings on domicile of the parties, including that the husband was stationed in the military in Georgia, they lived in military housing then purchased a home, and continued to live in that home until their separation. Black v. Black, 292 Ga. 691, 740 S.E.2d 613 (2013).

Cited in Lamont v. Lamont, 134 Ga. 523, 68 S.E. 96 (1910); Hansberger v. Hansberger, 182 Ga. 495, 185 S.E. 810 (1936); Bellamy v. Bellamy, 187 Ga. 56, 199 S.E. 745 (1938); Bellamy v. Bellamy, 187 Ga. 804, 2 S.E.2d 413 (1939); Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940); Moody v. Moody, 194 Ga. 843, 22 S.E.2d 837 (1942); Jones v. State, 70 Ga. App. 431, 28 S.E.2d 373 (1943); Tatum v. Tatum, 203 Ga. 406, 46 S.E.2d 915 (1948); Lorance v. Lorance, 216 Ga. 754, 119 S.E.2d 342 (1951); New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 112 S.E.2d 273 (1959); Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966); Walton v. Walton, 223 Ga. 85, 153 S.E.2d 554 (1967); Cates v. Cates, 225 Ga. 612, 170 S.E.2d 416 (1969); Goulart v. Goulart, 237 Ga. 174, 227 S.E.2d 52 (1976); Charamond v. Charamond, 240 Ga. 34, 239 S.E.2d 362 (1977); Tanis v. Tanis, 240 Ga. 718, 242 S.E.2d 71 (1978); Bentley v. Bentley, 247 Ga. 85, 274 S.E.2d 338 (1981); Midkiff v. Midkiff, 275 Ga. 136, 562 S.E.2d 177 (2002); Sastre v. McDaniel, 293 Ga. App. 671, 667 S.E.2d 896 (2008).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 174 et seq.

- 27A C.J.S., Divorce, §§ 146 et seq., 152 et seq., 164 et seq.

- Nonresidence of one or both parties as affecting jurisdiction of court of suit or proceeding to annul divorce decree rendered in same state, 33 A.L.R. 469.

Separate domicile of wife for purposes of jurisdiction over subject-matter of suit by her for divorce or separation, 39 A.L.R. 710.

Nonresidence of defendant or cross complainant in a suit for divorce as affecting power to grant divorce in his or her favor, 89 A.L.R. 1203.

What constitutes residence or domicile within state for purpose of jurisdiction in divorce, 106 A.L.R. 6; 159 A.L.R. 496.

Attack on jurisdictional grounds on foreign decree of divorce rendered upon contested hearing on the jurisdictional facts, 118 A.L.R. 1524.

Estoppel to assert invalidity of decree of divorce for lack of domicile at divorce forum or failure to obtain jurisdiction of person of defendant, 140 A.L.R. 914; 153 A.L.R. 941; 175 A.L.R. 538.

Domicile or residence of person in the armed forces, 148 A.L.R. 1413; 149 A.L.R. 1471; 150 A.L.R. 1468; 151 A.L.R. 1468; 152 A.L.R. 1471; 153 A.L.R. 1442; 155 A.L.R. 1466; 156 A.L.R. 1465; 157 A.L.R. 1462; 158 A.L.R. 1474.

Duty to recognize and give effect to decrees of divorce rendered in other states, or in foreign country, as affected by constructive service of process or lack of domicile at divorce forum, 157 A.L.R. 1399; 1 A.L.R.2d 1385; 28 A.L.R.2d 1303.

Recognition as to marital status of foreign divorce decree attacked on ground of lack of domicil, since Williams decision, 1 A.L.R.2d 1385, 28 A.L.R.2d 1303.

Length or duration of domicile, as distinguished from fact of domicile, as a jurisdictional matter in divorce action, 2 A.L.R.2d 291.

Validity of statute permitting granting of divorces to nonresidents, 3 A.L.R.2d 666.

Denial of divorce in sister state or foreign country as res judicata in another suit for divorce between the same parties, 4 A.L.R.2d 107.

False allegation of plaintiff's domicile or residence in the state as ground for vacation of default decree of divorce, 6 A.L.R.2d 596.

Residence or domicile, for purpose of divorce action, of one in armed forces, 21 A.L.R.2d 1163.

Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature, 31 A.L.R.2d 442.

Nature and location of one's business or calling as element in determining domicile in divorce cases, 36 A.L.R.2d 756.

Venue of divorce action in particular county as dependent on residence or domicile for a specified length of time, 54 A.L.R.2d 898.

Lack of insufficiency of allegations of plaintiff's residence or domicile in suit for divorce as ground for vacation of, or collateral attack on, divorce decree, 55 A.L.R.2d 1263.

What constitutes residence or domicile within state by citizen of another country for purpose of jurisdiction in divorce, 51 A.L.R.3d 223.

Validity of statute imposing durational residency requirements for divorce applicants, 57 A.L.R.3d 221.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 A.L.R.3d 431.

Doctrine of forum non conveniens: assumption or denial of jurisdiction of action involving matrimonial dispute, 55 A.L.R.5th 647.