O.C.G.A. § 19-5-2 (2019)

Annotations

Cross references. Venue for divorce cases, Ga. Const. 1983, Art. VI, Sec. II, Para. I. Law reviews. For article, “Divorce: Residence and Do-

micile Requirements in Georgia,” see 7 Ga. St. B.J. 455 (1971). 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). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005).

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 Ga. LEXIS 654 (1940); Williams v. Williams, 226 Ga. 734, 177 S.E.2d 481, 1970 Ga. LEXIS 660 (1970), overruled, Ogden Equipment Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459, 1974 Ga. LEXIS 1028 (1974). Section does not apply to application for alimony. - 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 Ga. LEXIS 404 (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 Ga. LEXIS 1391 (1979). “Resident” as used in statute was equivalent to domicile. Darbie v. Darbie, 195 Ga. 769, 25 S.E.2d 685, 1943 Ga. LEXIS 299 (1943). Term “resident” meant “domiciliary.” Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847, 1978 Ga. LEXIS 1083 (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. AbouIssa, 229 Ga. 77, 189 S.E.2d 443, 1972 Ga. LEXIS 504 (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 Ga. LEXIS 564 (1964). Trial court erred in dismissing the husband’s complaint for divorce for lack of subject matter jurisdiction as the trial court erred by failing to either accept as true the allegations of the husband’s complaint or permit the husband to present evidence of the husband’s residency because the husband alleged that the husband was a resident of Coweta County and had been for the six months preceding the filing of the divorce complaint; and the trial court limited the hearing to legal argument only, and did not consider any evidence, and neither party submitted affidavits on the jurisdictional issue. Emerman v. Hetherington, 872 S.E.2d 477, 2022 Ga. App. LEXIS 207 (Ga. Ct. App. 2022). 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 Ga. LEXIS 329 (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 Ga. LEXIS 769 (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. AbouIssa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443, 1972 Ga. LEXIS 504 (1972). Question of domicile is ordinarily mixed question of law and fact, and is for jury determination. Abou-Issa v. AbouIssa, 229 Ga. 77, 189 S.E.2d 443, 1972 Ga. LEXIS 504 (1972); Campbell v. Campbell, 231 Ga. 214, 200 S.E.2d 899, 1973 Ga. LEXIS 646 (1973); Worrell v. Worrell, 242

Ga. 44, 247 S.E.2d 847, 1978 Ga. LEXIS 1083 (1978). Alleging and proving bona fide residence. - 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 Ga. LEXIS 185 (1933); Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135, 1941 Ga. App. LEXIS 369 (1941); Tate v. Tate, 220 Ga. 393, 139 S.E.2d 297, 1964 Ga. LEXIS 564 (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 Ga. LEXIS 422 (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 Ga. LEXIS 298 (1943). State provisions authorizing waiver of jurisdiction. - 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 Ga. LEXIS 511 (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 Ga. App. LEXIS 369 (1941). Allegation of jurisdictional requirements was essential to applications for divorce. Owens v. Owens, 189 Ga. 338, 5 S.E.2d 883, 1939 Ga. LEXIS 703 (1939); Rice v. Rice, 223 Ga. 363, 155 S.E.2d 393, 1967 Ga. LEXIS 527 (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 Ga. LEXIS 615 (1939). Personal jurisdiction over party. - 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 Ga. LEXIS 76 (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 Ga. LEXIS 298 (1943). Dismissal for lack of residency affirmed. - 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 selfcontradictory, vague, or equivocal. Conrad v. Conrad, 278 Ga. 107, 597 S.E.2d 369, 2004 Ga. LEXIS 462 (2004). Action subject to dismissal for failure to allege time of residence. - 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 Ga. LEXIS 360 (1945). Husband established that he was Georgia domiciliary. - 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 Ga. LEXIS 279 (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 Ga. LEXIS 355 (2012). Domicile in Georgia. - 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 Ga. LEXIS 301 (2013). Motion to dismiss for lack of jurisdiction improperly granted. - Trial court erred in dismissing the husband’s complaint for divorce for lack of subject matter jurisdiction as the trial court erred by failing to either accept as true the allegations of the husband’s complaint or permit the husband to present evidence of the husband’s residency because the hus-

band alleged that the husband was a resident of Coweta County and had been for the six months preceding the filing of the divorce complaint; and the trial court limited the hearing to legal argument

only, and did not consider any evidence, and neither party submitted affidavits on the jurisdictional issue. Emerman v. Hetherington, 872 S.E.2d 477, 2022 Ga. App. LEXIS 207 (Ga. Ct. App. 2022).

RESEARCH REFERENCES Am. Jur. 2d. 24 Am. Jur. 2d, Divorce and Separation, § 174 et seq. C.J.S. 27A C.J.S., Divorce, §§ 146 et seq., 152 et seq., 164 et seq. ALR. 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 A.L.R.5th 647.

DIVORCE dispute,