Georgia’s six month residency requirement for divorce has never been struck down, and a longer requirement has been upheld by the United States Supreme Court.
The Challenge People Raise
A durational residency requirement keeps a newcomer out of the courts for a period of time, so it gets attacked as a burden on the constitutional right to travel between states.
That argument was made and rejected in Sosna v. Iowa, 419 U.S. 393 (1975). A woman who had moved to Iowa and filed for dissolution one month later had her petition dismissed under an Iowa statute requiring the petitioner to have been “for the last year a resident of the state.” The Supreme Court held “that the Iowa durational residency requirement for divorce does not offend the United States Constitution.”
Iowa’s period was a full year. Georgia’s is six months.
No Georgia Court Has Ruled on It
No Georgia appellate decision has decided whether OCGA 19-5-2 is constitutional. The Georgia treatise on divorce cites no Georgia case on the question, and a search of Georgia Supreme Court and Court of Appeals opinions turns up none.
That is not a gap in the law so much as a sign that nobody has pressed the point since Sosna answered the federal question.
Once You Meet It, You Have a Right of Access
The requirement also works in your favor. In Holtsclaw v. Holtsclaw, 269 Ga. 163 (1998), the Georgia Supreme Court held that “[o]nce Husband satisfied this statutory six-month residency requirement, he acquired a constitutional right to seek a divorce from Wife in the superior court of the county of his residence.”
So the six months is a threshold, and clearing it entitles you to be heard in your own county.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!