Domicile and Residence, A MSRRA Issue

March 12, 2010 | Kate Horrell

One of the most confusing aspects of the Military Spouses Residency Relief Act is the idea of residency, or domicile.  From Merriam-Webster.com, the definition of domicile is “a person’s fixed, permanent and principal home for legal purposes.”  Every person, military or civilian, has one legal domicile.  The requirements to establish domicile differ from state to state, but generally include:

  • registering to vote, and actually voting
  • maintaining a driver’s license
  • registering automobiles
  • maintaining professional licenses
  • owning property
  • accepting tax breaks for homestead properties
  • preparing legal documents, such as wills, referencing a specific state
  • maintaining a physical presence in the state for a specific period of time

(More information on establishing domicile can be found in Establishing and Maintaining Domicile.)

Prior to the passage of MSRRA, military spouses were sometimes able to maintain their domicile in a particular state, or were sometimes required to change it, depending on the particular laws of the states in which you were living and had lived.  The active duty military member was permitted to maintain their domicile regardless of where they moved.  With the passage of MSRRA, military spouses are permitted to maintain their domicile in the same state as their active duty military member, or to establish domicile in the state they are residing.  There are two issues to that:  1)  MSRRA does not provide for a military spouse to recapture or obtain domicile in their active duty military member’s state, and 2)  military spouses may not choose another state that is not their active duty military member’s domicile or their actual residence state.

One factor that makes it easier for active duty military members to establish domicile is declaring it as their State of Legal Residency on the DD 2058.  Unfortunately, there is no such thing as a DD 2058 for spouses.  While the two phrases are often used interchangeably, the State of Legal Residency is not the same as the Home of Record.  The DD 2058 does not change the active duty military member’s Home of Record.  A Home of Record is used for travel and transportation allowances.  A State of Legal Residency is used for taxes, voting and other benefits.

In the short term, the problems with domicile make the benefits of MSRRA unavailable to many military spouses.  As the act is implemented, and individual states adjust their laws to align with the act, it should become easier and easier for military spouses and their active duty military members to align their domiciles to benefit from the provisions of MSRRA.

Because each state has their individual laws, you will have to do some research and see how to best work out your own situation.  the base legal offices are quickly picking up on the small details of the law and are continuing to provide some of the best information available.

I hope this helps!

Comments

  1. Melissa says:

    This is great info!! However, like you mentioned, it varies state to state. It seems like states with a larger military population are more understanding of the law. Virginia does not consider someone domiciled here just because they have a driver's license and vote, since they only reason I am here is to accompany my husband on orders. (<—and trust me..there is NO other reason I would ever live here, lol). So I am essentially rendered homeless because my home state won't take me (as it stands now), and VA says I don't belong here, but I can if I want to (which I don't). Ugh!! Such Chaos!! :)

  2. Diane says:

    I have the same problem as the above reader. I feel "homeless" as far as domicile goes. We're in Hawaii where I work and vote, but on the HI tax website it says that military spouses are not domiciled here unless they plan on staying after their spoue has new orders/retires. But if I'm not a resident of Hawaii, I have no clue where I would be a resident of since I've moved around so much since the end of high school 8 years ago.

  3. Kasi says:

    My Husband's state of legal residence is Florida. Am I automatically a florida resident? We resided in FL from 2005-2008. My car is registered there and I currently have a Fl drivers license. However, We were married in NC in 2003. We moved back to NC in 2009 and I filed NC state income taxes this year. I am so confused!

  4. Kate says:

    Kasi, you are not automatically a Florida resident. However, having maintained your DL there, and registering your car there, you seems should be good to claim FL residency. If it were me, I would look into getting a refund on your NC taxes :)

  5. Inanna says:

    I'm in the same boat. I met my husband when he was stationed in my home state of Colorado but he's a California resident. We moved to NC and I have 2 out of 3 requirements for MSRRA. So now, after all this, I still have to change my residency.

  6. Nicole says:

    So basically this law is not helpful for any "older" military families. I lived in/grew up in WI my entire life. I moved when I was 20 to live with my then boyfriend in New Mexico and moved again to Idaho before we ever got married (and well before 2009), thus having to claim residency in each of those states at the time of living there. And now there is no way I can ever get my WI residency back, even though we own land there and plan to retire there. So basically, I have to continue claiming residency in each new state we move to?

    • KateKashman says:

      Yes and no, Nicole. There are no provisions in the law for spouses to recapture previous residences. However, the rules for obtaining driver's license, voter registration, etc., differ for each state. I would certainly try to obtain a Wisconsin driver's license and voter registration if you would prefer to be a Wisconsin resident. The fact that you own land there would probably make the process easier for you. Some states make it easy, some states make it harder.

      In addition, new security concerns have made the process harder for everyone, everywhere. For example, my husband recently renewed his driver's license. It is the same address that he has used for his entire driving life, over 25 years. In the past, it has been done online or been a simple, "Here, my license is expired, I need a new one." This time it required his military ID, his passport, his LES, and a letter from his parents saying that he was still their son and that we still used that address as our permanent mailing address.

      If you persevere, you can probably eventually get something worked out. It might require a trip to Wisconsin and it might be a pain, but you can probably do it.

  7. Eve says:

    My husband maintained his South Carolina residency ever since he joined the Coast Guard and before we were married. On the otherhand, I had moved from Georgia to Florida and took up residency with Florida once he got stationed and eventually got married. I have my car registered through Florida, have my Driver's License as Florida, and also plan to register for voting through this state. But seeing as how we just moved from Virginia would I not qualify for this Act for simply not having South Carolina as my residency?

    • KateKashman says:

      Unfortunately, that is true. MRSSA only allows military spouses to claim their actual physical residence, or maintain residency in the same state as their active duty spouse. This has put a lot of us who have been moving since pre-MRSSA in a difficult spot. You can either try to move your domicile to South Carolina with your husband, or you can take Virginia.

      P.S. In case you haven't figure it out yet, you should sell your car to him and let him register it in his name alone. Otherwise, Virginia has issues and you might have to pay personal property tax. Ugh!

  8. Lcw says:

    I wanted to get a job in CO, but it requires that I have a valid CO license. If I obtain a CO license, does that mean I will lose my residency in FL?

  9. scott says:

    My legal residence is Florida, but I no longer have a physical address due to my military change of duty station. I need to register my new car in Florida and do not know what physical address I am supposed to use on my Florida registration application.

  10. Liz says:

    I'm military spouse, claim FL as my legal residence, own a house there and have FL drivers license. I am eligible and used MRSSA since 2009. My question is, we are in CA on orders and want to buy a house there. Will that change things? Thanks!

  11. Patty says:

    We lived in WI when my son went into the Marines. We moved to AZ and he is stationed in NC. His driver's license is still WI, but the address is no longer our address. Should he get a AZ license while visiting us and declare AZ as his residence for taxes?

    • KateKashman says:

      Patty, there are a lot of issues to consider here. Where does he consider home? Where does he plan to go when he gets out of the military? Where does he vote? Does he own a vehicle, and if so, where is it registered. The main thing is to be consistent, using the same location for everything. He may want to consider the tax implications of changing residency, as well. I am not familiar with the tax laws in either Wisconsin or Arizona.

      With regard to his actual license, most states will allow residents who are stationed elsewhere to keep an accurate mailing address in their records. For example, both my husband and I are Florida residents. While our drivers licenses show our Florida address, our correspondence is sent to the address where we actually live.

      Hope that helps.

  12. Guest says:

    I do taxes at a military base (for free). You need an amendment. Here is a paragraph from NC web site: The Act prohibits North Carolina from taxing the income earned for services performed in North Carolina by a spouse of a servicemember stationed in North Carolina if (1) the servicemember is present in North Carolina solely in compliance with military orders; (2) the spouse is in North Carolina solely to be with the servicemember; and (3) the spouse is domiciled in the same state as the servicemember. All three conditions must be met to qualify for exemption. You seem to be a FL resident….if so, this pertains to you. They tell you what to fill out on the NC web site. Hope this helps:-)

  13. Barb says:

    I have a friend who is married to a Soldier and being told that she "adopted his home of record" when they married and therefore is not eligible for in-state tuition in the state where she grew up, her mother still lives, where she is licensed to drive, and receives mail. She never took any steps to change her home of record or state of residence. The difference in tuition is thousands of dollars and prevents her from attending the school she wants. We are currently overseas. Any thoughts on how she could apeal this?

    • guest says:

      Does she work and still live in the state?

      • guest says:

        If her husbands HOR is different from hers, she's not protected under MSRRA, that's the part of the act that gets me every time we move. I would LOVE to be able to claim residency in any other state then the one I live in now but because his HOR is CA and I wasn't a resident of CA when we met/married etc, MSRRA doesn't protect me at all I've been told.

        If she's overseas with a different HOR from him, especially if she's working, she's not a legal resident of her home state anymore. Having a drivers license or receiving mail doesn't make her a resident (heck I had a NJ drivers license while living/resident in 4 different states until it expired) since she owns no property, pays no bills, pays no taxes to the state.

        She could geobach and rent an apartment, set up utilities etc for the time period the school requires to establish residency.

        If she is using his transferred GI Bill she may want to keep an eye on HR 357 and see if it becomes law.

  14. ShdwKnght says:

    My wife is about to go into the Navy. I plan to stay in our home in NC for the foreseeable future because of my job and other obligations. Will that be a problem for us?

  15. Nicole says:

    I moved to NC where my military husband is stationed. I moved here 8 months ago, into his house and we recently married. I work in NC and have since moving here. Even though he owns a house in NC, his permenant residency is Nevada. I have never owned property but my license and registration and voter ID are from PA. Would my Permenant Residencey now be Nevada as well…or PA or NC?? Trying to get my NC tax form updated and I'm totally confused.

    • Kate says:

      Nicole, a military spouse is permitted to be a resident of the state in which they are actually living, or they can maintain residency in the same state that their active duty spouse claims. In your case, your choices are Nevada or North Carolina. The law does not permit military spouses to choose any other state.

      Whether you can claim Nevada residency while living in North Carolina is up to the state laws of Nevada. Some states are easier than others. It also helps if you have some ties there. (Do your in-laws live in Nevada?) The main things that are voter registration (and actually voting there, even if it is by absentee ballot), driver's license issuance, car registration, and filing/paying taxes.

      It is a little challenging because the MSRRA laws don't guarantee any ways for military spouses to obtain domicile in the state that their active duty spouse claims. For that, we have to be a little creative.

      Good luck!

      • guest says:

        I didn't think she could claim Nevada unless she was living with him there, and was a resident there when they got married. I've talked to a few tax attorneys and DFAS about something similar and they informed me because I didn't live with my husband in the same state as his HOR when we got married, I have to claim residency in whatever state we are currently living in and working in. And VA…they only give you 60 days as a military spouse to get your residency status in without the risk of fines and penalties, it was kind of ridiculous

        • Kate says:

          The state has the perogative to structure their residency requirements however they want. Some states make it easy, some states make it hard. Some states will grant residency almost immediately, others require a certain amount of time to pass.

          As I said, it is a lot easier if you have actual ties to the state, such as your in-laws residing there. If you're just trying to pick a state because it has favorable tax laws, it will be nearly impossible. At that point, your best bet is to try to get stationed there. When you are both physically residing in the state, it is easy to establish your domicile there.

  16. Kelly says:

    After living in FL for over 10+ years, my Coast Guard boyfriend and I were stationed in CA. We were not married when we moved to CA and since my FL drivers license cracked in half, I got a CA license. I am still employed by a Florida company and they changed my residence to CA, for which I now pay CA state income taxes. Now that we are married, I want to reclaim FL residency with my husband so I don't have to pay state income tax. Any one have any tips for me?

    • josh says:

      Kelly let me know if someone got back to you. I'm an Active Duty Florida Resident currently stationed in VA, and I'm about to get married and not sure what my fiance should do??? We live in VA, both our cars are registered here, she has a VA license, (I have a FL license) but I'd like to have both of us set up under Florida for several reasons.

      • Kate says:

        Josh, unfortunately, there are no provisions under MSRRA for your new wife to claim Florida residency. Any claims to Florida residency would be based solely on her own merit. Keep in mind that residency is not based solely on the possession of a driver's license. Other things that establish residency include vehicle registration, voter registration, actually voting, and other property ownership. It more complicated cases, things like the location of bank accounts can even come into play.

        The laws of residency differ from state to state. Unfortunately, the events of recent years have increased the scrutiny on people trying to obtain identification. Heck,my active duty husband, who joined the military from Florida and has never changed even the street address on his driver's license, had difficult at his last renewal.

        If your family still lives in Florida, and you are still have strong ties to the area, you may see if your new bride is able to establish any of the relevant residency requirements. I would suggest that both of your vehicles be registered in Florida, which can be done if your name is added to the title. In fact, having them in solely your name will mean that you will not have to pay personal property tax in Virginia. I am, by no means, suggesting that you do anything that is illegal, but rather that you explore the various options that are available to you.

  17. Kate says:

    Kelly, residency is determined by much more than just driver's licenses. Where do you own property, where are your vehicles registered, where are you registered to vote, and where do you actually vote?

    Your company can not just decide to change your residency for you – this is an action that you have to take yourself. However, if you were providing your company with a California address and did not establish your Florida residency, it would make sense that they changed your withholding to California. If you are, in fact, still a Florida resident, you can file a California non-resident tax return to have those taxes refunded to you.

    There are some details that make the question a little cloudy, but it would benefit you to be sure that you've pursued this as much as is legally possible.

  18. Cass says:

    As a military spouse, since 2001 I have held a VA driver's license and voter's registration (and voted in presidential elections). For the past 3 years I have owned a home, paid income taxes, and registered a car in VA. In these last 13 years, we have been stationed overseas for 7 years, but we have returned to posts in VA. My husband is a resident of another state. For the 3 years prior to my son beginning college, we will have orders overseas. Do I qualify as a VA resident for college tuition purposes even though I don't satisfy the physical presence test? I think I qualify in all other ways, and I know that if my husband gets orders to metro DC next he also will qualify. But I can't find any info from colleges regarding whether there is an exemption for the 1-year physical presence test for VA residency for military spouses with regards to college tuition in case my husband doesn't get orders to VA. Can you help?