Domicile and Residence, A MSRRA Issue

One of the most confusing aspects of the Military Spouses Residency Relief Act is the idea of residency, or domicile.  From, 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!

About the Author

Kate Horrell
Kate Horrell is a military financial coach, mom of four teens, and Navy spouse. She has a background in taxes and mortgage banking, and a trove of experience helping other military families with their money. Follow her on twitter @realKateHorrell.
  • Melissa

    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!! :)

  • Diane

    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.

  • Kasi

    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!

  • 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 :)

  • Inanna

    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.

  • Nicole

    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

      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.

  • Eve

    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

      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!

  • Lcw

    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?

  • scott

    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.

  • Liz

    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!

  • Patty

    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

      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.

  • Guest

    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:-)

  • Barb

    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

      Does she work and still live in the state?

      • guest

        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.

  • ShdwKnght

    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?

  • Nicole

    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

      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

        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

          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.

  • Kelly

    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

      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

        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.

  • Kate

    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.

    • Kelly

      Kate thanks for the response. My husband owns property in CA, our shared car is registered in FL with his name on it. We have a joint banking account with a FL mailing address ( where my husband claims residency). I am still registered to vote in FL.

      I am going to FL next week and will be bringing as many supportive documents with me to the DMV in hopes of reclaiming residency in FL.

      • Kate

        Good luck, Kelly. I hope it works out for you!

      • guest

        You may have an issue. I work for a Company based in GA, every time we move they are required by our company auditors, for me to pay taxes in the state that I am currently working in/living in. Even though I work from home, and my company has no physical property in any of the states we’ve lived in. Toss in that you are now married, and your husband owns property and you are between a rock and a hard place. CA is a large @sshole when it comes to taxes. One good thing, if his home of record is CA, and he gets stationed outside of CA, then his military pay is exempt from all state income taxes.

        • She

          Guest, have you pointed your company’s auditors to the MSRRA. It is federal law, and the auditors can not just make you do something because they feel like it. It is entirely possible that there is something more I am missing, and if so I apologize. But geesh – it’s the law!

          • guest

            Yup, except when you read MSRRA both you AND your spouse have to have the exact same state of residency, you have to establish residency with the intent to live there permanently, and you can’t have “abandoned” it to move with the military, or for any other reason. It is next to IMPOSSIBLE to prove you haven’t “abandoned” your prior states residency, things like registering your car (which is mandatory, and fine punishable, within 60 days of moving here in VA, regardless of active duty status) prove abandonment. In addition, I’ve never established residency in CA, my husbands HOR, since we met, and married after he joined the military, so MSRRA automatically does not apply to me.

            I have several people I’ve met over the years that the states have proven abandonment simply by the fact that they set up rent and utilities in a new state, this proved they were setting up a new domicile, and therefor were not “permanent” residents of their old state.

            The way this law is written is a gigantic joke, I have yet to meet anyone, that is employed, that this law actually helps.

          • guest

            CA also views her getting a CA drivers license as taking the step towards residency, and her husband is a property owner in the state which is a large residency step. Not sure if she’s going to have a way out of this one but I would love to know if she did, give me a little faith in this misguided law.

          • sheofthesea

            I know that there are a lot of loopholes and difficulties, but it has helped a LOT of people, including myself. In many ways, we were lucky because I established residency in his state of residency (which DOES NOT have to be his HOR) and we’ve been very deliberate about taking the bad with the good to be consistent. We don’t have the car problem because we keep our vehicles registered in my husband’s name alone. It bothers me, but it’s what we have to do to play by the rules. Same with owning property – we own property in other states, but we don’t claim a homestead exemption on them. That means we pay significantly more property taxes than our neighbors, but we can’t have it both ways.

            It is inconvenient, and often expensive, to maintain our residency in the state where we maintain it, but it pays off in the long run and so we jump through the hoops and take the extra expenses as they come.

            I understand that not everyone has these choices, and I agree that the law really requires massive improvement, but I do know many people that have benefitted from it.

          • guest

            If it’s so expensive to maintain residency (ie higher property taxes, having to fly/drive back to resident state for drivers license, denying homestead exemption etc) how much is it REALLY saving you? For example, I will never buy a property without my name on it, the plus side is I get to claim depreciation on my half of the rental houses on my state taxes, I also get half of all the personal deductions for the main house. My husband pays no state taxes because he’s a non resident of CA, which doesn’t tax military members out of state. I file married filing separate here in VA and take half of all deductions. I make a 6 figure salary, my state taxes after deductions/depreciation/donations last year were right around 2k (slightly less if I recall). It honestly would cost me more to retain residency in any of our other states then it does to just pay VA, while I would LOVE to keep that 2k, the MSRRA makes it far to difficult and cost prohibitive to.

            We keep the cars in his name only as well, but that’s to avoid VA’s personal property tax, if my name was on the title we’d have to pay it (and it’s like 3k a year for our cars), if it’s not then we don’t.

  • Cass

    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?

    • Kate

      Cass, only the individual schools can make that determination. I’d say you have an excellent case for residency, since you’ve maintained it as your domicile while living overseas. You’ll have to apply and see what the school determines. Good luck!