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

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:-)

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