It’s one of the most important questions to those service men and women facing the end of a marriage: where to file for military divorce?
As a servicemember or the spouse of a servicemember, you know all too well the demands of travel and relocation when it comes to serving your Country. You may live in one State today, another next month, and yet another the year after that. So, for legal purposes, where do you actually “reside?” Where is your “domicile?” Where exactly should you file your Complaint for Divorce in order to make sure that the Court will have jurisdiction over the matter and that your Final Judgment of Divorce will be valid and binding?
First, it is crucial to know that successfully obtaining a valid and legally-binding Final Judgment of Divorce requires complying with State substantive and procedural law. The choice regarding in which State you should file for divorce is an important one and one that may affect many aspects of your divorce, including tax issues, alimony, equitable distribution of things like debts and retirement assets, and support for you or your children. Remember that when you file a Complaint for Divorce, the laws of the State where you file that Complaint will govern your divorce — not the laws of the State where you were married or the State where your spouse lives, if those are different.
The first thing you need in order to file for divorce and be sure that the Court will have jurisdiction over the matter is for at least one party to be “domiciled” within the State where you wish to file for divorce. A person is “domiciled” where they have “legal residence.” Your domicile is that one place on Earth to which you always intend to return and in which you have some measurable amount of physical presence, either your person or certain types of property or obligations like taxes. Your domicile is your true fixed and permanent home. In the United States Military, there is a difference between the terms “Home of Record,” and “Legal Residence” or “Domicile.” “Home of Record” and “Legal Residence” or “Domicile” may, or may not be the same address. A servicemember’s “Home of Record” is the place where that person was living when they entered the military (or, re-enlisted in the military, if one chooses). “Home of Record” is used to determine travel entitlements when one separates from the military. It has nothing to do with voting or paying taxes, registering vehicles, nor any of the other privileges of state residency. “Home of Record” can only be changed if there is a break in service of more than one day, or to correct an error. “Legal Residency,” or “Domicile,” on the other hand, refers to the place where a servicemember intends to return to and live after discharge or retirement; that one place they consider their “permanent home.” It is that State in which a servicemember, or the servicemember’s spouse, is domiciled where a Complaint for Divorce may be filed.
Be sure that you base your choice of where to file your Complaint for Divorce on either yours or the servicemember’s “legal residence” or “domicile.” Some States let servicemembers file for divorce simply by virtue of the fact that they are stationed there, even if the servicemember doesn’t intend to make that State a permanent home. Be wary of relying on such statutes to get your divorce. There’s a theoretical possibility that another State might refuse to recognize a divorce that’s based on a rule like this, sometimes called a “faux residency” law. To play it safe, it’s generally better to file where either you or the servicemember is domiciled under the rules discussed above.
At the end of the day, a servicemember or servicemember’s spouse has a choice of the following three states in which to file for a divorce: the State where the spouse legally resides, the State where the servicemember is stationed (if that State has a residency statute applicable to servicemembers), or the State where the servicemember claims legal residency or domicile (that one place where the servicemember plans to live after his or her discharge or retirement from military service). While there are many other factors you may wish to consider before you choose one of these options with regard to filing your Complaint, there is no escaping the need to file your Complaint for Divorce in a State with proper jurisdiction, a State where either you or the servicemember is truly “domiciled.”
Confused? That’s completely understandable. It’s a complex issue and one with serious implications for you as you move forward. Divorce can be complicated, especially when a servicemember is involved. That’s why we’re here. We handle military divorces and we know the law on domicile. We can help you make an informed decision about where to file.
We have locations in Camden, Burlington, and Gloucester counties, and are happy to discuss your legal options. Call us anytime at 856-227-7888 or email hinkle[email protected] for a free consultation, we’re here to help.