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DIVORCE AND DOMICILE

Introduction: SILENT PARTNER is a lawyer-to-lawyer resource for military legal assistance attorneys and civilian lawyers, published by the Military Committee of the American Bar Association’s Family Law Section and the NC State Bar’s military committee. Please send any comments, corrections, or suggestions to the address at the end of this Silent Partner. There are many SILENT PARTNER infoletters on military pension division, the Survivor Benefit Plan and other aspects of military divorce on the LAMP website and at americanbar.org.

Legal residence is an important issue when it comes to filing for divorce, responding to a divorce lawsuit, or dividing a military pension. This domicile checklist will help the attorney determine where a party’s legal residence is likely to be. The advice to one’s client might sound like this:

Many legal issues involve your legal residence, or “domicile.” The place where you live and call home (or the place to which you intend to return after a temporary absence) is your domicile. The choice of domicile can determine where you are entitled to vote, where you are liable for state income taxes and where your children can obtain “in-state tuition” for college.

In the world of divorce and family law, a person’s domicile determines where he or she can obtain a divorce; in general, a valid divorce can only be granted in the state of domicile of either the husband or the wife. Domicile can also be important in cases involving military pension division and family support. We can use this checklist to determine the facts which are used by judges in deciding domicile questions.

DOMICILE CHECKLIST FOR SERVICEMEMBERS AND SPOUSES

X

Question or issue

State(s), Years

Comments

 

For each item below, answer with information covering the last five years (or other period)

 

 

 

1. Physical location

 

 

 

Describe the dates, places, and circumstances of your residing here in State A in the past __ years on a separate sheet of paper.

 

 

 

2. Taxation

 

 

 

Where have you paid state income taxes?

 

 

 

(If applicable) Where have you paid local income taxes?

 

 

 

Where have you paid personal property taxes?

 

 

 

Where have you paid real property taxes?

 

 

 

Where have you paid any other state-related taxes (e.g., intangibles tax)?

 

 

 

Which state have you shown as your home on DD Form 2058, State of Legal Residence Certificate?

 

 

 

Which state have you shown for your address on your Form 1040 (federal income tax return)?

 

 

 

3. Real estate

 

 

 

In what state(s) do you own residential real estate?

 

 

 

In what state(s) do you own other real estate?

 

 

 

4. Motor vehicles

 

 

 

For each motor vehicle you own (or partly own), give the state(s) of your driver’s license(s).

 

 

 

Where is each motor vehicle registered?

 

 

 

Give the state of your driver’s license.

 

 

 

5. Banking

 

 

 

In what state(s) do you have a checking account?

 

 

 

A savings account?

 

 

 

A safe deposit box?

 

 

 

Other investment accounts?

 

 

 

6. Voting

 

 

 

In which state(s) are you registered to vote in state, county, or local elections?

 

 

 

In federal elections?

 

 

 

7. Schooling

 

 

 

In which state(s) have your children attended school?

 

 

 

In which state(s) have you obtained resident tuition for yourself or a family member?

 

 

 

Nonresident tuition?

 

 

 

8. Other

 

 

 

 

 

 

 

 

 

 

 

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The SILENT PARTNER series of info-letters is prepared by Mark E. Sullivan (COL, USAR – Ret.), a family law attorney in Raleigh, N.C.. For comments or suggested changes, contact him at Sullivan & Tanner, 5511 Capital Center Drive, Suite 320, Raleigh, NC 27606; mark.sullivan@ncfamilylaw.com; or 919-832-8507.