You may live and work in a city or state far away from where you were born and raised, but where do you call "home." For practical purposes, "home is where the heart is." It's anywhere you feel comfortable, safe and welcome. In most legal matters, your home is often the key to whether or not you can use a state's court system, such as for getting a divorce, for example.
Anyone thinking about divorce needs to know how residency and domicile impact your ability to file for a divorce.
A Few Basics on "Jurisdiction" & "Residence"
Generally, a court has authority to decide someone's legal rights in a lawsuit only if that person has some type of relationship or contact with the state, such as living or working there. This is known as the court having jurisdiction over a person.
A court's power to decide a divorce case (and practically any other case) is usually determined by the residency or domicile of you and/or your spouse. As a general rule, you need to file a divorce action in the state or county where you meet certain residency requirements: You have to have lived, or have been present in, a state for certain time period before you can file for divorce in that state.
You and your spouse don't have to live in the same state or county in order for you to file for divorce. However, in cases like this, the court may be able to grant you a divorce, it may not have the authority to decide other issues, such as property division and child custody, support and visitation.
The Difference between "Domicile" and "Residence"
While most states have some sort of residence and domicile requirement, some states use the term "domicile," other states use "residence" and still others use both. Depending on the state, the terms may mean different things, too. However, both terms relate to a spouse's presence within a state.
What is "Domicile?"
"Domicile" usually means that you have a fixed, permanent home in that state. Usually, the home must be your only or primary home, too. On top of that, you usually have to have been living in the domicile in that state for a certain period of time before you can file for divorce.
What is "Residence?"
"Resident" typically means that your present in the state, but it also usually requires that you've been present in the state for a certain period of time. In some states, like Alaska, you don't have to be in the state for a certain period of time. Rather, you can file divorce if you're in the state and show the court that you intend to continue living in there.
A person can have more than one residence but only one domicile.
Proof of Time
When, as in most states, there's a time requirement for residency or domicile, the spouse who files for divorce must prove to the court how long the spouse has lived in or has been present in the state. Mortgage documents, land records, utility bills and payroll checks may be used to prove it.
Determining the Location of Your "True Home"
A court may look at the following factors if there is a doubt about the location of a spouse's true home:
- Where the rest of the person's family lives - it's usually assumed that people live with their families
- Where the person voted, or otherwise participated in community activities
- The person's place of employment
- Car registration and driver's license
- Location of bank accounts
- Where the children are schooled
- Where more than one residence is involved, courts may consider the order in which they were acquired (people tend to buy homes before vacation cottages), how they were paid for (second mortgage on "home" to pay for "cabin"), and how they're used (people tend to lend their vacation residences, not homes, to others to use)
Knowing the residency and domicile rules in your state is the key to your divorce. A court won't grant a divorce if you're not a resident of or domiciled in the state where the divorce action was filed. Talk to an attorney if you have any questions about the residency and domiciliary requirements for your divorce.
Questions for Your Attorney
- Where's my domicile or residence if I live in one state for six months and in another state for six months?
- I filed for divorce, but I was just transferred to a new job in a different state. What should I do?
- When does the time start to count for the residency or domicile requirements in my state? From the time I land at the airport, sign a lease on an apartment or some other time?