State of Legal Residence vs. Home of Record

State of Legal Residence vs. Home of Record
Your state of legal residence is not the same as your service member's home of record. (Stock photo)

When talking with military families about taxes and residences and drivers' licenses, one little thing keeps coming up: the misuse of the term home of record. It probably isn't a big thing in the greater scheme of life, but it certainly can make a simple conversation a lot more complicated if one person is using it correctly and one person is using it incorrectly. It's often confused with state of legal residence or domicile, but that's a different thing and often what people are talking about when they say home of record.

A military service member's home of record is the place from which they entered the military. It is not necessarily "where they're from." For example, if I am from Maryland, but went to college in Florida and entered the military in Florida, then Florida is my home of record. Home of records don't change unless your information was entered incorrectly, or you leave the military and then rejoin. Homes of record are used for certain travel allowances, particularly when leaving military service. Military spouses do not have a home of record.

A state of legal residence, or domicile or legal domicile, is the place where the service member thinks of as home, the state where you intend to live after you leave the military. Your state of legal residence may change throughout your life. However, you can't just pick a place, there are rules and steps that need to be taken. In order to legally change your state of legal residence, you must:

  1. be physically present in the new state, AND
  2. you must intend to treat that location as your permanent home; AND
  3. you must intend to abandon your old state of legal residence.

Intent is one of the most misunderstood and difficult parts of legal residency or domicile. While there are a number of steps that you can take to demonstrate your intent, it is the cumulative effect of these small things that add up to the whole of determining legal residency or domicile.

Ways to show that you intend to make a state your legal residence include:

  • obtaining a driver's license,
  • register your vehicle,
  • register to vote,
  • actually voting,
  • paying state tax,
  • reflecting that state in your will,
  • any other actions that could be construed as showing intent to remain a resident of a state.

Once a military member has taken the steps to establish a new domicile, he or she can change their pay withholding by using DD form 2058, State of Legal Residence Certificate. Just naming a state on the form does not make you a legal resident of that state, it just means that you will be having the correct state taxes withheld.

The Servicemembers Civil Relief Act allows a military member to retain a state of legal residence or domicile even though military orders have caused them to move to another state. However, that military member must be careful to not take any action that might give the impression that they have actually changed their domicile to the new state.

I see and hear three things that military members do all the time that make the question of domicile tricky: changing their driver's license, changing their vehicle registration and claiming a homestead exemption on a property. The last one is particularly important. In most cases, when you claim a homestead exemption on your house, you are declaring that you are a legal resident of that state. If you are claiming or accepting the homestead exemption on a property in one state, but declaring your domicile in another state, you may have problems at some point in the future.

Military spouses have the same domicile requirements as active duty members, but their right to retain a previous domicile is limited. In the past, a military spouse was required to change their domicile with each PCS move. In 2009, the Military Spouses Residency Relief Act (MSRRA) became law, and it gives military spouses the right to retain their state of legal residence as long as it is the same state as their active duty spouse and as long as the spouse is living with the active duty member as the direct result of military orders.

An update in 2018 allows spouses to obtain legal residency in the state where their active duty husband or wife is a resident. Which means no matter when you got married, or where you lived beforehand, you can choose your service member's state of residency.

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