Vermont Bar Journal, Vol. 40, No. 2 Fall 2014, Vol. 40, No. 3 | Page 28

by Mark E. Sullivan, Esq.

“HELP!—It’s My First
Military Divorce Case”
John Doe, a member of the armed forces, has just called your office for an appointment next Monday. He says he wants to file
for divorce. How should you prepare?
Most of the time such matters as service
on the defendant/respondent, grounds, and
time for the answer or response are routine
issues of divorce practice. They have no
unique military overtones. There are, however, certain military benefits that are lost
upon divorce and, in addition, both parties
must comply with state law regarding two
matters that often are problems in the military divorce case—domicile and residence.
It is the pure issue of “divorce” which will
be discussed here. This article focuses only
on the dissolution of marriage itself, apart
from support, custody, property division,
and other aspects of marriage, separation,
and divorce.
What Is Domicile?

The first essential element of divorce is
domicile of at least one or both of the parties. You cannot obtain a valid divorce if neither of the parties is domiciled in your state.
The U.S. Supreme Court in Williams v. North
Carolina stated that the power to grant a
divorce (that is, jurisdiction) is premised on
domicile. The domicile of one of the spouses within the state gives the power to that
state to dissolve a marriage, regardless of
where the marriage took place.1
In general, these are the rules of domicile:
• John Doe’s domicile is where he has a
settled connection for legal purposes.
It is where he is presently living or—
if he is temporarily absent—where he
intends to return after that absence. It
is his true, fixed, permanent home and
principal establishment.
• There are two essentials in domicile—
an actual residence where one is or has
been physically present, and an intention to remain there for an indefinite
period of time.
• One cannot acquire a new domicile
without abandoning the old one. You
can’t have two domiciles. Once a domicile is established, it continues until
it is superseded by a new one. Consequently, the old domicile is never lost
until a new one is acquired. Everyone
must at all times have a domicile somewhere.
• A party must have a present intention
of indefinitely living in a given place,
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not for mere temporary or special purposes, or until such time as it is to his
advantage to take up his place of residence elsewhere. It is not necessary
that a person intend to remain at that
place permanently, however.2
Domicile for Servicemembers

Due to their involuntary mobility, federal law provides servicemembers (SMs) with
unique protections; otherwise, they might
be considered domiciliaries of each state
in which they are assigned. Specifically, the
Servicemembers Civil Relief Act allows SMs
to retain their domiciles for tax purposes3
and for voting.4
What actions might be used to prove
John Doe’s domicile? A list would certainly
include the following:
• Moving his family to the state
• Declaring his residence in the state on
documents such as wills, deeds, mortgages, leases, contracts, insurance policies, and hospital records
• Paying income and personal property
taxes to the state and county
• Registering to vote in the state
• Registering his vehicle in the state
• Joining church, civil, professional, service, or fraternal organizations at that
location
• Providing that address on his federal
income tax return
• Paying nonresident tuition to an institution of higher learning in another
state
• Donating to charitable contributions at
that location
• Purchasing a burial plot at that location
• Moving his personal property to the
state
• Investing in business interest in the
state5
• Having his children attend school in
the state
• Declaring his residence in the state in
affidavits or litigation
• Purchasing land or a home in the state
• Obtaining a driver’s license in the state
• Opening and maintaining bank and investment accounts in the state
• Filing DD Form 2058, State of Legal
Residence Certificate, with his local
personnel office
• Obtaining in-state tuition in the state
• Titling one’s car in the state
• Burying immediate family members at
THE VERMONT BAR JOURNAL • FALL 2014

that location
• Marrying in the state
• Leasing a home in the state
Don’t Be Fooled

Some people confuse the military phrase
“home of record” with domicile. In reality,
they are two different things entirely. The
home of record (HOR) is a military administrative term that refers to the place to which
the government will transport John Doe and
his household goods upon separation from
the service. It is based on the place where
the SM entered military service. It isn’t intended to carry legal implications beyond
these considerations.
Don’t be deceived by faux residence statutes. Some states have statutes granting to
a SM the right to apply for a divorce when
he or she has been stationed in the state
for six months. Such a law would appear to
allow a SM who has been stationed in the
sta H