Home Sweet Home: A Practical Approach to Domicile

• Author: Major Wendy P. Daknis
• Pages: 03

2003] PRACTICAL APPROACH TO DOMICILE 49

HOME SWEET HOME: A PRACTICAL APPROACH TO DOMICILE

MAJOR WENDY P. DAKNIS1

There's no place like home.2

1. Introduction

   "So, where are you from?" For those who have traveled or moved before, this is a common question. It comes from the curious new neighbor, the friendly waitress, or even the new Staff Judge Advocate. It seems relatively innocuous. But to many military service members, this is the question that makes them break out in a cold sweat, looking around for somebody, anybody, to help them give the right answer. For these unfortunate individuals, there may be no right answer. They might stammer out, "Well, right now I'm living in Virginia." Perhaps they will name the connection to the last place they lived before they joined the military: "I'm originally from North Carolina, but I haven't actually lived there since 1986." For those whose parents were also in the military, the answer becomes even more of a dilemma: "Well, um, my dad was in the Army, and I went to high school in Alexandria, Virginia, so I guess I call Virginia home."

   This question turns even more confusing when clients visit the Legal Assistance office. Both Legal Assistance attorneys and paralegals fr

   quently ask the question, "Where are you a legal resident?" 3 Often, either because they do not want to have to think about it or because they truly do not know, soldiers will randomly choose a state to claim as their legal residence. What they do not realize, however, is that there are many legal ramifications stemming from a person's state of legal residence, or domicile. Consequently, it is crucial for soldiers to know where they are domiciliaries.

   Unlike many of their civilian counterparts, military service members are in the unique position of having ties to many states. These multiple connections may make it difficult to determine which is the state of domicile. Additionally, they create various forums in which service members can potentially establish a new domicile. As a result, service members should have a basic understanding of domicile, how one acquires a domicile, and the consequences of that choice.

   This article is intended to help service members understand the fundamentals of domicile by defining domicile, explaining the acquisition of domicile, and differentiating it from the other terms often connected with domicile. Furthermore, the article will help service members recognize the multiple consequences that stem from domicile by discussing the impact on judicial jurisdiction, choice of law, and governmental benefits and burdens. Finally, the article will provide service members with the necessary tools to determine their current state of domicile, make an informed decision about selecting and acquiring a new domicile,4 and take the appropriate steps required to change their domicile. With this background, service members should be less panicked when deciding which state to call "home."

2. The Basics

   There are numerous terms associated with domicile-many of which are frequently misunderstood or misinterpreted. Terms such as domicile, residence, legal residence, and home of record all have different meanings and connotations. Sorting through these terms, their definitions, and requirements is the first step on the path to choosing a state of domicile.

   1. Domicile

      Domicile refers to "a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere."5 A person's domicile establishes a legal connection to that particular place and ties that person to the legal system of that territory.6 Domicile arises in three different ways: (1) by birth (domicile of origin); (2) by the extent of a person's connections to a certain place (domicile of choice); or (3) by law (domicile by operation of law).7

      1. Domicile of Origin

         Every person acquires a domicile at birth, known as the domicile of origin, or natural domicile.8 The domicile of origin is based not on the place of birth, but on the domicile of a child's parents at the time of his birth.9 This domicile continues to be applicable until the parents select a new domicile (if the child is a minor) or until the adult child acquires a domicile of choice.10

      2. Domicile of Choice

         Domicile of choice is the place that a person chooses for himself to replace a previous domicile.11 Because acquiring a domicile of choice requires the mental capacity to make a legal decision, only adults may make this choice.12 Consequently, minors are presumed to have the same domicile as their parents.13

         To acquire a domicile of choice, a person must be physically present at a place and must have the intention to make a permanent home there.14

         A person cannot acquire a domicile without meeting both of these requirements.15 Furthermore, physical presence and intention to remain must exist at the same time.16

         Traditionally, physical presence has been interpreted to mean actual residence in that place.17 Even so, the length of time that a person must spend at that place is not settled-it may be a considerable length of time or only a moment.18 In fact, there is no requirement to actually establish a home there, as long as the intent is to make one's permanent abode in that place.19 Nevertheless, a person rarely forms enough connections to a place

         to acquire a domicile without actually residing there or spending some amount of time there.20

         The more scrutinized factor in acquiring domicile is a person's intent to make a place his permanent home.21 Courts and scholars agree that a person's domicile is not lost until he establishes a new one.22 Accordingly, a person bears the burden of proof to show that he has acquired a new domicile.23 In determining where domicile exists, courts will look to "all the circumstances of [a person's] life" for "indicat[ions] that his real attitude and intention with respect to his residence [in a place] were to make it his principal home or abiding place to the exclusion of others."24

         Specific evidence considered by the courts to show intent includes formal declarations, informal declarations, and acts by a person.25 Formal declarations, such as affidavits, stating one's intent to establish domicile in a place often are not enough, by themselves, to show the requisite intent.26

         Informal declarations made to friends and acquaintances expressing a love for a place or a desire to make a home there carry more weight, as they are usually made without consideration of legal ramifications.27 A person's actions-how he lives his life and where he establishes the most connections-are the most convincing evidence of his intent to establish domicile in a particular place.28

         The types of activities that show intent are frequently those that are associated with everyday living. For example, the Supreme Court in Texas

         v. Florida paid particular attention to the large size of a decedent's home in a particular state, as well as his furnishing that home with family heir-looms, centering his activities associated with his interests in that state, and spending the majority of his time in that state.29 Other activities considered by common law courts include where a person works, where he votes, where he belongs to a church, where he banks, and where he pays taxes.30

         Based on this common law background for examining intent, many states have codified the definition of domicile and the activities that are considered to show intent to make a place one's permanent home.31 Common elements of these statutory definitions include where a person owns a house, keeps his personal property, houses his family, works, conducts business, votes, pays taxes, and registers his motor vehicle.32 Some states have taken these elements to the extreme, creating a formulaic approach to demonstrating intent that requires individuals to complete at least a portion of the following tasks: purchasing a residence in the state, registering to vote, registering an automobile, maintaining a driver's license, maintaining a checking, savings, or safety deposit box, having a will or other legal documents on file in the state that indicate residence in the state, having membership in professional organizations in the state, and establishing a business in the state.33 Although courts, statutes, and other state agencies typically consider similar activities to demonstrate intent, each case should be considered individually based on all the relevant circumstances.34

         For service members, the statutory definitions of domicile may be disconcerting. After all, service members frequently change homes pursuant to assignment orders. At each new location, they may purchase or rent a home, maintain their personal property, house their family, work, and attend a church. They are physically located in a new state and have accomplished many of the activities that demonstrate intent to remain permanently. Nonetheless, service members do not automatically gain a new domicile each time they move, nor are they subject to the legal consequences of association with that state.

         As with any other person, a service member maintains his domicile until he acquires a new one by showing his intent to make a place his new permanent home.35 The Soldiers' and Sailors' Civil Relief Act of 194036 (SSCRA) ensures that service members are protected from acquiring a new domicile against their will for at least some purposes.37 The SSCRA specifically provides that for the purposes of taxation, service members do not lose their domicile or acquire a new one if they are in a state solely because

         of compliance with military orders.38 Although the SSCRA applies to domicile for all types of taxation, to include income tax and personal property tax, it does not apply to domicile for other purposes.39 For other purposes, service members must look to the applicable state statutes and general common law concerning domicile. In most cases, however, states...