October 24, 2013
By Capt. Jonathan Kotilnek
FORT SILL, Okla. -- Domicile, residence and home of record are terms many people may have some awareness of but likely don't exactly know one from another.
A person's permanent home is a domicile and links up with state of legal residence. But, even this can get muddled as many people move frequently and don't keep continuous links to a particular state. Some people, particularly those overseas, believe they don't have a state of legal residence while others know they have a legal residence, but aren't sure where it is.
A domicile, sometimes also referred to as state of legal residence, is a person's permanent home and the state he or she intends to return to, even if temporarily absent.
It is important because it is the place that has the power to tax income, dissolve marriages, or distribute property upon a person's death.
The Service members Civil Relief Act (SCRA) protects military pay from being taxed by any state other than a military member's legal residence. The SCRA also provides that no change to legal residence occurs solely as a result of being ordered to a new duty station.
From a legal point of view, domicile is often more important than residence. Once a domicile is established it will remain until a person moves somewhere else intent to make that location a new permanent residence. People may have many residences, but only one domicile. Additionally, a spouse does not automatically acquire the domicile of the military spouse upon marriage.
People may change their domicile or acquire a domicile by choice. To acquire one in a new place, two things must usually happen. First, you must be physically in the state, and second, while there and before leaving you must intend to make it your permanent home.
That is all that is required.
People who change their domicile may have to prove it. This may occur especially for those who stop paying state income taxes to their old state of domicile and have changed their domicile to a state that does not have an income tax or does not tax military pay.
Regardless, the military or previous states of domicile may question the change. You may be required to show what actions you have taken to establish a new domicile, these may include:
-- registering to vote and voting;
-- paying state taxes (if required);
-- registering a car and obtaining a driver's license;
-- owning real estate;
-- maintaining bank accounts;
-- transacting business; and
-- joining local organizations in the new state.
The more oficial contact you have with a state, the more likely it is you will be considered a permanent legal resident of that state. Be advised, however, if you have types of contacts with multiple states, it may be difficult or impossible to prove a change of domicile.
Many military members wish to change their domicile because of state taxes, however, changing domicile isn't some trick to avoid paying state taxes. Anyone who changes their domicile fraudulently to avoid paying state taxes could face criminal prosecution and a substantial tax liability.
In contrast to a domicile, a residence is simply the place where people presently live. Most people reading this article are residents of Oklahoma. Unless you intend to make Oklahoma your permanent home, it is not your domicile. By itself, residence has little or no legal significance.
Finally, home of record is simply an accounting term used by the military to determine a number of benefits, such as travel and transportation allowances. Home of record is almost always the state where people lived before they joined the military. Accordingly, a service member's home of record is usually the same as his or her domicile.
Home of record usually can be changed under certain circumstances. It must be changed if it was erroneously or fraudulently recorded initially. Enlisted service members can change their home of record at the time they sign a new enlistment contract. Officers may not change their home of record except to correct an error or after a break in service.
For more information or advice about domicile, residence or home of record, visit legal assistance or a personnel office.