Determining legal residency for military members

Courtesy of the 86th Airlift Wing Judge Advocate offic

Residency plays a crucial role in determining eligibility for voting and elections, income taxes, access to courts and other important aspects of one’s life. As such, choosing the appropriate residence is an important part of a person’s life.

Legal residence, also known as a person’s domicile, is where the permanent home or principal establishment where one considers “home,” is intended to be returned to after that person is absent.

For a civilian, the concept of a home of record and legal residence is fairly simple — they are usually the same thing and identify the state where the civilian lives and works. However, for military members, the terms are not as clear especially for those serving overseas.

The state of legal residence may change throughout a person’s life. However, service members can’t just pick a state of their desire; there are rules and steps that need to be taken.

In order to legally change the state of legal residence, members must be physically present in the new state and intend to remain in the new state permanently, or they should treat that location as their permanent home.

Intent to abandon a previous legal residence is a key component to changing residency. While many steps can be taken to establish intent, it is a collection of several actions that solidify the determination.

Actions taken to show a member’s intent to make a state their legal residence include: obtaining a driver’s license, registering to vote, voting, registering a vehicle, paying state taxes and taking any other verifiable actions that could be considered as an intention to remain a state resident.

When done with the aforementioned steps, service members should complete a DD Form 2058, State of Legal Residence Certificate, and turn it in to the finance office or equivalent.
Note that naming a state on the form does not make a person a legal resident of that state; it just means they will have the correct state taxes withheld from their pay.

State of legal residence is not to be confused with a service member’s home of record. The home of record is the state where one first joined the military. It does not apply to dependents.

Think of home of record as a term the military uses to determine a number of military benefits, such as travel allowances and transportation expenses, particularly upon separation. One’s home of record does not change unless the information was entered incorrectly or there is a break in service.

The Service Members Civil Relief Act allows military members to live in one state and claim another state as their legal residence. This can sometimes result in a tax advantage because several states exempt military pay from being taxed.

Military spouses have the same domicile requirements as active-duty members with a few limited rights under the Military Spouses Residency Relief Act. MSRRA gives military spouses the right to retain their state of legal residence, but does not automatically allow one to inherit the residence or domicile of his or her military spouse upon marriage.

While the rules for spouses and service members are similar, it is best to seek advice from the legal office.

For more information or to schedule an appointment, contact the 86th Airlift Wing Legal Office at 480-5911 or 06371-47-5911.