Home of Record and State of Legal Residence: Things You Need To Know

3 March 2018

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The military can be confusing, with all its special terms and acronyms. One of the terms most often mis-used is home of record. The term comes up in questions about taxes and driver’s licenses and final moves. On rare occasion, when talking about final moves, it’s being used properly. The other 99.9% of the time, folks are actually talking about State of Legal Residence, or domicile, when they say “home of record.” It’s a pet peeve of mine, because not using the right term can mean getting the wrong answer to your questions.

Home of Record

A service member’s home of record is the place from which they entered the military. That’s it.

Pretty much the only time your home of record is important is when you leave the military before reaching retirement. Then, your final travel entitlements are based upon your home of record and the distance from your current duty station.

There are no provisions to change your home of record unless it is erroneously recorded when you enter the military, or you have a break in service. Lots of people may tell you that you can change your home of record when you reenlist. According to the Joint Travel Regulations, said reenlistment must include a break in service of at least one day.

“The place recorded as the individual’s home when reinstated, reappointed, or reenlistedremains the same as that recorded when commissioned, appointed, enlisted or inducted or ordered into the tour ofactive duty unless there is a break in service of more than one full day. Only if a break in service exceeds one fullday may the Service member change the HOR.”

“Home of record can only be changed if there is a break in service of more than 1 day or to correct an error. Any
change in connection with a break in service must be recorded on the DD Form 4 at reenlistment.”

Military spouses do not have a home of record.

State of Legal Residence

Your state of legal residence, or domicile, is the state where you’ve demonstrated that you have permanent ties. In theory, this is supposed to be the place where the service member thinks of as home, the state where you intend to live after you leave the military. In reality, it is probably the most tax-friendly state you’ve ever been stationed. However, understanding what it is supposed to be helps to understand how the process works. The steps you take to obtain and preserve legal residency in a state are the same steps you would take with a state that you think is home and you intend to return to after you leave the military.

For example, in the state you consider home, you would:

maintain your driver’s license,

register your vehicle,

register to vote,

actually vote,

pay 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.

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 adds up to the whole of determining legal residency or domicile.

If you’re claiming a previous state of legal residence while physically residing in a new place, you have to be careful not to do anything that might give the impression that you’ve actually become a legal resident of the new state. Just as no single action will establish your legal residence in a state, no single action automatically makes you NOT a resident of that state. For example, if your PCS to Ohio, military spouses are required to obtain an Ohio driver’s license. That doesn’t automatically mean you give up your legal residence in a prior state. Rather, you would have to take several actions that demonstrate that you are changing your legal residence.

In general, though, it’s good to keep as many things as possible tied to your state of legal residence. While it can often seem easier to just switch things around as you move, it is important to thoughtful about the actions that you take so that you clearly demonstrate your state of legal residence. It’s hard to defend your intent when you have a driver’s license from one state, a vehicle registration in a second state, you’re registered to vote in a third state, and you’re claiming a homestead tax exemption in a fourth state.

While states are generally more generous with military members than with the civilian populations, state can and do pursue military members who are acting as if they live in one state but claiming that they live in another state. It can be an expensive and time-consuming battle, and you won’t win if you have taken actions that make your intent unclear.

SCRA/MSRRA

Being able to claim a state of legal residence that isn’t the state in which you actually live is governed by federal and state laws. The Servicemembers Civil Relief Act (SCRA) is the law that gives military members certain protections so that they are not unnecessarily burdened by the requirements of military service, including the right to continue voting and paying taxes in a the state they call “home.” The Military Spouses Residency Relief Act (MSRRA) amends the SCRA to extend some of the voting and tax protections of the SCRA to military spouses. While the MSRRA is its own legislation, it is legislation that changes the SCRA, so the SCRA is the actual law that covers this stuff for both the service member and the spouse.

The SCRA permits a military member to retain properly-obtained state of legal residence even though they’ve moved to another state on PCS orders. SCRA does not permit a military member to pick any state or regain legal residency in a state where they lived previously.

Under the federal law (SCRA/MSRRA), military spouses may retain a properly-obtained state of legal residence, even if they move due to Permanent Change of Station (PCS) orders, as long as they share the same state of legal residence as their active duty spouse and they are living with the active duty member as the direct result of the PCS orders.

SCRA/MSRRA does not permit a military spouse to obtain legal residence in their spouse’s legal residence without actually living there, and it does not permit military spouses to claim legal residence in a state that is different from the active duty member’s state of legal residence. As the law currently stands, military couples hoping to claim protections for the spouse must either both establish legal residence in a state where they are living or get PCS orders to the state where the service member claims residency, so that the spouse may establish residency there, too. (Note: for the last few sessions of Congress, there has been legislation to allow a military spouse to “adopt” the legal residence of the service member without having to physically reside there. It hasn’t passed yet, but we’ll be watching carefully!)

However, it is very important to understand how state laws may be more generous that the federal law. When physically residing in some states, the state law may allow that spouse to claim legal residence in a previously-established state of legal residence even if it isn’t the same state as the military member.

Changing Your State of Legal Residence

You may change your legal residence whenever you meet the requirements to establish residency in a new state. While every state is slightly different, you generally must:

Be physically present in the new state, and

Demonstrate that you intend to make that location your permanent home; and

Demonstrate that you intend to abandon your old state of legal residence.

You demonstrate that you intend to make a state your new permanent home by doing the things listed above: registering to vote (and actually voting), obtaining a driver’s license, registering your vehicles, etc.

Once you’ve taken the steps to properly establish a new domicile, you can change your declared state of legal residence using DD Form 2058, State of Legal Residence Certificate. This will change the state listed on your Leave and Earnings Statement and W-2 tax statement, and DFAS will start withholding taxes for that state, if required. Remember that naming a state on the form does not make you a legal resident of that state – you still need to take all the other actions required.

State of Legal Residence for a Specific Purpose

Another thing that is confusing is that sometimes you are considered a legal resident of a state for a particular purpose without giving up your actual state of legal residence. Examples might be college tuition or jurisdiction for divorce. Just keep in mind that being considered a legal resident for a specific purpose does not mean that you’ve become a legal resident if you haven’t done anything else to make it happen.

When Other Folks Mis-Use The Terms

The last warning on this topic is that sometimes you’ll run into individuals, government entities, and even laws that use the terms incorrectly. For example, a state may require that you be a legal resident in order to qualify for in-state tuition when you live elsewhere, but they may say that their state needs to be your “home of record.” This can cause a lot of difficulty. You’ll just have to be patient and ask specific questions to find out exactly what they’re trying to say.

In many conversations, you can use home of record and state of legal residence interchangeably, and it won’t make a difference. It’s still a bad idea, though, because you can’t always tell ahead of time which conversations need to have the right concept, and it just confuses people. Understanding the two concepts and using them accurately will prevent misunderstandings that can cost you time and money.

Do you want to know more about your military pay and benefits?

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Comments

I was AD with MI as my HOR. I was medically retired in VA where I and my AD spouse is stationed. My spouse’s HOR is TX. My voter registration card is from MI, but for safety I registered and licensed my vehicle in VA upon my PCS. Now that I’m retired and an AD dependent, where is my legal residence?

I was AD with MI as my HOR. I was medically retired in VA where my AD spouse is stationed. My spouse’s HOR is TX. My voter registration card is from MI, but for safety reasons, I registered and licensed my vehicle in VA upon my PCS. Now that I’m retired and an AD dependent, where is my legal residence?

Melissa, there are two sets of laws that apply here. The federal law (SCRA/MSRRA) requires that for you to maintain your prior state of legal residence, it must be the same as your AD spouse. However, the federal law is only the minimum protections that states must provide. They may be more generous, and some are more generous and permit those who are physically residing in their state to claim a former state of residence without sharing the same state as their AD spouse. Unfortunately, Virginia is not one of them. Therefore, for the duration of your time in Virginia, I fear you are a Virginia resident.

Possible solutions for the future might include the passage of legislation permitting military spouses to obtain their AD member’s state of legal residency, the possibility that you might get orders to Texas, or that you may move to a state where you both choose to establish residency and the retain it using MSRRA.

I am retiring from active duty in October. We currently live in MS, but my HOR and residency is FL. I vote, have a drivers license, and still own property in FL. Can I maintain my FL residency after retirement if I still live in MS, but have the intent on moving back to FL within 12 months. Is there a time limit on intent to move back to state of residency?

Mitchell, according to Mississippi law, you switch your vehicle registration and driver’s license to the state within 30 days, or pay a $250 penalty fee. You lose the protections of the SCRA on the first day of retirement, so that’s the day you are officially “living” in Mississippi.

Will you get caught driving on an out-of-state license or registration during a year in Mississippi. I can not say for sure. It’s not a chance I would want to take, but I tend to err on the side of caution when it comes to this type of thing.

I changed my residency to my AD spouse when we got married and were stationed in his state of residency. We have inherited a house in my home state where we intend to retire. Can we change our legal state of residency while he is on AD or do we have to wait until he is retired?

You can change your state of legal residency while he is active duty, but you must be physically living there in order to do it. You can’t just decide to pick a state, even if it is your home state and/or you own property there. That said, state laws vary and/or you may get a clerk who just doesn’t care. If you really wanted to change your residency to that state, I suppose maybe you could try and see what happens. But I wouldn’t recommend breaking any laws to do it.

I have a confusing situation that I hope you can help me out with. I grew up in Massachusetts and entered the military there making it my HOR. My parents then moved to NH (a no income tax state) and I effectively “moved” with them although I was already in the military and stationed in SC at that point. In order to demonstrate my intent to permanently reside there I got a NH license. At that time my car was registered in my dad’s name and he registered in NH as well. I then submitted my DD2058 change form to adopt NH as my SLR. Last year, my parents moved back to MA but I would like to maintain NH as my state of legal residency. I am now having trouble with the state of NH trying to register the car in my own name now that my parents have left seeing as I have no in-state address/physical ties. How do you suggest handling this/explaining the military SLR points to the NH registry folks?

Per the New Hampshire Department of Safety Vehicle Registration page, you can renew via mail. “Renewing a registration while temporarily out of State: Within four months prior to your registration expiration date, please send your renewal notice or registration certificate to the town or city in New Hampshire where you reside, along with the proper payment. Please notify the town or city clerk if you would like them to complete the state portion as well. The State will not be able to complete your registration if the town fees have not been paid first. Please include the out-of-state address where you would like your registration to be mailed.” https://www.nh.gov/safety/divisions/dmv/registration/vehicle.htm#renewals

I spoke with them over the phone today and they seem adamant that I need a physical tie (bill/pay stub) to the county where I’m trying to register the car. My aunt lives there and that’s the address I’ll be using but she really has nothing to prove that I “live” there. How would you explain the whole concept of having a legal residency state separate from your current residency state to the NH DMV folks?

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