Residence and Domicile

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The law often imposes residency requirements. If you want a divorce in Virginia, you must have lived here for 6 months. If you want a Virginia court to determine child custody, the child we are talking about must have been living here for 6 months. Sounds simple. But as with many things in law, it can get complicated.

To even file for a divorce, at least one of the parties must have been, and continues to be, a "bona fide resident and domiciliary" of the Commonwealth for the six months immediately preceding the filing. What if you lived here for 6 months, filed your divorce complaint, then learn that before your divorce becomes final, you are moving to Albuquerque (and your spouse no longer lives here)?  

The importance of intent

Courts are very strict about this prerequisite, especially when it comes to divorce. If you simply set up camp, so to speak, for six months to gain jurisdiction, without the intent to live here permanently, your case will be thrown out. A client once asked me if she and her husband can get divorced in Virginia if they have both lived here for six months, but they plan to move to Oregon next year. The answer is no, you can't.

You or your spouse must be living here permanently (for the foreseeable and indefinite future), which in turn means you must have the intent to remain living in Virginia as your state of primary residence. Or, more precisely, Virginia must be your domicile, and that requires the element of intent.

Residence and domicile are not synonymous. A person may have more than one residence, but one can have only a single domicile, says the Supreme Court of Virginia in a line of cases dating back to 1878. Domicile is defined as a particular place, accompanied by proof of an intention to remain there for an unlimited time.

Temporary absence and sojourn

In 1882, the Supreme Court pronounced, “Mere change of place is not change of domicile. Mere absence from a fixed home, however long continued, cannot work the change. There must be the [intent] to change the prior domicile for another . . . Until the new domicile is acquired, the old one remains.” To establish a new domicile in another state, the Court later added, a party’s domicile in the first state must be extinguished.

Temporary absence––referred to by the colorful term "sojourn"––from the state of domicile can be for a day trip or for a decades-long adventure in the Amazon. If your intent has been to return to Virginia, this is your domicile.

It is not a good idea to try to finesse the issue of intent. Judges where I practice look for it, and they will deny the divorce if they are not convinced you have domicile. Worse, if many years later someone challenges the validity of your divorce and proves you lacked intent to remain here as your domicile, your divorce will be voided, your prior marriage will be restored, and, if you remarried, your subsequent marriage will be nullified.

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Christian Curtis, LLC ALEXANDRIA VA
Christian Curtis, LLC ALEXANDRIA VA
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