Given the nomadic existence of some military families, it is not always easy to choose the right state to file for divorce. If the husband entered the military in Wisconsin, the marriage occurred in Texas, the children were born in California, the husband deployed to Iraq, and the mother and children moved back to Wisconsin, where is the proper jurisdiction for divorce? Such a scenario is common due to servicemembers’ orders. I will devote several upcoming blogs to this difficult issue.
A party can only file divorce in Wisconsin if he/she has been a “resident” of the state for six months and the county of filing for 30 days. “Residency” can be hard to define. It is usually considered to be the place where a person intends to maintain or return to a permanent living space, not simply a short-term stay, vacation, etc.
The question of intent to establish residency can be difficult for military families who follow the servicemember’s orders to various stations. Federal law indicates that servicemembers neither gain nor lose a residence simply due to orders. The servicemember is permitted to maintain her residence in the state where she entered the military, votes, and files taxes. This is known as the “home of record,” and is the place where the military will transport the servicemember’s possessions, etc. upon separation.
Although these basic facts may not be sufficient alone to establish residence for divorce, they, along with other factors can support a residency argument. Other considerations may be whether the servicemember requested or was ordered to a new state, where he keeps his driver license, bank accounts, mailing address, etc. For example, if the member requested orders to Wisconsin, bought a home there (instead of military housing), sold a previous home, and obtained a drivers license, she could be ruled a resident of Wisconsin, even if the initial state of record was Texas.
Determining residency for a Wisconsin military divorce is a specific, fact-based process. This matter must be discussed carefully with your divorce lawyer. We will continue to look at jurisdictional questions in future blogs.
Attorney David Kowalski routinely handles military divorces for both servicemembers and their spouses. Contact him at 608-405-6663 with any questions.