Tag: divorce residency

Divorce Planning and Residency

Posted by Ron Kauffman on

As cold winds begin to blow, marriages start to feel the chill. Recent statistics show divorce rates rising by nearly 10 percent in some places. This means divorce planning. Your residency, the state where you file your divorce, can have a big impact on the outcome.

Divorce Residency

 

Florida Divorce and Taxes

The 2018 Tax Cuts and Jobs Act increased the tax incentives for people to move to Florida, both for older and younger taxpayers. One reason is because Florida is one of only a few U.S. states with no state income tax. Another reason is the dolphins.

New York, unlike Florida, has income tax rates exceeding eight percent. In New York, there is also an additional income tax levied within New York City. Similarly, California has a state income tax. The rates in California can reach up to 12.3 percent, in addition to a one percent mental health services tax applied to incomes exceeding $1m.

However, the tax implications aren’t the only impacts to consider when deciding to change your residency. Residency and domicile are the terms often used around the country in different states to describe the location of a person’s home, the place to which a person intends to return and remain, even if they reside elsewhere.

Because a lot of interest has developed in changing residence and domicile – primarily for the best tax savings – the question remains: do you qualify? States examine many factors to determine your permanent home.

The residency analysis can include how much time is spent in a state, where your car is registered, where you bank, what state you vote in, what you declare on your tax returns, and where your dentist or doctor is.

State and local tax laws differ from state to state, and they are enforced based on your place of residence. While there are major tax implications of changing your home, there are some important divorce issues to consider on top of the tax savings.

Florida Divorce and Residency

I have written about divorce planning in the past. In Florida, divorce is called “dissolution of marriage”. In order to file for dissolution of marriage in Florida, at least one of the spouses to the marriage must reside six months in the state before the filing of the petition.

Residency under Florida law usually means an actual presence in Florida coupled with an intention at that time to make Florida the residence.

In Florida, there is a difference between domicile and residence. A person’s domicile in Florida, involves the subjective intent of the person. Residence, on the other hand, is a matter of objective fact.

Although the state residency requirement has been construed to mean you must reside in Florida for the six months immediately preceding the divorce filing, courts have recognized exceptions. For example, Florida allows military and government personnel to file for divorce – without proving their actual presence in the state during the six-month statutory period – prior to the filing of their petitions of dissolution.

Under this exception, when a Florida resident is stationed outside the state by the military, the person did not lose their Florida residency, and could file for divorce – even though she had not been physically present in the state for the immediately preceding six-month period.

Moving to the Sunshine State

Before picking up and moving your residence or domicile to Florida to save on state income taxes, there are other things you may want to consider that can impact your legal rights and your savings.

For one, there’s a difference between equitable distribution states and community property states. The effect of moving from an equitable distribution state to a state with community property ownership, may have a huge impact on your property rights.

Many western states are community property states. In California, a community property state, marriage makes two people one legal “community.” Any property or debt acquired by one person during the marriage belongs to the community. In a divorce proceeding, community property is generally split equally by the court.

Conversely, Florida is an equitable distribution state.  In a divorce proceeding the court distributes the marital assets and liabilities with only the premise that the distribution should be equal. However, there may be a justification for an unequal distribution based on certain statutory factors.

The differences between states are not limited to property division. Each state has different local laws to deal with alimony, child support, child custody, and even prenuptial and postnuptial agreements.

Changing the state you live in can be complex, and there are factors besides the tax savings to consider before making any change.

The Crain’s Chicago article is here.

Residency for Divorce

Posted by Ron Kauffman on

Ireland is currently working on the wording of what the Irish electorate will be asked to vote on in the upcoming divorce referendum. Residency for divorce is an issue about the amount of time a person has to live in a state, and in some cases, live apart from their spouse, before they can file for divorce.

residency for divorce

Luck of the Irish

If the luck of the Irish holds out and the referendum is passed, the government would introduce primary legislation on the time period before you can get a divorce, rather than having it in the Constitution which must be put to a public vote when changes are proposed.

Under the current system, married couples need to have lived apart for at least four years during the previous five years. The new proposals would see that reduced to two years, with the Irish Legislature, the Oireachtas, providing the legislation for this.

The referendum is due to take place on 24 May, the same day as the local and European elections.

Florida Divorce Residency Requirement

Ireland is not alone in having a residency for divorce requirement before spouses can file a case. Most U.S. states for example, have some kind of a durational residency requirement for the plaintiff in a divorce and others add to that a requirement you live apart first.

I’ve written about things to consider when planning for divorce before. Residency for divorce is a very important jurisdictional requirement in every case.

Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

What are some of the time limits in the United States? For example, Florida has a six-month requirement for residency before you can file for divorce here.

By contrast, Iowa has a one-year residency requirement for all spouses filing in the state. The same is true for Maryland, which requires that at least one spouse be a Maryland resident for at least one-year before filing for divorce. Maryland law also requires the couple to live apart for at least 12-months before filing for divorce.

The rule sounds easy enough, but failure to adhere to the rule may cause the court to enter a divorce decree without having the proper jurisdiction. In that event the divorce decree could be called into question.

The Irish Journal article is here.