Residency Requirements for a Divorce in Arizona | Hildebrand Law, PC

Tue 3rd Apr, 2018 Arizona Divorce Laws

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The Short Answer

The answer to the residency requirements to file a divorce in Arizona is that you have to be a resident of Arizona for at least 90 days prior to filing for divorce. The answer gets a bit more complicated if the spouse filing for divorce is not actually living in Arizona when the divorce is filed.

The Arizona Court of Appeals in a memorandum decision in the case of Vilaysane v. Vilaysane addressed when a person may still be an Arizona resident even if they are not currently living in Arizona. Read on to learn more about the decision in the Vilaysane v. Vilaysane case.

The Long Answer

Do you need some guidance on the domicile and residency rules in an Arizona divorce? The answer to your question was answered by the Arizona Court of Appeals in a memorandum decision in the case of Vilaysane vs. Vilaysane.

The Court of Appeals had to address the issue of whether a spouse meets the residency requirement in Arizona when they have moved from the state of Arizona for the purpose of employment. The following is the Arizona Court of Appeals decision on that issue.

Husband retired from the military in 2008, Wife and Husband moved from Hawaii to Arizona in late 2008 because of uncertainty about Husband’s future career.

By 2009, Husband started working as a civilian for the Department of Defense in Hawaii. Wife, however, resided in Arizona from Husband’s 2008 military retirement until Husband was assigned to the U.S. Embassy in Laos in 2014.

The wife then joined him in Laos, and they lived at the embassy. The wife returned to Arizona in July 2016, but Husband continued to reside and still resides, in Laos.

In August 2016, Husband petitioned the Arizona courts for dissolution of marriage, asserting that both parties had “lived” in the State of Arizona for at least 90 days before the petition’s filing. At a January 24, 2017 hearing, the parties testified that neither was present in Arizona for the entire 90 days immediately before Husband filed his petition.

Based on this information, the superior court expressed concern that it may not have jurisdiction to hear the case. After receiving briefing and argument from the parties, the superior court dismissed the petition for lack of subject matter jurisdiction because “neither party was present in Arizona for 90 days prior to the filing of the Petition for Dissolution as required by A.R.S. § 25-312(1).” Wife timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(3).

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Review of Domicile vs Residency Requirement in an Arizona Divorce

The Court of Appeals indicated that For the Superior Court to have subject matter jurisdiction over a petition for dissolution of marriage, it must find: That one of the parties, at the time the action was commenced, was domiciled in this state of Arizona, or was stationed in this state while a member of the armed services, and that in either case the domicile or military presence has been maintained for ninety days prior to filing the petition for dissolution of marriage.

The Court of Appeals pointed out that A.R.S. § 25-312(1) pertaining to domicile requires “(1) physical presence, and (2) an intent to abandon the former domicile and remain here for an indefinite period of time.”

However, continuous physical presence is not necessary to maintain domicile.

The Court of Appeals indicated that the Superior Court erred when it found no subject matter jurisdiction based solely upon the parties’ lack of physical presence in Arizona for 90 days. It held that establishing domicile and maintaining domicile are two distinct requirements within A.R.S. § 25-312(1).

Physical presence is required to establish domicile, but physical presence is not required to maintain domicile. Once established, a domicile is maintained until abandoned for a new domicile.

Thus, a court must first determine if a party is domiciled in Arizona and then determine if that domicile had been maintained for at least 90 days by the time of filing. A.R.S. § 25-312(1). The parties do not dispute that Wife resided in Laos from 2014 until July 2016. “Domicile is presumed to follow residence, … but is rebuttable and the burden of proof to rebut this presumption is on the person contending to the contrary.”

Wife argues she was domiciled in Arizona since 2009 because she did not have the intent to remain in Laos permanently once Husband’s employment ended.

She also argued that she was domiciled in Arizona before moving to Laos, and maintained that Arizona domicile because her stay in Laos, was temporary and based on Husband’s government employment.

The Court of Appeals held that either of these factors is determinative, and the superior court may consider them in determining, first, whether Wife established domicile in Arizona before 2014 and, second, whether she intended to abandon or maintain that domicile between 2014 and July 2016.

The Court of Appeals indicated that the Superior Court heard evidence about where the parties resided but did not determine whether either party was domiciled in Arizona and if so when that domicile was established. As a result, the Court of Appeals remanded the case back to the Superior Court to making these findings.

How to Prove You Were a Resident of Arizona When You Filed for Divorce

Review of Domicile vs Residency Requirement in an Arizona Divorce

So, how do you prove you were a resident for 90 days before you filed for divorce in Arizona. In almost all cases, you do not have to prove it at all other than to testify under oath that you were a resident of Arizona for at least 90 days when you filed for divorce.

However, if your spouse contests whether you met the residency requirement when you filed for divorce, there are several things you can do to prove you met the residency requirement when you filed for divorce.

You can use lease agreements, property deeds, property tax records, utility records, telephone bills, a driver’s license, vehicle registration, and even credit card statements to establish your residency for a divorce in Arizona.

If you have questions about domicile and residency in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have decades of combined experience successfully representing clients in divorce and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce or family law case around today.

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