I got an e-mail the other day from a nice lady who wanted to use me for her uncontested divorce even though neither she nor her husband were now living in Alabama. Can she and her husband file in Alabama? Perhaps without intending to do so, she was asking a rather complicated question requiring a full understanding of both the facts and the law, whether she or her husband still maintains his or her “residence” or “domicile” in Alabama.
As lawyers often do, I intentionally failed to answer her question. By the way, when a lawyer fails to answer your question, sometimes it’s simply because the lawyer doesn’t know the answer or doesn’t want to be bothered. Sometimes, though, it’s because the lawyer knows that giving you the answer requires giving you legal advice, something we lawyers are forbidden from doing unless and until we have an attorney-client relationship established.
So can a person sleep every night in a different state and still maintain his or her residence in Alabama? The answer is yes, absolutely. Let’s talk through how it works. First, you can have only one residence. Ex parte State v. Altman, 188 So. 685 (Ala. 1939). If you’ve declared a residence in Ohio, you can’t simultaneously claim a residence in any other state. But where you have your residence, or domicile (the terms are synonymous for these purposes) isn’t simply a function of where your weary head hits the pillow each night. It depends instead on where you intend for your legal residence to be. Because the court can’t crawl up inside your head and see what you’re thinking, however, the court considers other things, like where you are registered to vote, where you have your driver’s license, and most important what you state your residence to be.
Once you’ve established a residence in one place, the law presumes that your residence remains there until you have an intention to move it and do actually move it. The 50-cent Latin term is that it remains there until you change it “facto et animo,” which as I recall from my high school Latin means until I change it in fact and by intent. Okay, another tangent: don’t ever think we lawyers know Latin. Most of us need a good day to use English well; those Latin terms befuddle most of us as much as they befuddle you. What this means for you is that a change of domicile is never accomplished by intention alone; it takes an intention coupled with an action.
Another case said that a person’s domicile is “that place in which his habitation is fixed, without any present intention of removing.” Merrill’s Heirs v. Morrissett, 76 Ala. 433 (Ala. 1884). And here’s how the Court of Appeals laid it out in Livermore v. Livermore, 822 So. 2d 437 (Ala. Civ. App. 2001):
It has been said that “domicile” is that place to which, whenever one is absent, he or she has an intent to return. State ex rel. Rabren v. Baxter, 46 Ala. App. 134, 138, 239 So. 2d 206, 209 (Civ. App. 1970). When a party physically resides in one location, “‘the intention to return [to another location] is usually of controlling importance in the determination of the whole question of domicile.'” Andrews v. Andrews, 697 So. 2d 54, 56 (Ala. Civ. App. 1997) (quoting Jacobs v. Ryals, 401 So. 2d 776, 778 (Ala. 1981)) . . . Furthermore, the burden is on the party who lives at a particular place to prove that he or she does not intend to remain there for an indefinite length of time, or that he or she has a present intention to return to some previous place of residence. In this regard, our Supreme Court has stated that “‘the fact that a person lives at a particular place creates a prima facie presumption that such place is his domicile.”
Now let’s assume one of the two of you has your domicile in Alabama. In order for that person to be the plaintiff, he or she must have resided in AL for at least six months when the complaint is filed. On the other hand, if the defendant lives in Alabama, there’s no requirement to wait six months.