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

Tue 3rd Apr, 2018 Arizona Divorce Laws

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 to the Residency Requirements for a Divorce in Arizona

Do you need some guidance on the domicile and residency requirements 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 and the Arizona Court of Appeals had jurisdiction pursuant to A.R.S. § 12-2101(A)(3).

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Review of the Requirements 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 the state of Arizona, or was stationed in Arizona 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 Difference Between Domicile and the Residency Requirements for Filing a Divorce in Arizona

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 make these findings.

How to Prove You Meet the Residency Requirement When You Filed for Divorce in Arizona

Proving You Meet the Residency Requirements for Divorce in Arizona.

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 you or your spouse met the residency requirements for filing for a divorce in Arizona.

It is important to not, they you can file for divorce in Arizona if you meet the 90 day residency requirement. If you do not meet that requirement, you may still file for divorce in Arizona if your spouse has been a resident of Arizona for at least ninety days prior to you filing for divorce in Arizona. In other words, only one of the spouses needs to meet the Arizona residency requirement to file divorce in Arizona even if that person is not the person initiating the divorce proceeding.

What are the residency requirements to file for divorce in Arizona?

To file for divorce in Arizona, at least one spouse must have been domiciled or legally resident in Arizona for at least 90 days before the divorce petition is filed. Only one spouse needs to satisfy this requirement. If neither spouse meets the requirement, the court generally lacks jurisdiction to grant the divorce.

What is the difference between domicile and residency in an Arizona divorce?

In Arizona divorce law, domicile and residency are related but not identical. Residency generally refers to where someone lives, while domicile means a person’s permanent legal home where they intend to remain or return after temporary absences. A person may have multiple residences but only one legal domicile. Arizona courts focus on domicile when determining jurisdiction for divorce.

Can I file for divorce in Arizona if I temporarily live in another state or country?

Yes. Temporary absence from Arizona does not automatically end your Arizona domicile. If you established Arizona as your permanent home before leaving and intended to return, you may still satisfy Arizona’s domicile requirement for divorce even while living elsewhere temporarily.

Does Arizona require continuous physical presence for 90 days before filing for divorce?

No. Arizona law does not require continuous physical presence during the entire 90-day period. Once domicile has been established, temporary travel or work assignments outside Arizona do not necessarily eliminate your Arizona domicile. Courts evaluate whether you intended to maintain Arizona as your permanent home.

Can only one spouse meet Arizona’s residency requirement?

Yes. Arizona law requires only one spouse to meet the 90-day domicile or residency requirement before filing for divorce. The spouse who files the petition does not necessarily have to be the spouse who satisfies the residency requirement.

What evidence proves Arizona residency for divorce?

If residency is challenged, useful evidence may include an Arizona driver’s license, vehicle registration, a lease agreement or mortgage, property tax records, utility bills, bank or credit card statements, employment records, and voter registration. These documents help demonstrate that Arizona has remained your legal domicile.

What happens if my spouse challenges Arizona residency?

If your spouse disputes Arizona jurisdiction, the court may hold a hearing to determine whether the residency requirement has been met. The judge will review testimony and documents showing whether Arizona remained your legal domicile before deciding whether the divorce may proceed.

Can military members establish Arizona residency for divorce?

Yes. Arizona law specifically allows jurisdiction when a spouse has been stationed in Arizona as a member of the armed services for the required period. Military families may also establish Arizona domicile depending on their circumstances and intent.

What if neither spouse has lived in Arizona for 90 days?

If neither spouse has established Arizona domicile or residency for at least 90 days, the court will generally dismiss the divorce case for lack of jurisdiction. Some couples choose to file for legal separation first and convert the case to a divorce after meeting the residency requirement.

Why is domicile important in an Arizona divorce?

Domicile determines whether Arizona courts have legal authority to hear your divorce. Even if you temporarily relocate for work, education, or military service, maintaining Arizona as your legal domicile may preserve your right to file for divorce in Arizona.

Can I maintain Arizona domicile while working overseas?

Possibly. Working abroad does not automatically change your domicile. If your overseas assignment is temporary and you intend to return to Arizona, the court may determine that you maintained your Arizona domicile throughout your absence. Each case depends on its specific facts and evidence.

Does Arizona follow a residency rule or a domicile rule for divorce?

Arizona’s divorce statute uses the concept of domicile, not simply physical residence. Courts distinguish between temporarily living outside Arizona and permanently abandoning Arizona as your legal home. This distinction can determine whether an Arizona court has jurisdiction over your divorce.

What Arizona court case explains domicile versus residency?

One of the leading Arizona appellate decisions discussing this issue is Vilaysane v. Vilaysane. The case explains that establishing domicile and maintaining domicile are separate legal questions, and that continuous physical presence in Arizona is not always required once domicile has been established.

Arizona Domicile and Residency Requirement Attorneys

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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