Home is Where the Heart is

By: Taylor Statfeld Taylor Statfeld

When filing for divorce in Colorado, C.R.S. 14-10-106(1)(a)(I) requires at least one of the parties to be domiciled in Colorado for at least 90 days prior to filing for divorce. A party is domiciled in Colorado if he or she has a present intent to maintain Colorado as a permanent residence. Intent may be supported by a Colorado driver’s license, motor vehicle registration in Colorado, voter registration in Colorado, owning real estate in Colorado, among other documentation. Thus, if a party is living out-of-state, but intends to maintain Colorado as a permanent residence, that party is likely domiciled in Colorado, and vice versa. If a party is living in Colorado, but intends to maintain permanent residence elsewhere, the party’s domicile is likely not Colorado.

The domicile dilemma often arises in the context of military divorces. Because domicile is based on intent, the fact that a military service member is stationed in Colorado is insufficient alone to prove domicile in Colorado. Viernes v. District Court, 509 P.2d 306 (Colo. 1973). There must be intent to maintain Colorado as the service member’s permanent residence. Persuasive evidence may include a civilian spouse residing in Colorado or filling in Colorado in the state taxes section on the service member’s earnings statement (LES).

In the alternative, if a service member is stationed out-of-state or overseas, this too is insufficient alone to prove Colorado is no longer the service member’s domicile. The intent analysis is still relevant in order to file for divorce in Colorado. The intent analysis is irrelevant with respect to custody matters.

Pursuant to the UCCJEA, Colorado has jurisdiction to hear custody issues if Colorado is the child’s home state, regardless of where the service member resides or intends to reside. A child’s home state is the state in which the child lived with a parent for at least six consecutive months immediately prior to the commencement of the custody proceeding. So, if the service member has been stationed in Germany for the past 12 months and intends to reside in Germany indefinitely, the fact that Colorado is no longer the service member’s domicile is irrelevant. If the child has been residing with the other parent consecutively for the past six months, Colorado has jurisdiction to hear custody matters involving the child.

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