Like most states, Michigan has statutory residency requirements that must be satisfied before a spouse can file for divorce in this state. While it is true that you could fly to Las Vegas and get married there without even having spent an overnight in the State of Nevada, it is not the case that you can just enter Michigan on a whim and file for divorce simply because the spouse thinks that the laws are more favorable there. However, in our increasingly mobile society where employment takes people all around the country, it is possible that a person has not stayed in one place long enough to file for divorce anywhere under strict statutory guidelines. What are the residency requirements to file for divorce in Michigan?
MCL 552.9 provides the general rule that at least one of the spouses must have resided in the State of Michigan for 180 days and in the county where the divorce was filed for at least 10 days for the circuit court to have subject matter jurisdiction over the case:
- “(1) A judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and, except as otherwise provided in subsection (2), the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint.”
- “(2) A person may file a complaint for divorce in any county in the state without meeting the 10-day requirement set forth in subsection (1) if all of the following apply and are set forth in the complaint:”
- “(a) The defendant was born in, or is a citizen of, a country other than the United States of America.”
- “(b) The parties to the divorce action have a minor child or children.”
- “(c) There is information that would allow the court to reasonably conclude that the minor child or children are at risk of being taken out of the United States of America and retained in another country by the defendant.”
The Michigan Supreme Court has held that compliance with the statutory requirement as to the length of residency is jurisdictional and that the failure of a court to comply renders a divorce decree absolutely void. See Gunn v Gunn, 205 Mich 198, 200; 171 NW 371 (1919). Jurisdictional issues can be raised at any time during any stage of the process, even on appeal. This means that a spouse who did not like the result of the divorce trial or has second thoughts on the consent judgment he or she entered into could challenge the court’s jurisdiction on appeal and, if successful, undo the entire proceeding. Warning: if you are going to file for divorce in any state, be sure that you meet all of the jurisdictional requirements in the beginning before it turns out to be a giant waste of time or money.
Not only is the 180-day state residency a jurisdictional issue, but the 10-day county residency must also be satisfied or else the judgment is void. In Stamadianos v Stamadianos, 425 Mich 1; 384 NW2d (1986), the Michigan Supreme Court ruled that the 10-day county residency rule is a jurisdictional rule, not a venue rule, so it must be satisfied for the circuit court to have subject-matter jurisdiction. In that case, a judgment of divorce was set aside when the defendant later proved that the plaintiff had misrepresented being a resident of Livingston County during the required statutory period of 10 days. These threshold questions really do matter.
If the question of jurisdiction is raised by a party, then it stops the proceedings until the issue is resolved. Even if a party does not bring an issue up, the judge has an obligation to deal with a jurisdiction issue if it comes to his or her attention by other means before going further. “The question of jurisdiction may be properly presented to and passed upon by a court at any stage of pending proceedings.” Lehman v Lehman, 312 Mich 102, 106; 19 NW2d 502 (1945). “Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceeding.” Id at 105-106.
In Smith v Smith, 218 Mich App 727; 555 NW2d 271 (1996), the plaintiff moved out of the marital home in Genesee County and filed for divorce in Kent County where she said she met the 10-day county residency requirements. The court had also entered a temporary order against the defendant that compelled him to pay child support and set provisional custody and parenting time. Seven months later, defendant filed a motion to dismiss and claimed that the plaintiff was not a resident of Kent County on the date of filing for divorce (he noted this position at every hearing thereafter). While the issue of jurisdiction was pending, defendant did not pay child support and arrears accumulated, eventually leading to a bench warrant for his arrest. Defendant was scheduled to appear at an evidentiary hearing regarding his motion to dismiss, but he did not personally show up (although his lawyer did). The trial court stated that a party in contempt of court for failure to obey that court’s orders is not in a position to argue through local counsel that the case should be dismissed. The trial court also noted that a party in contempt was required to purge himself of the contempt before being heard by the court. The court never held the evidentiary hearing. Rather, plaintiff was sworn in and testified that she had resided in Kent County for ten days before filing for divorce. The court then entered a default judgment of divorce. On appeal, the Michigan Court of Appeals acknowledged the trial court’s error in proceeding when the jurisdiction issue was not resolved and determined the following:
- “By never resolving the jurisdictional dispute here, the trial court failed to take notice of the limits of its authority. In addition, the trial court erred in conditioning defendant’s ability to contest the jurisdictional basis of the case on defendant’s purging of the contempt order. This was erroneous for two reasons. First, a jurisdictional challenge can be raised at any time. Second, if necessary, a trial court must resolve a jurisdictional dispute on its own motion. It bears mention that, to the extent that the trial court urged the parties to agree to a resolution of the dispute, jurisdiction cannot be conferred by waiver or consent of the parties. On remand, we direct the trial court to conduct an evidentiary hearing to determine whether plaintiff resided in Kent County for the ten days immediately preceding the filing of her complaint. This hearing will necessarily include an inquiry into whether plaintiff intended to reside in Kent County at that time. If, on the basis of its findings of fact, the trial court holds that jurisdiction was lacking at the time plaintiff filed her complaint, then the trial court must dismiss this action.” 218 Mich App at 732-733.
It is possible that a complainant for divorce could satisfy the 180-day jurisdictional requirement despite being physically outside of Michigan during that period provided that there is evidence that the complainant’s permanent domicile was always in the state during that time. In Leader v Leader, 73 Mich App 276; 251 NW 2d 288 (1977), the Michigan Court of Appeals was confronted with the following facts:
- “Plaintiff and defendant had lived in Michigan for a substantial period of time. They were married in Michigan in 1972. Defendant had three children by a prior marriage, and the parties had one child by this marriage. Plaintiff and defendant apparently had separated some time prior to the instant action and filed for divorce in Michigan. However, a reconciliation was sought and the parties moved many of their belongings to Kentucky where defendant secured employment and the parties remained for a period of time. Plaintiff left Michigan on or about October 1, 1975, and remained in Kentucky until January 21, 1976, with the exception of a two-day trip to Michigan. Plaintiff testified that she went to Kentucky with defendant specifically at his request in order to attempt a reconciliation, which she doubted would be successful. Plaintiff testified that she did not intend to stay in Kentucky, or anywhere else, with defendant if the reconciliation was unsuccessful. Plaintiff further testified that she intended to wait and see if the marriage could be saved before considering any place for residence. Plaintiff also testified that she only remained in Kentucky after the first two or three weeks because of a desire not to leave the children without a mother and because of threats which were later made to her by defendant. Finally, however, plaintiff did return to Michigan, her “home” state after almost a four-month absence. We must decide whether this absence is a jurisdictional defect which will defeat plaintiff’s action for divorce.” 73 Mich App at 278-279.
On a strict application of the residency statute, the plaintiff’s complaint would certainly fail. However, the Michigan Court of Appeals took a different approach:
- “Residence in Michigan is defined as a place of abode accompanied with the intention to remain. Domicile and residence in Michigan are synonymous terms. Today in our mobile society physical presence for a longer period of time is no longer the key factor it once was. For many purposes, residence must be considered in light of a person’s intent. Presence, abode, property ownership and other facts are often considered, yet intent is the key factor. This has been recognized in most jurisdictions and repeatedly cited. The record amply supports plaintiff’s claim that she did not abandon her Michigan residence and establish Kentucky as her place of residence.” 73 Mich App at 280-282 [Internal citations deleted].
- “Plaintiff did not expect the reconciliation with her husband to be successful. Nevertheless, she made an effort. Almost immediately she discovered that the reconciliation would not work. Because of fear of harm to herself and fear of the loss of her child she was unable to return to Michigan. The trial court after a hearing on the matter made a proper finding.” 73 Mich App at 283.
The issue of residency can be resolved by determining the intent of the party claiming it. However, it is not enough for a party to go into court and simply assert under oath that he or she intended to live in Michigan. Courts must examine all of the circumstances of the case and determine if the party’s words are supported by the party’s actions. In Toukhli v Toukhli, unpublished per curiam opinion of the Court of Appeals decided September 30, 2004 (Docket No. 252087), a divorce action was dismissed for lack of jurisdiction because the evidence showed the plaintiff lived in Pennsylvania despite claiming she intended to maintain Michigan as her domicile. The Michigan Court of Appeals noted the following:
- “The trial court, after examining the material presented and hearing arguments, determined that plaintiff had in fact established residency in Pittsburgh, and thus, did not meet the statutory 180-day residency requirement of MCL 552.9(1). Substantial material supports this finding of fact. Plaintiff moved back to Michigan from Pittsburgh some time between December 2, 1994, and December 4, 1994, and she filed her divorce complaint on December 22, 1994. She contends, however, that despite her physical presence in Pittsburgh, she intended to remain a resident of Michigan. The issue of legal residency is largely one of intent.”
- “The record indicates that the parties moved together as husband and wife to Pittsburgh. They took marital property with them and bought furniture together for their apartment. Plaintiff admits that the couple even opened a joint checking account in Pittsburgh. There is no indication that the couple opened such bank accounts or any account in Michigan. Plaintiff claims that she only took her clothing to Pittsburgh and left other personal property in Michigan. This contention seems to be contradicted by statements made to the court before this issue arose. First, defendant claimed that he was missing a briefcase. Plaintiff stated that she had searched her property brought back from Pittsburgh and the briefcase was not with it. Second, plaintiff asked the court for a monetary property settlement because, when she moved back to Detroit, she did not bring anything with her. Given these facts, it seems that plaintiff stated that she left personal property in Pittsburgh despite the fact that she brought property back to Michigan. Plaintiff never stated that this personal property consisted only of clothing until defendant raised the jurisdiction issue.”
- “Plaintiff also attempts to demonstrate her intent to remain a Michigan resident by mentioning the fact that she left her car in Michigan when they moved. Plaintiff did not bring up this car until after defendant raised the jurisdictional question. There is no mention of a car in the property settlement the parties articulated on the record, and defendant argues that he never knew of plaintiff owning a car. Given the facts as they appear on the record, this does not seem to be a clear indication of intent. Plaintiff also points to a tax liability incurred during the year of her marriage when she lived in Pittsburgh. But this liability does not indicate when it occurred. It is undisputed that plaintiff returned to Michigan in December 1994. The liability could stem from the time after her return. In all, plaintiff’s evidence of residency in Michigan does not leave this court with a definite conviction that the trial court’s conclusion, that she did not meet the residency requirements of MCL 552.9(1), was erroneous. The court lacked jurisdiction to hear the case and, thus, dismissal was proper.”
The question of jurisdiction in your divorce case can make or break it. You need a skilled family law lawyer in your corner to properly advocate your position and give you the best chance for a good outcome. If you or a loved one has questions about any family law issue or needs legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.