A party must reside in Michigan for at least 6 months and in the county where the divorce is filed for at least 10 days. If those jurisdictional requirements are not met, the divorce can be dismissed for lack of jurisdiction. In Berger v Berger __ Mich App __, __ NW2d __ (2008) (Docket No. 279025 decided January 31, 2008), the Michigan court of appeals dealt with a key issue of residency.
The parties resided in Macomb County, but the wife moved to Jackson County and filed for divorce. Husband challenged jurisdiction, claiming that because she did not live in Jackson County for the entire 10 days preceding filing, jurisdiction was improper.
The COA relied upon Leader v Leader, 73 Mich App 276, 281, 283; 251 NW2d 288 (1977) in rejecting his claim. The Berger panel stated:
"The Leader case establishes two important principles applicable to case at bar. First,
determining residence or domicile requires a multi-factor analysis, but the preeminent factor is the person’s intent. Second, an established domicile is not destroyed by a temporary absence where the person has no intention of changing his/her domicile. The trial court properly applied the first principle in finding that plaintiff established Jackson County as her residence on December 16, 2005. The court applied the second principle in finding that plaintiff “resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint” even if plaintiff slept one night in her Ann Arbor apartment during that 10-day period."
There are some other issues dealt with by the Berger panel that bear review of its decision.
1) Established custodial environment. Factually, every case is different, and the court's determination is based upon those specific facts. In Berger, Husband claimed that Wife was so busy outside the home that she could not have had an established custodial environment. The COA held that the trial court properly determined that the children primarily looked to their mother for guidance, discipline, the necessities of life, and parental comfort. The plain fact is that the COA will not substitute its opinion for that of the trial court.
2) Moral fitness of the parties. The Michigan supreme court previously held that an extra-marital affair in and of itself doesn't impact a party's moral fitness under the Best Interest factors. In Fletcher v Fletcher, 447 Mich 871, 876-877 (Brickley, J.), 900 (Griffin, J.); 526 NW2d 889 (1994)the Court held that a spouse’s extra-marital affairs are “questionable conduct relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.” Fletcher, supra at 877. The Fletcher court cited examples of such conduct in footnote 6. Examples include, but are not limited to, “verbal abuse, drinking problems, driving record, physical or sexual abuse of children, and other illegal or offensive behaviors."
In Berger, because the Husband chose to have an affair with the nanny (Wife's cousin) . . . in the house where he lived with the children . . . this called into question his judgment. His decision to seek self-gratification over the needs of his children resulted in the trial court properly finding that his wife prevailed on this factor.
3) Advanced degree as a marital asset. The husband sought an award of his share of the present value of Wife's bachelor's degree and master's degree in fine arts, citing Postema v Postema, 189 Mich App 89; 471 NW2d 912 (1991). The COA rejected his claim. Postema allows for reimbursement to a non-degree earning spouse if that spouse contributed to earning the degree. The proper method of valuation is not by establishing present value, but is a restitution value.
4) Imputation of income. Wife wanted to be a stay-at-home mom, possibly teaching dance part time. The COA held that income should be imputed to her on the basis of her capacity to earn given the advanced degree that was earned during the marriage.
5) 70% / 30% division of assets. The trial court awarded Wife 70% of the marital assets and Husband 30% of the assets. The COA reversed this and remanded to the trial court for a more fair division, stating that the trial court seemed to be attempting to punish the Husband because of his affair.
You may read Berger v Berger here.