People who are in the armed services or who are employed abroad do not lose their residency and do not lose subject matter jurisdiction in a County in Michigan and in the State of Michigan so long as they can demonstrate the requisite “intent to remain” under Michigan law.
Service persons and/or employees working abroad | residence of intent. All servicepersons must declare a legal residence to the DOD—this is the residence to which they intend to return upon leaving the service. In Michigan the rule of law is that the intent to remain citizens of Michigan is sufficient to confer subject matter jurisdiction over a divorce in a Michigan court.
Intent is everything in terms of deciding whether a court has subject matter jurisdiction over a divorce. [Bear in mind that custody is different, and the UCCJEA, which operates on issues of fact, not intent, controls.]
Even if people aren’t in the service, but rather are living abroad because of employment in a foreign country, they do not lose their citizenship or their residency. There is always some State in the country that should exercise subject matter jurisdiction over a divorce if asked to do so. I will use Michigan in this example. This is a factual analysis. A party is not required to be physically present in the State or county of filing in order to have residency sufficient to meet subject matter jurisdictional requirements.
Some indicia of intent to permanently reside in Michigan are:
(b) Michigan was the parties’ domicile immediately prior to leaving the United States;
(c) The parties have driver’s licenses in Michigan, and/or voter registration, library cards, doctors who are regularly visited upon returns to Michigan for vacations, or property stored in Michigan, or real estate owned in Michigan, etc.;
(d) The parties pay property taxes in Michigan and federal taxes in the U.S.;
(e) The parties' residency permits to live and work in another country are temporary;
(f) The parties pay utility bills in Michigan and/or receive mail in Michigan;
(g) The parties maintain primary bank accounts and/or investment account in Michigan;
(h) The parties pay into the U.S. Social Security system under a treaty between a foreign country and the U.S. (rather than participate in any retirement program of another country);
(i) The parties maintain private health care insurance rather than participate in any kind of socialized medicine program in a foreign country.
It has long been Michigan law that a citizen doesn’t give up his or her right to seek a divorce in the State and county of their last residency just because they are in the military and stationed abroad or just because their employment takes them abroad. What matters is domicile coupled with an intent to remain.
The definitions of "domicile" and "residency" are remarkably consistent. Regardless of the word used, the statute requires a combination of two elements: (1) physical residence within the forum state for a stated period of time, and (2) intention to remain indefinitely. If these requirements are not met, the court lacks subject matter jurisdiction. Leader v Leader, 73 Mich App 276, 281, 283 (1977); Berger v Berger, 277 Mich App 700 (2009).[Physical residence does not require absolute physical presence for the entire relevant period. A period of temporary absence can be included in the residency period, so long as the absent spouse intended at all times to return to his or her domicile.]
Temporary employment assignments do not change the employee's domicile. The most common example is military service, which has no effect upon the domicile of the service member. Thus, service members are generally deemed to retain their domicile at their time of induction into the service, unless they positively decide otherwise by changing their home of record in their military personnel file.
In addition to the two Michigan cases cited above, see, e.g., Bernhard v. Bernhard, 447 Pa. Super. 118, 668 A.2d 546 (1995). [The husband's military file listed Pennsylvania as his home of record. Both parties had Pennsylvania driver's licenses and Pennsylvania voter registrations. The court held that they were domiciled in Pennsylvania, despite 15 years of residence in Maryland while the husband worked on various military assignments.]
See also Wamsley v. Wamsley, 333 Md. 454, 635 A.2d 1322 (1994) [The husband listed Maryland as home of record, voted there, registered cars there, and paid taxes there; upholding Maryland domicile]; Klindt v. Klindt, 888 S.W.2d 424 (Mo. Ct. App. 1994) [The husband's acceptance of temporary employment in Minnesota and Georgia did not affect his Missouri domicile; husband retained his Missouri voter registration, car insurance, and driver's license].
In the context of disputes over domicile and subject matter jurisdiction, courts have also applied the temporary absence concept to longer periods of non-residence which occur when the spouses live in different jurisdictions. See Bourbon v. Bourbon, 259 A.D.2d 720, 687 N.Y.S.2d 426 (1999) (wife lived in New York, while husband lived part-time in France; wife's regular visits to France did not change her New York domicile).
Where the plaintiff spouse resides in the forum state with the intention to remain permanently, the reason for that intention is generally not relevant. In particular, domicile exists if the plaintiff spouse intends to remain indefinitely, even if the reason for that intention is to satisfy the residency requirement and obtain a divorce. See In re Kimura, 471 N.W.2d 869 (Iowa 1991); Fletcher v. Fletcher, 95 Md. App. 114, 619 A.2d 561 (1993); Hager v. Hager, 79 Ohio App. 3d 239, 607 N.E.2d 63 (1992).
A State can have subject matter jurisdiction to grant a divorce because it is the parties’ matrimonial domicile, even though employment or military service took the couple abroad. Intent is key. Although Michigan courts have not so held, other jurisdictions have held that where the forum state is the parties' last matrimonial domicile, that fact alone is a sufficient contact to permit exercise of personal jurisdiction. If the rule were otherwise, a defendant spouse could avoid jurisdiction simply by leaving the state, making it functionally impossible to obtain financial relief against an unwilling defendant, as the Court stated in Catlin v. Catlin, 494 N.W.2d 581, 590 (N.D. 1992):
See also Panganiban v. Panganiban, 54 Conn. App. 634, 736 A.2d 190, 195 (1995), where the court held:
For additional cases upholding personal jurisdiction in the state of the last matrimonial domicile, see Durand v. Durand, 569 So. 2d 838 (Fla. Dist. Ct. App. 1990); Ali v. Ali, 279 N.J. Super. 154, 652 A.2d 253 (Ch. Div. 1994) (despite husband's move to Gaza; also relying on husband's application for permanent United States resident status); Horlander v. Horlander, 579 N.E.2d 91 (Ind. Ct. App. 1991); Staron v. Staron, 215 A.D.2d 646, 629 N.Y.S.2d 46 (1995); and Reynolds v. Reynolds, 2 S.W.3d 429 (Tex. App. 1999).
When married persons move abroad for military or other foreign service, they generally retain their United States domicile. For example, in Catlin v. Catlin, 494 N.W.2d 581 (N.D. 1992), the parties were domiciled in North Dakota. They then moved to Turkey for the husband's military service. Less than a year later, the wife returned to North Dakota. The North Dakota court held that it had personal jurisdiction over the husband. The last true marital domicile in Catlin was North Dakota, as the parties had no true intention of living in Turkey past the end of the husband's military duty. In Caitlin, as here, the parties were domiciled in North Dakota throughout their stay in Turkey.
When the practical effect of denying jurisdiction will be to force a United States citizen to obtain financial relief in a foreign forum, jurisdiction should be found to permit a US citizen access to a Court in the United States. A good example is Ex parte Brislawn, 443 So. 2d 32 (Ala. 1983). There, the parties spent their wedding night in Georgia. They spent the next 10 days in Alabama, and then moved to Germany for the husband's military service. They separated in Germany, and the wife returned to Alabama and filed a divorce action. The court held that jurisdiction existed, emphasizing that Alabama was the only American state which could possibly have jurisdiction over both parties.
Often, there is only one state in this country that could possibly have jurisdiction over both parties. See for example Crommelin-Monnier v. Monnier, 638 So. 2d 912 (Ala. Civ. App. 1994) (husband and wife lived during marriage in France, but their two children were born in Alabama, and the husband lived in Alabama for 28 and 8 days respectively for the births of the children; asserting personal jurisdiction over husband).
The unspoken premise behind the above cases is that some American jurisdiction must have personal jurisdiction over both parties in every marriage involving an American citizen - at the very least to dissolve the marriage if not to divide property not in the State or to decide child custody issues.
Download The Judge's Guide to the Servicemembers Civil Relief Act by Mark E. Sullivan here.