What are Michigan's residency requirements for divorce action?

Recently, two different cases have presented here with interesting and critical questions of residency for the purposes of filing for divorce. In Michigan, a no-fault divorce state, the trial court’s authority to grant a divorce is strictly statutory. The relevant statute, MCL 552.9 provides as follows:

(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.

Note that there are some minor exceptions in MCL 552.9(2), but those are unusual cases.

The issue whether a party actually met these residency requirements on the date of filing is a very important question because the parties may not confer subject matter jurisdiction upon the trial court.

If one of the parties has not resided within Michigan for 6 months and within the county where the case is filed for at least 10 days, that court lacks subject matter jurisdiction. Because lack of subject matter jurisdiction may be raised at any time, even on appeal, one would always want to be certain that jurisdiction is proper. Don’t leave the other party an appellate parachute in the event that he or she doesn’t like the result.

When a client is residing overseas—whether that is for employment in the private sector or because of military service—that person has not lost residency in the State and County of their usual residency. The same applies to college students, e.g. a person who moves from their Michigan family residence to California for the purpose of attending college.

The controlling factor is whether these folks consider their Michigan residence as a permanent home where they intend to remain. The leading case is Leader v Leader, 73 Mich App 276 (1977). According to Leader, this means something more than actual physical presence. The Leader panel noted that, for the purpose of establishing subject matter jurisdiction, residence and domicile are synonymous terms in Michigan.

The court then stated that while presence, abode, property ownership, and other facts are considered in determining residence, “intent is the key factor.” Id. at 281. The terms residence and domicile have the same meaning for county residency as for state residency. Thus this body of law is controlling when contesting subject matter jurisdiction alleging that the filer had not resided the requisite 10 days in the county of filing or that he or she had not resided in Michigan for at least 6 months.

The most unusual case of this type that I handled was in Kent County. My client resided in Saudi Arabia, employed as a city planner for the King. His wife resided in Cyprus with their older daughter. The younger daughter resided with her father in Saudi Arabia (but had to leave when she reached the age of 12, as female children of ex-pats were not welcome past the age of puberty).

Opposing counsel and I filed a joint motion to confirm subject matter jurisdiction, and stipulated in support of the motion the following evidence that supported the parties’ intent to remain:

• Each party maintained a Michigan driver’s license issued in Kent County
• Each party was a registered voter in Kent County, Michigan with an current history of regular absentee voting
• The parties jointly maintained furniture in storage in a Kent County, Michigan warehouse.
• They maintained bank accounts in Kent County.

Other types of relevant evidence might include evidence that the parties spent holidays or vacations in the county and State, library cards, a postal box or safe deposit box, a residence that a party continues to own in the county and state, real estate taxes paid, a dentist or doctor that the person maintains a current relationship with and consults with when back in the county and state on vacation or leave, etc.

Note that mere physical presence in a county for 10 days does not establish residence. See Lehman v Lehman, 312 Mich 102 (1945). There, the parties maintained a home in Detroit, and the husband visited relatives in Chippewa County. After 10 days in Chippewa County, he filed a divorce action there and then returned to his job in Detroit. The court in Chippewa County ruled that it had no jurisdiction to issue a divorce decree.

For recent case law, you would do well to review Stamadianos v Stamadianos, 425 Mich. 1 (1986).

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Comments

[lidia]

Now everything I have read does say live in the state for 180 days but is it AND or is it OR have been in the county 10 days? I am currently living in Houston, TX and will be getting a divorce. I understand that if a divorce is filed here my spouse will most likely be able to put distance restrictions on me. I am from Lansing Michigan and only left there 5 years ago. I maintain a bank account there and ALL of my family. Here in Houston I have no support and no family. I do not want a restriction to be put on me that will not allow me to move back to my family after my husband of 10 years decides to leave our home and end our marriage. He has not been monetarily providing for the past 4 months and our home is soon to go into foreclosure. If I go to michigan immediately and file after 10 days will that be suffice? Or will I have to wait 180 days? and in the mean time he will file in TX to force me to come back?

Native Michigander

[Jeanne M Hannah]

Lidia,

The law requires that you reside in Michigan for 180 days AND you reside in the county of _________ for 10 days prior to filing. Residing 10 days in a county in Michigan, after having resided in Texas for 5 years will not result in jurisdiction in Michigan. You should consult an attorney in Houston, Texas, because jurisdiction will be there.

[Kelly Kay]

I am thinking about divorcing my husband after 10 years of marriage. I have been the main breadwinner for the entire marriage and he has refused to hold any kind of full time job (contributing less than 1/2 of the family income). This was never our mutual decision (he was fired from his family business after 3 months of marriage). Is there a law that states he will receive 1/2 of everything after 10 years of marriage? Thank you, Kelly Kay