Divorce & Jurisdiction

One of the first considerations  when filing for divorce is deciding where to file?  To grant a judgment for divorce a court must have jurisdiction over the parties, otherwise the judgment is meaningless.  To get jurisdiction you must file your complaint in the proper court.

To file a divorce case in  Michigan, you must reside in the state for 180 days before the date of filing.  You must also reside in the particular county   for at least 10 days before filing the complaint.  The question here is what is the legal definition of “residing”?

The key factor to establishing that you have resided in a place is your intent to stay there.  Presence in a county, even for long periods of time, will not establish residency if the court doesn’t believe you intended to make the place your domicile.  One example is a prisoner who intends to leave the county he is imprisoned in after the incarceration ends.  He would not have met the residency test and the court in the county where the prison is located would not have jurisdiction over a divorce case if brought there.  Even property ownership within the county where jurisdiction is being sought would not be enough to establish residency if the intent test wasn’t met.

If this requirement is not met, then issue of subject matter jurisdiction has not been satisfied  That means that even after a final judgment, a party could raise this defense on appeal for the first time and have the trial court’s judgment dismissed (most issues may not be raised on appeal if not objected to in the trial court).

What if each party to a divorce files their own complaint in different counties?  The rule is that the court who received the complaint first will have jurisdiction.  How about two different states?  Either state has jurisdiction.  Of course, the residency test must be met first for both of these situations.

There is also an exception to the 10-day rule.  If the court has information allowing it to reasonably conclude that there is the possibility that the parties’ minor children could be taken outside the U.S. and that they could be kept there by the non-filing party(who is not a U.S. citizen) then the court may waive the county residency rule.  This exception to the rules is intended to insure that the children are not improperly removed from the country.

If you wish to file your complaint seeking divorce in a particular county then it is important that you are aware of, and follow, the residency requirements.  Otherwise  you could spend a great deal of time and money on a case that could ultimately get thrown out, sending you back to the start of the entire proceeding.

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