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DIVORCE 18: Residency requirement for filing divorce is 180 days immediately preceding the filing.

The present case is a divorce action involving parties who currently reside in two different states. Parties married in November 2009, and they have two minor children. During their marriage, the couple moved several times. The couple began their married life in Georgia, where they met, married, and had their son. The family stayed in Georgia until June 2012, when they moved to Michigan.

According to Defendant, the move to Michigan was always intended to be temporary, and she and Plaintiff ultimately wanted to return to Georgia. Regardless, between 2012 and 2014, the family lived in Michigan.

In August or September 2014, the parties and their children moved to Wisconsin. Although the parties agree that they moved to Wisconsin in 2014, the evidence is conflicting with regard to whether they intended to remain there. Plaintiff maintained that the move to Wisconsin was never intended to be permanent and that the family always planned to return to Michigan, where he hoped to obtain an electrician apprenticeship. In contrast, Defendant emphasized that Plaintiff had a permanent job, and she testified that the family really liked Wisconsin, that they had no intention of returning to Michigan, and that they would have stayed in Wisconsin if Plaintiff had not eventually lost his job.

In the spring of 2015, Plaintiff lost his job, and he began a new job in Indiana in August 2015.

Defendant testified that, after moving out of the Wisconsin apartment in October 2015, the couple placed their belongings in storage, and Defendant and the children visited Plaintiff’s family for a few weeks in Michigan

In November 2015, the family flew to Georgia to visit Defendant’s family for Thanksgiving. After the holiday, Plaintiff returned to Indiana by himself. Defendant and the children stayed in Georgia, and remained in Georgia with her family and the children following a marital dispute.

In December 2015, Defendant filed a complaint regarding child custody, visitation, and child support in Georgia state court. In January 2016, while the Georgia case remained pending, Plaintiff filed a complaint for divorce in Michigan, seeking sole legal and primary physical custody of the children.

In February 2016, the circuit court declined to exercise jurisdiction over the custody matter under the UCCJEA, reasoning that neither Michigan nor Georgia was the children’s home state and, considering the children’s ties to the respective states, the Georgia court should make the initial custody determination.

The circuit court held a second evidentiary hearing for the divorce complaint, following which the circuit court determined that Plaintiff did not meet the residency requirements of MCL 552.9(1) because he was a resident of either Indiana or Wisconsin, not Michigan, during the relevant period.

In particular, Plaintiff makes two basic arguments regarding residency. First, he claims that he has resided in Michigan since 2012, when the parties moved to Michigan from Georgia, and that his time living in Wisconsin and working in Indiana was merely a temporary absence from Michigan. Second, Plaintiff asserts that, even if he became a Wisconsin resident in 2014, he reestablished Michigan residency in July 2015, after he lost his job, at which time he claims that the parties and their children moved from Wisconsin to Plaintiff’s parents’ home in Michigan.

At issue in this case is whether Plaintiff satisfied the jurisdictional residency requirement contained in MCL 552.9(1), which provides that 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.

The term “resided” is understood to require physical presence plus an intention to remain. Residence must be considered in light of a person’s intent. Property ownership and other facts are often considered, yet intent is the key factor. Consequently, an established domicile is not destroyed by a temporary absence if the person has no intention of changing his or her domicile.

Although Plaintiff eventually obtained an apprenticeship in Michigan sometime near the end of 2015, and he now apparently resides in Michigan, the relevant question is Plaintiff’s residence from July 2015, i.e., 180 days before he filed his complaint for divorce. MCL 552.9(1). Consequently, because the record supports that Plaintiff did not reside in Michigan for the required residency period, the circuit court did not err by dismissing Plaintiff’s 2016 complaint for divorce.

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FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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