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DIVORCE 60: Plaintiff retains the right to oppose recognition and enforcement of the India divorce decree.

The parties were married in India. In the years after their marriage, the parties lived in Michigan. Throughout the marriage, the parties disagreed about having children. During a 2019 visit to India, the parties consulted with a doctor about starting invitro fertilization treatments, but plaintiff ultimately decided against a pregnancy.

Petition for Divorce in India

On June 10, 2019, defendant filed a petition for divorce in India. There were several subsequent hearings in the India case that plaintiff appeared for by proxy as is provided for by India law.

After returning to the United States, plaintiff filed a complaint for divorce in the instant case on January 26, 2020.

Summary Disposition

Defendant moved for summary disposition under MCR 2.116(C)(6), arguing that the India court has jurisdiction and that this case and the India case involved the same claim under the court rule. The trial court agreed and dismissed plaintiff’s complaint without prejudice.

Summary disposition is appropriate under MCR 2.116(C)(6) when another action has been initiated between the same parties involving the same claim. This subrule applies even when the other action is in a foreign court. Both the India action and the Michigan action involve the same parties and the same claim, i.e., a request for dissolution of the marriage.

No-fault vs Proof of Fault

Plaintiff argued that the case in India does not involve the same claim as the Michigan action because the two jurisdictions grant divorces on entirely different bases. While Michigan has a no-fault divorce law, the Hindu Marriage Act requires proof of fault to obtain a divorce.

Plaintiff therefore contends that the Michigan and India courts, respectively, will rely on different operative facts in adjudicating the parties’ divorce. However, while Michigan spouses are not required to prove fault to obtain divorce, fault may be relevant to the divorce proceedings. For example, in cases where a party seeks spousal support, as plaintiff does, the trial court will consider several factors including the length of the marriage, the parties’ ability to pay, their past relations and conduct, their ages, needs, ability to work, health and fault, if any, and all other circumstances of the case. Further, trial courts in Michigan may consider fault in dividing a marital estate. Thus, plaintiff’s contention that the India action is based on a different set of facts is not accurate.

India Divorce Decree Recognition in Michigan

Plaintiff retains the right to oppose recognition and enforcement of the India divorce decree. However, whether the India divorce decree should be recognized and enforced in Michigan can only be determined after it has been issued.

Experienced Advice to Clients Facing Divorces

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FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

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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