Venue is Proper Where Defendant Resides in Michigan Divorce Cases

Oct 12 07:22 2015 Cameron C. Goulding Print This Article

Divorce lawyer from Rochester area of Oakland County Michigan explains why the relatively common practice of moving from one county to another county and then filing for divorce in the new county is a violation of the Michigan venue statute.

 

I am a divorce lawyer with my office in Auburn Hills,Guest Posting Oakland County, Michigan.  My office is easily accessible to Troy, Rochester, Clarkston, Holly, Oxford and Lake Orion. 

 

One practice that is relatively common in family law cases where married people are residing in separate counties is that the person filing a complaint for divorce (the plaintiff) will file the complaint in the county where he or she resides. 

 

The Issue

 

Is venue appropriate in the county where the plaintiff resides or where the defendant resides?

 

The Answer

 

The case of Funk v Funk, COA 319467, April 2, 2015 (Unpublished) has indicated that this is not appropriate and the court should order the filing party to pay attorney fees to the other party if he or she objects to the venue.

 

Jurisdiction is appropriate in Michigan divorce cases where one of the parties has resided in Michigan for at least 180 days.  Venue is appropriate in a county where a party has resided for at least ten days prior to the filing of the motion.  In the Funk case, it appears the wife moved out of the marital residence into another county and filed for divorce in the new county. 

 

The wife’s new residence was located in Ingham County while the husband remained in Calhoun County.  The husband filed an objection to the venue and the court agreed.  It ordered the matter transferred to Ingham County and awarded the husband attorney fees.  It found that the statute provides a list of priorities for filing and the first priority is where the defendant has resided for at least ten days.  The county where the plaintiff resides is only a proper venue if there is no county in Michigan where the Defendant has resided for at least ten days. 

 

The Michigan Court of Appeals affirmed this ruling.  This is an interesting case in that it is not uncommon for a person to move out of the marital home and into a neighboring county where he or she may perceive that his or her case would receive more preferential treatment.  That party then files the complaint for divorce after "residing" in that county for ten days.  Prior to this decision, most courts allowed the case to continue where the person filed it.  I was at a very large seminar of knowledgeable attorneys shortly after the Court of Appeals issued this decision.  A speaker presented this fact scenario to the audience without advising the audience of this decision and all but three or four attorneys appeared to agree that venue was proper where the Plaintiff resided (I read the case so I did not agree).

 

In fact, one of the arguments made by the Plaintiff in Funk against the award of attorney fees was that it is common practice to file a complaint for divorce in the county where the plaintiff resides instead of the county where the defendant resides.  The Court of Appeals completely disregarded this argument stating that the fact that many attorneys and judges allegedly misapply the statute does not somehow transform the venue argument into an issue with legal merit.

Summation

It appears that this form of venue shopping should not work anymore if the attorney for the defendant is aware of this case and files an objection as the first response to the complaint for divorce.  If the counsel for the defendant fails to do so, then the objection is waived and the case will proceed in the county where the plaintiff filed it.  As a side note, it appears that if one spouse (stationary spouse) is planning to file for divorce and the other spouse (relocating spouse) moves to another county and resides there for ten days, it would appear that the stationary spouse would either have to (a) file in the county where the relocating spouse resides; or (b) wait for the relocating spouse to file in the stationary spouse's county, or (c) argue that the relocating spouse's county is an inconvenient forum for the divorce proceedings as defined by statute in Michigan. 

 

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About Article Author

Cameron C. Goulding
Cameron C. Goulding

Cameron C. Goulding, North Oakland County Michigan divorce lawyer and family law attorney has been providing the highest level of service to divorcing couples in Oakland, Macomb and Wayne Counties for over sixteen years. Mr. Goulding graduated from Michigan State University in 1993 and Wayne State University Law School in 1996. Visit http://www.northoaklandmichigandivorcelawyer.com/for answers to your Michigan divorce and family law questions.

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