It often happens that one or the other parties to a marriage files for divorce while the parties are still living together. In fact, depending on the situation, some couples remain living together even after their divorce is final. However, it is also often the case that the parties have already separated by the time one of the parties files for divorce. Perhaps the spouse who has left has even moved to a different state. Regardless of where they live, either party can choose to file for divorce. However, the question becomes not one of whether you can file, but where.

What is Personal Jurisdiction?

Whenever a party sues another party – and a divorce is a lawsuit – they must do so in a court that has jurisdiction over the party they are suing. Jurisdiction over a particular party or entity is called “personal jurisdiction.” This is not to be confused with “subject matter jurisdiction,” which is also required in every lawsuit. However, we will have to leave the discussion of subject matter jurisdiction to another article. The idea behind the requirement of personal jurisdiction, though, is that a party should only be able to be sued in a court in which it is fair and reasonable for that party to be sued. If a court does not have personal jurisdiction over a party – i.e. if it is not fair and reasonable to sue that party in that particular court – that party can ask the court to throw out the lawsuit.

To see how this works, let’s assume that the husband has remained in Michigan (where the parties lived together), and the wife has moved to Ohio. If the husband wants to file for divorce, which state – or states – can he do it in? For one, he can sue in Ohio. The state where the party being sued lives always has personal jurisdiction over that party. This makes sense; the fairest place to sue someone is in the state in which they live. However, for reasons of convenience, the husband still living in Michigan may not want to litigate his case in Ohio. Or, the husband may feel that Michigan’s laws are more favorable to him than Ohio’s. Can he sue in Michigan, instead?

Does Michigan Have Personal Jurisdiction?

The test for personal jurisdiction in Michigan has two parts, both of which have to be fulfilled: a statutory component and a constitutional “due process” component. The statutory component can be fulfilled if: 1) the party being sued is personally served with the divorce complaint in Michigan; 2) the party being sued is brought into the Michigan court by public notice of the lawsuit or by an order for appearance; or 3) the party being sued voluntarily files an appearance in the Michigan court.

In addition to these three ways, the statutory component can also be fulfilled if personal jurisdiction is granted by Michigan’s “long arm” statute. It is called the “long arm” statute for a reason: it provides a list of situations in which Michigan can reach into another state and exercise jurisdiction over another state’s resident. The legislature has deemed it fair to exercise jurisdiction in those situations because the person being sued has purposely created a relationship with Michigan, and the lawsuit arises out of that relationship. The seven relationships that fall under long arm jurisdiction are:

• The transaction of any business within Michigan;
• Committing an act that results in an injury in Michigan;
• Owning, using, or possessing real estate or personal property in Michigan;
• Entering into a contract to insure a person or thing located in Michigan;
• Entering into a contract for services to be provided or materials to be purchased in Michigan;
• Acting as a director or officer of a corporation that was incorporated in Michigan or has its principal place of business in Michigan; or
• Maintaining a residence in Michigan while being part of a marital or family relationship that has given rise to a claim for divorce, alimony, separate maintenance, property settlement, child support, or child custody.

As mentioned above, even if the statutory component of personal jurisdiction is fulfilled, the constitutional “due process” requirement must also be met. This test can be difficult for courts to apply, because it is not black-and-white. Instead, Michigan courts are to decide on a case-by-case basis whether it is “fair” and “just” for the person being sued to be brought into court in Michigan – i.e. will it violate the person’s due process rights under the Constitution for he or she to have to defend himself or herself here?

In making this determination, the courts are to look at all of the factors involved, such as how burdensome it will be on the person being sued to litigate in Michigan, Michigan’s interests in having the case heard here, the interests of the party filing the case in obtaining convenient and effective orders of the court, and any other relevant factors. The Michigan Court of Appeals has broken the due process analysis down into a three-part test: 1) the person being sued must have intentionally conducted activities in Michigan, thus invoking the benefits and protections of Michigan’s laws; 2) the lawsuit must be based on the person being sued’s activities in Michigan; and 3) the person being sued’s activities must be sufficiently connected with Michigan for it to be reasonable to exercise jurisdiction over that person. If both the statutory and due process components of personal jurisdiction are satisfied, Michigan has personal jurisdiction.

Navigating the Waters of Personal Jurisdiction

As we have seen, whether an out of state spouse can be sued for divorce in Michigan is dependent upon whether Michigan has personal jurisdiction over that out of state spouse. The question of personal jurisdiction can be a complicated one, and the several tests and requirements involved give a skilled attorney numerous opportunities to advocate for or against the exercise of jurisdiction in Michigan. Having a skilled attorney can be the difference between being able to bring your case in Michigan and having to travel out of state to a court where the law may be significantly less favorable.

Can’t Find an Answer to Your Question About Filing for Divorce Against an Out of State Spouse?

If you have a question about filing for divorce against an out of state spouse that was not included in this article, please call our office and Michigan family law and divorce attorney Carlo J. Martina can answer your questions. Mr. Martina can also represent you in all family law and divorce proceedings to ensure your rights and interests are protected.

Call Michigan divorce lawyer Carlo J. Martina today at (734) 254-1140 to schedule a consultation.