Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616.608.4634

Divorce

Change of Domicile and the 100 Mile Rule

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Change of Domicile and the 100 Mile Rule

Are you contemplating moving out of town or out of state with your child? Will this move be more than 100 miles from the child’s current legal residence? Has the court awarded you joint legal custody or sole legal custody?

 Before you decide to move with your child, you should review your court order. Did it grant both of you joint legal custody of the minor child? If so, you will be unable to move with the child more than 100 miles from the child’s current legal residence without consent of the other parent, or permission from the court. The child’s legal residence is where each the parties lived on the day the order was signed by the judge. This is called the 100 Mile Rule.

Did your court order grant you sole legal custody of the minor child? If so, this is the exception to the 100 Mile Rule. If you have sole legal custody, you will not have to seek the consent of the other parent, or the permission of the court if you want to move more than 100 miles from the child’s legal residence. You have determined that you have joint legal custody of the minor child. And let’s assume the other parent will not consent. You will need to pursue your request for a change of domicile through the court. The court will review the factors found in MCL 722.31 to determine if they will grant your request for a change of domicile.

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MCL 722.31 Factors:

  1. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
  2. The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
  3. The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
  4. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

When applying these factors, the court’s main focus is whether the move will improve the quality of life for both the child and the relocating parent, not just the parent. The focus must remain on the child. Courts want to hear about quality of life issues such as:

  1. The quality of the schools in the proposed location. The court will determine if the school is comparable to the child’s current school.
  2. The availability of extra-curricular activities. If the child is currently involved in extra-curricular activities, what is the availability of similar activities for the child in the proposed location.
  3. The presence of extended family in the current location verses the proposed location.
  4. Any other factors that provides the curt with specifics of how this move will enhance the child’s life.

Because of the complexity of a change of domicile case, it can be difficult to represent yourself. Furthermore you can expect that the results for a change of domicile case will vary significantly from court to court, as courts interpret the standards for a change of domicile very differently.

To conclude, it is best to seek the advice of a family law attorney versed in change of domicile cases prior to you filing any motion seeking to move with the child.

Marital Property versus Separate Property

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When is property considered separate property, and therefore not divisible in a divorce?

Courts make the distinction between marital property and separate property.  Marital property is simply property acquired during the marriage.  However, the Michigan statutes fail to define separate property.  Nevertheless, courts typically adopt the rule that separate property is property that is not divisible in a divorce because it was owned prior to marriage or acquired during marriage through a gift or inheritance.  If it was owned by a party prior to marriage, it normally will be awarded to that party.

But, there are times when separate property can be divided in a divorce.  Michigan case law supports the proposition that property claimed by one spouse to be separate property may be divided if the other spouse meets on of two statutory tests:

  • Contribution Test: that the claimant contributed to the “acquisition, improvement, or accumulation of the property” MCL 522.401.
  • Need Test: that the award to the claimant out of marital assets is “insufficient for the suitable support and maintenance” of the claimant and any children in their care.  MCL 552.23.
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What happens if you received an inheritance during the marriage?  If you receive an inheritance while you are married, and want that inheritance to remain separate property, you must never co-mingle it.  What does this mean?  It means that once you have co-mingled it with joint property, you cannot separate it.  It’s like making a cake.  Once the ingredients have been mixed together, you cannot separate them out, as they are indistinguishable.  Hence, if you want to protect an inheritance, you need to maintain it as separate funds.  Once the funds have been co-mingled, it will likely be considered marital property.

If you find yourself in the midst of a divorce, and have received an inheritance, or owned substantial property prior to your marriage, you need to know how to protect your property during your divorce.  As this is a complex subject, you should contact a family law attorney who can provide you with a legal opinion based off your specific facts.