Skip to main content
A Better Partnership
August 06, 2013

MSC Establishes Bright-Line Rule That Child of Divorce's Domicile Is Where Custody Order Says It Is

The entire Michigan Supreme Court bench agreed that a child may have only one domicile for purposes of the no-fault act, in an opinion which established a new bright-line rule that a child of divorce is domiciled as a matter of law where the family court custody order says he is (or establishes the residence where he spends the most time). Accordingly, cases involving children subject to custody orders do not have open fact questions as to the legal domicile of the child.

However, three justices - Zahra, Markman, and McCormack - concurred in the result only, arguing that a custody order should only provide a rebuttable presumption of domicile, since many families eventually end up agreeing to amended custodial arrangements without returning to the family court for a new order reflecting the change. That situation, argued the concurrence, results in insurance companies not being able to appropriately assess risk by simply asking insureds, "Who lives with you?"

The holding was applied in two cases before the Court, both involving insurance coverage disputes where the lower courts were asked to determine coordination questions that turned on where the minor child of divorced parents was domiciled. In Grange Ins. Co. v. Lawrence, the Court of Appeals held that the child had two domiciles because her parents exercised joint physical custody. In Automobile Club Ins. Ass'n v. State Farm, the Court of Appeals held that a question of fact existed as to the child's domicile. Both of these decisions were reversed by the Supreme Court based on its holding that the custody orders in those cases controlled - placing domicile with the parent where the child is most often. So, a child may have two residences, but can only have one legal domicile.

The fly in the ointment to that approach, as the concurrence points out, is that in the case of exactly equal joint physical custody between parents, the child will have alternating domiciles depending on the child's residence at the exact time of the event giving rise to the insurance claim. See footnote 78, which is likely to spur new provisions in custody orders establishing one official domicile where a child shares time equally between two residences. Otherwise, insurance coverage for children of divorced or unmarried parents is going to be uncertain -- or Mom and Dad will need to both purchase the same insurance coverage for Junior.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.

ACCEPTCANCEL

Text

+ -

Reset