The Firm  Attorneys Articles Areas Of Practice Contact Us Privacy Policy Disclaimer Links Weblog Home

 

 

Divorce, Dissolution & Separation

Ohio law provides three ways for a husband and wife to end or alter their marital relationship: legal separation, divorce and dissolution of marriage. To obtain a dissolution or divorce, you must be an Ohio resident for at least six months before filing. There is no residency requirement for persons seeking a legal separation. Due to recent changes in the law, the terms "visitation" and "companionship," once used to describe parental rights, now describe the rights of non-parents. "Parent time allocation" and "parenting time" are now used to refer to the time parents spend with their children.

What is a legal separation?

This is a civil lawsuit that does not legally end a marriage, but allows the court to issue orders concerning division of property, spousal support, allocation of parental rights and responsibilities, child support and parent time allocation for any minor children. The parties remain married, but live separately. When a court grants a legal separation, each party must follow the court's specific orders.

What is a dissolution of marriage?

A dissolution of marriage is an action where the parties mutually agree to terminate their marriage. Neither party has to prove grounds to end a marriage by dissolution. This action is only started after the husband and wife have reached a separation agreement as to the settlement of all property, spousal support and, where applicable, child issues. After jointly filing a Petition for Dissolution, the petitioners, husband and wife, must wait at least 30 days before the court can hear their case. The case must be heard within 90 days of filing. At the hearing, the court will review the separation agreement, ask about the assets and liabilities, and determine whether the parties understand and are satisfied with the settlement. If the court is satisfied that the agreement is fair, the parties are in accord and they desire to terminate their marriage, the court will grant a dissolution and order the separation agreement into effect.

What is a divorce?

Divorce is a civil lawsuit to end a marriage. It arises in a dispute in which the husband and wife cannot resolve their problems, and are asking the court to make the final decision and issue orders concerning property, support and children.

A divorce is started by one spouse, the "plaintiff," filing a document called the "complaint" with the clerk of court. In this initial complaint, the plaintiff must select, and eventually prove, the appropriate grounds from those listed in the statutes. Discuss with your attorney why you believe your spouse's behavior justifies the filing of the lawsuit.

The clerk of court serves the other spouse, the "defendant," a copy of the complaint and a summons by certified mail, hand delivery, or by leaving it at the defendant's residence with a person over the age of 18. If the defendant's residence is not known, a legal notice may be printed in a newspaper. However, differences in the law make this method less effective.

Within 28 days after the defendant has been served, the defendant must file an answer in response to the complaint. The defendant can also file a counterclaim requesting a divorce, by stating the grounds the defendant believes are applicable. The plaintiff files a reply in response to the counterclaim.

During the course of the litigation, most suits are settled by agreement between the parties. When this occurs, a separation agreement is prepared, signed by the parties and submitted to the court for approval. When approved, the agreement is made effective by a journal entry of the court.

If the parties are unable to resolve one or more of their disputed issues by agreement, the disputes are presented to the court. The court will review the parties' evidence and make its decision based on Ohio law.

How is property divided after the termination of a marriage?

Ohio statutes define marital and separate property. Marital property is property acquired during the marriage, including real estate, personal property or intangible property such as stocks and bonds, bank accounts and retirement plans. Marital property also may include increases in the value of separate property due to either spouse's work effort, labor or contribution of marital money to the increase in the property's value. Separate property includes all real, personal and intangible property from an inheritance; property owned before the marriage; income or appreciation from separate property not resulting from the labor or substantial effort of either party during the marriage; a gift after the marriage date that is proved to be made to only one spouse; and an award for personal injury, except any part of the award that compensates for lost wages occurring during the marriage, or medical bills from the injury paid with marital funds.

By applying the rules in the statute as well as appropriate case law, the court determines what is and what is not marital property. The marital property is to be divided equally, unless the court explains in writing why an equal division would not be fair. In making the award, the court must apply the eight specific factors listed in the statute and any other factor it finds relevant and equitable.

The court also has the authority to make a "distributive award" from separate property of either party to the other to achieve equity between the parties. When a party has engaged in financial misconduct such as hiding property, dissipating money or funds, or disposing of funds fraudulently, the court may make an award out of the separate property of the offending spouse or make a greater award of marital property to compensate the other party.

What is spousal support?

Changes in Ohio law have substituted the term "spousal support" for what used to be called alimony. Spousal support is awarded to help sustain a spouse after a property division has been awarded. Thirteen specific factors may be considered by the court in making an award. Some of these factors are the ages of the parties, the length of the marriage, the earning ability of the parties, the health of the parties, and the standard of living during the marriage. The court may also consider any other factors it finds relevant.

How are parental rights and responsibilities allocated?

Formerly, Ohio courts usually granted custody of the children to one party or the other. Now, the court makes an allocation of the parental rights and responsibilities between the parties based on the best interests of the children who are not yet age 18 or have not graduated from high school. Shared parenting is often the preferred mode for allocating these rights and responsibilities. If a plan for the children's care is submitted by one or both parties, the court may adopt the plan and grant shared parenting. However, if the court finds the proposed plan is not in the best interest of the children, it can amend the plan or deny shared parenting altogether. If no plan is submitted, the court will allocate the parental responsibilities to one of the parents, naming that parent as residential parent and legal custodian of the child.

If either or both of the parties request, the court must talk to a child concerning the child's wishes about the parenting arrangements. The court is not bound by the child's wishes and concerns in these matters; it is only one factor to be considered. Other factors taken into account include the child's mental, emotional and psychological development; the interaction of the child with other significant persons; and the adjustment to the school, community and home. The court may also consider factors concerning the ability of a party to be a custodial parent, such as whether support has been paid, parenting time has been allowed or any abuse has occurred. If one of the parents intends to leave the state permanently, this may also be a factor for the court to consider.

How are parenting time rights determined?

In every case involving children, the court orders a specific schedule for parenting time allocation to the parents. The primary consideration is the best interest of the children. Ohio statutes provide many factors to be considered in making the determination. Each county in Ohio must have a standard parenting time order. These standard parenting time orders can be changed to meet individual children's needs. In appropriate cases, the court can also award companionship rights to persons other than the parents.

A more thorough discussion of parenting time rights can be found in a separate brochure by the Ohio State Bar Association, titled, "What You Should Know About . . . Sharing Parental Responsibilities After Separation."

What are temporary orders?

The court may issue temporary orders to be in effect while the case is pending and before the final decision. The person seeking temporary orders files a motion with the court for such things as the use of the marital residence, allocation of parental rights, support of minor children, spousal support and assignment of responsibility to pay marital debts (such as the house or rental payments, car payments, insurance, utilities, finance companies and charge accounts). These temporary orders are not necessarily what the court will award as a final order when the case is resolved.

Restraining orders restrict or prohibit one or both of the spouses or others from certain behavior and activity. Restraining orders may be granted prohibiting harassment or abuse of the other spouse or to prohibit one or both spouses from transferring or disposing of marital funds or assets.

All temporary orders and restraining orders may be modified by the court on formal request, if appropriate. Temporary orders, unless modified, usually remain in effect and are enforceable from the time the court approves the order until the final action is granted.

How is child support determined?

Ohio law requires that the amount of child support must be determined by the procedure outlined in the Ohio Revised Code. The statutes set basic support schedules that must be used to determine the proper amount of child support, based on the number of children and the combined gross income of the parents, as well as other factors and/or credits. The support schedules are based on the average cost of raising children in households across a wide range of incomes.

To calculate the appropriate amount of child support, the court calculates the gross income of each parent. The gross incomes are combined and the total is used to locate the proper amount on the basic support chart. Any spousal support paid is added to the income of the recipient and deducted from the income of the payor to arrive at gross income. Costs of medical insurance and necessary child care are factored in, and the resulting child support obligation is divided according to the percentages of each party's income to their total combined annual income.

The amount of support determined by these calculations is presumed appropriate. The court has discretion, in certain circumstances, to deviate from the basic support tables where it would be inequitable to apply the basic support. The court will also issue orders for the medical needs of the children, including insurance. Child support must be paid to the designated support enforcement agency, which usually orders the employer to deduct that amount from wages.

What are my responsibilities as a client?

Because you have established a relationship with a lawyer who will present your demands and requests to the court, you have responsibilities to your attorney as a client. Your attorney will have experience in this area and will guide you through the process, so do what your attorney asks you to do.

Clearly communicate to your attorney your wishes and priorities. Do not force your attorney to guess.

Be open and truthful with your attorney. If evidence later establishes that you have been untruthful or have lied to the court, you may be legally penalized by the court. Your communications with your attorney are confidential. Your attorney will not reveal embarrassing or harmful information that you may have disclosed, but by knowing all the facts, your attorney can help you plan how best to correct or minimize harmful information. If you do not disclose important facts to your attorney, you are not being truthful. Surprises in court will leave you and your attorney dissatisfied and at a disadvantage in resolving your legal matter.

What are my responsibilities as a party?

You have asked the court for certain help or relief, so you have responsibilities to the court as a party to a legal action. The court addresses and resolves your problems by issuing court orders. Even if you do not agree with the court's orders, you must comply or you may be legally penalized. You will also put your case at a disadvantage and the final resolution may be delayed. If you believe certain orders are unfair, you can discuss with your attorney possible ways to have the court make modifications, but until orders are formally changed, you must follow the orders.

The checklist

The following additional topics should be discussed with your attorney: tax implications; shared parenting; premarital agreements; mediation of disputes; short-term and long-term debts; guardian ad litem; pension and retirement plans; depositions; expert witnesses and costs; and attorney fees.

Reprinted courtesy of the Ohio State Bar Association

Keating Ritchie & McGary - 5300 Socialville-Foster Road, Suite 140 - Mason, Ohio 45040 - 513.234.0567 - 513.234.0886 (fax)
© Keating Ritchie & McGary, 2011. All Rights Reserved. Privacy Statement