Ohio Divorce Law
Divorce and Dissolution: What’s the Difference?
Q: What is a dissolution of marriage, and how is it different from a divorce?
A: A dissolution of marriage process may eliminate much of the divorce process and expense. Unlike a divorce, fault grounds are not at issue. Dissolution is often thought of as no-fault divorce. In a dissolution, parties are given the option to obtain a Private Judge to proceed over the final hearing of their dissolution in the privacy of our office
A dissolution petition is not filed with the court until the parties have reached an agreement on all the issues that must be addressed in a divorce matter. Designation of a residential parent, parental rights, visitation, child support, spousal support, division of property, payment of debts, and payment of attorney fees must be considered in either case.
While the parties are negotiating, there is no subpoena power available, so the parties must voluntarily trade information. Professionals can, however, be hired to evaluate property, etc.
When an agreement is reached and filed with the court, a hearing must take place within 30 to 90 days. Both parties must appear and testify that they are satisfied with the agreement; that they have made full disclosure of all assets and liabilities; that they have voluntarily signed the agreement; and that they both want the marriage dissolved. The court must also approve the parties’ agreement.
Because there is no court involvement until an agreement is reached, all the temporary orders and possible hearings that might occur in a divorce case are avoided. The end result of both a divorce and a dissolution of marriage is the same: the marriage is terminated.
Q: In what ways can a marriage be ended?
A: Marriages may be legally ended in one of two ways–divorce or dissolution of marriage. In order to obtain a divorce, one party must allege that his or her spouse has been at fault under one of the statutory grounds. The only true “no fault” grounds for divorce permitted by Ohio is “living separate and apart for one year without interruption and without cohabitation” and incompatibility not denied by either party.
Q: What happens in a divorce proceeding?
A: The divorce proceeding begins with the filing of a complaint. Following this, divorce “papers” are served to the other party, but the divorce cannot be granted for at least six weeks after the other party is legally notified. This six-week time period is a cooling-off time that allows the parties to carefully reconsider the termination of their marriage.
A party to a divorce may request the court to grant temporary orders to be in effect while the case is pending. The goal in issuing temporary orders is to preserve the family’s status quo, both financially and as to responsibilities to any minor or handicapped children. In many cases, there is insufficient income to support separate households. Temporary orders include those for designation of residential parent and allocation of the parental rights and responsibilities of minor children, child support, spousal support, and payment of attorney fees and litigation expenses.
A party also may be ordered to refrain from physically and verbally harassing the other, and to keep marital assets intact so that the court can divide them as part of its final orders.
Throughout the divorce process, hearings may take place to determine the merits of temporary requests or to make a party comply with the court’s temporary orders.
While a divorce case is going on, each party has the right to find out about all property, marital or not, owned by either or both parties. Professionals are often brought in to determine the value of assets such as real estate, businesses, and pension plans. These professionals can be brought into court through the use of subpoenas.
In Ohio, there are no jury divorce trials. Divorce cases are either settled by agreement of the parties or tried before a trial judge or magistrate. If a case is settled, the agreement becomes the court’s order. One or both of the parties may obtain the divorce without lengthy testimony about the grounds for the divorce, and it may not be necessary for more than one party to appear at the final hearing.
If a divorce case is contested all the way through a trial, and one or both parties are unhappy with the court’s decision, an appeal may be filed with the court of appeals. A three-judge panel will review the court’s decision.
State Divorce Laws: Ohio
Residency and Filing Requirements: In order to file for a divorce in Ohio, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
The plaintiff in actions for divorce and annulment shall have been a resident of the state at least six months immediately before filing the complaint. Actions for divorce and annulment shall be brought in the proper county for commencement of action pursuant to the Rules of Civil Procedure. The court of common pleas shall hear and determine the case, whether the marriage took place, or the cause of divorce or annulment occurred, within or without the state.
Actions for legal separation shall be brought in the proper county for commencement of actions pursuant to the Rules of Civil Procedure. (Ohio Code – Sections: 3105.03)
Grounds for Filing: The Petition for Dissolution of Marriage or Complaint for Divorce must declare the appropriate Ohio grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
The court of common pleas may grant divorces for the following causes:
No Fault (Dissolution of Marriage):
(A) On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation;
(B) Incompatibility, unless denied by either party.
(A) Either party had a husband or wife living at the time of the marriage from which the divorce is sought; (B) Willful absence of the adverse party for one year; (C) Adultery; (D) Extreme cruelty; (E) Fraudulent contract; (F) Any gross neglect of duty; (G) Habitual drunkenness; (H) Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint; (I) Procurement of a divorce outside this state, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party. (Ohio Code – Sections: 3105.01)
Restoration or Name Change: When a divorce is granted the court of common pleas shall, if the person so desires, restore any name that the person had before the marriage. (Ohio Code – Sections: 3105.16 and 3105.34)
Filing Spouse Title: Petitioner or Plaintiff. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court. The filing spouse is referred to as the Petitioner only in dissolution cases.
Non-Filing Spouse Title: Respondent or Defendant. The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service. The non-filing spouse is referred to as the Respondent only in dissolution cases.
Court Name: In the Court of Common Pleas of Franklin County, Ohio. This is the Ohio court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents: Petition for Dissolution of Marriage or Complaint for Divorce and Decree of Dissolution of Marriage or Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Ohio law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Domestic Case Designation Form, Marital Settlement Agreement, Affidavit in Compliance With (ORC 3109.27), and Health Care Order
Court Clerk’s Title: County Clerk’s Office of the Court of Common Pleas. The clerk or the clerk’s assistants will be the people managing your paperwork with the court. The clerk’s office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution: Since Ohio is an “equitable distribution” state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
In making a division of marital property and in determining whether to make the amount of any distributive award, the court shall consider all of the following factors: (1) The duration of the marriage; (2) The assets and liabilities of the spouses; (3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage; (4) The liquidity of the property to be distributed; (5) The economic desirability of retaining intact an asset or an interest in an asset; (6) The tax consequences of the property division upon the respective awards to be made to each spouse; (7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property; (8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; (9) Any other factor that the court expressly finds to be relevant and equitable. (Ohio Code – Sections: 3105.171)
Spousal Support: Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court’s discretion.
In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party’s marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. (Ohio Code – Sections: 3105.171)
Child Custody: When minor children are involved in a divorce, the Ohio courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
When husband and wife are living separate and apart from each other, or are divorced, and the question as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children is brought before a court of competent jurisdiction, they shall stand upon an equality as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children, so far as parenthood is involved.
In determining the best interest of a child, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to: (a) The wishes of the child’s parents regarding the child’s care; (b) the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; (c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest; (d) The child’s adjustment to the child’s home, school, and community; (e) The mental and physical health of all persons involved in the situation; (f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; (g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor; (h) Whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; (i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court; (j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
In determining whether shared parenting is in the best interest of the children, the court shall consider all of these additional relevant factors, including, but not limited to, (a) The ability of the parents to cooperate and make decisions jointly, with respect to the children; (b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent; (c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent; (d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting; (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem. (Ohio Code – Sections: 3105.21, 3109.03, 1309.04, and 1309.051)
Child Support: Ohio child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2’s and child support worksheets are available at the courthouse.
In a divorce, dissolution of marriage, legal separation, or child support proceeding, the court may order either or both parents to support or help support their children, without regard to marital misconduct. In determining the amount reasonable or necessary for child support, including the medical needs of the child, the court shall comply with the state child support guidelines. The amount of child support that will be paid pursuant to an administrative child support order, the court or agency shall calculate the amount of the obligor’s child support obligation in accordance with the basic child support schedule, and the applicable worksheet with any deviations applied according the the following deviation factors:
The court may consider any of the following factors in determining whether to grant a deviation pursuant to section 3119.22 of the Revised Code: (A) Special and unusual needs of the children; (B) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination; (C) Other court-ordered payments; (D) Extended parenting time or extraordinary costs associated with parenting time, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet, through the line establishing the actual annual obligation, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of parenting time granted by court order; (E) The obligor obtaining additional employment after a child support order is issued in order to support a second family; (F) The financial resources and the earning ability of the child; (G) Disparity in income between parties or households; (H) Benefits that either parent receives from remarriage or sharing living expenses with another person; (I) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents; (J) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing; (K) The relative financial resources, other assets and resources, and needs of each parent; (L) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married; (M) The physical and emotional condition and needs of the child; (N) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen; (O) The responsibility of each parent for the support of others; (P) Any other relevant factor. (Ohio Code – Sections: 3105.71 and 3113.217)
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Dealing with divorce—get to grips with the financials
With an estimated 40-50 percent of American first marriages ending, and even higher levels for subsequent unions, it would seem that dealing with divorce is a fact of modern life in the United States (American Psychological Association, Marriage & divorce, accessed 22/12/14). The end of a marital relationship brings with it many challenges from the emotional turmoil often experienced to the practical upheaval of moving home. One of the most significant and potentially complicated issues to address is money. Some couples even delay their divorce on the grounds that it is not affordable and while on paper this preserves their union it often does nothing for their happiness or their children. Like most things in life, the secrets to a successful financial divorce resolution are information, advice and preparedness (Petroff Law Offices, LLC, accessed 22/12/14). Although it doesn’t sound very romantic, having as complete a picture as possible of personal finances and the monetary implications of divorce is key to handling issues such as division of assets in a fair and realistic way. Here we look at some areas to consider for couples about to enter the divorce arena.
Breaking up causes a ripple effect on all aspects of a couple’s lives, and so tackling the thorny issue of money can get bumped down the divorce to-do list. This is particularly the case for women, who even in 2014 are often not involved in household financial decision making.( Forbes.com, The Most Important New Year’s Resolution A Divorcing Woman Can Make, published 17/12/2014, accessed 22/12/14) A survey carried out by Fidelity Investments earlier this year found that a staggering one in four women do not participate in family finances at all. Five hundred women from across the nation were asked about their role in financial planning. From stay at home moms to professional career women the message was the same – a significant proportion just didn’t get involved. (bizjournals.com, Bizwomen, 25 percent of women take no part in their financial decision-making, new Fidelity study finds, published 31/10/2014, accessed 22/12/2014)
In divorce, both parties need to take time out to identify all household income, expenses and liabilities – and this is only the starting point. Ensure all assets are assessed and included such as investments, inheritances, property and jewelry etc. Business owners also need to incorporate intangible assets such as patents and intellectual property into that list.
The great divide
Once all assets have been accounted for, it’s time to deal with one of the most potentially difficult financial aspects of divorce – their division. Stories of acrimonious battles between warring spouses are often the tales which hit the headlines and prompt fear in pre-divorce couples. Jamie Cooper-Hohn, American wife of financier Sir Chris Hohn recently experienced this type of high profile legal dispute in London, England.(Telegraph.co.uk, Sir Chris Hohn’s wife awarded £337 million in divorce cash fight, published 27/11/2014, accessed 22/12/2014) With assets totaling over £700 million involved, this fight was the stuff of dreams for tabloid journalists yet no doubt more akin to a nightmare for the individuals involved. While most couples have considerably less assets at stake, the underlying desire is the same – for both parties to feel they are leaving the marriage with a fair and equitable portion of their collective wealth. As the rules about who gets what vary between states getting professional advice is an absolute must. Ten states adopt a community property approach which involves starting the division at 50-50, while the remainder work things out using the principle of equitable distribution. This means that the court rules on what it considers to be a fair and reasonable asset split taking into account a variety of factors. (equalityinmarriage.org, Who Gets What Where, accessed 22/12/2014)
Personal financial protection
During the happy times most couples believe that sharing is caring, and this often extends to passwords associated with bank accounts and PIN numbers. Credit card accounts are also regularly jointly owned (Money.co.uk, How to Separate Your Finances From Your Ex-Partner, published 11/11/2014, accessed 22/12/14). This shared approach frequently includes online presence such as social media and other personal content. In divorce, the ideal scenario is of course an amicable split and a civil ongoing relationship particularly where children are involved. While this is achievable, in practice many couples find that the end of the relationship leaves a more bitter taste in the mouth. This can lead to irrational behavior and one partner attempting to punish the other for their part in the demise of their marriage. To avoid a knock on effect on personal and financial reputation, ensure that all passwords and PINs are changed. (Huffingtonpost.com,Divorcing? Protect Your Finances, Personal Data, published 32/7/2014, accessed 22/12/2014) Also close and pay off any joint credit card arrangements as a spiteful or economically struggling ex-spouse may be tempted to run up significant debts and cause serious damage to both parties financial standing. Going through this process may be difficult in terms of acting as a reminder that this is indeed the end of the relationship, but it is an essential part of protecting the future personal and financial reputation.
American actress Jenna Fischer once said,
“You never go into marriage expecting to get divorced. You go into marriage expecting it’s going to last forever, and you have a lot of ways you dream about the future. You have all these expectations, and then you have to adjust those expectations, and it can be a very unnerving, confusing time.”(Brainyquote.com, Divorced quotes, accessed 22/12/14)
Going through a divorce can cause confusion, but in financial terms it is important to hold your nerve.