What happens in a divorce proceeding?
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.
What is Ohio state divorce law?
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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