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 live in Ohio for at least six months before filing. The law does not require persons seeking a legal separation to live in Ohio for any particular length of time before filing. The terms visitation and companionship, once used to describe parental rights, now describe the rights of non-parents. Parenting period allocation and parenting time now 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 property division, spousal support, allocation of parental rights and responsibilities, child support and parenting 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 filed after the husband and wife have signed a separation agreement regarding all property, spousal support and any child-related issues. After jointly filing a Petition for Dissolution, the parties must wait at least 30 days before the court will 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 any parenting issues, and determine whether the parties understand and are satisfied with the settlement. If the court is satisfied that, the parties agree and desire to end 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, arising when the husband and wife cannot resolve their problems, and ask the court to make the final decisions concerning property division, spousal support and matters regarding the children.
A divorce is started by one spouse, the plaintiff, who files a complaint with the clerk of court. In the complaint, plaintiff must claim, and eventually prove, the appropriate statutory grounds for divorce. Discuss the statutory grounds and your facts with your attorney.
The clerk of court "serves" upon the other spouse, the defendant, a copy of the complaint and a summons. Service is generally made by certified mail or personal delivery. If the defendant's residence is not known, there is a procedure for service by publishing a legal notice in a newspaper. This publication method of service is effective for obtaining a divorce decree, but generally is not effective for obtaining orders about matters such as spousal or child support.
The defendant has 28 days after service of the complaint and summons to file an answer to respond to the complaint. The defendant may file a counterclaim requesting a divorce, stating the grounds the defendant believes apply. The plaintiff files a reply in response to the counterclaim.
Most divorce cases are eventually settled by agreement. A proposed agreed decree of divorce is prepared, signed by the parties and submitted to the court for approval. If approved, the agreement is made effective by a court journal entry.
If the parties cannot agree to resolve all of their disputed issues, 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 a marriage is ended?
Ohio statutes define marital and separate property. Marital property is property acquired during the marriage, including real estate, personal property, 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 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 on separate property that did not come from a marital contribution of either party during the marriage; a gift after the marriage date if 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 statutory laws and appropriate case law, the court determines how long the marriage has lasted, and what it considers to be marital property. 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 a fair result. 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 once was called alimony. Courts award spousal support, if reasonable and appropriate, but only after awarding a property division. The court may consider 13 specific factors in making an award. Some of these factors are the ages, earning ability and health of the parties, the length of the marriage, and the standard of living during the marriage. The court also may consider any other relevant factors.
How are parental rights and responsibilities allocated?
Formerly, Ohio courts granted custody of the children to one party or the other. Now, the court allocates the parental rights and responsibilities between the parents based on the best interests of the minor children who are not yet age 18 or have not graduated from high school. Shared parenting is often preferred for allocating these rights and responsibilities. If a plan for the children's care is submitted by one or both parents, the court may adopt the plan and grant shared parenting. If the court finds the proposed plan is not in the best interest of the children, it can request amendment of the plan or deny shared parenting. If no plan is submitted, the court cannot award shared parenting and will allocate the parental responsibilities to one of the parents, naming that parent as the child's sole residential parent and legal custodian.
If a parent asks, the court must talk with a child privately about his or her
wishes concerning parenting arrangements. Then, the court also may (or, if a parent asks, must), appoint a guardian ad litem for the child, who will investigate the child's circumstances and report
to the court. The court takes into consideration, but is not bound by, the child's wishes and concerns, and the guardian ad litem's recommendation. Other factors taken into account include the
child's mental, emotional and psychological development; the child's interaction with parents, siblings and other significant persons; and the child's adjustment to school, community and home. The
court also may consider factors such as a parent's ability to serve as a custodial parent, if support has been paid, if parenting time has been denied, or if any abuse has occurred. If one of the
parents intends to leave the state permanently, the court also may consider this factor.
Some courts provide mediation services to help the parties resolve parenting issues themselves.
How are parenting time rights determined?
In every case involving children, the court orders a specific schedule for parenting time. The primary consideration is the best interest of the children. Ohio statutes provide many factors to be considered in making the determination. Each Ohio county 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 also may award companionship/visitation rights to persons other than the parents, but only if the court finds it is in the best interest of the child.
A more thorough discussion of parenting time rights can be found in an Ohio State Bar Association brochure titled, "What you should know about . . . Sharing Parental Responsibilities after Separation."
What are temporary orders?
The court may issue temporary orders while the case is pending and before the final decision. The person seeking temporary orders files a motion with the court, for instance, for the use of the marital residence or a vehicle, allocation of parental rights, child support, spousal support and the responsibility to pay debts (such as house or rental payments and charge accounts). These temporary orders may be very different from the court's 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. Courts may grant them to prohibit behavior such as harassment or abuse of the other spouse, transferring or disposing of marital funds or assets, and moving the children to another state.
All temporary orders and restraining orders may be modified by the court on formal request. 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 child support be calculated under child support guidelines. The law sets basic support schedules that must be used to determine the 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 determine the appropriate amount of child support, the court calculates each parent's gross income and combines them. The total is then used to locate the child support amount on the basic 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 child support determined by these calculations is presumed appropriate. The court has discretion to deviate from the basic support tables when the calculated child support is inequitable and not in the child's best interest. The court also issues orders for healthcare insurance and payment of uninsured healthcare expenses for the children. Child support must be paid through Ohio Child Support Payment Central, usually by means of wage withholding. See the Ohio State Bar Association LawFacts pamphlet titled, "What You should Know about...Child Support" for more information.
What are my responsibilities as a client?
Because your attorney will present your requests to the court, you have responsibilities as a client. Rely on your attorney's experience in this area to guide you through the process, and 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, the court may penalize you. 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 the court may penalize you. 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.
Also discuss these topics 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.
© Ohio State Bar
Association, February 2012