LF_Div_Diss_Sep

Divorce, Dissolution and 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. (A fourth way—annulment—will not be

discussed here.) 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 describe the rights of non-parents, such as

grandparents. Parenting time refers to the time parents spend

with their children.

What is a legal separation?

A legal separation does not legally end a marriage but allows the

court to issue orders concerning property division, spousal

support, allocation of parental rights and responsibilities

(including parenting time and child support). The parties remain

married, but live separately. When a court grants a legal

separation, each party must follow the court’s specific orders. The

legal steps are nearly the same as for a divorce.

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. A dissolution petition is

jointly filed after the husband and wife have signed a separation

agreement regarding all property, spousal support and any child-

related issues. After filing the petition, the parties must wait at

least 30 days before the court will hear their case, which 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 make the separation

agreement a court order.

What is a divorce?

Divorce is a civil lawsuit to end a marriage. The parties ask the

court to make the final decisions concerning property division,

spousal support and matters regarding the children.

One spouse, the plaintiff, files a complaint with the clerk of court

to start a divorce. In the complaint, plaintiff must claim and

eventually prove the appropriate statutory grounds for divorce.

Discuss the statutory grounds and 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 unknown, a legal notice will be published 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 divorce decree is prepared, signed by the parties and

submitted to the court for approval. After a short hearing, the

agreement is approved by the judge and becomes a court order.

If the parties cannot resolve all of their disputed issues, evidence

is presented in a contested trial. 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,

regardless of legal title. 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 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 allocates these

rights and responsibilities by requiring shared decision-making,

although not necessarily equal time-sharing. 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 children’s best interest, 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 between the

parents, naming one parent as the sole residential parent and

legal custodian and granting the other parent appropriate

parenting time rights.

If a parent asks, the court must talk with a child privately about his

or her wishes concerning parenting arrangements. 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

interests of the children. Ohio statutes provide many factors to be

considered in making the determination. Each Ohio county must

also have a standard parenting time order, which can be changed

on a case-by-case basis when in the best interests of the children.

In appropriate cases and only if the court finds it is in the

children’s best interest, the court also may award

companionship/visitation rights to persons other than the parents.

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, which can provide for: 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

decree of divorce.

Courts may grant restraining orders to restrict or prohibit one or

both of the spouses or others from certain behaviors and

activities, such as harassing or abusing a 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, by written motion. Temporary orders,

unless modified, usually remain in effect and are enforceable

from the time the court approves the order until the final decree

becomes effective.

How is child support determined?

Ohio law requires child support to 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 income range.

To determine the appropriate amount of child support, the court

calculates both parents’ gross incomes and then combines them.

Any spousal support paid is added to the recipient’s income and

deducted from the payor’s income to arrive at gross income. The

total is then used to locate the child support amount on a basic

chart provided in the support statutes.

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 children’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, “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 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. Work with your attorney to

decide where to be flexible and where to stand firm.

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 you may have disclosed, but

by knowing all the facts, your attorney can help you plan how

best to correct or minimize harmful information. Surprises in court

will leave you and your attorney 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.

The checklist

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.

05/15/2015

Funding from the Ohio State Bar Foundation

This is one of a series of LawFacts public information pamphlets.

Others may be obtained through www.ohiobar.org/LegalHelp

The information contained in this pamphlet is general and should not

be applied to specific legal problems without first consulting your own

attorney.