Marriage termination and the surrounding financial and emotional issues can be overwhelming and confusing. Therefore, Phyllis G. Bossin & Associates, A Legal Professional Association has prepared answers to the most frequently asked questions.
1. Do I have to live in Ohio to be divorced here?
The person filing for divorce must be a resident of Ohio for six months before filing. In an action for dissolution of marriage, both parties must be residents of the state for six months before filing.
2. What is a legal separation?
Ohio has a separate cause of action for legal separation. This does not provide for temporary legal separation. The purpose of this action is to forever divide all property and to provide for parenting, child support and custody. The only difference between a legal separation and a divorce is that the spouses remain married in a legal separation action. There is no residency requirement in a legal separation. Therefore, it is often used when the parties have moved to Ohio but have not lived here for six months or when one spouse leaves the state but the other spouse remains here. The only requirement is that venue is established.
3. Does it matter who files first?
Filing first does not provide any advantage in terms of how the court divides property, what custody orders are made or how much support will be ordered. However, the person who files first (the Plaintiff) is the person who will have to present evidence first in the event of a trial.
4. Is Ohio a "grounds" state?
Yes and no. Ohio is a blended state. There are several grounds for divorce, including gross neglect of duty, mental cruelty and adultery. In addition, incompatibility is a ground for divorce, but only if not denied by the other side. The only true no-fault ground is living separate and apart without cohabitation for a period in excess of one year. Once that one-year period is established, a spouse is absolutely entitled to a divorce on that ground.
5. How will the property be divided?
Ohio is an "equitable distribution" state, which means that all property must be divided fairly. The law considers as equal division of property as a starting point; however, there are situations where an equal division might not be equitable. Such a case would be one in which one of the spouses engaged in serious economic misconduct, or in a case where one of the spouses has significant non-marital assets.
6. What happens to inherited property or property that is brought into the marriage?
This property will be designated as non-marital property so long as it is traceable and has not lost its separate identity. This is often one of the most difficult parts of the case, as appreciation on that property may be marital. Also, the court has the authority to make a distributive award to the other spouse out of non-marital property to achieve an equitable result.
7. How long will the process take?
This is a difficult question and depends on the issues in the case. When there are parenting issues to be resolved, generally the case will take longer. If there are complicated business issues requiring valuations and experts, the case will also take longer. Unless there is a quick agreement reached and a dissolution filed, you can expect your divorce to take at least a year.
8. Will I pay/receive alimony (spousal support)?
Ohio does have a spousal support statute that sets forth many factors that the court must consider in awarding spousal support. These factors include the length of the marriage, the age of the parties, the earning capacity of both parties, the disparity in earnings, the contribution of one party to the education or career of the other, one party's contribution as a homemaker. There are no guidelines at present as to either the amount or duration of spousal support, although a statute proposing such guidelines is about to be introduced in the state legislature. It is up to counsel to present your case in the best possible light on the spousal support issue.
9. Is shared parenting automatic in Ohio?
Ohio has both shared parenting and sole custody. There is no legal presumption in favor of shared parenting, although many judges prefer it. All parenting arrangements must be in the best interests of the children. Shared parenting works best when the parents can communicate with one another and can make decisions jointly with regard to their children. If custody arrangements cannot be agreed upon, then a trial on custody issues will be held and the court will decide which parent will receive custody or whether shared parenting will be ordered. The court will then also order a parenting time schedule. If the parents agree on shared parenting, then they may submit a joint shared parenting plan and ask the court to approve it. If they agree that they should have shared parenting but don't agree on the terms, then each may submit a shared parenting plan and, after a trial, the court will decide which plan to adopt or order its own plan.
10. Does shared parenting mean that each of us will have the children fifty percent of the time?
Not necessarily. Shared parenting in Ohio does not mean shared physical custody. A shared parenting must be submitted to the court, which provides for the time allocation, how medical and educational decisions will be made, provide for how the children will be supported and provide for holidays and extended time. Some shared parenting arrangements are equal time; however, this is not always in the best interests of the children and many plans provide for more traditional arrangements.
11. How is custody decided?
Custody cases are very difficult for the courts. They often involve psychological evaluations of the family, parenting investigations by court personnel and the appointment of a Guardian ad litem, who is an attorney appointed by the court to represent the children's best interest. The guardian is not the children's attorney but a best interest attorney. Some courts have in-house social workers to conduct parenting investigations. Once all investigations and evaluations are completed, if the case still cannot be resolved, there will be a custody trial. At the trial, lay witnesses as well as the expert witnesses will testify. These proceedings are complicated, lengthy and expensive.
12. How will child support be determined?
All states have child support guidelines. These guidelines assist in the setting of child support. However, cases where combined family income exceeds $150,000.00 are treated differently than cases in which combined family income is lower than $150,000.00. If it is over, then the court must look at several factors to determine an appropriate level of support.
13. If we have shared parenting, will I receive less support or no support?
Many people believe that they will automatically pay or receive less support in a shared parenting situation. This is not accurate. If the shared parenting plan provides for a typical "standard" parenting time schedule, the amount of support would be no different than in a non shared parenting situation. Even if the parents equally split time, if one of the parents earns significantly more than the other, he or she will still pay child support.
14. Is mediation mandatory in every divorce?
Mediation is not mandatory in Ohio. Under Ohio law, the court has the authority to order the parties to mediation on parenting issues. The court has no authority to order mediation on property issues. Mediation is often very helpful in resolving parenting issues. Mediation is also sometimes helpful in resolving property and support issues. Your attorney will evaluate whether mediation is likely to be successful in your case and whether it is appropriate. It is not appropriate for every case.
15. What is collaborative law?
Collaborative law is a different approach to divorce that seeks an alternative to the adversarial process. The parties and their attorneys (who are specially trained in collaborative law) sign a contract that commits to resolving the case without going to court and pledges an honest exchange of information by both spouses. The process allows the parties to control the outcome and to develop options through a cooperative exchange of ideas and commitment to resolving all issues in a productive manner that takes into account the parties' goals and objectives and the best interests of the children. Your attorney will explore with you whether the collaborative process is right for you. Once the contract is signed, if an agreement cannot be reached, neither attorney can continue in the case and both sides must start over with new counsel.
16. Can I go back to court to modify my decree after the divorce?
Certain aspects of the decree are modifiable, while others are not. The property division is never modifiable by the court. It is final. Child support may be modified if there is a change of circumstances. Spousal support may be modified if the decree or separation agreement provided that the court would retain continuing jurisdiction over the amount and/or duration of support. If there is language that the order is final and not modifiable, that language will be binding and the support can never be changed. The court always has continuing jurisdiction over parenting issues. A change of custody can be ordered if there is a significant change of circumstances and a shared parenting plan can be terminated or modified under certain conditions as well.