Terminating a marriage is an extremely emotional experience. Phyllis G. Bossin Co., L.P.A., can guide clients through the process to help achieve the right outcome.
How does the divorce process start? A divorce is initiated when one party files a complaint for divorce with the court. In Ohio, the complaint must contain the grounds for divorce. Incompatibility and gross neglect of duty are common grounds, although incompatibility is only available if it is not denied by the other party. If the parties have been living separate and apart for a period of more than one year without cohabitation, they can assert that as a no-fault ground —
Ohio Revised Code § 3105.01. Because fault usually has no impact in a divorce proceeding in Ohio (outside of a few extreme exceptions), most divorces are granted on the grounds of incompatibility, with little evidence needed to establish why a divorce is being sought.
Once a complaint for divorce and the required accompanying paperwork has been filed, the other party will respond with an answer and counterclaim. The answer and counterclaim will usually contain grounds, similar to the complaint, and must be filed within 28 days of successful service of the complaint.
Who can file for divorce and where? In order to file for divorce in Ohio, a party must have been a resident for six months immediately preceding the filing —
Ohio Revised Code § 3105.03. However, parties who have not lived in the state for six months may still seek a legal separation — Ohio Revised Code § 3105.04. Beyond a six-month residency requirement, parties must establish the proper venue for filing. While this is usually the county where they have lived for the past 90 days, there are other grounds for deciding on a proper venue, and there may even be more than one appropriate county. Our attorneys will evaluate what is the proper venue for your case.
What are the phases of a divorce? While divorce is a totally unique process for each person, there are certain processes that will occur in every case while other steps may only occur depending on the situation. Parties may seek temporary orders, which “resolve” specific issues until the court can make a final decision. Discovery is a necessary step in every divorce, as it allows the court to facilitate the division of property. Depending on the circumstances, the court may order spousal support. When the parties have minor children together, the court must allocate parental rights and responsibilities, and order appropriate child support.
- Temporary orders. For many people, filing for divorce can leave them, or their children, in a vulnerable position. Temporary court orders for spousal support, child support, custody or parenting time can be put in place by the court. Finding an attorney who can properly evaluate a client’s needs and seek the appropriate temporary orders is critical, as the circumstances are different in every case, and the temporary orders often set the tone for what will occur later. The court will automatically issue a temporary restraining order to prevent the misuse or improper disposition of marital funds and assets, which is one of the important reasons that a person might need to file for divorce.
- Discovery. The next phase of a divorce after the complaint and answer have been issued is a process called “discovery.” Both parties are obligated to identify all their assets, liabilities and income. Discovery can occur informally and cooperatively, with attorneys requesting and exchanging information with one another. Alternately, formal discovery can be undertaken. In this case, the attorneys will issue request for the production of documents, interrogatories and requests for admissions. The attorneys can also issue subpoenas and take depositions as necessary. There are rules that require responses within a certain period of time, and these time limits will be enforced by the court. Formal discovery can be a time-consuming and complex process in certain cases, depending on the nature of the parties’ property, assets and liabilities.
- Division of property. Ohio law mandates that all marital property be divided in a fair and equitable manner, but “fair and equitable“ does not necessarily mean “equal” — Ohio Revised Code § 3105.171. The statute requires that an equal division of property is presumed but courts have the discretion to make an unequal division of property depending on the circumstances. This occurs most often when one spouse owns substantially more separate property or there is evidence of serious economic misconduct, such as wasting marital assets. However, before any property can be divided, it must first be categorized as either marital, separate or mixed. Anything acquired during the marriage, acquired with marital funds or acquired through marital effort is probably marital property, even if it is titled in the name of only one spouse. Property owned by a spouse prior to the marriage, gifts or inheritances are all likely separate property and not subject to division. When property owned by one spouse prior to the marriage increases in value during the marriage due to marital effort, it may also become a mixed asset. Deciding whether a mixed asset has appreciated due to passive forces or through marital effort will determine how it is valued and divided.
Whether an asset should be categorized as marital or separate, or whether a nonmarital asset has been “transmuted” into marital property, is often hotly contested. The party claiming that property is separate has the burden of proof. They may attempt to trace the asset to a date prior to the marriage or present evidence regarding the intent of a transfer. Our attorneys are experienced in dealing with complex valuations and regularly enlist the services of renowned experts when necessary.
- Spousal support. Spousal support, often called alimony, can be a complicated part of the divorce or dissolution process, especially after a lengthy marriage or when there is a significant disparity in the parties’ earning potential. Under Ohio law, several factors are considered when determining if spousal support is appropriate, but there are no formulas or strict guidelines that the court must follow — Ohio Revised Code § 3105.18.
Deciding the appropriate amount and duration of spousal support can become one of the most complex and contentious part of a divorce or dissolution. A final determination will need to consider the parties’ earning capacities, future income that the party seeking support may earn from assets distributed as part of the divorce, the potential retirement age of the party paying support, the circumstances in which support can be modified and more. Our office has extensive experience in dealing with complex spousal support litigation, and in working with vocational experts and economists to assist in the presentation of the case.
Allocation of parental rights and responsibilities. Ohio law allows both shared parenting and sole custody, where one parent is designated as the “residential parent and legal custodian” of the child(ren) — Ohio Revised Code § 3109.04. While courts often prefer shared parenting, there is no legal presumption that either option is in the child’s or children’s best interest, and shared parenting is certainly not always appropriate. Parenting issues are something our firm works very hard to address outside of court, often with the assistance of a mediator; however, Ms. Bossin is very well-known for her experience in handling high-conflict custody cases.
- Child support. In Ohio, parents are required by law to support their children until they turn 18 or graduate from high school, although this obligation can continue indefinitely for disabled children. The general amount of child support that a party must pay is calculated based on an income shares formula, where the family’s total income is used to apportion the obligation — Ohio Revised Code § 3119.021. However, parties may ask that the court deviate the amount of child support ordered based on certain statutory factors. For families whose combined income exceeds $336,000, support is decided on a case-by-case basis, and the preparation and presentation of evidence by a skilled attorney is necessary to ensure an appropriate child support award —
Ohio Revised Code § 3119.04.
Our firm provides the highest quality legal representation in all aspects of the divorce process. Located in Cincinnati, Ohio, we represent clients in Hamilton, Warren, and Clermont counties.