Frequently Asked Questions about Divorce and Family Law
What is the Difference Between Divorce and Dissolution?
Dissolution and Divorce both result in the termination of your marriage, but they differ in the procedural mechanism for ending the marriage. In a Dissolution, both parties must be in agreement as to all the terms for ending their marriage, up front, before filing the Petition for Dissolution with the Divorce Court. This means that the parties must have agreed on property and debt division, custody and parenting time, child support, spousal support, and other matters. Additionally, both parties must have made a full and fair disclosure to the other of all their assets, liabilities, and sources of income. The paperwork that is file with the Court will reflect this agreement. Both parties will have to be present at a final hearing which will be had more than 30 and less than 90 days from the date the Petition for Dissolution is filed.
In a Divorce, the parties do not have to be in agreement at the beginning. One party files a Complaint for Divorce and the Court issues certain temporary orders that will govern the relationship of the parties until the final termination of the marriage. Although most divorce cases end in an agreement of some form as to most of the issues, these agreements do not have to be arrived at ahead of time in divorce cases.
Because of the difficulty in reaching a complete agreement up front and because the Dissolution cannot go forward if one party does not agree or does not show up to the final hearing, it often makes more economic sense to file the case as a Divorce to begin with and then conclude it by agreement, if the parties reach agreement. The advantage to this approach is that the party filing will receive a divorce, even if the other party does not participate in the process at all, thus making it impossible for the other person to withhold his or her participation in order to force a more favorable settlement from the other party.
What is a Legal Separation?
Under Ohio law, a married person can file a Complaint for Legal Separation. As in a Divorce proceeding, the court will determine allocation of parental rights and responsibilities, child support, spousal support, and even property and bet division. However, the parties remain married at the end of this process. It is important to note that, if one party files for a Legal Separation, there is nothing to prevent the other party from filing a Counterclaim for a Divorce.
What is Sole Custody and What is Shared Parenting?
There are two ways for a court to allocate parental rights and responsibilities (custody) of minor children in Ohio. In a Sole Custody arrangement, one parent to be designated as the residential (custodial) parent, and the other parent to be designated as the non-residential (non-custodial) parent. The custodial parent makes all important decision on behalf of the minor children such as schooling, extra curricular activities, and medical treatment. The children spend most of their time with the custodial parent and attend school where that parent resides. They have parenting time (visitation) with the non-custodial parent, usual every other weekend and during certain holidays.
In a Shared Parenting arrangement, a document called a Shared Parenting Plan must be drafted and this Plan will spell out the sharing of parenting duties between the two parents. Both parents may be designated as the residential (custodial) parent and all important decisions concerning the children will be made in consultation between the two parents. The Plan will also specify when the children will be with each parent which can range from a 50-50 allocation to an allocation more in line with Sole Custody. This is up to the parties to determine with the assistance of their attorneys.
How is Child Support Calculated?
Child Support Calculation in Ohio is fairly straight-forward. The Court takes each party’s current gross income, subtracts certain expenses such as the cost of health insurance and child care for the minor children, and then indexes the resulting “family” income (the income of mother and father, though they will no longer be married) on a table mandated by Ohio law. However, the devil is always in the details, and it is often difficult to determine what current gross income is in cases where a person receives bonuses or commissions or has taken a new job. Factors such as the allocation of parenting time may also be considered by the Court for purposes of deviating from the guideline support. Finally, when the “family” income is more than $150,000.00 the guidelines do not rigidly apply and the Court has significant latitude to formulate an appropriate child support order.
This is a complex area of the law and you should engage the services of an experienced family law attorney to protect your rights.
How Long Does a Divorce Take?
A hearing on Dissolution must be had more than 30 and less than 90 days from the date the Petition for Dissolution is filed. A Divorce, on the other hand, can take anywhere from a couple of months to more than a year from the filing of the Complaint for Divorce until the final Judgment Entry granting the divorce. The length of time depends upon the complexity of the case and whether the case will be litigated or not. Although most Divorce cases terminate with an agreement, it may take a considerable amount of time to draft an appropriate agreement and gather the information necessary to do so.
Does It Matter Who Is at Fault?
Ohio is a no-fault divorce state, so fault is not an important factor unless there has been financial misconduct during the marriage. You should discuss the particular circumstances of your case with your attorney to determine what factors are important in obtaining your desired result.
I Don’t Know Anything about Our Finances, What Can I Do?
In many marriages, one of the parties may handle all of the finances during the marriage and may not discuss or disclose the financial information to the other party. The law provides many tools for discovering this financial information and tracking down assets: depositions (cross-examination of parties or witnesses under oath) can be taken; written requests for information and documentation can be served on the other side which must be answered truthfully under penalty of perjury; and subpoenas can be sent to banks, brokerage firms, and other persons and entities to obtain financial records and information. It is important to hire knowledgeable, qualified counsel to assist you so that this inflation can be obtained before finalizing a settlement or going to trial.
How Can I Protect Assets I Own before Marriage?
Ohio recognizes pre-marital (also called pre-nuptial or ante-nuptial) agreements if certain qualifications are met. Pre-nuptial agreements can spell out the division of assets upon divorce, including which assets will not be subject to division such as pre-marital assets and the appreciation or depreciation on such assets. Pre-nuptial agreements are also effective in preventing one spouse from inheriting certain specified assets from the other spouse. Both parties must make a full, accurate and documented disclosure of all assets to the other spouse, and such an agreement must be signed before the marriage takes place and the other spouse must have a fair opportunity to review the agreement prior to signing, including obtaining the advice and assistance of counsel, if desired.
It is best to retain a matrimonial lawyer to discuss such an agreement or other pre-marital protection options. You should contact an attorney several months prior to the planned wedding because pre-marital agreements which are signed shortly before the wedding may be considered unenforceable.
How is Property Divided in a Divorce?
If the parties cannot agree on a property settlement, the Court will determine whether the assets owned by the parties are marital or separate property. As a general rule, all assets acquired during a marriage are considered are considered to have been acquired by the joint effort of the parties and are, therefore, considered marital property and are subject to equal division unless the Court decides for some reason that an equal division would not be fair.
Assets that were acquired prior to the marriage, as well as other types of assets such as an inheritance, personal injury settlement, or a gift solely to one of the parties, may be considered separate property and not be subject to division.
Assets to be divided in a divorce often include real estate, professional practices or other businesses, household goods and furnishings, motor vehicles, bank accounts, stocks, bonds, other investment accounts, pensions and retirement accounts. This is a very complex subject, so it is important to retain an experienced attorney who is able to explain to you how the assets owned by you and your spouse would be valued and divided in the event of a divorce.
What if my Children do Not Want to Visit with Their Mother or Father?
Sometimes when parents are divorced, or are in the process of getting a divorce, the children say that they do not want to go and visit with the other parent. As a general rule, it is very important for children to have a relationship with both of their parents. This is usually true even if the children say they do not want to go. Of course, there are exceptions to this rule. If there is evidence of child abuse, this should be reported to the appropriate authorities. However, in the absence of abuse or some other unusual situation, you should encourage your children to spend time with the other parent. In some cases, counseling can be beneficial for children who are having difficulty with visitation or the divorce process in general.
I’m Behind on Child Support, Can I Still See My Children?
In the eyes of the law, children need both financial support and a relationship with both parents. Non-payment of child support does not permit a residential (custodial) parent to deny the other parent visitation with the children. The parent who is not receiving the child support has various avenues available to him or her to enforce child support payment, including garnishment of wages, driver’s license suspensions, attachment of financial accounts and even jail time in severe cases for the parent who refuses to pay child support. Self-help by denying the other parent his or her parenting time is not a valid means of enforcing child support.
Can My Child’s Stepparent Adopt My Child?
A stepparent can adopt a child with the consent of the natural parent. This will permanently terminate all parental rights between the natural parent and the child. A stepparent can also adopt a stepchild without the express consent of the natural parent if it can be shown that there has been no support paid by the natural parent and no contact with the minor child for more than one year before the filing of an adoption petition.
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