DIVORCE

When a man and a woman are married, their legal relations to each other and to the State of Ohio is altered.  The ramifications are many and far reaching including their participation in many government programs and taxation, to name just two areas.  A divorce decree is an order by the court that a marriage contract be dissolved and that both parties be released from their obligations.  Divorce is the process of separating the joined two individuals and realigning their once joined obligations between them.  The decree and/or separation agreement made a part of the decree disposes of all property, child and spousal support, and any other matters between the parties.  While the usual divorce will be completed within six months, the continuing affects of this realignment may span decades with further court involvement along the way.

Grounds:

Divorce in Ohio is fault based, that is one party is found by the Court to be at fault regarding one of eleven statutory grounds, which are:

1.         Either party had a husband or wife living at the time of the marriage from which the divorce is sought.

2.         Willful absence of adverse party for one year

3.         Adultery

4.         Extreme cruelty

5.         Fraudulent contract

6.         Any Gross Neglect of Duty

7.         Habitual Drunkenness

8.         Imprisonment of adverse party in a state or federal prison when the petition is filed.

9.         Procurement of a divorce outside Ohio, by husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while such obligations remain binding upon the other party.

10.       Living separate and apart, without cohabitation, without interruption, for one year

11.       Incompatibility, unless denied by the other party.

Contested and Non-Contested Divorce:

A divorce action is commenced by one spouse filing a complaint in the proper court of common pleas against the other spouse.  Procedurally this is a civil suit and many of the rules associated with civil suits apply, as well as a body of rules specific to domestic relations actions.  The spouse receiving the served complaint may file a formal answer to the allegations in the complaint, and may counterclaim for a divorce of his/her own.  When this occurs, a contested divorce action is commenced and is so scheduled upon the court?s docket.  A contested divorce usually involves legal counsel for each spouse, and may involve further legal pleadings associated with any legal dispute, which is commonly called litigation.  If no answer is filed by the defendant spouse, the case is deemed a non-contested divorce and is scheduled upon the non-contested court docket.  A non-contested divorce usually will get to be heard by the court sooner than a contested one, and is usually less expensive.

Most divorces in the Miami Valley are non-contested in nature.  Many of these will employ legal counsel only for the spouse who initially files the complaint, called the Plaintiff.  In a typical non-contested divorce, the spouses are sill able to communicate with each other to effectively resolve most, if not all, of the divorce issues necessary to terminate their marriage and provide for the children.  Plaintiff?s counsel is thus able to guide both parties toward a mutually acceptable outcome through the inclusion of a separation agreement in the final divorce decree.  However, Plaintiff?s counsel may only represent the Plaintiff, and may not represent the Defendant spouse.  Hence the importance of effective communication between the spouses during the non-contested divorce process.

Temporary Orders:

In either a contested or non-contested divorce action, the Plaintiff will usually request some temporary orders from the court when filing the complaint, which may include custody [parental rights and responsibilities], child support, spousal support [alimony], temporary restraining orders of a personal and/or financial nature, and limited attorney fees, depending upon the circumstances.  These orders are modifiable by the court and remain in effect pending the final divorce decree.

Spousal Support:

Spousal support is awarded in response to the spouses?s duty to provide sustenance to the other.  Either spouse may now be awarded this support depending upon the circumstances.  Spousal support is independent of any other order.  The manner and method of payment may vary, being lump sum or periodic payments, and may be modifiable or non-modifiable.  A permanent order [included in the final divorce decree] of spousal support may have reasonable conditions to its continuance attached, considering that the need for such support may change, thus altering the payor?s obligation.  These may include death, remarriage or cohabitation.  Any permanent spousal support order is dependent upon the circumstances of the case, statutory and local court guidelines in determining the fairness, and any separation agreement of the parties approved by the court. [For Modification see Post Decree Motions/Spousal Support]

Distribution of Property/Debts:

During the divorce process the couple?s debts/obligations and their assets are separated by a legal document called a Divorce Decree.  The Decree is composed of several written documents, chief among them is called a Separation Agreement.  The Decree spells out which spouse of the former couple receives which assets they formerly shared, and which obligations/debts each spouse will be responsible for in the future.  Every divorce shares at least nine to twelve categories of assets/debts which should be specifically addressed in the Decree in as much detail as is necessary to clearly define which individual has which assets/debts and the extent of each, as is appropriate.

The Decree is an enforceable court order which provides guidance to each party regarding their divorce, and a vehicle to provide care for the children as they mature.

The distribution of the marital property realigns the assets and the debts of the parties.  Unlike spousal support, the property distribution is not modifiable following the divorce decree.  Many factors are considered during the court?s determination that the distribution is fair, equitable and in accordance with the law, including statutory and the circumstances of the parties? case.  A pension plan accumulated during the marriage is a marital asset.  Generally, property acquired by gift, devise or descent [inheritance] are considered nonmarital assets, but may be converted to marital assets depending upon the particular circumstances of the parties.

Parental Rights and Responsibilities :

Parental Rights and Responsibilities [child custody] is the provision for the custody, care, and control of the minor children.  This may be either sole custody by one parent or shared parenting by both parents. [See Post Decree Motions/Child Custody]  Child support in Ohio is governed by the child support guidelines enacted into statute.  These are used by the court in determining the amount of the child support obligation. [See tab on Post Decree Motions/Child Support]

What documentation will I need to prepare for my divorce?

The documentation will vary depending upon your circumstances.  As a general guide, you should gather any documents which reflect either an asset or obligation you or your spouse has.  These include:

·                      Deeds and leases to realty with any mortgages

·                      Financial accounts; savings/checking, CDs, annuities etc.

·                      Life insurance policies

·                      Titles to vehicles, boats etc.

·                      Retirement accounts, either individual such as IRAs or corporate types such as pensions and 401Ks

·                      Stock certificates, investment bonds and similar investment vehicles

·                      Current incomes; demonstrated by recent pay check stubs, bank invoices, employer statements or tax returns if self employed, disability payments, unemployment

·                      Income Tax returns for the past two tax years

·                      Any regular and recurring bills, such as utilities.