A divorce is one of the legal methods you can use to terminate a marriage. The process begins when one spouse files a complaint for divorce with the court. In order to file for divorce, the spouse filing the complaint (the plaintiff) must be a resident of the State of Ohio for at least 6 months prior to filing the complaint. Once the other spouse (the defendant) is served with the complaint for divorce, they then have 28 days to file an answer to the complaint, where they admit or deny the allegations.
Ohio is still a “grounds” state which means that you must allege at least one statutory ground in your complaint. Ohio has both “no-fault” and “fault” grounds for divorce. There are two no fault grounds which are (1) living separate and apart without cohabitation for a period in excess of one year, and (2) incompatibility. However if incompatibility is denied by the other party, it cannot be used as a ground for divorce. There are nine “fault” grounds including gross neglect of duty, adultery, and extreme mental cruelty. While many divorces are contested on issues of support, property, ect., very few cases are contested on the grounds for the divorce itself.
A motion for a temporary court order is usually submitted with the initial filings; however this can be done later if needed. The temporary order asks the court to rule on certain things such as child custody, visitation, child support, and spousal support. The court can also grant a temporary restraining order to prevent physical abuse or the disposition of marital assets. Since it is impossible to determine the amount of time it will take to complete the divorce, temporary orders should not be taken lightly because they will be in effect while the divorce is pending. The temporary order is issued approximately 4 to 6 weeks after the filing of the case.
Usually within the first few months, a pretrial conference is scheduled. The conference is conducted in the courtroom before a judge. The purpose of this conference is to give the lawyers a chance to present the issues to the judge with both parties present. The judge will remark upon the issues in an attempt to either settle the case or move it along towards trial.
Shortly after the complaint for divorce is filed, the lawyers engage in a process called discovery. During discovery, both parties exchange information and documents. This information is necessary to help the parties and their lawyers reach a settlement or, if necessary, take the case to trial. The process can be informal or formal depending on the cooperation of the spouses. If formal discovery is undertaken, the lawyers have several options to gather needed information including depositions, interrogatories, requests for documents, and subpoenas.
There are basically three main issues in a divorce action, two if no children are involved. The three issues are division of property, spousal support, and child custody/child support.
In Ohio, all property must be divided in a fair and equitable fashion. Even though the law presumes an equal division of property as a starting point, this does not mean the property is always split 50/50. The court may determine that an equal division would be inequitable depending on the circumstances of the case.
The property will be classified as either marital or separate property. If property is acquired before the marriage, then it is separate property and the spouse retains it. Also, property acquired through a gift or inheritance during the marriage is considered separate property. On the other hand, if property is acquired during the marriage, it is classified as marital property and is subject to equitable distribution.
Spousal support is, in essence, an equalizing tool to help the spouse with less income to live at a reasonable level for a reasonable period of time. Ohio does have a spousal support statute which sets forth several factors that the court must consider before it grants the support. Some of these factors include the age of the parties, the earning capacity of both parties, the disparity in earnings, the length of the marriage, and one party’s contribution as a homemaker. Spousal support in Ohio is not subject to calculation by means of a statutory formula (unlike child support).
Child custody (now referred to as the allocation of parental rights and responsibilities) can be given to both parents (shared parenting) or can be given to one parent (sole custody). Shared parenting refers to sharing parenting time with, and decision making for, the children. It is often preferred by the courts but there is no legal presumption in favor of it. Shared parenting does not necessarily mean an equal amount of time spent with each parent and one spouse may still have to pay child support to the other. In a sole custody situation, the non-custodial parent usually receives some type of visitation.
Child support in Ohio is calculated according to guidelines set forth by statute. The support obligation ends when the child turns 18. Child support can continue past the child’s 18th birthday if they are still enrolled in high school full time. A court is authorized to deviate from the child support guidelines amount but only if it finds the amount would be unjust or inappropriate.
There are no jury trials in divorce cases. If the case goes to trial, the judge will make the final determinations. A party who is not satisfied with the decision of the trial judge has a right to appeal the case to the Ohio Court of Appeals.