Divorce FAQ

Divorce and dissolution are both methods for terminating a marriage.  In a divorce, a lawsuit is filed by one spouse (the plaintiff) alleging grounds for the divorce.  This lawsuit requests the court: to end the marriage, to divide the property and assets of the parties, and to determine support orders (like child support and spousal support).

In a dissolution, both parties (also called petitioners) are in complete agreement as to all terms ending the marriage.  A dissolution is often referred to as a “no fault” termination of marriage, since no grounds are required for the dissolution of the marriage.

The recognized grounds for the termination of a marriage by divorce include:

• Bigamy (the act or condition of a person marrying another person while still being lawfully married to a second person)
• Adultery
• Any gross neglect of marital duty
• Habitual drunkenness
• Fraud in entering the marital contract
• Imprisonment
• Extreme cruelty
• Living separate or apart for more than one year, without interruption or cohabitation
• Incompatibility, unless denied by the other party

As a dissolution is a “no fault” termination of marriage, no grounds are needed.

For a divorce, the legal process begins with one party filing a complaint with the Common Pleas Court.  The other party will be served with a copy of the divorce complaint and given time to respond.  Either party can request temporary orders from the court for temporary child custody, child support, spousal support, payment of debts and fees for the divorce attorney.  If the terms of the divorce cannot be agreed upon by both parties, the case will be tried to the court, and the court will make a ruling on all matters.  If both spouses come to an agreement, the matter can be set down for an uncontested divorce.

A dissolution process begins with both parties petitioning the court for the termination of the marriage.  When the petition is filed, both parties will also submit a separation agreement which outlines all the terms which will end the marriage.  After the dissolution petition is filed, the matter will be set for a hearing.  At this hearing, the court will hear testimony from the petitioners and review the separation agreement.  If the court is satisfied with the testimony, the dissolution of marriage will be granted.

The length of a divorce case can depend on the complexity of assets and inability of the parties to reach an agreement as to all matters and can take from a few months to more than a year.  The divorce process can also be prolonged by requests for discovery (information pertaining to assets, debt, and income) from the other spouse.

Since the dissolution of marriage is by agreement, the process can be completed quickly.  Typically, dissolutions are complete within sixty (60) days from the date the petition is filed with the courts.

In a divorce, you will be required to attend numerous status conferences, trials, and hearings.  A dissolution of marriage will require the signature of both petitioners prior to filing and their presence at a hearing to give testimony.

To file for divorce, you must be a resident of the State of Ohio for at least six (6) months prior and a resident of the county for at least ninety (90) days.  Technically, a dissolution can be filed in any county, but one of the petitioners must have been a resident of the State of Ohio for at least six (6) months prior to filing.

If you are unable to locate your spouse, a divorce by publication can be utilized.  In a divorce by publication, “constructive” service is used to serve your spouse.  This is done by publicizing the divorce proceeding in a newspaper for a set period of time.  If no response is filed within that time frame, the matter will be set for hearing, and the divorce will be granted.  Divorces by publication, however, can only settle matters regarding the status of the marriage.  Divorces by publication cannot address all issues, and will typically only terminate your marriage without any division of assets and liabilities.

A separation agreement is an agreement between the husband and wife that outlines the duties and obligations of each spouse, the responsibility of each spouse for debts and liabilities, the distribution of marital property, and the determination of child custody, child support, and spousal support.  A separation agreement will address all terms terminating the marriage.

The parties can use a private judge to expedite the process and avoid a public hearing.  Rather than traveling downtown the hearing is held at an attorney’s office.

A dissolution of marriage can be obtained if both parties reach an agreement to all matters involved in terminating a marriage including

property and debt.  These issues may include:

• Custody of children
• Child support
• Spousal support
• Property division
• Division of pensions, 401k plans, etc
• Shared parenting
• Tax exemptions of minor children

Both parties must appear before a judge and request that the marriage be dissolved.

When you divorce in Ohio, the courts will first analyze which assets and debts are separate (acquired before the marriage) and which assets and debt are marital property and were acquired during the marriage.  This property and debt are then subject to an equal division by the court, unless the court has reason to divide them in another manner.  If an equal division would be inequitable or unfair, the court will divide the marital property in a manner that it determines to be equitable in a divorce.  In a divorce case, not all property is considered marital property.

When determining the equal division of property in a divorce, the court will consider many factors, including:

• The length of the marriage
• The assets and liabilities of each spouse
• The need of a custodial parent to occupy or own the family home and/or household items
• The liquidity of the property to be distributed
• The economic desirability of keeping an asset or the interest in an asset intact
• The tax consequences of the distribution
• The costs of the sale of assets
• Any division or disbursement of property made in a voluntary separation agreement between the spouses
• Assets you had before you married may be considered “separate property”
• Interest and appreciation you acquired from separate property may be considered separate property
• Property you inherit will generally be considered your separate property

As you prepare for your consultation with a divorce attorney, it is important to collect all the information you can about all your property, including when it was purchased, approximate worth, and details such as account numbers, serial number, etc.  Collecting this information before you see an Ohio divorce lawyer can save time and money.

A dissolution of marriage requires the parties to reach an agreement as to all terms terminating the marriage, the property and debt is divided as the parties see fit.

In Ohio, the court will make child custody decisions when a divorce case is pending.  This is referred to as the “allocation of parental rights and responsibilities for the care of the minor children of the marriage” – based on what is in the “best interest” of the child.  In allocating parental rights and responsibilities, the court will consider:

• The wishes of the child’s parents regarding the child’s care
• The wishes and concerns of the child, as expressed to the court depending on his age
• The child’s interaction and interrelationship with its parents, siblings, and any other person who may significantly affect the child’s best interest
• The child’s adjustment to its home, school and community
• The mental and physical health of all persons involved in the situation
• The parent more likely to honor and facilitate court-approved parenting time rights for visitation and companionship rights
• Whether either parent has failed to make all child support payments
• Whether either parent has been convicted of or a has been a perpetrator of child abuse or neglect
• Whether one parent has continuously denied the other parent visitation rights
• Whether either parent lives or plans to move out of state

Shared parenting is the term Ohio uses for the concept of joint custody after or during divorce proceedings.  The court may allocate the care of the minor children to both parents and issue an order requiring the parents to share all or some of the physical and legal care of the children in accordance with an approved plan for shared parenting.  Both parents are considered legal custodians, but one parent is denominated as the school placement parent (residential parent).

Shared parenting does not necessarily mean that there is an equal division of the time with the children or that child support will not be paid by one parent.

In addition to the best interest factors, the court will take into account additional factors in determining whether shared parenting is in the best interest of the child.  These factors include:

The ability of the divorced parents to cooperate and make decisions jointly, with respect to the child

• The ability of each parent to encourage the sharing of love, affection and contact between the child and the other parent
• Any history of, or potential for, child abuse, spouse abuse, other domestic violence or parental kidnapping by either parent
• Whether shared parenting is geographically feasible
• The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem

For a divorce case in the State of Ohio, a court can order spousal support and will generally consider the following factors:

• The income and relative earning abilities of the parties
• The ages and the physical, mental and emotional conditions of the parties
• The retirement benefits of the parties
• The length of the marriage
• The extent to which it would be inappropriate for the custodial parent to seek employment outside the home
• The standard of living of the parties established during the marriage
• The education of the parties
• The assets and liabilities of the parties
• The contribution of each party to the education, training or earning ability of the other party
• The time and expense necessary for the spouse seeking spousal support to acquire the education, training or job experience necessary to qualify the spouse to obtain appropriate employment
• The tax consequences of spousal support
• The lost income production capacity of either party that resulted from the party’s marital responsibilities