Your Divorce Questions Answered

What Is The Difference Between Divorce And Dissolution?

Both of these proceedings result in a termination of your marriage, but they are different in many ways. Dissolution does not require proof of grounds to end the marriage. Dissolution depends on a good faith exchange of information and negotiation. The parties must agree to all the terms of dissolution. A divorce is a lawsuit whereby one party sues the other party and asks the court to end the marriage and determine custody, a division of property and make support orders. A divorce gives some protection not afforded in a dissolution such as the right to obtain temporary restraining orders, temporary support orders and to force financial discovery (proof of income, assets and debts). You should discuss with your attorney which procedure is better for you, considering your own individual circumstances.

Is Marital Fault Generally A Factor In Determining Support Or Dividing Property In A Divorce?

Generally, Ohio is a no-fault divorce state. Therefore, fault is not an important factor unless there has been financial misconduct. You should discuss the particular circumstances of your case with your attorney to determine what factors are important in obtaining your desired result.

My Marriage Is Ending, But I Do Not Know Anything About Our Finances. How Will I Be Sure To Get A Fair Settlement?

It is not unusual for only one of the parties to handle the finances during a marriage. Your attorney must file documents referred to as discovery to obtain the necessary financial information through what is known as the discovery process, before you go to trial or negotiate a settlement.

I Am Getting Married. How Can I Protect My Assets In The Event The Marriage Does Not Work Out?

Ohio recognizes premarital (also called prenuptial or antenuptial) agreements if certain qualifications are met. Such an agreement must be negotiated and signed before the marriage takes place. It is best to retain a matrimonial lawyer to discuss such an agreement or other premarital protection options. You should contact an attorney several months (eight is generally recommended) prior to the planned wedding because premarital agreements that are signed shortly before the wedding may be considered unenforceable. In addition, there must be a full, accurate and documented disclosure of all assets and liabilities. Both parties must have their own attorney.

What Is Shared Parenting?

There are two ways for a court to allocate parental rights and responsibilities (custody) of minor children. One way is for one parent to be designated as the residential (custodial) parent, and for the other parent to be designated as the nonresidential (noncustodial) parent. Another way is for the court to order shared parenting where both parents may be designated as the residential (custodial) parent.

If one parent is designated as the residential parent and shared parenting is not ordered, each parent's rights are determined by Ohio law. The residential parent will be the parent who is entitled to make important decisions on behalf of the minor children such as decisions regarding medical treatment, education, religion, extracurricular activities and other decisions where parental consent is required. The nonresidential parent will generally be entitled to parenting time (visitation) with the children according to a set schedule, and the nonresidential parent will also be entitled to access to medical records, school records and other information about the children.

With shared parenting, a written document called a Shared Parenting Plan is negotiated and prepared. The parental rights and responsibilities are spelled out in the Shared Parenting Plan. The terms of the Shared Parenting Plan are specific to each case and under shared parenting both parents are generally required to cooperate and make joint decisions on behalf of the minor children. The Shared Parenting Plan specifies when the children will be with each parent.

How Much Child Support Will I Be Ordered To Pay Or Receive?

Child support obligations are based primarily on each parent's current gross income, the amount of work-related day care expenses that are incurred on behalf of the minor children (if any), and the cost for providing health insurance coverage for the children. The Court must use a child support worksheet that calculates the presumed correct amount of child support under Ohio law. The Court can order a higher or lower amount than the presumed correct amount under certain circumstances such as when the parties have shared parenting, a child has special needs or other unusual circumstances.

How Long Does It Take To Get A Divorce?

A divorce can take anywhere from several months to more than one year from the filing of the Complaint for Divorce until the final Judgment Entry granting the divorce is placed upon the official Court Docket. A divorce action is a process of gathering information; negotiating with the other party to determine if an agreement can be reached regarding the allocation of parental rights and responsibilities; identification, valuation and the division of assets; allocation of debts; spousal support (if any) and preparing for a hearing or trial if the parties are unable to agree. Most divorce cases ultimately result in the parties reaching an agreement, but every case must be prepared so that all of the information is obtained for the attorney to negotiate a fair settlement or present the case in a contested trial to the Court for a decision.

What Is A Legal Separation?

Under Ohio law, a married person can file a Complaint for Legal Separation. The grounds for Legal Separation are very similar to grounds for divorce. In a legal separation action, the court will determine allocation of parental rights and responsibilities and spousal support issues. Marital assets can also be divided by the Court. At the end of the process, a Legal Separation is granted and orders are made regarding allocation of parental rights, child support and spousal support but the parties remain married. This is important to some people for religious or financial reasons (such as the ability to remain on the other spouse's health insurance) where the parties want to go their separate ways but remain legally married. However, it is important to know that if one party files for a Legal Separation there is nothing to prevent the other party from filing a Counterclaim for a Divorce.

Should I Move Out Of The Marital Residence Before Filing For Divorce Or While The Case Is Pending?

It can be very difficult to continue to live under the same roof with someone if the marriage relationship is severely strained or effectively over. However, you should not move from your current residence before consulting with an attorney if you are planning to file for divorce or if your divorce case is pending. If custody is an issue in your case, courts have a tendency to rule that children should stay in the residence where they are accustomed to living. There may also be an issue in your case regarding whether either party will have the right to continue to reside in the marital residence or how the household goods and furnishings should be divided. If you leave the marital residence, your rights could be adversely affected and it may make it more difficult for your attorney to adequately represent you in the case.

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 (marital property) are considered to be the product of the joint effort of the parties, subject to equal (equitable) division unless the Court decides for some reason that an equal division would not be fair. Assets that were acquired prior to or after 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, are considered separate property that generally is not subject to division. This is a very complex subject. Assets to be divided in a divorce often include real estate, professional practices or other interests in businesses, household goods and furnishings, motor vehicles, bank accounts, stocks, bonds, other investment accounts, pensions and retirement accounts. Your attorney must be 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 The Other Spouse?

Sometimes when parents are divorced, or are in the process of getting a divorce, the children say that they do not want to 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.

Do I Have To Let My Former Spouse See The Children If He Or She Is Not Paying Child Support?

In the eyes of the law, children need both financial support and a relationship with both parents. Nonpayment of child support does not permit a residential (custodial) parent to deny the other parent visitation with the children. There are various ways that a child support order can be enforced. These include 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.

Can My Child's Stepparent Adopt My Child?

A stepparent can adopt a child with the consent of the natural parents. This will permanently terminate all parental rights between one of the natural parents 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.

Contact Us

To learn more about Biviano Law Firm and how we can help you in your divorce, custody and support matter, call 330-392-5000 or contact us online today.