CONTESTED DIVORCE (PRE-DECREE)
Being involved in a divorce is one of the most stressful times in your life. Your life will never be the same. If you are going through a divorce, thinking about one, or bracing for a divorce you anticipate will be filed against you, you are going through a life changing event. A contested usually involves litigation in the Court.
Ohio is a fault-based state, meaning that in a contested divorce one party must allege grounds. Please don’t think that proving grounds will generally entitle you to a greater share of the marital property, it won’t. Grounds are just that, grounds for a divorce but not direction how a court should order support or divide property. That is an entirely different issue and other pages will address different aspects of a divorce. But one rule of thumb is that the more contested the case, the more expensive in the legal world. There are certain times and certain cases in which things are worth fighting for and then other times, while in the right the fight is nothing but a waste of money and energy. This is what I help you sort through.
The grounds are set forth in Ohio Revised Code Section 3105.01 and are:
- Either party had a husband or wife living at the time of the marriage from which the divorce is sought;
- Willful absence of the other spouse for one year (in other words “abandonment”);
- Extreme cruelty;
- Fraudulent contract (rarely used unless no other grounds exist);
- Any gross neglect of duty;
- Habitual drunkenness;
- Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;
- Procurement of a divorce outside the state of Ohio by a husband or wife, by virtue of which the party who procured it is released from the obligations of marriage, while those obligations remain binding upon the other party;
- Husband and Wife have lived separate and apart, without cohabitation, for one year; and
- Incompatibility (unless denied by either party).
A divorce is a divorce regardless of whether it is “contested” or “uncontested”. An “uncontested” divorce is simply a divorce that is relatively free of arguments and legal fights between the parties and is typically settled after little or no discovery, motions, or hearings.
UNCONTESTED DIVORCE (PRE-DECREE)
An “uncontested divorce” is a divorce in which relatively little fighting is done. It describes a case in which the parties work together to reach an agreement on the various issues, such as child support or division of property prior to filing. It is just like a Dissolution of Marriage except that under this process only one-party needs appear in court.
Uncontested divorces must still allege grounds, but generally people will go with incompatibility or living separate and apart for a period exceeding one year.
Mediation is a tool that is used to resolve disputes or that arise in a divorce. I am not a mediator, but I can help. How? Well, check what your goals should be or whether you have mediated a fair agreement for yourself or not. The mediator is not going to tell you because they are… a mediator. It is not their role and they cannot give advice.
My prior point is that mediators do not take the place of attorneys and are prohibited from giving legal advice. Giving legal advice to both sides of a case is a conflict of interest, and any attorney acting as a Mediator – but advising both sides — is violating ethics that attorneys must follow.
Mediated Settlement Agreements can be great, but how do you know what your agreement is? Remember that portions of your mediated agreement are likely irrevocable. Go in with goals.
Annulments are granted by the court only in certain rare cases. Rare! Like seeing a total solar eclipse, Bigfoot, Brown’s Superbowl, etc. Rare events indeed. The legal effect is to void a marriage from the very beginning—as if the parties had never married. Very rare reasons exist why an annulment could be granted. The grounds for annulment are found in Ohio Revised Code 3105.31 and are grounds only if existing at the time of the marriage:
- That the party in whose behalf it is sought to have the marriage annulled was under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;
- That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;
- That either party has been adjudicated to be mentally incompetent, unless such party after being restored to competency cohabited with the other as husband or wife;
- That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, cohabited with the other as husband or wife;
- That the consent to the marriage of either party was obtained by force, unless such party afterwards cohabited with the other as husband or wife; and
- That the marriage between the parties was never consummated although otherwise valid.
The last ground is the most common ground employed but is limited by time.
The division of property is done at the end of the case. The first step is to identify what is marital property (often called the “marital estate”) and what is separate property. The marital property is generally divided
The division of property in any given estate may be simple like selling a home and dividing proceeds or liquidating a bank account. However, many cases are not that simple and involve complex concepts of the identification of marital/separate property, economic misconduct, valuation issues as to assets and accounts, etc.
Having an understanding how a court might divide property when a settlement is not reached is a core reason that attempting to handle the property division in a divorce without the help of good legal counsel is risky and potentially very costly.
ALIMONY AND SPOUSAL SUPPORT
Alimony and Spousal Support are interchangeable terms that refer to the payment from one spouse (higher earner) to the other spouse (lower earning) based upon a variety of factors contained in Ohio Revised Code 3105.18 that courts can arbitrarily apply or not apply. They generally look to formulas but rarely are 100% consistent with them. Courts are like snowflakes in that no two are exactly alike. The duration of the payment of spousal support can change from county to county. The amount of support ordered can vary from courtroom to courtroom
Temporary Spousal Support is the term used for support that the court orders one spouse to pay the other while the case is pending. Generally, the court employs a different logic in arriving in temporary support than in the final order of spousal support. There is little statutory guidance nor “court formulas” employed with temporary support. The court may not care that all the bills get paid. The case is pending from the time the case is filed until there is a final decree of divorce.
If a divorce drags out for months or years, a court order of this type can be financially catastrophic and directly lead one or both parties to bankruptcy.
In the State of Ohio when a child is born to unwed parents this is the court that will handle the case. Should the parent’s relationship end, one parent, usually the father would need to petition the Juvenile Court for his parental rights and to establish a shared parenting plan and child support order. The reason for that is because mothers are deemed the legal custodians until a court allocate parental rights. Any modifications to orders already established would be handled in Juvenile Court.
MOTIONS TO SHOW CAUSE (POST DECREE)
At the time of a divorce, a court will allocate parental rights, set support, and divide property. If a party does not follow the terms of the court order, the other party cannot simply take enforcement into their own hands but must have the court find the other party in contempt of court.
Issues like a party failing child support might be addressed by the prosecutor’s office, but most times a party must go back to court to enforce their court order. Just like with most decisions, there are times and cases in which things are worth fighting for and then other times, while in the right, the fight is nothing but a waste of money and energy.
CHILD CUSTODY (PRE-DECREE AND POST DECREE)
Child Custody is a term often misunderstood. Child custody refers to the legal allocation of parental rights between parties but has nothing to do with the time children spend with their parents. Child custody refers to the parent(s) who have the right to make legal decisions on behalf of their minor children. In Ohio a party either gets sole custody or the parties share in the decision-making called shared parenting. Child custody cases are expensive and brutal-probably the most destructive type of litigation there is. The Court will consider the best interests of the children – the presentation of evidence is often tricky when it comes to what is in the best interests of the children. But courts can employ other methods. These include:
- In-court service departments that help make assessments;
- In highly contested cases there may be appointed a Guardian ad Litem;
- Appointment of a psychologists;
- Appointment of a parenting coordinator.
Courts prefer shared parenting plans. They want parents to work together and the burden is on the parent urging the court to grant them sole custody.
Aside from the dispute about the legal designation of sole custodian, the more common fight is about the parenting time schedule. Under the typical schedule, the primary parent has the child more.
Although it is true that the non-primary possessing parent is generally entitled to possession of the children for approximately 35-40% of the time annually, a party needs to consider the impact of the child and what the difference in being the primary or non-primary parent means the difference in over one entire year of the child’s life.
Nothing is more important in your case than your children. There is no mathematical cost benefit analysis to measure whether to fight for the children or not. It is a mixed bag of circumstance and in the end want your children not to be screwed up as children or adults because of your divorce. It is made tougher by the fact that you can only control you. But to get as close to your children’s best interests as possible under the circumstances, you need an attorney that cares about you, your children, and your case.
CHILD SUPPORT (PRE-DECREE AND POST DECREE)
Child Support should be easy to resolve but Ohio law has a way of complicating it, especially when the parties earn more than $150,000 per year. Technically there are no guidelines for the calculation of support in such cases, but many courts utilize them for guidance. Under that threshold there are guidelines but there can be heated debated about the figures utilized in those guidelines and the court also has wide discretion to deviated from the guidelines. It can be rather wide open depending on a variety of circumstances, including the spousal support received.
When above or below the threshold, the intricacies of the law are often misunderstood and confusing.
In most circumstances, the support can be ordered until the latter of the child reaching 19 years of age or graduating from high school. If the child is disabled, the court can order Child Support to be paid for an indefinite period.
Making a mistake on Child Support can hurt you and your children’s financial future. Entering an agreement on Child Support without competent legal counsel may very well be one of those mistakes.
MODIFICATION OF CUSTODY (POST DECREE)
Generally, in order to modify a custody order, a substantial change of circumstances must have occurred subsequent to the time that previous court order was entered into. There are tons of examples but can include situations where a custodial parent has become addicted to drugs and alcohol, the wishes of the child change, somebody moves, somebody remarries a step-monster, etc. After the court concludes a substantial change has occurred, the court must conclude that the harm of the change is outweighed by the benefit of the change to the child(ren). The later part is considered the “best interests” test. But it needs to be clear that it most often requires first to show the change of circumstances and then the court can assess what is in the best interests.
When looking at best interests, the court will consider all relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parent’s subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
Child custody and modifications of it are often the most contentious parts of the divorce process.
MODIFICATION OF CHILD SUPPORT (POST DECREE)
The court can modify child support if the parties’ incomes have changed since the last order or is done when other modifications in parenting time or child custody take place. The modification will be effective the date of the filing of the motion,
There are many factors that the court may consider in deciding whether to grant the request for a modification. Just because one party requests a support modification does not stop the other party for seeking a modification in the other direction.
Just as with the calculation of child support, the path that litigation takes is dependent upon the income of the parties and whether a child support guidelines shall be used or not.
This office can help determine whether you can and/or should file for a modification of a child support order. Additionally, we can help you defend yourself from a request that your child support order should be modified.
GRANDPARENT RIGHTS (DOMESTIC RELATIONS COURT AND JUVENILE COURT)
The rights of Ohio parents override those of a grandparent, but there are cases in which grandparents may be able to obtain visitation or companionship rights. In some cases, circumstances may require an Ohio grandparent to take on the role of a grandchild’s primary caretaker or legal guardian. Sometimes we must go through court and sometimes without court involvement.
PRENUPTIAL OR ANTENUPTIAL OR PREMARITAL AGREEMENTS
The three items mentioned above are all synonyms for an agreement between prospective spouses that is made in contemplation of marriage and is to be effective on marriage. We will refer to them as Prenuptial Agreements for this section. Even when they appear simple, a true analysis reveals that they often involve complex concepts, and the effects can be far-reaching and financially life-altering.
To be enforceable, Prenuptial Agreements must be in writing and signed by both parties. They may involve the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
Prenuptial Agreements can involve the making of a will, trust, or any other arrangement necessary to carry out the provisions of the agreement. Also, the ownership rights in and disposition of the death benefit from a life insurance policy can be altered by a Premarital Agreement.
If either party can prove that they did not sign the agreement voluntarily, the Prenuptial Agreement will be found to be unenforceable against them. Additionally, in certain circumstances, if a judge determines that the agreement was unconscionable, the agreement will be found unenforceable.
Since Prenuptial Agreements likely involve complex legal concepts, attempting to create and execute a Prenuptial Agreement or signing one presented to you without legal counsel is a bad idea and should be avoided.