Divorce, Dissolution & Separation

Ohio law provides three ways for a husband and wife to end or alter their marital relationship: legal separation, divorce and dissolution of marriage. To obtain a dissolution or divorce, you must live in Ohio for at least six months before filing. There is no residency requirement for persons seeking a legal separation. The terms visitation and companionship, once used to describe parental rights, now describe the rights of non-parents. Parent time allocation and parenting time now refer to the time parents spend with their children.

What is a legal separation?
This is a civil lawsuit that does not legally end a marriage, but allows the court to issue orders concerning property division, spousal support, allocation of parental rights and responsibilities, child support and parent time allocation for any minor children. The parties remain married, but live separately. When a court grants a legal separation, each party must follow the court’s specific orders.

What is a dissolution of marriage?
A dissolution of marriage is an action where the parties mutually agree to terminate their marriage. Neither party has to prove grounds to end a marriage by dissolution. This action is only started after the husband and wife have reached a separation agreement regarding all property, spousal support and any child issues. After jointly filing a Petition for Dissolution, the parties must wait at least 30 days before the court will hear their case. The case must be heard within 90 days of filing. At the hearing, the court will review the separation agreement, ask about the assets and liabilities and any parenting issues, and determine whether the parties understand and are satisfied with the settlement. If the court is satisfied that the agreement is fair, the parties agree and desire to end their marriage, the court will grant a dissolution and order the separation agreement into effect.

What is a divorce?
Divorce is a civil lawsuit to end a marriage. It arises when the husband and wife cannot resolve their problems, and are asking the court to make the final decision and issue orders concerning property, support and children.

A divorce is started by one spouse, the plaintiff, who files a complaint with the clerk of court. In this initial complaint, the plaintiff must select, and eventually prove, the appropriate statutory grounds. Discuss with your attorney why you believe your spouse’s behavior justifies the filing of the lawsuit.

The clerk of court serves the other spouse, the defendant, a copy of the complaint and a summons by certified mail, hand delivery, or by leaving it at the defendant’s residence with a person over age 18. If the defendant’s residence is not known, a legal notice may be printed in a newspaper. However, differences in the law make this method less effective.

Within 28 days after the defendant has been served, the defendant must file an answer in response to the complaint. The defendant also may file a counterclaim requesting a divorce, by stating the grounds the defendant believes are applicable. The plaintiff files a reply in response to the counterclaim.

Most suits are eventually settled by agreement between the parties. When this occurs, a separation agreement is prepared, signed by the parties and submitted to the court for approval. When approved, the agreement is made effective by a court journal entry.

If the parties cannot agree to resolve one or more of their disputed issues, the disputes are presented to the court. The court will review the parties’ evidence and make its decision based on Ohio law.

How is property divided after a marriage is ended?
Ohio statutes define marital and separate property. Marital property is property acquired during the marriage, including real estate, personal property or intangible property such as stocks and bonds, bank accounts and retirement plans. Marital property also may include increases in the value of separate property due to either spouse’s work effort, labor or contribution of marital money to the increase in the property’s value. Separate property includes all real, personal and intangible property from an inheritance; property owned before the marriage; income or appreciation from separate property not resulting from the labor or substantial effort of either party during the marriage; a gift after the marriage date that is proved to be made to only one spouse; and an award for personal injury, except any part of the award that compensates for lost wages occurring during the marriage, or medical bills from the injury paid with marital funds.

By applying the statutory rules and appropriate case law, the court determines what is and what is not marital property. The marital property is to be divided equally, unless the court explains in writing why an equal division would not be fair. In making the award, the court must apply the eight specific factors listed in the statute and any other factor it finds relevant and equitable.

The court also has the authority to make a distributive award from separate property of either party to the other to achieve a fair result. When a party has engaged in financial misconduct such as hiding property, dissipating money or funds, or disposing of funds fraudulently, the court may make an award out of the separate property of the offending spouse or make a greater award of marital property to compensate the other party.

What is spousal support?
Changes in Ohio law have substituted the term spousal support for what used to be called alimony. Spousal support is awarded to help sustain a spouse after a property division has been awarded. The court may consider 13 specific factors in making an award. Some of these factors are the ages, earning ability and health of the parties, the length of the marriage, and the standard of living during the marriage. The court also may consider any other relevant factors.

How are parental rights and responsibilities allocated?
Formerly, Ohio courts usually granted custody of the children to one party or the other. Now, the court allocates the parental rights and responsibilities between the parties based on the best interests of the children who are not yet age 18 or have not graduated from high school. Shared parenting is often preferred for allocating these rights and responsibilities. If a plan for the children’s care is submitted by one or both parties, the court may adopt the plan and grant shared parenting. However, if the court finds the proposed plan is not in the best interest of the children, it can request amendment of the plan or deny shared parenting altogether. If no plan is submitted, the court cannot award shared parenting and will allocate the parental responsibilities to one of the parents, naming that parent as the child’s residential parent and legal custodian.

At either or both of the parties’ request, the court must talk with a child about his or her wishes concerning parenting arrangements. The court is not bound by the child’s wishes and concerns in these matters; it is only one factor to be considered. Other factors taken into account include the child’s mental, emotional and psychological development; the interaction of the child with other significant persons; and the adjustment to the school, community and home. The court also may consider factors concerning the ability of a party to be a custodial parent, such as whether support has been paid, parenting time has been allowed or any abuse has occurred. If one of the parents intends to leave the state permanently, the court also may consider this as a factor.

How are parenting time rights determined?
In every case involving children, the court orders a specific schedule for parenting time allocation to the parents. The primary consideration is the best interest of the children. Ohio statutes provide many factors to be considered in making the determination. Each Ohio county must have a standard parenting time order. These standard parenting time orders can be changed to meet individual children’s needs. In appropriate cases, the court also may award companionship rights to persons other than the parents, but only if a parent is not suitable to have custody.

A more thorough discussion of parenting time rights can be found in an Ohio State Bar Association brochure entitled, “What you should know about . . . Sharing Parental Responsibilities After Separation.”

What are temporary orders?
The court may issue temporary orders to be in effect while the case is pending and before the final decision. The person seeking temporary orders files a motion with the court for such things as the use of the marital residence, allocation of parental rights, support of minor children, spousal support and assignment of responsibility to pay marital debts (such as the house or rental payments, car payments, insurance, utilities, finance companies and charge accounts). These temporary orders are not necessarily what the court will award as a final order when the case is resolved.

Restraining orders restrict or prohibit one or both of the spouses or others from certain behavior and activity. Restraining orders may be granted prohibiting harassment or abuse of the other spouse or to prohibit one or both spouses from transferring or disposing of marital funds or assets.

All temporary orders and restraining orders may be modified by the court on formal request, if appropriate. Temporary orders, unless modified, usually remain in effect and are enforceable from the time the court approves the order until the final action is granted.

How is child support determined?
Ohio law requires that the amount of child support must be determined by a certain procedure. The law sets basic support schedules that must be used to determine the proper amount of child support, based on the number of children and the combined gross income of the parents, as well as other factors and/or credits. The support schedules are based on the average cost of raising children in households across a wide range of incomes.

To determine the appropriate amount of child support, the court calculates each parent’s gross income. The gross incomes are combined and the total is used to locate the proper amount on the basic support chart. Any spousal support paid is added to the income of the recipient and deducted from the income of the payor to arrive at gross income. Costs of medical insurance and necessary child care are factored in, and the resulting child support obligation is divided according to the percentages of each party’s income to their total combined annual income.

The amount of support determined by these calculations is presumed appropriate. The court has discretion, in certain circumstances, to deviate from the basic support tables where applying basic support would be inequitable. The court also will issue orders for the children’s medical needs, including insurance. Child support must be paid to the designated support enforcement agency, which usually orders the employer to deduct that amount from wages.

What are my responsibilities as a client?
Because you have established a relationship with a lawyer who will present your demands and requests to the court, you have responsibilities to your attorney as a client. Rely on your attorney’s experience in this area to guide you through the process, and do what your attorney asks you to do.

Clearly communicate to your attorney your wishes and priorities. Do not force your attorney to guess.

Be open and truthful with your attorney. If evidence later establishes that you have been untruthful or have lied to the court, the court may penalize you. Your communications with your attorney are confidential. Your attorney will not reveal embarrassing or harmful information that you may have disclosed, but by knowing all the facts, your attorney can help you plan how best to correct or minimize harmful information. If you do not disclose important facts to your attorney, you are not being truthful. Surprises in court will leave you and your attorney dissatisfied and at a disadvantage in resolving your legal matter.

What are my responsibilities as a party?
You have asked the court for certain help or relief, so you have responsibilities to the court as a party to a legal action. The court addresses and resolves your problems by issuing court orders. Even if you do not agree with the court’s orders, you must comply or the court may penalize you. You will also put your case at a disadvantage and the final resolution may be delayed. If you believe certain orders are unfair, you can discuss with your attorney possible ways to have the court make modifications, but until orders are formally changed, you must follow the orders.

The checklist
Also discuss these topics with your attorney: tax implications; shared parenting; premarital agreements; mediation of disputes; short-term and long-term debts; guardian ad litem; pension and retirement plans; depositions; expert witnesses and costs; and attorney fees.

Sharing Parental Responsibilities After Separation

When parents come before the domestic relations court to terminate their marriage (or before the juvenile court in a parentage proceeding), the most important issues the court must address involve what will happen to their children. The marriage/relationship may end, but both former spouses/partners will still be parents, and their children will still need to be cared for and protected.

How have the laws changed?
The laws regarding children in divorcing families have changed dramatically over the past few decades. For most of the 20th century, children were handled much the same as the property their parents owned. The parties would fight over the right to control their children’s fate, the court would hear their arguments, and, finally, one parent would “win” and be awarded custody of the children. The other parent would be awarded visitation rights.

Over time, judges, lawyers, psychologists and others recognized that the impact this process had on the children was greater and often more negative than expected. The courts and the legislature began to shift their focus from the rights of the parents to the rights of the children.

How are parental rights and responsibilities divided?
The current terms used for the time parents spend with their children are parenting period and parenting time. These terms apply to both shared parenting and to the allocation of parental rights and responsibility to one parent (formerly known as sole custody).

Procedures for dividing parental rights and responsibilities now emphasize the rights of the child to be loved, protected and supported, while maintaining relationships with each of the parents, despite difficulties the parents may have with each other.

Every parent has certain rights and responsibilities for the care of the children by virtue of being a parent. When parents divorce, these rights and responsibilities are even more important. The court’s role is to ensure that the “best interest” of the children is protected. Therefore, the parental rights and responsibilities are expressly allocated to the parents.

A court has two basic options in allocating parental rights and responsibilities: adopting a plan for shared parenting (formerly called joint custody), or naming one parent the residential parent and legal custodian. At times, when the parents’ disagreement is considerable, the court may seek additional information and guidance from a guardian ad litem (a neutral person appointed by the court to protect the children’s best interest), court investigators or social workers, and, if either parent requests it, by interviewing the children.

In shared parenting, the parents “share” the parental rights and responsibilities according to a shared parenting plan. One or both parties will submit a proposed plan to the court; the division of the children’s time between the parents need not be equal. The court reviews the plan(s) to determine if it is in the children’s best interest. The court may then adopt the plan, ask the parties to amend the plan and adopt it as amended, or reject the plan. The parties may revise the plan to address the court’s objections, or the court may reject shared parenting completely and name one parent the residential parent and legal custodian.

Naming one parent the residential parent and legal custodian does not exclude the other parent from all parental rights and responsibilities. Nonresidential parents have numerous rights, including regular parenting periods, involvement in the children’s school activities, access to the children’s school records, and notification before a residential parent moves to a new residence with the children. Nonresidential parents usually are responsible for supporting their children by paying child support and a share of the medical expenses. The parent who has the most cost-effective health coverage will be ordered to carry the children’s health insurance.

What are some general guidelines to keep in mind?

  1. Recognize that divorce or separation is a highly emotional experience. Allow yourself and your children time for adjustment.
  2. Assure children that they are not to blame for the break-up and that you still love them. Children, especially young ones, often feel they have done something wrong and believe family problems are their fault.
  3. Continuing anger or bitterness toward your former partner can injure children far more than the divorce or separation itself. Refrain from criticizing the other parent. Such remarks are not only about your former spouse, but about someone your children love.
  4. Do not force or encourage your children to take sides. To do so builds frustration, guilt and resentment.
  5. Do not upset children’s routines too abruptly. Help children ease into their new routines as smoothly as possible.
  6. Limit your consumption of alcohol and do not use recreational drugs before or during your time with your children.
  7. Occasionally, nonresidential parents who are hurt or angry or feel they are no longer needed ask why they should make the effort to be with their children. The answer is simple. Your children still need both parents.
  8. Divorce or separation often leads to financial pressures on both parents and sacrifices must often be made by everyone. Be honest with your children when talking about these matters, and be sure any discussions are free of accusations against the other parent.
  9. Marriage breakdown is always hard on the children. They may not always talk about the way they feel or realize what this will mean to them. Parents need to be direct in telling children what is happening, and why, in a simple way that is appropriate to each child’s age. Do not lead children to feel that they must never talk or even think about what they know is taking place.
  10. The guilt parents may feel about the marriage breakdown need not interfere with discipline and correction of their children. The discipline that was necessary when both parents were present in the home is no less important when parents no longer live together. Children will be less likely to play parents against each other when rules are consistent. Do not attempt to buy your children’s favor by special treatment or by making promises you know you cannot keep. The roles of stepparents with regard to discipline must also be clear to children, parents and stepparents.

What are some parenting-time guidelines to follow?

  1. It is important to maintain frequent contact between the children and the nonresidential parent. Maintaining contact helps decrease children’s feelings of rejection or guilt for the divorce and their fear that they may never see the other parent again. Each court is required to have a standard or model parenting schedule in situations where parents cannot agree. Contact your local court to obtain guidelines. A schedule may be necessary, particularly in situations where a parent has relocated outside the state.
  2. From time to time, you may need to adjust your schedule. If the children have made plans that conflict with the schedule, parents need to work out the problem together in a responsible way. The behavior of parents greatly influences their children’s emotional adjustment. The residential parent must not deliberately and repeatedly create conflicts.
  3. Should a scheduled visitation need to be cancelled or delayed, inform the other parent as soon as possible and give the children a full explanation. If the nonresidential parent does not notify the residential parent, and is later than allowed by their official agreement, his or her parenting period should be considered forfeited.
  4. The time shared should be pleasant not only for the children, but also for the parents. Visitation should help children maintain a positive relationship with the nonresidential parent. It is important that neither parent verbally or physically attack the other in the children’s presence.
  5. The children should be available and ready at the expected time. It is up to the residential parent to prepare the children physically and emotionally, just as it is the responsibility of the parent providing transportation to be on time. Courtesy in communicating any problems will avoid confusion, disappointment and anger on the part of children and adults.
  6. Parenting periods provide time for parents and children to be with each other, enjoy each other and maintain positive relationships. Having other people participate may dilute the parent-child experience during the time together, so time spent with others—even stepfamily members, grandparents or other relatives—should be balanced. Children need the nonresidential parent’s time and undivided attention as often as possible.
  7. Nonresidential parents may be unsure as to what they might plan in the way of activities for their children, particularly if the children are young. Parents’ involvement with their children is the most important factor. Giving of yourself—teaching, talking and playing—is more important than spending money.
  8. Time parents share with their children should not be used to check on each other. Children must not be prodded for this kind of information or used as spies. Often in a child’s mind, the parents hate each other. Therefore, if children do anything to please one parent, they may feel the other parent will dislike them. They feel they have already lost one parent and are afraid of losing the other. So it is important that parents show mutual respect and teach their children to love and respect both mother and father.
  9. Children need parents to strive for agreement in decisions pertaining to their needs. This is especially important concerning discipline and correction, so parents do not undermine each other’s efforts.
  10. If you are the residential parent, furnish the nonresidential parent with copies of all the children’s school performance reports. Nonresidential parents may also contact the children’s schools for this information as well as for information regarding the children’s extracurricular school activities. Participation by both parents in school activities, such as parent-teacher conferences, is also important.
  11. The residential parent is responsible for providing clothing and personal effects that the children require while they are with the nonresidential parent. Ordinarily the nonresidential parent does not maintain a wardrobe for the children at his or her residence. These items are to be returned with the children or as soon as possible after a visit.
  12. It is important to understand that rights to support and rights to parenting time are separate. If the nonresidential parent falls behind in support payments, parenting time must not be denied. If the residential parent is improperly withholding the children, the nonresidential parent must continue with support. Consult your attorney on these matters. Failure to pay support and interfering with parenting time are detrimental to your children’s welfare and interfere with their rights. Keep in mind that these decisions may place you in contempt of court and make you liable to a jail sentence.

Where can I get help?
The allocation of parental rights and responsibilities is only the beginning of the family’s new lifestyle. The children and their parents must adjust to many changes, and it is important for parents to focus on their children’s needs throughout this process. Many counties offer parent education seminars for divorcing families, and some counties require such a seminar for all divorcing parents. These programs provide insight into the different ways children react to their parents’ divorce and suggest ideas for helping them deal with the changes.

If you need marriage and/or family counseling before, during or after divorce, sources to contact for help in finding a marriage and family counselor include your attorney, governmental services, your family doctor, and your religious or spiritual advisor.

Many courts use family mediators who are trained to assist parents after divorce or separation. Mediators can help parents resolve disagreements concerning their children and cooperate in the care of the children.

Choose a counselor as you would a doctor or lawyer. Ask about credentials, training and years in practice.

The information contained in this pamphlet is general and should not be applied to specific legal problems without first consulting your own attorney.

Child Support

Who pays Child Support?
In general, the “non-residential” parent pays child support to the “residential” parent (the parent with whom the child lives). In shared parenting plans, the amount of support may be reduced according to the amount of time the child spends in each parent’s home, if there is a near-equal division of that time.

How is child support calculated?
Child support is calculated according to a formula written into state law. That formula combines the father’s and mother’s gross income. Each parent is allowed certain gross income deductions, including the sum of local income tax actually paid, any child or spousal support order for other children or former spouses, and the value of a federal dependency exemption for each biological or adopted dependent of his or her household (not including the dependent(s) for whom child support has been ordered).

For example, assuming it were the tax year 2004 and you had a child by a new marriage and a non-residential child from a previous marriage, you would deduct $3100 from your gross income before calculating support for the child of your earlier marriage. If you also had been ordered to pay spousal support to your former spouse, the annual sum of the spousal support would be deducted from your gross income and added to your former spouse’s income.

The total of both parents’ adjusted gross income is applied to a chart, which identifies the amount of support required to raise children in the parents’ income category. The paying parent pays his or her pro-rated share of that charted amount. For example, if Mom earns $10,000 (gross salary) per year, and Dad earns $30,000 (gross), the combined gross income is $40,000. For one child, the 2005 charted amount is approximately $6,500 of child support per year. If dad were paying support, he would pay $4,875 per year, or 75 percent of the charted amount, because he earned 75 percent of the total combined parental income.

All information was obtained, with permission, from the Ohio State Bar Association, LawFacts Pamphlet Series