Divorce FAQs

What Are Grounds for Divorce in Ohio?

In order to terminate a marriage by divorce in Ohio, the party seeking the divorce must state the grounds for the action.  The statement or testimony regarding grounds must be supported by other evidence such as witness testimony or admissions by the other party. 

The first nine grounds for divorce assign fault to the other party, they are as follows:

1. Spouse living at the time of marriage (bigamy);
2. Willful absence;
3. Adultery;
4. Extreme cruelty
5. Fraudulent contract
6. Gross neglect of duty;
7. Habitual drunkenness
   
8. Imprisonment of adverse party
9. Out-of-state divorce.
   
   
The final two grounds for divorce are “no-fault” grounds:


10. Living separate and apart (without interruption for one year).
11. Incompatibility, unless denied by either party.

How is Property Divided Upon Divorce?

In a divorce proceeding, the parties stand as equals before the court.  The court must equitably divide the assets of the parties based upon what property was acquired during the marriage.  In order to begin this analysis, courts must determine the duration of the marriage and determine whether to characterize the property as either “marital” or “separate”.

What is Marital Property

Marital property is distinct from all separate property.  There are generally four types of marital property:

1. Real and personal property owned by either or both parties on the date of the hearing, which was acquired by either or both parties during the marriage;
2. An interest in any real or personal property owned by either or both of the parties, which was acquired by either or both parties during the marriage;
3. The income and appreciation accruing during the marriage upon separate property, but only if that income or appreciation is attributable to a monetary, in-kind, or labor contribution of either or both parties; and
4. A participant account as defined by Ohio law in a state or municipal deferred compensation plan.

Generally speaking, marital property is everything that a husband and wife own or acquire from the beginning of their marriage until the date of the hearing. Any community property states, any income earned and property acquired during the course of the marriage is deemed to be owned by both spouses regardless of who actually earned or acquired it. Likewise, debt acquired during the marriage will be deemed marital debt without consideration of which spouse actually acquired it.

What is Separate Property?

Separate property is anything owned individually (separately) by one spouse. Spouses can indicate that something is separate property by both spouses indicating the status in writing. Spouses may also incur separate debt by showing that the creditor was only looking to one spouse (or that spouse's separate property) for repayment. However, separate property is usually limited to property owned before the marriage or pre-marital property, gifts or inheritances, and post-separation earnings. Inheritances, premarital property and passive income are all presumed to be separate property, as long as they are traceable, whether or not they have been commingled. Appreciation is separate property as long as the property is separate property and the increase is not due to the labor, monetary, or in kind contribution of either or both spouses that occurred during the marriage.  

What about the house?

In almost all circumstances, the primary home of the family is considered marital property. When determining division of marital assets, the court considers many things. Keeping the home is viewed as tantamount to providing stability when children are involved and the parent awarded primary custody will most often remain in the home. If children are not involved, it is more likely that the home may be sold. However, adjustments in maintenance and alimony can be made to avoid selling it.

What happens to my pension?

Pensions earned during the course of the marriage and that are vested at the time of the divorce are usually considered a part of the marital assets. Meaning, the spouse who did not earn the pension will generally have a right to a portion of the vested proceeds. However, the courts are still divided on pension benefits that have not vested at the time of the separation.

What is a QDRO?

A Qualified Domestic Relations Order (QDRO) is a court order which allows payouts from a retirement plan to a former spouse. The QDRO is necessary when dividing a retirement account pursuant to divorce proceedings due to the restrictions placed on pensions by Internal Revenue Code and Employee Retirement Income Security Act (ERISA). A QDRO is necessary to assure that a former spouse may receive benefits as an alternate payee, because without it the benefits may only be paid out to the individual employee who earned the benefits.

Who will be responsible for the debt?

Debt division is considered part of the property division process.  The debt, like the property, is divided equitably between the parties. If the debt is secured debt, the general rule is that the value of the encumbered asset is reduced by the amount of the debt in determining division.

A very common problem for couples in our current economy is that they have accumulated high amounts of unsecured debt, with little asset acquisition during the marriage. This situation poses a complicated issue for debt division. In cases such as these, the advice of a financial consultant, or even a bankruptcy attorney, could be very helpful to the parties.

As with other property issues, if the parties cannot come to a fair and equitable division of debt on their own, state laws typically provide a rationale for courts to follow in making debt division decisions.

Will Spousal Support be Awarded?

Not all cases involve support from one spouse to the other. If awarded, spousal support may be temporary or permanent.  The obligation of one spouse to support the other financially is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.

Courts consider a number of factors in determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support.  Courts consider: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable.

How is Child Custody Determined?

When minor children are involved in a divorce, the Ohio courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.

When husband and wife are living separate and apart from each other, or are divorced, and the question as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children is brought before a court of competent jurisdiction, they shall stand upon an equality as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children, so far as parenthood is involved.

In determining the best interest of a child, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to: (a) The wishes of the child's parents regarding the child's care; (b) 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 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 parents 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.

In determining whether shared parenting is in the best interest of the children, the court shall consider all of these additional relevant factors, including, but not limited to, (a) The ability of the parents to cooperate and make decisions jointly, with respect to the children; (b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent; (c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent; (d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting; (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.

What About Child Support?

Ohio child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child.

In a divorce, dissolution of marriage, legal separation, or child support proceeding, the court may order either or both parents to support or help support their children, without regard to marital misconduct. In determining the amount reasonable or necessary for child support, including the medical needs of the child, the court shall comply with the state child support guidelines. The amount of child support that will be paid pursuant to an administrative child support order, the court or agency shall calculate the amount of the obligor's child support obligation in accordance with the basic child support schedule, and the applicable worksheet with any deviations applied according the the following deviation factors:

How Does the Legal Process Work?

The first step, in any divorce, is that one spouse or both spouses make a decision to initiate a termination of their marriage. Arriving at this decision is different for each individual. While generally not considered part of the legal process per se, how this decision is made may have significant legal consequences. Persons making this decision should consult first with a trusted attorney, a marriage counselor, a financial consultant, and/or any other trusted third party, before taking this often-drastic step.

The normal issues to be decided in a divorce are how property is divided, how debts are divided, and, between parties with children, how legal and physical custody will be arranged and setting a visitation schedule. Other issues that may arise when children are involved are child support, and medical and childcare expenses. In longer-term marriages, the issue of spousal support may be addressed, and the terms of any prenuptial agreement will be analyzed. Once the decision to obtain a divorce is made, the party initiating the divorce files a legal pleading known as a “Complaint.”  This Complaint sets out basic details of the marriage and states the grounds for the divorce.  In Ohio, this pleading is accompanied by a number of other documents, including, financial affidavits and affidavits regarding the status of the children.  The initiating party may also request temporary spousal support, temporary child support and a restraining order to maintain the status quo with regard to property and debt. 

After the Complaint is filed and filing fees are paid, the Clerk of Courts will attempt service on the spouse.  Once served, the opposing spouse then has the opportunity to file an Answer to the Complaint and file Counter Claims.

The legal process can be very lengthy and it is not unusual for the process to take more than a year.  The court will schedule numerous hearings regarding temporary orders, property division and other issues.

Those able to maintain objectivity and detachment while sorting through these issues often find the divorce process can actually help them move on in their lives without the battle scars some receive during their divorce process.

Can a divorce decree be changed?

As the answers to legal questions often do, the answer to this question usually generates a set of additional questions, such as:

• Who wants the order modified?
  

In almost all cases in which someone other than a party to the divorce wishes to change the divorce decree the answer is no. Thus, the question should be, can the divorce decree be changed upon the request of a party to the divorce. This leads to more questions.

• What part of the order does the party want to modify
  

If the modification has to do with property division, in most states, the answer is again no, unless there is evidence that the original decree was based on significantly incorrect information. In this event, states provide procedures for correction of the order based on the newly revealed information. Since states generally require that the parties provide full disclosure of assets and liabilities, if the incorrect information was intentionally provided in order to conceal assets, the court may also impose significant penalties.

If, on the other hand, the desired modification involves other issues, child support, spousal support, child custody and visitation, the next question is typically:

• Has there been a significant change in circumstances since the entry of the decree that warrants a change?
• In child custody matters, a number of different factors can come into play so that the court may find there is a significant change in circumstances justifying modification. Some states require an even higher standard for modification of the decree in the first two years of an order simply to help insure that parents do not keep disrupting their children's lives by dragging the other parent back to court.
• In child support and spousal support matters, the answer again depends on the question of whether there has been a significant change in circumstances to warrant the change. If so, the court may modify its original decree.

Learn More: Divorce

Alimony, maintenance, and spousal support are legal terms for payments, usually made monthly, from one spouse to the other, often for a certain number of years. Payments may be ordered on a temporary basis during the pendency of the divorce. They also may be permanent obligations. At present, in most states, spousal support payments are used as a means of catching up for those spouses whose circumstances have kept them out of the workplace for a significant period.

Child support is a phrase that generally refers to the amount of money one parent pays to the other to help support their common-children when the parents are not living together. The current state of the law takes most of the contention out of the child support issues. Child support guidelines in most states make it primarily formulaic to determine whom is ordered to pay support, and in what amount.

Physical or legal custody and visitation are terms used when determining the amount of time children spend with each parent and how decision-making authority for major issues is assigned. For instance, a parent may have joint legal custody, the right to share in making decisions, such as in what religion the children will be raised, or what schools they will attend, whether or not they may get their driver license, join the military, or get married, but may have the children physically with them as little as every other weekend.

Divorce or dissolution of marriage are terms for the process by which the marriage of two people is terminated. It may also establish their right to remarry, distribute their property between them according to the law of the state in which they reside, determine whether either party will pay spousal support, and, if they have children, with whom the children shall live and whether one party will pay child support.

Domestic violence is sometimes referred to as intimate partner violence because it is not limited to parties living together. Domestic violence is the control of another through physical, verbal, emotional, psychological and spiritual violence. Intimate partner violence figures broadly in many family law issues, including child custody and visitation. Studies have shown that the period between initial separation and divorce can be the most dangerous for victims of domestic violence and their children.

Prenuptial agreement is a legal term for a contract entered into by parties still contemplating marriage setting forth their intentions how their individual property will be divided should they ultimately separate. If not patently unfair to one party, most prenuptial agreements will be enforced in court so long as the court is convinced the parties entered into the agreement with full disclosure and no coercion, and if the agreement does not work a hardship on either of the parties.

Community property is a legal term that describes the law in some states setting forth the prescribed division of that property that was acquired by the parties, either individually or as a couple, and includes the income of the parties. Some states divide community property equally, while others first make a determination of what constitutes community property and then make an equitable division of the property.

Equitable division is a term that describes the law in most states that provides a process for the division of property of the parties. Taking into account all of the circumstances of the parties division or property is completed according to the equities of those circumstances.

Collaborative law is a process in which divorcing couples and their attorneys make a commitment to alternative dispute resolution instead of resorting first to court. If either party consequently decides to go to court all attorneys must withdraw, and the parties must find new legal counsel.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.