How do you end a marriage in Ohio?

Divorce is not the only means of ending a marriage in Ohio. A marriage can also be terminated if it is annulled, dissolved, or if one of the spouses dies. By the way, a spouse is presumed dead if he or she is the subject of an unexplained continuous absence from the home for a full seven years.

Divorce, dissolution, and annulment: What's the procedure?

Divorce:

A divorce case is commenced by filing a "complaint." (The spouse who files is the "plaintiff;" the other spouse is the "defendant.") The complaint states that the plaintiff has lived in Ohio for six months immediately prior to the filing of the complaint, as well as stating the date and place of marriage, the name and birth dates of any minor children, and a claim of one of the statutory grounds for divorce. The plaintiff serves (deliver the papers to) the defendant. If a plaintiff can't personally sere the papers, a court order may be granted to publish the service of process in a newspaper. The defendant files an "answer" admitting or denying the allegations. The defendant may also raise any defenses or file counterclaims. If the defendant fails to answer, the plaintiff must present its case and a judge will rule accordingly. While the divorce case is pending in court, either spouse can request temporary orders for child support, spousal support (alimony), parental rights and responsibilities (commonly referred to as temporary custody or visitation rights), and any other temporary order that may be called for, such as a temporary restraining order to keep either spouse from removing the children from the jurisdiction of the court or restraining one or both spouses from harassing, threatening, or physically abusing the other. Then, the court will probably hold one or more pretrial hearings to determine whether a mutually agreeable resolution of the case can be had and, if not, what issues will have to be decided at trial. If the case cannot be resolved, the court will set dates for the conclusion of the discovery procedures, for the production of expert reports and evaluations and for the date of the final hearing (trial). Ohio does not permit jury trials in divorce cases. The court can appoint a "guardian ad litem" (GAL) at the request of either party or upon the court's own motion to represent the interests of the minor children of the parties. The GAL is usually an attorney familiar with domestic relations law, whose job is to act in the best interests of the children. The parents will generally be required to pay the fees of the GAL if they are able to do so. If the case goes to trial, the judge will make the final determinations.

Dissolution:

Before filing a petition for dissolution, both spouses must sign a separation agreement that: (1) provides for the division of all property; (2) determines whether one spouse will pay spousal support to the other and if so, how much and for how long; (3) makes provisions for the allocation of parental rights and responsibilities, child support, and visitation rights, and (4) resolves any other issues that relate to the marriage. The separation agreement must be voluntarily entered into by both spouses after full financial disclosure. The separation agreement is attached to the petition for dissolution which is signed by both parties and filed with the proper court. Service of process must be made on both parties but is usually accomplished by having the parties sign a waiver of service that is attached to the petition. After the petition is filed, a hearing date is set by the court. The hearing date must be not less than 30 days or more than 90 days after the filing of the petition. At the time of the hearing both spouses must be present in court to present testimony assuring the judge that they entered into the separation voluntarily; that they are satisfied with the terms of the agreement; that the agreement is fair; and, that the parties still want to terminate the marriage by way of dissolution. If the judge so finds, a judgment of dissolution will be entered that incorporates the terms of the separation agreement, thus making the separation agreement an order of the court. At that point the court will enter a judgment terminating the marriage.

Annulment:

In order to have a marriage annulled, one spouse must be able to prove one of the six grounds for annulment in Ohio (see above). A request for annulment in many of these situations must be brought within two years of the marriage or two years of discovering the facts at issue – for example, that the marriage was fraudulently induced. For this reason, most annulments are brought fairly early in the marriage. A petition must be filed with the court addressing the grounds for annulment and must be served on the defendant spouse.

What's the best way to end a marriage?

There is no "best" way to terminate a relationship – ending a marriage almost always involves some discomfort. If it is possible, dissolution of marriage is usually the best legal and emotional choice for most couples. There are no adversarial proceedings and the division of property, child support and parenting issues are equitably agreed upon. If a couple has grounds for both divorce and annulment, keep in mind that a couple cannot obtain attorney fees and spousal support if an annulment is granted. Also, the division of property may prove more equitable if a divorce rather than annulment is granted. You should consult an attorney if choosing between divorce and annulment.

Divorce, dissolution, and annulment: What's the procedure?

A party who is not satisfied with the final decision of the trial judge has a right to appeal the decision to the Court of Appeals. Appeals are expensive ($10,000.00 - $15,000.00 is probably the minimum cost) and there is no guarantee that an appeal will be successful. Generally, the only matters that can be appealed are that the judge has abused his or her discretion or that the judge misapplied the law in making the final determination. An appeal is not a new trial. It is a wholly strictly a legal proceeding where no witnesses or evidence are presented. An appeal is based solely on the proceedings in the trial court and whether or not substantial justice was done.

Child Support:

Who has the duty to pay child support?

According to Ohio law, a biological parent of a child, a man determined to be the natural father of a child pursuant to law, an adoptive parent, a parent who acknowledged paternity on a child's birth certificate or a parent who acknowledged paternity in probate court has a duty to pay child support. This is in addition to the parental duty of support imposed on married people by Ohio law.

How long does the duty to pay child support last?

In general, the obligation continues until the child reaches the age of 18 or is otherwise emancipated before reaching the age of 18 (because the child is married, is living on his/her own, and so on). However, the obligation will continue beyond the age of 18 as long as the child continuously attends a recognized and accredited high school on a full time basis. A parent's duty to pay child support may continue beyond the age of 18 for a child with a physical or mental disability who is unable to support him/herself.

How is child support determined?

In all cases in which child support is ordered or modified, the court is legally required to calculate the amount of support in accordance with current child support guidelines established by the Ohio Supreme Court. The court must use specific worksheets to calculate the child support obligation. The child support guideline schedules are presumed to be the proper amount of child support to be paid unless the court finds that both of the following are true:

• after the court considers certain statutory facts and criteria that allow the court to deviate from the guideline amounts, the court determines that the guideline amount is unjust, inappropriate, and would not be in the best interests of the child, and

• the court, after entering the amount of the child support calculated pursuant to the guidelines, then issues specific findings of fact to support the determination that the amount would be unjust, inappropriate, and not in the best interests of the child.

How does the court determine a parent's income for child support purposes?

A parent's gross income is the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable. It includes, but is not limited to:

• income from salaries, wages, overtime pay and bonuses

• commissions, royalties, tips, rents, dividends, severance pay, pensions, interest, trust

• social security benefits, including disability, retirement, and survivor benefits that are not means-tested

• income, and annuities

• workers' compensation benefits, unemployment insurance benefits, and disability insurance benefits

• benefits received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a program or law administered by the United States department of veterans' affairs or veterans' administration

• spousal support actually received from a person not a party to the support proceeding for which actual gross income is being determined, and all other sources of income

Gross income also includes income of members of any branch of the United States armed services or national guard, including, but not limited to, amounts representing base pay, basic allowance for quarters, basic allowance for subsistence, supplemental subsistence allowance, cost of living adjustment, specialty pay, variable housing allowance, and pay for training or other types of required drills; self-generated income ("self-generated income" means gross receipts received by a parent from self-employment, proprietorship of a business, joint ownership of a partnership or closely held corporation, and rents minus ordinary and necessary expenses incurred by the parent in generating the gross receipts); and potential cash flow from any source.

"Gross income" does not include:

• received from means-tested public assistance programs, such as aid to families with dependent children, supplemental security income, food stamps, or disability assistance

• benefits for any service-connected disability under a program or law administered by the United States department of veterans' affairs or veterans' administration that have not been distributed to the veteran who is the beneficiary of the benefits and that are in the possession of the United States department of veterans' affairs or veterans' administration

• child support received for children who were not born or adopted during the marriage at issue

• amounts paid for mandatory deductions from wages other than taxes, social security, or retirement in lieu of social security, including, but not limited to, union dues, and

• nonrecurring or unsustainable income or cash flow items.

What if a parent quits a job or refuses to get one?

If a parent is voluntarily unemployed or underemployed, the court must calculate that parent's "potential income." Potential income" means imputed income that the court determines the parent would have earned if fully employed, as determined from the parent's employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides. It also includes income imputed from any non-income-producing assets of a parent, as determined from the local passbook savings rate or another appropriate rate as determined by the court, if the income is significant. The court then adds this amount to the parent's actual income to come up with the income figure to be used in calculating child support.

Can the amount of child support be modified later?

Child support is always modifiable if a material change in the circumstances of the child or the parent occurs not contemplated when the last order was issued. The court must decide if a change in circumstances exists and, if so, the court must determine the proper amount of the new support order. A material change includes a change in the needs of the child. When considering a motion for modification of child support, the court must recalculate the amount of support using the child support worksheet and the child support guidelines. If the recalculated amount is more than 10% greater or less than the amount of child support required under the existing child support order, this fact constitutes a change of circumstance that is substantial enough to require a modification of the amount of the child support order.

What about medical expenses and health insurance for the child?

In addition to child support orders, the court is required to order that one or both parents provide for the health care needs of the child. Either parent or both may be required to pay any amounts not covered by insurance.The expected cost of ordinary and reasonable medical and dental expenses are already built in to the child support guidelines. The court will make a separate order with regard to who must pay the costs of extraordinary medical and dental expenses. The court may order one or both of the parents to pay the extraordinary medical and dental expenses, using a formula established by the court (in relation to the incomes of the parents).

How does the court assure payment of child support?

If the court has ordered child support, a "withholding order" must be made. A withholding order can be of several types, including an order requiring the employer of the person obligated to pay child support (the "obligor") to withhold the ordered amount from the paycheck of the obligor and to pay that amount directly to the bureau of support. The employer is then also required to notify the bureau of support of any benefit the obligor is to receive (including worker's compensation, severance pay, sick leave, bonuses, profit sharing, etc.) and any lump-sum payment of any kind that is $500 or more. If the employer fails to comply with the withholding order, the employer is liable for any support payment not made.If the obligor is self-employed or unemployed, the court may issue an order requiring the obligor to post a cash bond with the court. The bond is intended to guarantee that the obligor makes payments as ordered and will pay any arrearages under any prior support order that pertained to the same child or spouse. If the court determines that the obligor is receiving workers' compensation payments, the court may require the bureau of workers' compensation to withhold a specified amount for support in satisfaction of the support order. Similarly, if the obligor is receiving retirement benefits, the court may require the entity paying the benefits to withhold from the obligor's pension benefits a specified amount for support in satisfaction of the support order.

What if a parent doesn't make his or her child support payments?

Initially, if a person fails to make his/her child support payments as ordered, the court can find that person in contempt of court. If found in contempt, the obligor can be ordered to pay the costs of the contempt hearing including attorney fees and can be ordered to jail under certain circumstances. If the obligor continually fails to pay child support (or spousal support), that parent can be charged criminally with penalties, including prison time.

Spousal Support:

There is no such thing as "alimony" in Ohio anymore. It has been replaced by "spousal support," which refers to payments from one spouse to another during or after a divorce. Either spouse can be ordered to pay support to the other—it's based on income and resources, not gender.

When will a court order spousal support?

You can ask for a temporary spousal support order while your divorce is pending if you don't have enough money to support yourself. If the court makes a temporary order, it ends when the divorce is over, at which point the court will make a final spousal support order. Courts will also order spousal support in an action for legal separation (you're not ending the marriage, but you're living apart and need support from your spouse).

How does a court determine the amount of temporary spousal support?

There's no specific formula for calculating temporary support awards. The court must use its discretion, taking into account each spouse's earning capacity and other resources while the divorce is pending.

How does the court determine whether to order permanent spousal support, and how does it decide the support amount?

Ohio law sets out fourteen factors for a judge to consider when one spouse is seeking an award of spousal support. These factors are:

• the income of the parties, from all sources, including, but not limited to, income derived from property awarded as part of the property division in the divorce proceeding;

• the 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 duration of the marriage;

• the extent to which it would be inappropriate for a party, because he/she will be custodian of a minor child or children of the marriage, to seek employment outside the home;

• the standard of living of the parties established during the marriage;

• the relative extent of education of the parties;

• the relative assets and liabilities of the parties, including, but not limited to any court-ordered payments by the parties;

• 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;

• 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;

• the tax consequences, for each party, of an award of spousal support;

• the lost income production capacity of either party that resulted from that party's marital responsibilities; andany other fact that the court expressly finds to be relevant and equitable.

How long does spousal support last?

Spousal support can end on a specific date, can continue indefinitely, or can upon the occurrence of a specified event, like the recipient's remarriage or the death of either party. Courts prefer to include a specific ending date in the spousal support order, if possible. The judge may also maintain jurisdiction—meaning the right to make decisions—over the support issue, in order to allow the judge to review the order and decide whether it should continue as is or be modified or terminated.

Can permanent spousal support be modified or terminated?

Yes. Permanent spousal support isn't always really permanent. The court can include a provision in the order saying that it retains jurisdiction to hear any motion requesting a modification of the existing award. The spouses can also agree to make the order modifiable. If the divorce decree doesn't say that the court retains jurisdiction, then the order isn't modifiable. If the court has retained jurisdiction to modify spousal support, there's another requirement—the court can only order a modification where the person asking for the change can show there has been a material or substantial change in the circumstances of either party that could not reasonably have been anticipated at the time of the original decree. A change in circumstance includes:

• altered economic conditions, which could include an involuntary decrease in the payor's income, or an increase in either spouse's income or assets

• remarriage of the recipient

• death

• entering into a relationship in another state that would constitute a valid marriage in Ohio

• cohabitation in certain situation

• retirement, and

• other circumstances in the court's discretion

Assets and Debt:

What is the standard for dividing property in Ohio?

Each spouse is considered to have contributed equally to the production and acquisition of "marital property." Therefore, Ohio law requires that marital property (defined below) must be divided equally, unless such a division would be inequitable. In such a situation, the court must divide the property equitably instead of equally.

What is "marital property"?

"Marital property" means, all of the following:

• all real and personal property currently owned by either spouse or both, and that either or both acquired during the marriage (this includes retirement benefits)

• any interest of either spouse or both in any real or personal property, and that either or both acquired during the marriage (again, this includes retirement benefits)

• all income and appreciation on either spouse's separate property, due to the labor, financial, or in-kind contribution of either or both of the spouses that occurred during the marriage (unless an exception applies), and

• participant accounts in state and municipal deferred compensation plans, to the extent set forth in the applicable statute

Marital property does not include either spouse's separate property, as described below.

What is separate property?

Separate property is property that is not marital property, but is instead owned separately by either spouse. It includes any real or personal property (or any interest in such property) that falls into these categories:

• an inheritance by one spouse by bequest, devise, or descent during the course of the marriage

• property that was acquired by one spouse prior to the date of the marriage

• passive income and appreciation acquired from separate property by one spouse during the marriage

• property acquired by one spouse after a decree of legal separation

• property that is excluded from the couple's marital property by a valid ante nuptial agreement

• compensation to one spouse for that spouse's personal injury, except for loss of earnings during the marriage and compensation for expenses paid from marital assets, and

• any gift of property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse

Separate property remains separate, even if it is mingled with another type of property (such as marital property), unless the separate property is not traceable back to its source.

How does the court divide marital property?

In dividing marital property and deciding whether to make a distributive award (money one spouse pays to the other in lieu of property, if dividing the actual property would be too difficult or undesirable), the court must consider all of the following factors:

• the length of the marriage

• the assets and liabilities of the spouses

• the desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children

• the liquidity of the property to be distributed

• the economic desirability of retaining an asset or an interest in an asset intact, rather than dividing it or its value

• the tax consequences of the property division on each spouse

• the costs of sale, if an asset will have to be sold to equitably divide the property

• any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses

• the retirement benefits of the spouses (except Social Security), and

• Any other factor that the court expressly finds to be relevant and equitable.

How does the court determine the value of a marital asset?

Obviously, some assets have a readily ascertainable value, such as a bank account, publicly traded stock, and other liquid assets. If the parties cannot agree on the value of other assets, there must be a determination of the value in order for the court to be able to make an informed determination. The value of assets such as homes, cars, jewelry, and so on, can be determined by obtaining appraisals from qualified experts. The value of pensions and retirement accounts may also be determined from an evaluation. Assets such as the value of a business can be difficult to properly value. In those situations, it is usually necessary to retain the services of accountants and other experts to do financial evaluations. This process can often be costly and time consuming. Unless the parties agree to accept the value determined by one expert, the court will have to take evidence and testimony and make a determination based upon the evidence as to the value of the property.

Is a professional license or degree an asset subject to valuation and division?

No. Although other states have ruled otherwise, Ohio has determined that a professional license or degree is not an asset subject to division. The future value of a professional degree or license earned during the marriage is, however, a factor to be considered by the court when making a determination with regard to spousal support.

What about retirement accounts, pensions, and other deferred compensation?

The retirement benefits of the spouses, including IRA's, 401-K plans, pensions, deferred compensation, etc. are considered marital property and subject to division by the court to the extent that they were acquired by either or both of the spouses during the marriage.