Ohio Divorce Law

Divorce and Legal Separation in Ohio



Divorce and Legal Separation in Ohio

Ohio Divorce Basics

Dissolution:

In Ohio, a Dissolution of Marriage is a form of no-fault termination of a marriage, where both parties have agreed upon all of the terms regarding division of property and debt, spousal support, as well as child support, custody, visitation and parental rights and responsibilities, if applicable.

With a Dissolution, there is no Plaintiff or Defendant; it is not a Divorce; and the court does not have to make any of the decisions it normally makes in a contested divorce. It generally proceeds much more quickly than a divorce action.

Divorce:

A Divorce refers to the termination of a marriage by the judgment of a court, and may only be granted upon a finding of fault-based grounds.

Residency Requirement:

To file for divorce in Ohio, the Plaintiff, filing spouse, must have been a resident of the state at least six months before filing the Complaint.

To file for dissolution of marriage, either of the spouses must have been a resident of the state for at least six months before filing the Petition.

Filing:

Divorce:

The Plaintiff may file a Complaint for Divorce in a court of common pleas, including divisions of courts of domestic relations. If the residency of the Defendant, other spouse, is unknown, he/she is not a resident of Ohio, or is a resident but is absent from the state, the Plaintiff shall give notice of the divorce action by publication, as provided by the Rules of Civil Procedure.

Dissolution:

A Petition for Dissolution of Marriage should be signed by both spouses and shall have attached and incorporated a separation agreement agreed to by both spouses. For purposes of service of process, both parties in an action for dissolution of marriage shall be considered as Defendants and subject to service of process as defendants pursuant to the Rules of Civil Procedure.

Within 30 to 90 days after filing a Petition for Dissolution, both spouses shall appear before the court and each spouse shall acknowledge under oath that he/she has voluntarily entered into the separation agreement attached to the petition, that he/she is satisfied with its terms, and that he/she seeks dissolution of the marriage.

Converting a Divorce Action into a Dissolution Action:

At any time before a final judgment is entered in a divorce action, the parties may convert the divorce action into an action for dissolution of marriage by filing a motion with the court. The motion shall contain a Petition for dissolution of marriage that satisfies the statutory provisions for a legal separation agreement in a Dissolution of marriage.

The action shall then proceed as a normal dissolution action with both spouses designated as Petitioners. No court fees or costs normally charged upon the initial filing of an action shall be charged upon conversion of the action for divorce into an action for dissolution of marriage.

Converting a Dissolution Action into a Divorce Action:

At any time before a decree of dissolution of marriage has been granted, either party may convert the dissolution action into an action for divorce by filing a motion with the court in which the dissolution action is pending.

The motion shall contain a complaint for divorce that contains grounds for the divorce and that otherwise complies with the Rules of Civil Procedure. The divorce action shall then proceed in accordance with the Rules of Civil Procedure in the same manner as if the motion had been the original complain in the action.

No court fees or costs normally charged upon the initial filing of an action shall be charged upon conversion of the action for dissolution of marriage into an action for divorce.

Conciliation Procedures:

At any time after thirty days from the service of summons, or first publication of notice in an action for divorce, annulment, or legal separation, or at any time after the filing of a petition for dissolution of marriage, the court of common pleas, upon its own motion or the motion of one of the parties, may order the parties to undergo conciliation for no more than 90 days. If children are involved in the proceeding, the court may order the parties to take part in family counseling during the course of the proceeding or for any reasonable period of time as directed by the court.

The court, in its order requiring the parties to undergo family counseling, may name the counselor and shall set forth the required type of counseling, the length of time for the counseling, and any other specific conditions required by it. The court shall direct and order the manner in which the costs of any conciliation procedures and of any family counseling are to be paid.

Spouse’s Name:

If a party so desires, when a divorce is granted, the court of common pleas shall restore any name the party had before the marriage.

If the court determines that a marriage is void or that a judgment of nullity ought to be granted, the court may in its discretion, and regardless of whether or not a request was made int eh complaint, restore any name that a party had before the marriage.

Legal Grounds for Divorce

The following situations are the statutory grounds for divorce in Ohio. They include no-fault and fault-based reasons for termination of the marriage. There must be testimony by the Plaintiff and a corroborating witness, or an admission by the Defendant to prove these grounds.
  • Bigamy;
  • Willful absence of the adverse party for one year;
  • Adultery;
  • Extreme cruelty;
  • Fraudulent contract;
  • Any gross neglect of duty;
  • Habitual drunkenness;
  • Imprisonment of the adverse party in a state or federal correctional institution when the complaint for divorce is filed;
  • Procurement of a divorce outside of Ohio, by either spouse, wherein the party who sought the divorce is released from obligations of the marriage and the other spouse is still bound by those obligations;
  • Either spouse applies for a divorce after the couple have lived separate and apart for one year, without interruption and without cohabitation; and
  • Incompatibility, unless denied by either party.

Annulment

An annulment is a decree from a court determining that the marriage is legally invalid because of some defect that existed at the time the marriage was entered into; therefore, it never existed.

Grounds for an annulment include the following:
  • One of the parties is underage and no more than two years have passed since the party reached the age of majority;
  • Bigamy, and the “other” spouse is still living;
  • Mental incompetence of one of the parties;
  • Fraud and no more than two years have passed since the discovery of the fraud;
  • Duress and no more than two years have passed since the date of the marriage; and
  • Failure to consummate the marriage, which may include impotency and not more than two years have passed since the date of the marriage.

Property Division

Ohio is an equitable distribution state, which means marital property will be divided fairly and equitably, although not necessarily equally.

In divorce proceedings, and upon the request of either party in legal separation proceedings, the court shall determine what constitutes marital property and what constitutes separate property. Upon distribution of property, the court shall divide the marital and separate property equitable between the spouses.

> The court has jurisdiction over all property, excluding the social security benefits of a spouse other than that which is prescribed by statute

Ohio statute defines marital property as the following:
  • All real and personal property owned by either or both spouses and retirement benefits of the spouses that was acquired by either or both of the spouses during the marriage;
  • all interest that either or both of the spouses has in any real or personal property and the retirement benefits of the spouses that was acquired by either or both of the spouses during the marriage;
  • All income and appreciation on separate property due to the labor, monetary, or in-kind contribution of either or both spouses that occurred during the marriage; and
  • Participant accounts of either spouse to the extent defined by law.
Marital property does not include any separate property. Separate property means all real and personal property and any interest in real or personal property that is found by the court to be any of the following:
  • An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;
  • Any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage;
  • Passive income (meaning income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse) and appreciation acquired from separate property by one spouse during the marriage;
  • Any real or personal property or interest in real or personal property acquired by one spouse fter a decree of legal separation;
  • Any real or personal property or interest in real or personal property that is excluded by a valid prenuptial agreement;
  • Compensation to a spouse for his/her personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets; and
  • Any gift of any real or personal property or of an interest in real or personal 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.
In determining how to distribute marital property, the court shall consider all relevant factors, including the following criteria:
  • The duration 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 of the marriage;
  • The liquidity of the property to be distributed;
  • The economic desirability of retaining intact an asset or an interest in an asset;
  • The tax consequences of the property division upon the respective awards to be made to each spouse;
  • The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;
  • Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;
  • Any retirement benefits of the spouses, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension; and
  • Any other factor that the court expressly finds to be relevant and equitable.

Spousal Support

Spousal support refers to any payments made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is for sustenance and support. In divorce or legal separation proceedings, upon the request of either party and after the court determines property division, the court of common pleas may award reasonable spousal support to either party.

An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable in either a lump sum or in installments, from future income or otherwise, as the courts deems equitable.

When the court determines whether spousal support is appropriate and reasonable, and if so, the nature, amount, terms of payment, and the duration of the spousal support, the court shall consider the following criteria:
  • The income of the parties, from all sources;
  • 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 to seek employment outside the home, because that party will be custodian of a minor child of the marriage;
  • The standard of living established during the marriage;
  • The relative extent of education of the parties;
  • The relative assets and liabilities of the partie;
  • 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 requesting spouse to acquire education, training or job experience so he/she will be qualified to obtain appropriate employment, proved the education, training, or job experience, and employment is actually sought;
  • The tax consequences for each party of an award of spousal support;
  • The lost income production capacity of either party that resulted from his/her marital responsibilities;
  • Any other factor that the court expressly finds to be relevant and equitable.

Child Custody and Support

Custody:

With regards to an action for divorce, annulment, or legal separation, the court of common pleas shall make an order for the disposition, care and maintenance of any children of the marriage, as is in their best interests.

When parents are living separate and apart from each other, or are divorced and a court must determine parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children, they shall stand upon an equity regarding those rights and issues. Preference will not be given to either parent because of his/her financial status or condition.

The court will either award sole custody to one parent with visitation with the other parent, or issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the children in accordance with an approved parenting plan.

When making a determination for a child’s best interests, upon the request of either party, the court may interview any or all of the involved children regarding their wishes and concerns. The court would first determine if the child(ren) has sufficient reasoning ability to express his/her wishes.

Prior to trial, the court may order an investigation as to the character, family relations, past conduct, earning ability, and financial worth of each parent, and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations.

If one parent is convicted of killing the other parent, no court shall issue a custody order designating the parent as the residential parent and legal custodian of the child, or granting custody of the child to the parent, or granting visitation rights with the child.

Whenever possible, the court shall require that a shared parenting plan ensure the opportunity for both parents to have frequent and continuing contact with their child(ren), unless this would not be in the best interests of the child(ren).

When determining the best interests of a child for allocating parental rights and responsibilities, the court shall consider all relevant factors, including the following criteria:
  • The wishes of the child(ren)’s parents regarding their care;
  • If the court has interviewed the child(ren) regarding his/her wishes and concerns, the wishes and concerns of the child(ren), as expressed to the court;
  • The child(ren)’s interaction and interrelationship with their parents, siblings and any other person who may significantly affect the child(ren)’s best interests;
  • The child(ren)’s adjustment to their home, school and community;
  • The mental and physical health of all persons involved in the situation;
  • The parent most likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
  • Whether either parent has failed to make all child support payments, including all arrearages, pursuant to a child support order;
  • Whether either parent or any member of either parent’s household has been convicted of or plead guilty to any criminal offense as the perpetrator of child neglect or child abuse, or a sexually oriented offense;
  • 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 a court order; and
  • Whether either parent has established a residence, or is planning to establish a residence, outside of Ohio.
When determining whether shared parenting is in the best interest of the child(ren), the court shall consider all relevant factors, including the following:
  • The ability of the parents to cooperate and make decisions jointly, with respect to the child(ren);
  • The ability of each parent to encourage the sharing of love, affection, and contact between the child(ren) and the other parent;
  • Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
  • The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting; and
  • The recommendation of the guardian ad litem of the child, where applicable.
The court may require that the parents attend classes on parenting or other related issues or obtain counseling before the court issues an order allocating the parental rights and responsibilities for the care of the minor children of the marriage.

Support:

In a divorce, dissolution of marriage, or legal separation the court may order either or both parents to support or help support their children, without regard to marital misconduct.

Ohio uses the Income Shares Model for calculating child support. All courts and child support enforcement agencies use an established child support schedule when calculating the amount to be paid, unless the combined gross income of both parents is either less than $6,600 or more than $150,000.

If the combined gross income of both parents is less than $6,600 per year, the court shall determine the amount of the child support obligation on a case-by-case basis using the schedule as a guideline. The court will review the paying parent’s gross income and living expenses to determine the maximum amount of child support that it can reasonably order without denying him/her the means for self-support at a minimum subsistence level, unless the paying parent proves to the court that he/she is totally unable to pay child support, and the court determines that it would be unjust or inappropriate to order payment of child support.

If the combined gross income of both parents is more than $150,000 per year, the court shall determine the amount of the child support obligation on a case-by-case basis and shall consider the needs and the standard of living of the children. The court will compute a basic combined child support obligation that is no less than the obligation that would have been computed under the basic child support schedule, unless the court or agency determines that it would be unjust or inappropriate and not in the best interests of the children, or parents to order that amount.

Some of the factors the child support schedule takes into account are: the number of children; the amount of time the children spend with each parent; the combined gross income of the parents (determined from the previous three years); court-ordered support being paid for other children; income taxes; mandatory work-related deductions (such as union dues and uniform fees); and whether or not health insurance is provided.

Whenever a court issues a child support order, it shall include specific provisions for regular, holiday, vacation, parenting time, and special visitation. The court does not authorize or permit the escrowing, impoundment, or withholding of any child support payments because of a denial of or interference with a right of parenting time or visitation included as a specific provision of the child support order.

Under Ohio law, either or both the paying/non-custodial parent and the receiving/custodial parent can be ordered to provide health insurance through a child support order. Either or both parents may be required to pay for medical care not covered by insurance.

At least once every four years, the department of job and family services shall review the basic child support schedule set by statute to determine whether child support orders issued in accordance with the schedule and worksheets adequately provide for the needs of the children subject to the orders.

Legal Separation

The court of common pleas may grant legal separation on a complaint or counterclaim, regardless of
whether the parties are living separately at the time the complaint or counterclaim is filed for the following causes:
  • Either party had a husband or wife living at the time of the marriage from which legal separation is sought;
  • Willful absence of the adverse party for one year;
  • Adultery;
  • Extreme cruelty;
  • Fraudulent contract;
  • Any gross neglect of duty;
  • Habitual drunkenness;
  • Imprisonment of the adverse party in a state or federal correctional institution at the time of filing;
  • Upon application of either party, when the spouses have, without interruption, lived separate and apart for one year;
  • Incompatibility, unless denied by either party.
A separation agreement that was voluntarily entered into by the parties may be enforceable by the court of common pleas upon the motion of either party. The filing of a complaint or counterclaim for legal separation or the granting of a decree of legal separation does not bar either party from filing a complaint or counterclaim for a divorce or annulment or obtaining a divorce or annulment.

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