Cleveland Divorce and Separation Attorney Guides You through the Process
What ways can I end my marriage in Ohio?
Ohio provides three ways to end a marriage: legal separation, divorce and dissolution of marriage. To obtain a dissolution or a divorce you must be an Ohio resident for at least the past six months. There is no residency requirement to obtain a legal separation. The Law Office of Michael C. Asseff Attorney at Law offers mediation services to help you save your marriage. If you know your marriage cannot be saved, he helps you select the best way to end your marriage and guides you through each step of the process.
What is legal separation?
Legal separation does not end the marriage but alters the relationship and lets the court issue orders regarding equitable division of property, spousal support, parental rights including child custody and child support. Although the parties remain married, they typically live in separate homes following a legal separation, although this is not required. The process is binding and both parties must follow the orders of the court or face civil and criminal penalties.
What is divorce?
Ohio is a fault-based divorce state that requires the person seeking a divorce to allege specific reasons, or “grounds” for divorce. ‘Fault” in the legal sense does not imply that one spouse is “bad” and the other is “good”; it merely means that a person seeking a divorce must allege, and prove, one or more of eleven separate grounds. Typically, the divorce process is highly contentious, and is required where the parties cannot or will not agree on how marital property is to be divided and, if there are children, how the children will be raised. Most cases are filed as divorces but eventually settle after months of negotiation, and in that way more resemble a dissolution (see below) than a divorce. In other words, simply because one party files for divorce does not mean that the parties cannot eventually settle their differences. Most cases for divorce are based on one or more of the following grounds:
- Mutual marital incompatibility
- Willful Absence of one spouse for one year or more
- Living separate and apart without cohabitation for at least one year
- Extreme cruelty
- Gross neglect of duty
- Fraud in the marriage contract
- Habitual drunkenness
- Incarceration at the time the divorce is filed
All property acquired during the marriage is presumed to be marital property, regardless of which spouse has legal title. In other words, just because a car is titled to the husband only, that car will still be considered martial property if it was bought during the marriage, although a car leased by a spouse in technically not owned by that spouse and the car constitutes neither separate nor marital property, but merely a contractual right to possess the car that does cannot be “divided” as such. However, the spouse obligated on the lease must assume full responsibility for all lease payments once the divorce is granted.
In Ohio, the division of marital property must be “equitable,” which usually means equal unless one party has sold or wasted part or all of the marital estate. The court will usually enter a mutual restraining order upon filing that will forbid either party from doing this. Where one spouse is guilty of misconduct that reduces the value of marital property, a court may order what is called a “distributive award,” which means that the court forces the guilty party to give his or her own separate property to the innocent spouse so as to ensure an equitable division.
Likewise, the debt incurred during the marriage is considered marital debt regardless of which spouse incurred the debt, so long as the debt was used for a martial purpose. So, if one spouse “maxes out” all his or her credit cards during the marriage, buying things for the household or items used during the marriage, the other spouse will still be responsible for some portion of that debt, usually 50%. Conversely, a debt secretly incurred by one spouse and used to purchase goods or services that have no marital purpose whatsoever (such as gambling debt, unless both spouses did the gambling) will belong solely to the spouse incurring the debt and will not be divided.
Any property that either spouse owned before the marriage is considered “separate property” and does not get divided during the divorce, with one exception. If the value of a spouse’s pre-marital or separate property has increased during the marriage, the court will divide that part of the increase that occurred during the marriage. Typically this happens when one spouse owns a house prior to marriage and the house goes up in value during the marriage. While the house itself is considered separate property, each spouse will receive his or her martial share of the appreciation. For example, Spouse A owns a house prior to marriage and on the date of marriage the house is worth $100,000.00. After 20 years of marriage, Spouse B files for divorce, and on the date of divorce the house is now worth $150,000.00. The first $100,000.00 is Spouse A’s separate property, and the extra $50,000.00 will constitute martial property that the court will divide.
The division of property in a divorce is final and cannot be altered or modified unless there is some sort of fraud or misconduct perpetrated by one of the parties. Since alimony (also called spousal support) is considered a form of property division, it too is usually not subject to modification unless the parties otherwise agree. Child Custody and Child Support are always modifiable through a process called seek post-decree modification. An experienced lawyer who is familiar with your case can help you secure any modifications you may need.
What is dissolution of marriage?
In Ohio, a couple may seek a dissolution of marriage only if that couple has already reached an agreement that addresses each and every legal issue related to a termination of marriage. In other words, the couple must have a written agreement detailing the division of all marital property and martial debt (called a “Separation Agreement”); most Separation Agreements also contain provisions regarding alimony. If there are children of the marriage, the couple must have a written agreement that allocates or divides each and every parental right and responsibility (i.e., custody and child support) between the parties. In cases where the parties agree that one parent be designated sole residential parent and legal custodian (sole custody), a separate written custody agreement is usually not necessary, as the terms of custody are set forth in the language of the divorce decree itself. However, in the majority of dissolutions, the parents who wish to exercise joint custody (which in Ohio is called “Shared Parenting”) must prepare a separate written agreement called a “Shared Parenting Plan” that will contain provisions regarding a parenting/possession schedule, child support, medical insurance covering the children, and several other matters related to raising the children.
Once the couple has prepared these written agreements, they both must sign each document and attached those documents to a petition for dissolution. A court will schedule a final hearing, but the hearing cannot occur less than 30 days or more than 90 days after the dissolution petition is filed. In most cases, the hearing will take place five or six weeks after the case is filed. A dissolution is a summary proceeding, and the hearing itself is relatively brief, sometimes even less than ten minutes. Before it can grant a dissolution of marriage, the court must approve the Separation Agreement and, if there are children, the Shared Parenting Plan.
Although a couple can file a dissolution on their own, it is always best to use the services of legal counsel, although an attorney cannot represent both parties. Contact my office today iof you would like to discuss a divorce or dissolution or legal separation. Remember, the money you save by trying to do it yourself will be less than the money you will need to spend fixing any previous mistakes that were made.
The office also handles annulments, which do not terminate the marriage but rather invalidate it, as if it had never taken place. An annulment can only be granted based on a limited set of circumstances, which must be alleged and proven by the spouse seeking the annulment. Annulments present their own difficulties and challenges, so it is always best to seek legal counsel.
Contact us today to handle your divorce
A divorce can be an extremely emotional and sometimes humiliating experience that involves life-changing decisions. Having a skilled lawyer by your side to guide you through the process can certainly help reduce anxiety and lead to better long-term decisions. Michael C. Asseff Attorney at Law is conveniently located just off of I90. For easy access to high-quality representation, contact the firm by phone at 440-520-1222 or online.