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 division, spousal support and matters regarding the children.
Starting the Action
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 claim, and eventually prove, the appropriate statutory grounds. Discuss with your attorney why you believe the grounds justify the filing of the lawsuit.
A divorce may be granted on the following grounds:
- Either party had a husband or wife living at the time of the marriage from which the divorce is sought
- Willful absence of the adverse party for one year
- 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 the complaint
- Procurement of a divorce outside this state, by a husband or wife, by virtue of which the party who procured it is obligations remain binding upon the other party
- On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation
- Incompatibility, unless denied by either party
The clerk of court “serves” upon the other spouse, the defendant, a copy of the complaint and a summons. Service is generally made by certified mail. If the defendant’s residence is not known, there is a procedure for service by publishing a legal notice in a newspaper. This publication method of service is effective for obtaining a divorce decree, but generally is not effective for obtaining orders about matters such as spousal or child support.
The defendant has 28 days after service of the complaint and summons to 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 apply. The plaintiff files a reply in response to the counterclaim.
Most cases are eventually settled by an agreement between the parties. When this occurs, a proposed agreed decree of divorce 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.
What Are Temporary Orders?
The Court may make Temporary Orders or orders which are effective for a period of time after the filing of an action and possibly lasting up until the completion of a Divorce or Dissolution. These orders can range from orders concerning payment of bills, parents\\' time with their children, payment of child support, provision of medical insurance, payment for schools, payment for uncovered medical bills, or the exclusive use of a home, to payment of Spousal Support (alimony).
Can Temporary Orders Be "appealed"?
The law provides that temporary orders can initially be granted by the Court, after the Court reviews affidavits (without any hearing where the parties appear). The law also provides that either party may request a "live" hearing for reconsideration of the temporary orders and that the Court shall schedule that hearing upon the request of a party.
How is property divided?
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 for 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 statutory laws and appropriate case law, the court determines how long the marriage has lasted, and what it considers to be marital property. 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 if there are minor children of the marriage?
Marital termination also will involve issues relating to any minor children of the parties issues such as the future residence(s) of the children, the parents\\' involvement in decision making for the children, support for the children, medical insurance for the children, and the use of dependency exemptions. Marital termination may also involve issues concerning support of the former Husband or Wife. See;
"If I file a divorce, does that mean I have to have a trial and let the Judge decide the all of the issues?"
At any time after the filing of a Divorce the parties may "settle" the pending issues and thus avoid the expense and time invested in having the Court "decide" or make orders regarding those issues. If the parties settle, they may design an "order" to which they both agree and they may have the Court approve of that order (whether it involves property issues, debt issues, child support issues, or other issues).
In a Divorce action, the parties submit to the Court issues upon which they do not agree. These issues can range from "every" issue which could possibly be before them to the submission of just one issue such as "custody" or the valuation of marital interest in a retirement plan or business.
What is Spousal Support and Alimony?
Even though the IRS still refers to "alimony" the courts prefer the term "spousal support". Spousal support may be temporary, short-term or long-term depending on a number of statutory factors which the Court must consider. Spousal support may be granted, for a few years, to aid someone in "getting back on their feet" or getting the education it takes to be self supporting. Spousal support may also be granted, in the proper case, on a permanent basis -- lasting until the recipient dies or is remarried or cohabitates. Sometimes the amount or length of spousal support obligations is permanent and sometimes the court reserves jurisdiction to reconsider and amend the support amount upon a change of circumstances or retirement.
Some statutory factors reviewed when the court considers whether spousal support is appropriate are:
- The income of the parties, from all sources, including but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code
- 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 that party will be custodian of a minor child 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 limited to any court-ordered payments be 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 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
- Any other factor that the court expressly finds to be relevant and equitable
Even "temporary" spousal support or alimony may be deductible to the payor and includible to the spouse if certain IRS requirements are met.
For additional information, refer to Tax Topic 452, Alimony Paid (this topic covers alimony under decrees or agreements after 1984) and Publication 504, Divorced or Separated Individuals.
If you have any questions feel free to give us a call and set up your free consultation. (513) 942-7222