DIVORCE, DISSOLUTION AND CUSTODY

The attorneys at Cannizzaro, Fraser, Bridges, Jillisky & Streng handle only dissolutions and larger asset divorce cases where custody is not an issue. If we choose not to handle a family law matter that is not within our area of expertise, we will be happy to refer you to an attorney that practices in that specific area of the law. We realize this can be a very difficult time for individuals and families and we hope the following  information can be of some assistance to you.

JURISDICTION OF A DIVORCE CASE:
A divorce is started by filing a complaint with the Common Pleas Court in the county in which one of the parties has been living for at least ninety days before filing. In addition, one of the parties must have lived in the state in which they are filing for at least six months. In a divorce action there is no right to a jury trial, and the case will be heard by a judge or a magistrate who is appointed by the court. If the parties each file in different counties, the county which serves the defendant with a copy of the “Complaint for Divorce” first will generally have jurisdiction over the matter.

GROUNDS FOR DIVORCE: Ohio law lists 11 grounds for divorce
• Bigamy
• Willful abandonment for one year
• Adultery
• Extreme cruelty
• Fraudulent contract
• Gross neglect of duty
• Habitual drunkenness
• Imprisonment
• Obtaining a divorce outside the states
• Living separate and apart for one year without cohabitation
• Incompatibility

If the parties cannot agree to grounds for divorce, it is normally necessary to have some outside proof of those grounds in addition to the testimony of the party filing for divorce.  This proof can be “Corroborative Evidence” in the form of a doctor’s statements, eyewitness statements, and pictures. Sometimes the judge does not require corroborating evidence if he or she is thoroughly convinced there is no “Collusion”. Collusion means that the parties conspired to fake the grounds for divorce. Collusion is illegal, unethical and improper and leads to perjury.

PROCEDURE OF A DIVORCE CASE:
After a complaint is filed, the spouse receiving the complaint (otherwise known as the defendant) needs to file an “Answer” admitting or denying the allegations with 28 days. At some point, possibly before the answer is due, a “Temporary Orders Hearing” will be held if requested by one of the parties.

The temporary orders hearing will establish temporary custody issues, temporary child support issues, temporary orders for residential accommodations and spousal support as well as which party will pay which bills. Often times the parties are required to attend a mediation session to attempt to work out any issues that they have not been able to agree upon. This sometimes occurs before the temporary orders hearing and sometimes after, depending on the county and the court’s schedule. Attorneys usually do not attend this mediation; however we can be available for questions during that time.

After approximately 30 days (this time can vary greatly depending on the county) the case will be set for a “Petrial Conference”. The pretrial conference is a status check between the judge, the attorneys, and the parties to determine whether any issues have been settled. If a resolution has not been reached by the pre-trial conference the case will be scheduled for a final hearing, also known as a “Trial”.
The final hearing, depending on the nature of the issues remaining for the court to decide, can last from half an hour to several days.
It is important to note that courts prefer to avoid disturbing the children if at all possible. Therefore, the party that is going to remain in the marital residence has a greater likelihood of having more time with the children.

During the course of litigation, both parties will be conducting “Discovery”. This includes requests for documents, “Interrogatories”, as well as “Depositions”. Interrogatories are written questions served on the other party which require a written response. Depositions are a sort of meeting in which one attorney can ask the other party questions. All of the conversation at this meeting will be recorded by a legal stenographer.

You should always be on the lookout for additional proof to help your attorney. On the other hand, be on your guard and be aware that the other attorney has probably told your spouse the same thing.

DIVISION OF ASSETS AND DEBTS:
Courts in Ohio strive to divide the marital property equally. However, if an equal division of marital property is unbalanced, the court will divide marital property in a method that it determines is equitable.

In making a division of marital property, the court shall consider:
• The duration of the marriage
• The assets and liabilities of the parties
• The awarding of the family home
• 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
• The cost of sales if any
• Any other factor that the court expressly finds to be relevant and equitable

The court considers “Marital Property” to be any property accumulated during the marriage that is not separate property as set forth in the Ohio Revised Code. The court will also consider a party’s “Separate Property”. Separate property is:

  All real and personal property and any interest in real or personal property, that is found by the court to be an inheritance
• Any interest in real or personal property that is acquired by one spouse prior to the date of marriage
• Passive income or appreciation acquired from separate property during the marriage
• Any real or personal property acquired by one spouse after decree of legal separation
• Compensation for a personal injury claim
• Any gift of real or personal property given during the marriage and proven to have been given to only one spouse

However, the above types of separate property can become marital if they are commingled with marital property and the separate property is no longer traceable as being distinct separate property.

SPOUSAL SUPPORT/ALIMONY:
Spousal support, or a payment that is for both sustenance and for support of a spouse or former spouse, may be allowed in real or personal property, or a sum of money. The money can be ordered payable either in a lump sum or by installments, as the court considers equitable.

In determining whether spousal support is appropriate and reasonable the court considers:
• The income and earning ability of the parties
• The ages and physical, mental and emotional conditions of the parties
• Each parties’ retirement benefits
• Duration of the marriage
• The extent to which a party cannot obtain income due to custodial status of a minor child
• The standard of living during the marriage
• Education of each party
• The assets and liabilities of the parties including court ordered payments of the parties
• Contribution of each party to the education, training, or earning ability of the other party
• The time and expense necessary for a spouse to acquire education, training, or job experience
• The tax consequences of each party
• The lost income production capacity of either party resulting from that parties marital responsibilities
• Any other factor the court finds should be relevant and equitable

In reviewing these factors, the court considers each party to have contributed equally to the production of marital income.

PROCEDURE OF A DISSOLUTION:
The course of a dissolution is much simpler than a divorce even though the same issues are resolved. In a dissolution the parties agree how to resolve all issues and enter into a “Separation Agreement”. A separation agreement is a contract detailing how the parties have divided their assets and debts as well as support issues.

When there is a child or children involved, the court requires the parties to also agree on a “Parenting Plan”. Sometimes the plan involves one party having custody and the other party having visitation. In a “Shared Parenting Plan” both parents are legal custodians and residential parents of the children.

The procedure is fairly simply. A “Petition for Dissolution” is filed with the separation agreement and parenting plan. A court will set the matter for a brief hearing, and in a little more than one month the marriage is dissolved.

PROCEDURE OF A POST DECREE MATTER:
It is fairly common that once the dissolution, divorce or custody ruling is final the parties find something that they cannot agree on. They may need court intervention to alter the parenting plan if it is not working out in the children’s best interest. In these cases a party can file a motion to reopen the case to discuss the matter in a formal court setting. This proceeding is very similar to an original divorce or custody proceeding.

PROCEDURE OF A CUSTODY CASE:
This process begins with a party filing a “Complaint for Custody” or visitation. The party receiving the complaint (known as the defendant) needs to file an “Answer” admitting or denying the allegations in the complaint within twenty-eight (28) days.
Similar to a divorce proceeding, at some point, perhaps even before the answer is due, a temporary orders hearing will be held if requested by one of the parties. The temporary orders hearing will establish temporary custody issues as well as temporary child support issues.

The court will set the matter for a pretrial conference for the judge, the attorneys, and the parties to determine whether any issues have been settled. Sometimes the court will appoint a “Guardian Ad Litem”, which is an independent attorney or other person recognized by the court, to represent the children and give a recommendation to the court after their investigation.

If the case has not reached a resolution by the pre-trial conference it will be scheduled for a further pretrial conference or a final hearing, also known as a trial. The final hearing, depending on the nature of the issues remaining for the court to decide, can last from half an hour to several days.

Again, keep in mind that courts prefer to avoid disturbing the children if at all possible. Therefore, the party that is going to remain in the marital residence has a greater likelihood of having more time with the children.

Courts focus on the best interest of the children. In determining their best interest, the court considers many factors including:
• The wishes of the children’s parents regarding their care
• Any interviews of the children performed by the judge
• The children’s interaction and relationships with parents, siblings, & any person who may significantly affect the children
• The adjustment to the children’s home, school, and community
• The mental and physical health of all people involved in the situation
• The parent more likely to honor visitation
• Whether either parent has failed to make child support payments
• Whether either parent has pled guilty to a criminal act involving an abused child
• Whether either parent has withheld visitation to the other parent
• Whether either parent has established a residence, or is planning to establish a residence outside the state

Ultimately, the court may designate one parent as the residential parent and legal custodian of the children and grant the other parent parenting time in accordance with that courts particular standard visitation order.

The court may also order deviations in parenting time which would include a shared parenting plan wherein both parents are labeled residential parents and legal custodians. In order to be eligible for a shared parenting plan, one of the parties must file a motion for shared parenting as well as a proposed parenting plan to the court.

Additionally the court, upon its own initiative, or by a party filing a motion, can request that a guardian ad litem be appointed to represent their children’s interest. The guardian ad litem is usually an attorney appointed to represent the children and pursue that child’s best interests. Generally, the party that requests the guardian ad litem will be responsible for a deposit with the Clerk of Court for approximately $500 before the guardian will perform their work. If the requesting party does not make this required deposit, the court then considers this direct evidence of a parent’s unsuitability to be a residential parent.