Options for Ending Your Marriage

In Ohio there are four ways for a husband and wife to end or change the marital relationship: Divorce, Dissolution, Legal Separation, and Annulment. Here is some important information about each of these options that you can use if you are considering ending your marriage.

RESIDENTY REQUIREMENTS

Before you can file a divorce or dissolution, you (the party filing the action) must have lived in the State of Ohio for at least six (6) months prior to filing. You must also live in the county for ninety (90) days before filing. There is no state residency requirement for a legal separation, but you (the party filing) must have resided in the county in which you are filing for 90 days before filing the action. There is no residency requirement to file for a Civil Protection Order (C.P.O.).

DIVORCE

Divorce is the most common way to terminate marriage. In a divorce, the parties cannot agree on how to end their marriage. One party must show that either the other party or both parties have done something that, under the law, is a reason to end the marriage. These reasons are called "grounds," and they include: gross neglect of duty, extreme cruelty, habitual drunkenness, living separate and apart, willful absence of one year, adultery, imprisonment, or incompatibility. These grounds describe the spouse's behavior or the nature of the marital relationship, and they are necessary to explain to the court why a party is seeking a divorce.

The papers for the divorce must be filed with the court. Depending on the county in which a party files, there may or may not be a separate Domestic Relations Court. To start the divorce, you (the "plaintiff") must pay a court fee and file a complaint with the Clerk of Courts.

A complaint is a document which tells the court and the defendant (person against whom the complaint is filed) that you want a divorce and why (the grounds). Once the complaint is filed, the court will assign a judge and a case number. This is the court's way of identifying the case.

If you are filing the divorce and you have a very low income, you can get a Poverty Affidavit from the Clerk of Courts and file it along with the complaint. After filing the complaint, the defendant must be notified that you are suing him for divorce. This is called Service of Process.

If you know where your spouse is:

1. The court can send the notice by certified mail to the address you provide in the complaint (defendant's house, parent's house, or place of employment) or the court can serve the defendant in person;
2. The defendant, his relative, or his employer may sign for the papers (under no circumstances should you sign for the papers);
3. If no one signs for the certified mail and it is returned to the court, the court can then resend the papers to the defendant by regular mail (you or your attorney must request this);
4. If the notice is sent by regular mail and it is not returned to the court, the court assumes the defendant has received it.

If you do not know where your spouse is:

1. You or your lawyer must ask the court to place a notice in the local legal newspaper (this is called "Service by Publication" or "posting");
2. This notice states that the case has been filed, the date of filing, and the date the defendant must answer or respond to the complaint;
3. The notice must appear in the paper for about six (6) weeks, after which the court will set the case for hearing;
4. There is an extra fee for publication, although the court may accept another poverty affidavit;
5. The major disadvantage is that the court cannot award child support or spousal support when service is done through publication or posting.

Once the defendant has received his copy of the complaint from the court, he has 28 days to respond and file an answer to the complaint. An answer addresses each claim made in the plaintiff's complaint. If the defendant does not answer, the divorce is uncontested. If he does answer, the case is contested. The defendant may also file a counterclaim in which he makes claims against the other party (you).

If the defendant does not answer or respond to the court papers, the court will set the case for an uncontested divorce hearing no sooner than 42 days from the date he was served with the papers. The defendant will be sent notice of hearing. He may show up at the hearing anyway and request an attorney. If this happens, the court will continue the case and give him time to obtain an attorney. If he does not appear at the hearing, the court will most often grant the relief you requested. This includes custody and child support if you have children. The court can also award spousal support, divide personal property, and determine who is to pay the bills. The court may also give the defendant visitation, even if you do not ask for it.

If the defendant files an answer and/or counterclaim, the case is set for a contested trial. Several pre-trials may be scheduled first. This process always takes longer than an uncontested divorce. The parties may settle the case by way of a separation agreement, which is submitted to the court with the Judgment of Divorce. Other times the parties must proceed to a trial, provide testimony and subpoena witnesses, and prove grounds and the right to relief requested.

Sometimes your spouse may file a divorce action. In that case, you are the defendant and have 28 days to answer the complaint. You may choose to do nothing, which means he will get the divorce and the relief he requested in his complaint. You do not have to appear.

You may decide to contest the divorce and file an answer. You would do this if:

1. You do not want the divorce;
2. You want to have a say in the terms of the divorce.

DISSOLUTION OF MARRIAGE

A dissolution of marriage is the simplest way to end the marital relationship. In dissolution, the parties agree to end their marriage, and there are no grounds presented. The parties need to agree to all the terms necessary to resolve all the issues, including support, property division, and child-related issues. These terms are put into a Separation Agreement that is filed with the court along with a Petition for Dissolution of Marriage.

After the filing of a Petition for Dissolution, the parties must wait at least 30 days before the court can hear their case. However, the case must be heard by the court within 90 days of filing the petition.

At the hearing, the court will read the Separation Agreement and ask whether the parties disclosed their assets and liabilities, whether they entered into the Separation Agreement voluntarily, whether they are satisfied with the agreement and whether they still wish to end the marriage. If the parties respond affirmatively to the questions asked, the court will most likely sign the judgment entry and approve the agreement.

While dissolution may be the easiest way to end your marriage, it is rarely successful for abused women because of the power and control issues inherent in the abusive relationship. Abusers may use their position to control the proceedings - either through the settlement or by refusing to appear at the final hearing.

LEGAL SEPARATION

If one or both of the parties do not want to end the marriage, but the parties do not want to live together, they can file an action for legal separation. It will do everything a divorce does, but the parties will still be married.

A legal separation gives legal effect to the parties' separation. The plaintiff (petitioner) must file for an action for legal separation, allege one of the same grounds as in the divorce action, and the request the court award certain relief (child and spousal support, custody, visitation, and division of property). Reasons for filing an action for legal separation include:

1. Religion does not allow the party filing to get a divorce;
2. The parties are not sure they really want to end their marriage;
3. One of the parties may wan to collect certain benefits or continue to receive benefits, including health insurance or Social Security.

It must be remember that after the parties have lived separate and apart for one (1) year, one spouse may be able to file for a divorce whether the other wants this or not. Separation for one (1) year is a ground for divorce in Ohio.

ANNULMENT

This way of ending a marriage is not often used in Ohio. When a marriage is annulled, the court has determined that the parties were never married. However, the children are still considered legitimate.

The most common grounds for annulment are:

1. The parties never had sexual intercourse;
2. One party was under age when they were married, and they did not live together after this party reached the end age of emancipation;
3. The marriage was the result of fraud or force;
4. Religion does not allow divorce.

In a divorce, dissolution, or legal separation, the court may allocate parental rights and responsibilities if there are children, award child support, award spousal support, and divide property.

PARENTAL RIGHTS AND RESPONSIBILITIES

An allocation of parental rights and responsibilities was formerly known as an award of custody and visitation. The court can designate that one parent be the residential parent and legal custodian and that one parent have visitation or companionship rights, or the court can award shared parenting. Shared parenting is where both parties share in the decision making for the child.

In cases where there has been domestic violence, the court may award supervised visitation if it has first determined that unsupervised contact may be detrimental to the child. The court's primary concern is the best interest of the child.

CHILD SUPPORT

Both parties have a financial duty to support the children. The courts in Ohio use child support guidelines in order to determine how much the parents should pay. It is calculated by combining both parents' gross income and then determining what portion of the total is made up by each parentÕs individual income. This determines for what percentage of total child support each parent is responsible. Childcare expenses and health insurance premiums may be factored into the child support order. The court can also issue orders for the payment of health insurance by one or both parents.

Child support must be paid to the Child Support Enforcement Agency usually through a wage order given to the employer. Sometimes the parent required to pay child support does not work. The court can issue an order requiring him to seek work. The court can issue an order requiring him to seek work, which means nothing else can be done. No one is responsible to make sure he seeks work; he is only required to advise the court when and if he does find work. The court may also order him to pay a $50.00 per month mandatory minimum child support obligation to the Child Support Enforcement Agency if he is not employed. If he is receiving unemployment benefits, the court can order that child support be withheld from those benefits.

SPOUSAL SUPPORT

The court may also award spousal support to one of the parties. This is what was formerly known as alimony. It is awarded to assist in the maintenance of one of the parties for a period of time and is considered only after the property has been divided. The age of the parties, length of the marriage, standard of living during the marriage, earning abilities of both parties, and health of the parties are among the factors that the court uses to determine whether to award spousal support.

PROPERTY DIVISION

The court must also divide assets and liabilities between the parties. Marital property (property that is jointly owned or purchased) is divided between the parties. Marital debts (debts that are jointly incurred) are also divided between the parties.

During the time that the divorce is pending and before the case is over, you may request that the court issue a restraining order restricting the other party from harassing or abusing you or from disposing of the marital property.

Additionally, temporary orders, such as orders to temporarily allocate parental rights and responsibilities, orders granting the use of the marital residence, and orders awarding temporary child support, may be sought by one of the parties during the divorce. Temporary orders, unless modified, remain in effect only until the parties' divorce is final or the legal separation is granted.

MEDIATION

Mediation is becoming increasingly common across the country in divorce-related cases. However, if you are in an abusive relationship, mediation can be dangerous. Mediation typically involves repeated meetings between you and your partner, which could put you in an unsafe and uncomfortable position. Mediation assumes that the two parties can work together as equals to achieve a mutually agreeable settlement; unfortunately, this is rarely possible in a relationship where the equality between partners has been destroyed by abuse. Mediation can result in physical and emotional harm to victims of domestic violence.

If you are court-ordered to participate in mediation, it is important to take steps to protect you physical and emotional safety:

• If you are afraid to attend mediation with your abuser, make your fears known to your attorney, the court, and/or the mediator.
• If possible, explore with your attorney mediators in your area, and choose one that has been recommended by local domestic violence programs.
• Ask the mediator to go over with you exactly what the planned mediation will entail so that you can decide whether or not you feel safe and comfortable.
• Ask the mediator if you and your abuser can be in separate rooms during mediation.
• Ask your advocate or attorney to accompany you to the mediation sessions.
• Establish a safety plan that will help protect you before, during, and after each mediation session (consider obtaining a civil protection order if you do not already have one).
• Avoid contact with your abuser outside the mediation sessions.
• Educate your mediator about the dynamics of domestic violence with brochures, etc. from your local domestic violence program.
• Avoid agreeing to anything specific before consulting with your attorney.