Resources

The difference between a Divorce and a Dissolution is that in a Divorce, the parties are in disagreement concerning at least one issue involved in the termination of the marriage. In a Dissolution the parties have agreed upon each and every issue prior to the filing of any action with the Court including but not limited to the division of marital assets, custody, parenting time (visitation), child support and spousal support (alimony). In a Dissolution, the parties enter into a Separation Agreement which specifies all of the terms of the termination of the marriage, and asks the Court to accept these terms and make them a final Order of the Court. A Dissolution is much more economical and can be completed within 60 days from the filing of all necessary documents with the Court.
Divorce is, at least initially, an “adversarial” type of proceeding in which the parties are legally terminating their marital relationship. The parties may conduct extensive “discovery” to determine the value of assets and liabilities, find “hidden” assets, determine what is in “the best interests of the children”, and determine the appropriate ground or reason for the divorce. The Court and parties will review and value all of the assets and debts of the parties, including separate, inherited, pre-marital and marital assets and debts. The Court will divide and assign values to each and every marital asset and debt of the parties. The Court will also rule on all issues relating to the minor children of the parties including 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. Divorce may also involve issues concerning support of the former Husband or Wife.

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 agree upon the terms of an Agreed Order and ask the Court to approve said terms. In a Divorce action the parties present evidence to the Court on disputed issues. These issues could 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.

Legal Separation

A Legal Separation is very similar to a divorce in that issues involving child custody, child support, spousal support, and property division all need to be addressed. The key difference between a Decree of Divorce and a Decree of Legal Separation is that the parties are still technically married after the issuance of a Decree of Legal Separation. Nonetheless, because property rights have been determined in the legal separation, the parties “go their separate ways” in terms of property-any property acquired after the Decree of Legal Separation is granted is the individual property of the parties not subject to division in any future divorce or dissolution action.

Child Custody

In child custody cases the attorneys and Court will often times refer to the case as an “action for Allocation of Parental Rights and Responsibilities.” Child custody cases deal with what is in the best interest of the children. These cases often times involve the use of psychological experts who have examined all of the members of the family. In child custody cases, it is common to have teachers, physicians, pastors, neighbors, family members and others testify so that the Court can have an accurate and full “picture” of the children and their parents. The Court may also appoint a Guardian ad Litem to represent the interests of the minor children.
Courts are guided by statutes and prior court decisions.

The factors a court will consider when making decisions about parenting time and parenting obligations will include:

Custody Rights of Unmarried Mother or Father

An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation. This means that until a Court legally “recognizes” the unmarried father as the father of the minor child by Court Order or custody acknowledgment affidavit, he has no legally enforceable rights to parenting time.

Child Support

In Ohio, child support is calculated using the Ohio Child Support Guideline Worksheet which applies statutory guidelines set forth by law. The basic information going into child support calculations include each party’s income, work related child care expenses, health insurance premiums, each party’s local taxes, and whether any other child support or spousal support (alimony) is being paid or received. The Ohio Child Support Guideline Worksheet addresses child support for parents who earn a “combined gross income” of $150,000.00 or less. In cases where the parties “combined gross income” exceeds $150,000.00 and\or where there are special needs of a minor child, additional awards of child support may be Ordered, however, these upward extrapolations must be agreed upon by both parties or ruled upon through an Order of the Court.

Changing a Child Support Order

The amount of child support is modifiable under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the change or modification. The court usually will not grant the request unless there has been some fairly significant change in circumstances that justifies the change, such as a significant increase or decrease in either parent’s income through a remarriage or job change or a substantial change in the financial needs of the child. Changes in the child support laws, too, may justify a change in previously issued Orders.

Visitation (Parenting Time); Shared Parenting

Generally, each county court has a “Local Rule” parenting schedule which provides the “minimum” or “standard” parenting time provided to the “non-residential” or non-custodial parent. In certain extreme cases, parenting time can be “supervised” or restricted in some fashion. It parenting time can be agreed upon by the parties, the Court will Order a parenting schedule after hearing evidence at trial.

Shared parenting plans can vary widely based upon particular facts and circumstances involved in custody and parenting time case. Every Shared parenting Plan will address parenting times and parental responsibilities and duties each parent will have with respect to their children. Shared parenting plans often times provide for parents to shall share equally in the decision-making process in regarding their children. It is important to note that even though the parties have a shared parenting plan in place, this does not automatically mean that no child support will be payable.

Spousal Support (Alimony)

Of all the issues associated with ending a marriage, spousal support can be the most challenging. This is because the amount and length of spousal support is primarily within the discretion of the judge assigned to the case. While there are general guidelines by statute in Ohio, the best predictor of the range of possibilities for spousal support orders is an attorney experienced in representing the interests of clients facing spousal support issues before Ohio courts.

Just because the court has a statutory formula to calculate child support does not mean that such a formula exists for calculating spousal support. Although our state’s legislature has been considering the implementation of a spousal support formula (to ensure greater consistency and predictability in spousal support awards), no such formula has yet been enacted and it is indeed error on the part of a court to implement a formulaic approach. Instead, the courts have wide discretion to determine the amount and duration of spousal support awards on a case by case basis, after taking into consideration the statutory factors currently in place. Those statutory factors include: the relative earning abilities of the parties; the ages and health of the parties; the retirement benefits of the parties; the duration of the marriage; whether either party should stay home to care for minor children; the standard of living established during the marriage; the assets and liabilities of each party; the contribution of either party to the education, training or earning ability of the other spouse; the time or expense necessary for a spouse to obtain appropriate education or training; the tax consequences of a support award; the lost income capacity of a spouse resulting from marital responsibilities; and any other factor the court finds relevant.

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, remarries or co-habitates. Sometimes the amount or length of spousal support obligations is permanent and sometimes the court reserves jurisdiction to reconsider and amend the support amount.

Some statutory factors reviewed when the court considers whether spousal support is appropriate are:

Parentage

If the father of the child of an unmarried female wishes to establish or determine paternity, the father may legally establish the parent – child relationshio in the following ways:

1. Acknowledge of Paternity by affidavit (This is commonly done at the time of the child’s birth, but can be done later at a local registrar or Child Support Enforcement Agency. The mother’s consent is required, and the father is foregoing the option to have DNA testing.)
2. Participate in DNA testing to determine if he is the father of the child. DNA testing can be done through a private testing facility, if the parties agree, or may be ordered by the local child support enforcement agency (CSEA) if the mother of the child files an application for services with the agency, if the mother receives public assistance, of if the father (or other persons entitled by statute) requests that the agency establish paternity. If the DNA results are ordered by the CSEA are positive for paternity, paternity will be established administrative order through the appropriate child support enforce agency, and a child support order will likely be made.
3. File an action in court to establish parentage and to allocate parental rights and responsibilities (Court can order paternity testing, and the mother’s consent is not required.) Ohio law provides that one or both of the parties must first request the CSEA establish paternity, before filing a court action.

Establishment of paternity does not automatically entitle the father to parenting time with the child. In addition, payment of child support does not legally entitle the father of a child to exercise parenting time with the child. These are common misconceptions. A court must make an order allocating parental rights and responsibilities before the father of the child of an unmarried female has the legal right to parenting time with the child. Ohio law provides that once parentage has been established, a court designating the residential parent and legal custodian of a child of an unmarried mother shall treat the mother and father as equals when making the custody designation.

Property Division

The notion that all property owned by either spouse is divided equally between the parties is inaccurate. First, all property owned by either is identified and categorized as either separate or marital property. If one spouse is able to show that some specific property is his/her own separate property (owned prior to the marriage), then that spouse is generally allowed to retained said property. This is conditioned upon whether or not the “separate property” has been “comingled” with other marital property. On the other hand, property categorized as marital property is divided equally between the parties unless the court determines that an equal division would be inequitable. Therefore, if it is determined that an equal division of marital property is inequitable, the court may divide the marital property between the spouses so as to effectuate an equitable (but not necessarily equal) result.

Hidden Assets

Some divorcing parties believe that their spouse is hiding assets or income in contemplation of a divorce. The Law Office of Anthony W. Greco has extensive experience in assisting its Clients in protecting their rights through formal discovery such as depositions, interrogatories, requests for documents, requests for admissions, and subpoenas to individuals or entities who may have information necessary to protect its Client’s rights. The use of forensic accountants is also used to “reverse engineer” the parties financial situation, to discover and account for income earned, as well as life style and purchase history of someone suspected of hiding assets or income.

Post Decree Modification

“Post Decree Modification” generally means that after a Divorce has been finalized, or an Allocation of Parental Rights and Responsibilities has been Ordered, one party requests a change of that initial Divorce or Order. This usually occurs when a “change of circumstances” has occurred. Custody and\or child support may be modified when something changes which adversely effects the parties’ minor children, or when there has been a change in the income of one or both parties. Post Decree Modifications can take many shapes and sizes, and can be very simple or very complex. It is important to seek experienced legal counsel before making a decision on whether or not to seek a modification of any Court Order.

Grandparent Rights

Under Ohio law, a court can award visitation rights to a grandparent during or after a domestic relations proceeding if the grandparent has an interest in the welfare of the child and visitation is in the best interest of the child. Ohio has authorized grandparent companionship or visitation rights by statute in three circumstances: (1) when married parents terminate their marriage or separate, (2) when a parent of a child is deceased, and (3) when the child is born to an unmarried woman. In such cases, a court may order reasonable visitation if it is in the best interest of the child.

In addition, grandparents may intervene in the parents’ divorce case at any time, even after the divorce has been granted, and ask the court to award them their own visitation schedule with their grandchildren. In determining whether or not to award grandparent visitation, a court must first determine if said visitation is in the best interest of the children. The court must consider 16 factors including the wishes of the parents of the child in making that determination.

On the issue of Grandparent custody, a grandparent may file a complaint for custody, however, the court may not give the grandparent custody unless it can be proven that both parents are unfit (”unsuitable”) and, unless there is some clear sign of abuse or neglect.

Prenuptial (Antenuptial) Agreements

A prenuptial agreement is a contract that sets forth the parties rights and obligations in the event of divorce and/or the death of either party. As with all contracts, the law provides requirements for its enforceability, including, without limitation: it must be in writing; there must be full disclosure; it must be supported by adequate consideration; it must not violate public policy; and it must be executed without duress or overreaching. Further, in Ohio, spousal support provisions in prenuptial agreements are examined for fairness as of the date of the enforcement of the agreement, not as of the date of the execution of the agreement. Due to these requirements and limitations, a party seeking to enforce or nullify a prenuptial agreement should consult with an attorney. Finally, to avoid potential pitfalls, parties wishing to enter a prenuptial agreement should consult with their attorneys well in advance (several months) of their planned nuptials.

Attorney Fees

In an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that action, a court may award all or part of reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.
In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that motion or proceeding, the court may award all or part of reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties’ assets.

The court may specify whether the award of attorney’s fees and litigation expenses under this section is payable in gross or by installments. The court may make an award of attorney’s fees and litigation expenses under this section in addition to making an award of attorney’s fees and litigation expenses under any other provision of the Revised Code or of the Rules of Civil Procedure.

Domestic Violence

Spousal abuse or child abuse accusations can be handled in domestic relations court and criminal court, and can result in a Civil Protection Order, Restraining Order and\or felony or misdemeanor criminal charges. These measures can limit the accused abuser’s contact with the alleged victim and restrict the accused abuser’s ability to enter the family residence. If these Orders are violated, the violating party can face jail, fines as well as other penalties. If you have been charged with, or victimized by a crime involving violence or threats to family or household members, it is important to hire an experienced Ohio domestic violence lawyer as soon as possible.

Civil Protection Order

The bottom line is that if you or a family member is being abused, you need legal protection. Accusations of Domestic Violence are taken very seriously in Ohio, and Civil Protection Orders and Temporary Restraining Orders are designed to protect individuals from further acts of abuse. Unfortunately, these legal devices are sometimes used inappropriately against individuals to gain an unfair advantage in a Divorce or Child Custody case. If you have been charged with, or victimized by a crime involving violence or threats to family or household members, it is important to hire an experienced Ohio domestic violence lawyer as soon as possible.