Common Questions About Family Law, Divorce And Other Topics
What is the difference between a divorce and a dissolution?
Both processes result in the court signing an order called a decree that will officially end your marriage. The way that you get to that result, however, is quite different. A dissolution can occur if both the husband and wife agree to legally end their marriage and enter into agreements as to how to resolve all of those issues that are “incident” to the ending of the marriage. These “incidents” include the allocation of parental rights and responsibilities involving minor children, division of assets and debts, and, if appropriate, spousal support (alimony). There are a number of ways in which the parties may go about trying to resolve all of these issues in order to proceed by dissolution, and John L. Heilbrun will fully discuss these alternatives with you.
If both spouses do not agree to end their marriage or if they are unable to reach an agreement on all of the issues incident to the ending of the marriage, the only alternative is for one of them to file a divorce action in the court. Any issues that the husband and wife cannot ultimately agree upon will be decided for them by the court after a trial.
Do you have to live in the state of Ohio in order to have your marriage terminated by a court in Ohio?
Yes. At least one of the spouses in a dissolution action, or the filing spouse in a divorce action, must have been a resident of Ohio for at least six months before filing the action in the court.
What has to be proved for the court to grant a divorce?
Ohio law sets forth various “grounds” for the termination of a marriage by divorce. These grounds include “gross neglect of duty,” “extreme cruelty” and “living separate and apart without interruption or cohabitation for one year.” In addition, if not denied by the other spouse, a divorce can also be granted on the grounds of “incompatibility.” Courts are inclined to view evidence related to the “grounds” in a manner that tends to favor finding that the specified grounds have been established. Except in rare instances, usually involving financial misconduct or actions that affect the best interest of the minor children, the grounds for divorce usually have little bearing upon the manner in which the court will decide the other issues incident to the ending of the marriage.
What makes collaborative divorce different?
In the divorce process referenced above, the parties essentially surrender control of the process and the manner in which they will resolve the issues incident to the ending of their marriage, and allow the judge to make those decisions for them based upon the evidence presented at a trial.
In a collaborative divorce, the husband and wife solve all issues themselves with the assistance of their attorneys (and in some cases, a neutral family relations specialist and/or a financial planner) who have been specially trained in the collaborative process. Whereas a divorce involves an adversarial relationship between husband and wife and their attorneys, and its resulting adverse effect on the emotional health and well-being of the entire family, a collaborative divorce involves the parties working together with their attorneys to resolve all of the issues incident to the ending of their marriage in the manner that works best for them and their children. This is done through meetings that take place out of court and involves both spouses and their counsel. The husband and wife, and the attorneys all sign a collaborative contract. The spouses then disclose the goals and interests that are most important for them to achieve through the process. These are used to assist the clients in reaching a resolution of the issues that will hopefully achieve both person’s goals and interests.
There is a requirement of complete “transparency” throughout the process, and all relevant information is divulged and exchanged. Of all processes available to end a marriage, for many people, the collaborative process is the one that is most likely to cause the least amount of additional damage to the relationship between the spouses, which is extremely important to the well-being of their children.
Is collaborative divorce right for everyone?
The ending of a marriage involves many sensitive and personal issues, and no one approach will necessarily work for everyone. Nevertheless, it is the opinion of John Heilbrun that the collaborative process will work best for most divorcing couples. We will explore with you whether the collaborative process is right for you and your spouse.
How long will the process take?
This is a very difficult question to answer and depends upon a variety of factors, including the types of issues that are in dispute and the process that the parties use to end their marriage. Usually, if the parties proceed by dissolution, the entire process will take less time than if the parties are unable to reach an agreement and proceed with a divorce. Even the dissolution process, however, may take several months. Divorce actions that involve more complicated or involved issues, including parenting disputes, may take a year or even longer.
How will property and debts be divided?
Ohio law provides that ultimately the court is required to divide marital assets and liabilities in an “equitable” manner. The starting point for considering what is equitable is equal, although if the court determines that equal is not equitable, it has the authority to divide the assets and/or liabilities in a different manner. If the spouses are able to reach an agreement, they will decide the manner in which their assets and liabilities will be divided, rather than a judge.
What about property or debts that either party had prior to the marriage or other “separate” property?
Generally, Ohio law provides that the court is to divide between the parties all of their “marital” property and debt. Generally, “marital” property and debt is considered all property and debt accumulated during the term of the marriage, regardless of which party may have accumulated the same by their income or efforts. Property or debt that either party brought into the marriage, which can still be identified at the time that the marriage is to end, is generally considered separate property and will usually be retained by the spouse who brought the property or debt into the marriage. Again, however, the court has the right to achieve what the judge considers an “equitable” result, and that means the court can even order that separate property be divided. There are other types of property that will usually be considered “separate” property, including assets that either spouse has inherited, gifts to one spouse or compensation that one spouse has received for pain and suffering as a result of a personal injury to that spouse. In addition, there are certain circumstances where assets or debts that may be brought into the marriage may become mixed – part marital and part separate. These can be very complicated determinations that will require the assistance of experienced and competent counsel.
Under what circumstances is spousal support (alimony) to be paid?
Ohio has a statute that sets forth 18 different factors that the court is to consider in determining whether to require one spouse to pay the other spousal support following the ending of the marriage. The 18th and last factor is “any other factor that the court expressly finds to be relevant and equitable.” Ohio law does not provide a formula for determining whether spousal support should be paid, and if so, how much or for how long. Generally, the longer the parties have been married and the greater the disparity in their income and earning capacities, the more likely it is that the spouse with the higher earnings and earning capacity will have to pay spousal support to the other spouse, and the longer that obligation will continue following the end of the marriage. The determination as to whether spousal support is appropriate in a particular case, and if so, how much should be paid and for how long a period of time, is a complex issue that requires the assistance of experienced and competent counsel.
What happens when there is a child custody dispute?
At the present time, there are essentially two ways that the rights and responsibilities involving the parties’ children can be allocated following the end of the marriage. One way is for one spouse to be designated the child’s “residential parent and legal custodian” and the other spouse designated the “nonresidential parent.” Under this status, the “residential parent” is the parent primarily responsible for the children, and that parent usually has the right to make most primary decisions concerning the children. The other spouse has certain rights and responsibilities toward the children, including the right to spend time with the children, the right to obtain information about and attend the child’s extracurricular activities, and health care appointments, as well as the responsibility to pay monetary support, “child support,” to the residential parent.
The other way of allocating rights and responsibilities involving minor children is shared parenting. Shared parenting occurs when either the parties jointly enter into a written agreement called a shared parenting plan under which they allocate between themselves their rights and responsibilities involving the children, or if there is no agreement but one or both parties want shared parenting and files a proposed plan, the court may determine that it is in the best interest of the children for there to be shared parenting pursuant to the written plan submitted by one of the parents. Shared parenting does not necessarily mean that the parties will equally share time with the children. Many shared parenting plans provide for the children to reside primarily with one parent. A shared parenting plan must include agreements involving a variety of issues related to the rights and responsibilities of the parties involving the children, including the schedule of time that each parent will have with the children, where the children shall attend school, who will be responsible to provide health/medical insurance coverage for the children, how health/medical care decisions involving the children shall be made, whether one spouse shall be required to pay child support to the other, and, if not, the manner in which they will divide the children’s expenses between themselves, and restrictions on either parties’ right to relocate their residence without obtaining prior consent of the other spouse or an order from the court.
If there is no agreement, how are “custody” decisions made?
If the spouses are unable to agree upon the manner in which they will allocate between themselves their rights and responsibilities involving their children, the court will have to make this decision for the parties and their children. These are the most difficult decisions that a Domestic Relations Court has to make. The law provides that all such decisions are to be made by the court based upon its determination of the “best interest” of the child. There are a variety of factors that the court is required to consider in making that determination.
Some of the local courts have parenting departments consisting of trained personnel who may be ordered to do a comprehensive investigation in cases where the parents cannot agree upon the manner in which they will allocate their parental rights and responsibilities. In addition, either parent has the right to request that a guardian ad litem be appointed for the children. That person, usually an attorney who has been pre-approved by the court, will do an investigation and prepare a report for the court, setting forth the guardian’s opinion as to the allocation of parental rights and responsibilities that will be in the children’s best interest. In other cases, psychological evaluations may be ordered. The results of all of these investigations and evaluations will be considered by the court in determining the best interest of the children. Contested custody cases are extremely complex and expensive and require the assistance of experienced and competent counsel.
How is child support determined?
Ohio has child support guidelines that assist in determining the amount of child support that one parent is to pay the other for the children following the ending of the marriage. In cases where the combined income of parents exceeds $150,000, however, the court has to determine child support on a case-by-case basis.
Is child support required in cases of shared parenting?
Just because the parents enter into a shared parenting plan, or the court orders the adoption of one spouse’s proposed shared parenting plan as being in the best interest of the children does not mean that neither parent will be obligated to pay child support to the other. To the contrary, in most cases involving shared parenting, one spouse is required to pay child support to the other. Depending upon the time allocation that is included in the shared parenting plan and/or the extent to which the parents’ earnings are more equal, the amount of child support to be paid may be less than the child support guidelines would otherwise provide. There are some cases where neither parent may be required to pay child support to the other.
How do I choose my attorney?
Certainly, you should choose an attorney who has the qualifications, experience and competence to assist you in the difficult process of ending your marriage. In addition, however, it is important that you feel comfortable with the person whom you choose to represent you as your attorney in this process. Are you comfortable talking to the attorney about your situation? Do you feel that they are concerned about the welfare of you and your family? Do you have confidence in the attorney? Is the attorney someone you feel you can trust? Do you feel like you will be able to talk with the attorney about the issues that will be involved in the termination of your marriage?
Another very important factor you need to consider is whether you can afford to pay the attorney. Most attorneys who practice in the area of family law charge on an hourly rate, and the rates charged differ greatly. You do not want to begin the process with an attorney who you do not believe will be able to continue to afford to pay throughout the process, as this will likely only result in your ultimately having to get another attorney, which will cause delay and additional expense.