Divorce and custody matters usually affect people at difficult and vulnerable points in their lives. Once one or both parties decide that they cannot have a healthy relationship with the other person anymore, a process begins to end the relationship or hopefully transform it into a healthier relationship outside of marriage, particularly when there are kids involved. Domestic Relations Court is the place where the law and people's deep personal lives intersect. The more the parties gain a realistic understanding of the process and the law, the more they will be able to resolve issues by agreement, saving them time and money, and allowing for a healthier outcome. Our approach is to develop with our clients a clear vision of what a healthy and positive outcome looks like, taking into consideration what the Courts are likely to do, and then take the most cost effective path to get there. Often this means negotiating creative deals between parties at various points in the litigation process, and on occasion this means taking a case to trial. The following is some general background information to help get things started:
Divorce without children is relatively easy. Generally, there are only three issues to consider: Spousal support, separating the marital property, and attorney fees.
Spousal support is difficult to predict because there is no fixed formula for it. Courts in Ohio have to consider numerous factors as outlined in ORC 3105.18. Most judges take a common sense approach. Most judges will not give any spousal support for short marriages, like marriages under one year. Some judges take the view that about one year of spousal support is fair for every three years of marriage. For people trying to move on with their lives by agreement, the best approach is to think of it from a practical perspective based on the income of the parties, and what it is going to take for both to move on with dignity given their circumstances. If the parties cannot agree, the next best option is to find common ground and agreement on the rest of the issues, file the case, and ask the assigned judge how they approach spousal support given the facts of the case. Most judges will give enough guidance on this point to allow the parties to resolve the case by agreement.
In Ohio, everything that is made by either party during the marriage, and all debts acquired by either party during the marriage is considered marital property to be divided in half. There are a few exceptions. For example, if a spouse receives a personal gift, inheritance, or an award for a personal injury claim these are considered separate property. Property owned or acquired before the marriage and what grows from it during the marriage is also separate property provided these facts can be reliably traced. If there is any real tracing issue in a marriage, parties typically resort to an expert to review the finances of the parties and produce a tracing report on separate property and marital property. The details of property division are determined by ORC 3105.171. To file for divorce, parties will be required to disclose their property and income and expenses under oath in affidavits filed at the time cases are opened.
According to ORC 3105.73, the Divorce Court can award reasonable attorney fees and expenses to either party as long as the court finds this to be equitable. In determining whether it is equitable to make the award, the court may consider a number of relevant factors. As a practical matter, most judges do not award much in the way of attorney fees and expenses because doing so would encourage the party getting their attorney fees paid to keep fighting at the other's expense. So in most circumstances, parties should expect to pay their own attorney fees.
Divorce with children resolves the same issues that come up in all divorce cases described above, with the addition of dealing with child support and parenting issues:
In Ohio, child support is determined by a calculation formula defined in ORC 3119.01. The Ohio Department of Job and Family Services has an online interactive version of the child support calculator which can be found here. In certain circumstances, the court can deviate from the guideline support, and the parties usually can deviate from the guideline support by agreement. Because child support is determined based on the income of the parties it is always subject to adjustment.
When it comes to children, there are several issues that courts look at. 1- Decision making: Courts whenever possible like shared decision making for parents. They believe in most instances, both parents need to have fair input in making major decisions for their minor children. This is true unless there are very significant reasons why it is either impractical or parents cannot make decisions together. 2- Parenting time: Different judges handle parenting time in different ways. Many judges will start from a 50/50 parenting time and then make adjustments from there based on what is practical for the parties and the circumstances of the case. Many counties have defined model parenting time schedules in their local rules. In Franklin County, the local rules are defined in Local Domestic Rule 27 and can be found here. When a divorce case starts, the magistrate will usually issues parenting time rules to try to maintain the status quo and will appoint a guardian to do an investigation and produce a report with recommendations for the court to consider. The guardian fees are usually split between the parties and usually roughly based on their relative incomes.
In certain circumstances, parties can have their marriage terminated by annulment which legally makes it as if the marriage never happened. The grounds for annulment in Ohio are detailed in ORC 3105.31, and they include, among other things, if one of the parties was already legally married to someone else, if consent for the marriage was obtained by fraud or force, or if the parties never consummated the marriage.
Adoptions are handled by the Probate Court in the county that you reside in. For Franklin County, the Franklin County Probate Court has detailed forms and pamphlets on the process which can be found here. If you need help or feel overwhelmed, contact our office to discuss the details of your case.
The above represents general background information, contact our office to discuss the details of your case and learn how we can help.