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Divorce, Dissolution, and Legal Separation - Demystifying the Differences
Divorce is a legal process filed in Court by which a marriage is terminated. Divorce occurs when the parties cannot agree to the terms of their separation and ask the Court to make decisions as to property division, support (child and spousal), and parental rights and responsibilities.
The party filing a Complaint for Divorce must show that he or she has met the residency requirements and has "grounds" or legal reasons to file for divorce. The residency requirement for Divorce is six (6) months of residence in Ohio and ninety (90) days in the county of filing (the 90 day requirement can be excused if filed in the county where the defendant resides). In addition, the party must show that one of Ohio’s nine (9) fault grounds or two (2) no-fault grounds for Divorce have been met.
Ohio’s fault grounds are as follows: bigamy, willful absence from the other party for one year; adultery; extreme cruelty; fraudulent contract; gross neglect of duty; habitual drunkenness; imprisonment in a state or federal correction institution; and procurement of a divorce in another state. Ohio’s no-fault grounds are incompatibility of the parties (unless denied by either party) and that the parties have lived separate and apart without cohabitation for one year.
Once the suit has been filed, the non-filing spouse must be served with the Complaint so that the Court can establish jurisdiction over that party. The non-filing spouse can be "served" either by the Clerk of Courts (through certified mail), by a designated process server, or by publication. Once service has been attained, the non-filing party has twenty-eight (28) days to file an Answer to the Complaint if he or she wishes to contest the Divorce.
If the Divorce is uncontested, the matter will be set for hearing by the Court in approximately 60 days after filing. However, if the Divorce is contested, the Court will require that the parties and their respective counsel attend a series of pretrials at the Court. During a pretrial, the judge or magistrate attempts to determine the issues in dispute. In addition, the parties will engage in the process of discovery, which often involves exchanging documents, providing information to the other party, subpoenaing third parties or banks, and taking depositions.
If custody of the children is disputed, the Court has several tools to assist in determining the best result for the children. The Court will appoint an attorney (or sometimes a social worker) to be a Guardian ad Litem to advocate for the children’s best interest. The Court can have the parents and children evaluated by a social worker or psychologist to determine the best parenting arrangement. Some parents request that the children’s time is equally split between the parents’ household, which is generally not recommend by mental health professionals. The Court frequently orders Shared Parenting, which means that both parents have custody and legal authority relative to the children, but not necessarily equal parenting time. Under most circumstances, the Court will name one parent residential parent for school purposes, and award the other parent as much time with the children as is practical and feasible, considering school and other commitments.
Most divorce suits are eventually settled by agreement between the parties. When the parties reach a settlement, a Separation Agreement is prepared, signed by the parties and submitted to the court for approval. When approved, the agreement is made effective by a court journal entry. If the parties prefer, the Divorce action can be converted into a Dissolution action at any time.
If the parties cannot agree to resolve one or more of their disputed issues, the disputes are presented to the Court at trial. The Court will review the parties’ evidence and make its decision based on Ohio law. Frequently, the Court assists the parties and attorneys in seeking fair settlement.
The entire process can last from a few months to one to two years to complete. Ultimately, the duration of the process will depend on the parties’ ability to cooperate and compromise and whether the attorneys focus on settlement versus litigation. The average contested divorce takes about one year. If the parties find, though, that if many issues are in dispute, the process will almost certainly take longer to finalize.
Dissolution is a legal process through which the parties can terminate their marriage in a no-fault and non-adversarial way. Because a Dissolution involves the cooperation of the parties, it is often a shorter and less expensive process than Divorce or Legal Separation. However, a Dissolution can occur only if the parties mutually agree to dissolve their marriage and agree to all of terms by which the marriage will end. Unlike a Divorce, though, the bulk of the Dissolution process occurs outside of Court during informal negotiations over the terms of the parties’ agreement. Usually, each party has their own attorney to negotiate these settlement terms. In less complicated cases, some parties will only use one attorney to work towards an equitable resolution.
Once the parties have agreed to terms concerning property division, spousal support, child support (if applicable), child custody and visitation (if applicable), and debt division in a Separation Agreement, the parties can file a Petition for Dissolution. Between thirty (30) and ninety (90) days later, the parties will appear at a Court hearing to reaffirm their agreement and their respective desires to dissolve their marriage. If the Court determines that the Separation Agreement is fair, the Court will grant the dissolution of marriage, legally terminating the marriage.
Unfortunately, most couples cannot successfully negotiate a dissolution. If parties are angry or jealous, if difficult child custody issues exist, or if there are complicated financial issues, dissolution negotiations are usually unsuccessful.
Legal Separation is a civil lawsuit that does not legally terminate the parties’ marriage as a Divorce or Dissolution does. However, a Legal Separation action allows the Court to issue orders concerning property division, spousal support, child support, and allocation of parental rights and responsibilities (custody and visitation) in much the same way as in a Divorce action. To begin an action for Legal Separation, one party must file suit alleging one of ten "grounds" for the suit. These "grounds" are very similar to the grounds used for a Divorce action, such as incompatibility, living separate and apart for one (1) year without cohabitation, adultery, gross neglect of duty, etc. The process continues in a similar manner to that of a Divorce. Legal separation may be right for people with religious convictions that limit divorce. Previously, legal separation was employed for practical reasons so that one spouse could remain on the health insurance policy of the other spouse through his or her employment. Currently, some medical policies now provide that Legal Separation is a reason for a spouse to be disqualified from his or her spouse’s health care coverage. Each plan is different, and it is important to check with the employer or health insurance company for the specific coverage in your case.
At any time during or after the divorce case, a parent may request that a child support order be modified. Modification is granted in order to meet changes in the needs of the children. For example, if a child develops special medical needs, the court may modify child support to require that a parent pay to meet those needs. It is also possible for the court to modify a child support order when there are changes in a parent's ability to pay the original support order. For example, if a parent loses his or her job, the court may decrease the child support payment to reflect the loss in income. In the alternative, the court may increase child support payments if a parent gets a raise or wins the lottery.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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