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How may a marriage be terminated or ended in Ohio?
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Answer:
In Ohio, the only way a marriage can be terminated
is through court actions of divorce, dissolution, annulment, the death of one
of the parties or a presumption of death (a common law presumption of death
requires an unexplained continuous absence from the home for a full seven
years).
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What is the difference between "divorce," "dissolution," and "annulment"?
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Answer:
A "divorce" is the legal separation and termination
of the marital relationship by the judgment of a court which may be granted
only upon a finding by the court that certain "grounds" for divorce exist. A
divorce puts an end to the marital relationship.
A "dissolution" of marriage is a form of no fault termination of the marriage
relationship where both parties have agreed upon all of the terms of the
termination (such as division of marital property, spousal support, parental
rights and responsibilities, child support, etc.) and are requesting that the
court terminate the marriage and approve the agreement between the parties.
The basic advantages of a dissolution are that it is not adversarial in nature
(i.e. the parties have already agreed upon every aspect of then a divorce
action.)
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What is necessary in order to obtain a divorce in Ohio?
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Answer:
In Ohio, in order to grant a divorce, the trial court must find:
- That the plaintiff (the person filing the divorce complaint) has
been a resident of the State of Ohio for at least 6 months immediately prior
to the filing of the complaint and a resident of the county in which the
divorce has been filed for at least 90 days or that the plaintiff for at least
6 months immediately prior to the filing of the complaint and that the
defendant spouse has been a resident of the county in which the divorce has
been filed for at least 90 days;
AND
- That "grounds" (legal reasons) for divorce exist for the granting
of the divorce.
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What are "grounds" or legal reasons for divorce in Ohio?
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Answer:
Ohio law permits the granting of a divorce only upon a finding by the court
that there are statutory grounds to terminate the marriage. There must be
testimony by the plaintiff and a corroborating witness (or an admission by the
other spouse) as to these specific grounds.
Ohio has both "no-fault" and "fault"
grounds for divorce. The "no-fault" grounds
include "incompatibility" and "living separate and apart without cohabitation
for one year."
There are nine "fault " grounds in Ohio. These "fault"
grounds include:
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Another spouse living at the time of marriage (bigamy)
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Willful absence of a party from the marital home for one year
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Adultery
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Extreme cruelty (defined as "acts conduct calculated to destroy the peace of
mind and happiness of one of the parties to the marriage")
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Fraudulent contract (i.e. a party was induced to enter the marriage as a
result of a fraudulent representation that materially affects the essential
elements of the marriage
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Gross neglect of duty (i.e. acts that constitute an omission to perform a legal duty, such as a failure to support the family)
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Habitual drunkenness;
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Imprisonment of the adverse party in a state or federal institution at the
time of the filing of the complaint
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An out-of-state divorce.
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How is a divorce case started in Ohio?
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Answer:
A divorce case is commenced by the filing of a "complaint." The spouse who
files the complaint is called the "plaintiff." The other spouse is called the
"defendant." The complaint must allege that the plaintiff has resided in the
State of Ohio for the statutorily required period of time (6 months)
immediately prior to the filing of the complaint; must indicate the date and
place of marriage along with the name and birth dates of any minor children;
there must be an allegation of at least one of the statutory grounds for
divorce, and; it must contain a demand for the relief being requested from
the court.
"Service" of the complaint must be made on the defendant in order to bring him
or her within the jurisdiction of the court. There are several methods of
service available, even if the defendant spouse lives in a state other than
Ohio.
The defendant spouse should then file an "answer" to the complaint, admitting
or denying the allegations in the complaint. If the defendant denies the
allegations he/she may also raise any defenses he/she has. Additionally, the
defendant spouse may also file a "counterclaim" asserting any claim he/she has
against the plaintiff spouse for divorce or for a "legal separation."
If the defendant spouse files a counterclaim, the plaintiff must file a
"reply," either admitting or denying the allegations contained in the
counterclaim and raising any defenses that the plaintiff may have.
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What if the defendant spouse cannot be located or evades service of the complaint?
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Answer:
Where the current residence of the defendant is unknown, "constructive"
service may be had on him/her by publication. Service by publication permits
the court to commence the case and rule on the status of the marriage and the
marital property located within the state. Unless the defendant has been
personally served or has voluntarily entered an appearance in the case,
however, the court cannot rule on property outside the state and cannot make a
ruling on spousal support.
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What is the defendant is served with the complaint but does not file an answer?
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Answer:
The court rules in Ohio preclude the granting of a default judgment in a
divorce case. Instead, where the defendant has been personally served but has
failed to file an answer or otherwise appear, the plaintiff must merely
present sufficient evidence to establish a prima facie case to allow the court
to grant the divorce and rule on the division of property, parental rights and
responsibilities regarding the children and any support orders.
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What happens after the filing of the complaint and answer/counterclaim?
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Answer:
During the pendency of the divorce case, either party can request temporary
orders for child support, spousal support (alimony), parental rights and
responsibilities (commonly referred to as temporary custody or visitation
rights), and any other temporary order that may be called for in a particular
case such as a temporary restraining order restraining one or both spouses
from removing the children from the jurisdiction of the court or restraining
one or both spouses from harassing, threatening or physically abusing the
other.
Additionally, during this time the parties can request that the court order
psychological or psychiatric evaluations of the parties and/or the children to
aid the court in making determinations with regard to the parental rights and
responsibilities concerning the children. Home studies can be requested to
help the court in determining the living conditions of the parties and how
those conditions may affect the children. Discovery procedures, such as
interrogatories and depositions, can be engaged in that would aid the parties
in determining what assets are involved in the case, what plans the parties
have for the children and any other matters that are relevant to the divorce
action. Experts may be retained to appraise property and businesses.
The court will probably hold one or more pretrials during this time in an
attempt to determine whether a mutually agreeable resolution of the case can
be had and, if not, what the issues are that will have to be determined at
trial. If the case cannot be resolved, the court will set dates for the
conclusion of the discovery procedures, for the production of expert reports
and evaluations and for the date of the final hearing (trial).
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Can the children's interests be protected?
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Answer:
A "guardian ad litem" (GAL) can be appointed by the court at the request of
either party or upon the court's own motion to represent the interests of the
minor children of the parties. The GAL is usually an attorney familiar with
domestic relations law and his/her job is to act in the best interests of the
children. The parties will generally be required to pay the fees of the GAL
based upon their ability to pay. The GAL will be asked to make recommendations
to the court and will have considerable influence when it comes time for the
court to make determinations relating to the children.
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Is there a right to a jury trial in a divorce case?
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Answer:
No. Ohio does not permit jury trials in divorce cases. If the case goes to
trial, the judge will make the final determinations.
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What are the major legal issues in a divorce case?
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Answer:
Generally, the major issues in divorce cases are, the issue of the grounds for
the divorce itself, parental rights and responsibilities (commonly known as
custody, child support, visitation), spousal support (commonly called
alimony), and the division of the marital property and debts of the parties.
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How does the judge make a final decision?
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Answer:
Both parties will provide the judge with information and documentation
regarding all of the issues relevant to the case. The court will have any of
the various expert reports that may have been ordered during the time that the
case has been pending. The court will hold hearings and a trial where the
parties present witnesses, including expert witnesses, testimony and any other
evidence that is properly admitted at the time of trial. The judge will
consider the recommendations of the guardian ad litem, if one has been
appointed. The judge may interview the children if requested or if he/she
feels it would be beneficial to do so. The judge is then required to make a
decision based on the evidence presented and the law. While the judge has some
discretion, he/she must comply with the law.
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What if I'm not happy with the final decision of the judge?
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Answer:
A party who is not satisfied with the final decision of the trial judge has a
right to appeal the decision to the Court of Appeals. Appeals are relatively
expensive ($10,000.00 - $15,000.00 is not unusual) and there is no guaranty
that an appeal will be successful. Generally, the only matters that can be
appealed are that the judge has abused his/her discretion or that the judge
has misapplied the law in making the final determination. An appeal is not a
new trial. It is a wholly different type of procedure and is strictly a legal
proceeding. No witnesses or evidence are presented. An appeal is based solely
on the proceedings had in the trial court and whether or not substantial
justice was done.
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