Ohio

How may a marriage be terminated or ended in Ohio?

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).

What is the difference between “divorce,” “dissolution,” and “annulment”?

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.)

What is necessary in order to obtain a divorce in Ohio?

Answer: In Ohio, in order to grant a divorce, the trial court must find:

1. 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

1. That “grounds” (legal reasons) for divorce exist for the granting of the divorce.

What are “grounds” or legal reasons for divorce in Ohio?

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:

1. Another spouse living at the time of marriage (bigamy)
2. Willful absence of a party from the marital home for one year
3. Adultery
4. Extreme cruelty (defined as “acts conduct calculated to destroy the peace of mind and happiness of one of the parties to the marriage”)
5. 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
6. Gross neglect of duty (i.e. acts that constitute an omission to perform a legal duty, such as a failure to support the family)
7. Habitual drunkenness;
8. Imprisonment of the adverse party in a state or federal institution at the time of the filing of the complaint
9. An out-of-state divorce.

How is a divorce case started in Ohio?

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.

What if the defendant spouse cannot be located or evades service of the complaint?

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.

What is the defendant is served with the complaint but does not file an answer?

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.

What happens after the filing of the complaint and answer/counterclaim?

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).

Can the children’s interests be protected?

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.

Is there a right to a jury trial in a divorce case?

Answer: No. Ohio does not permit jury trials in divorce cases. If the case goes to trial, the judge will make the final determinations.

What are the major legal issues in a divorce case?

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.

How does the judge make a final decision?

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.

What if I’m not happy with the final decision of the judge?

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.

RETIREMENT BENEFITS ACQUIRED DURING THE MARRIAGE CONSTITUTE MARITAL ASSETS; COURT MAY MODIFY QDRO AFTER ENTRY OF DIVORCE DECREE:

Kingery v. Kingery, Logan App. No. 8-05-02, 2005-Ohio-3608:

“Retirement benefits acquired during a marriage are a marital asset that must be divided equitably between the spouses in a decree of divorce that terminates the marriage.***Once a division of property is established in the divorce decree that decision `is not subject to future modification by the court.’ R.C. 3105.171(I). Accordingly, the trial court lacks jurisdiction to modify the division of marital property.***’However, a trial court does have the power to clarify and construe its original property division in order to effectuate its judgment.’ Thus, a trial court has the authority to properly clarify the meaning of a divorce decree in the event the decree is ambiguous.***”

Bagley v. Bagley, 181 Ohio App. 3d 141, 908 N.E.2d 469 (2009):

The QDRO implements a trial court’s decision of how a pension is to be divided incident to divorce or dissolution.” Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 7. “[A] divorce decree is a final, appealable order, regardless of whether it calls for a QDRO that has not yet issued; the QDRO merely implements the divorce decree.” Id. at ¶ 15. Consequently, “[a] QDRO is merely an order in aid of execution on the property division ordered in the divorce or dissolution decree. So long as the QDRO is consistent with the decree, it does, not constitute a modification, which R.C. 3105.171(1) prohibits, and the court does not lack jurisdiction to issue it.”