How Marriages are Ended in Ohio
By Jeff Grossman - Founding Partner, Grossman Law Offices
If you're contemplating divorce, no doubt you're wondering what the legal experience will be like. Here's an overview on what to expect.
Other than the death of a spouse, the only way a marriage may be terminated is through one of the formal court actions of divorce, dissolution or annulment.
What's the difference between divorce, dissolution, and annulment?
A divorce is the separation of the parties and termination of the marital relationship by the judgment of a court. It 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 is a form of no fault termination of the marriage in which both parties must agree to all issues surrounding the end of their marriage before any papers are filed with a court. The documents must spell out the terms of the parties' agreement relating to Parental Rights, Child Support, Division of Assets, and Liabilities, as well as Spousal Support.
There is a common misconception in a dissolution proceeding that one lawyer may represent both parties. This is absolutely untrue! The parties' interests are not the same and it is unethical for one lawyer to represent both.
An annulment is a decree from a court determining that the marriage is legally invalid because of some defect that existed at the time the marriage was entered into. An annulment decree declares that a marital status never existed, unlike a divorce decree that terminates a marriage. The grounds for an annulment include:
- An underage party to the marriage
- Bigamy, in which one of the parties has another living spouse
- Mental incompetence of one of the parties
- Failure to consummate the marriage
What is necessary in order to obtain a divorce in Ohio?
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 six months immediately prior to the filing of the complaint,
- Been a resident of the county in which the divorce action is to be filed for at least 90 days,
- Is subject to one of the other requirements regarding venue (location),
- Or, the trial court may find that the defendant spouse has been a resident of the county in which the divorce has been filed.
The party seeking the divorce must also establish that "grounds" (legal reasons) for divorce exist for the granting of the divorce.
What are grounds or legal reasons for divorce in Ohio?
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 include:
- Another spouse living at the time of marriage (bigamy)
- Willful absence of a party from the marital home for one year
- Extreme cruelty, defined as "acts of conduct calculated to destroy the peace of mind and happiness of one of the parties to the marriage"
- 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
- Gross neglect of duty, i.e. acts that constitute an omission to perform a legal duty, such as a failure to support the family
- Habitual drunkenness
- Imprisonment of the adverse party in a state or federal institution at the time of the filing of the complaint
- An out-of-state divorce obtained by the adverse party
How is a divorce case started in Ohio?
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 the appropriate residency requirements in the State of Ohio as well as basis for venue in a particular county,
- Indicate the date and place of marriage along with the name and birthdates of any minor children,
- Include an allegation of at least one of the statutory grounds for divorce and
- 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 s may then file an answer to the complaint, admitting or denying the allegations in the complaint. Additionally, the defendant spouse may file a counterclaim asserting any claim he/she has against the plaintiff spouse.
If the defendant spouse files a counterclaim, the plaintiff must file a reply, either admitting or denying the allegations contained in the counterclaim.
What if the defendant spouse cannot be located or evades service of the complaint?
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 of Ohio. 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 if the defendant is served with the complaint but does not file an answer or otherwise make an appearance in the case?
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 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?
During the pendency of the divorce case, either party may 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. Examples of temporary orders include a temporary restraining order restraining one or both spouses from removing the children from the jurisdiction of the court and 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. Discovery procedures, including interrogatories, depositions and requests for the production of documents may be used that will 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 really be protected?
A guardian ad litem (GAL) may 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 be required to pay the fees of the GAL. 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?
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?
Generally, the major issues in divorce cases are 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. Often the judge will be called upon to determine the value of various assets if the evidence is in conflict.
How does the judge make a final decision?
Both parties will provide the judge with information and documentation regarding all of the issues relevant to the case. The court will hold a trial where the parties present witnesses, including expert witnesses, testimony and any other evidence that is properly admitted. 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?
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 and there is no guaranty that an appeal will be successful. Generally, the trial judge's decision will be upheld unless it is shown 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 based on a review of the trial transcript and the application of statutes and case law to facts established at trial. No witnesses or additional evidence may be presented.