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GROUNDS FOR DIVORCE/LEGAL SEPARATION

 

Under Ohio law, at least one party must be able to prove one of the grounds listed in Revised Code Section 3l05.0l before a divorce or legal separation can be granted.  Such grounds as incompatibility, living apart for one year, bigamy, or adultery, are obvious.  The most common two grounds, “gross neglect of duty” and “extreme cruelty” are less obvious.

 

“Extreme cruelty” consists of acts of physical violence and other conduct calculated to destroy the peace of mind and happiness of one of the parties, making the marriage intolerable.  This includes nagging, insults, and false accusations, but only in extreme circumstances.  “Gross neglect of duty” includes such things as failure to provide support for the family, failure to spend time with the family, sexual neglect, failure to perform household duties.  Mere neglect is not sufficient.

 

If your case goes to a contested trial, you will need to prove grounds.  You should be thinking of specific incidents and witnesses to your spouse’s conduct.  Write these down as you recall them and save them for your conferences at my office.

 

It is important to realize that the reasons to grant a divorce or legal separation, “grounds”, are not the same reasons considered in determining alimony, child support, and property division.  A guilty spouse will not be punished by a denial of marital property or a more severe order for spousal support or child support.

 

 

CHILD CUSTODY/PARENTING TIMES

 

What was called child custody, now called allocation of parental rights and responsibilities, clearly is the most  important part of  any  domestic case involving children.  The factors which must be considered by the court in determining child custody are set out in Ohio Revised Code Section 3l09.04.

 

Election by Child.      A child no longer has the right to elect the parent who will be the “residential parent and legal custodian.”  However, the court will respect the wishes of a child that is mature enough to express an opinion, unless it can be shown that the choice is not in the child’s best interest, as where the chosen parent is unfit. Children may be allowed to testify in court to express a preference, depending upon their age and ability to understand the nature of the proceedings.  However, whenever a child’s testimony may be used the court will appoint a “guardian ad litem” to represent the interest of the child.  A “G.A.L.” is an attorney appointed by the court and paid for by the parents.  An $800.00 to $1,000.00 deposit is required upon appointment and the guardian bills for the amount of time required.  The court determines how much each parent pays for the guardian, usually based on the relative income of each parent.  If a case goes to trial, just the cost of the guardian ad litem can be several thousand dollars.

 

Procedure.  The first hearing to determine temporary child custody, which lasts only until the final divorce hearing, is the Affidavit Only Hearing under Civil Rule 75.  It is called this because no testimony is allowed by either parent or any witness.  Written affidavits are submitted to a magistrate, who then decides which parent be the custodial parent while the case is pending, what time will be spent with the other parent, and what child support will be paid.  The magistrate also determines who will pay which debts while the case is pending.  This hearing usually occurs 3 to 4 weeks after the divorce is filed.

 

It is critical to be awarded temporary custody, as that parent quite often is awarded permanent custody.  The longer a child is in one household, the more likely it becomes that the child will stay there.

 

In the child custody hearing, it is important to show which parent has the best relationship with a child.  Who does the child rely upon for food, clothing, bathing, medical care, and education?  You should be thinking of specific events and practices that demonstrate your good relationship to the child, as well as why your spouse’s relationship is not as good.  It is important to produce witnesses who have frequent contact with the child, such as teachers and caregivers who can testify about the parents’ relationship with the child.

 

Once a magistrate awards temporary custody, the other parent may object and request a Record Hearing.  At this hearing the parents and their witnesses can testify, and the attorneys can question all the witnesses.  This hearing is required to be scheduled within thirty days of the Affidavit Only Hearing, but this does not always occur.

 

Contested child custody is often the most expensive part of a divorce trial.  It easily can involve ten hours of attorney time to interview witnesses, prepare affidavits, and attend an Affidavit Only hearing.  If a child psychologist is used, this adds to the expense.  A Record Hearing will often last a full day, in addition to preparation, which may include depositions.  The manner of preparation and the cost incurred is your decision and it will be reviewed with you prior to any expense being incurred.

 

Once temporary custody is determined, that parent maintains custody until the final divorce hearing, unless a compelling reason to change custody should arise.  If custody is still contested at the final hearing, another hearing with witnesses would be conducted by a judge.

 

I cannot stress enough that every attempt at settlement should be made as early in the case as possible.  It makes no sense to spend thousands of dollars fighting a custody case only to settle a year later after wasting money and putting the whole family through a great deal of stress.  Child custody cases can cost $10,000.00 to $20,000.00 to take to trial.  If you cannot afford that kind of expense it is all the more reason to work out a settlement early.

 

Custody Before Temporary Order.   Before either parent is awarded temporary custody, both parents have equal rights to custody of their children.  This means that either parent has the right to take the  child from another person who is not the child’s parent.  Anyone who prevents a parent from obtaining custody of his or her own child can be charged with a criminal offense of interference with custody.

 

This is a time of the divorce case that can be most harmful to children.  Child stealing by either parent is a terrible experience for the child, and generally this will not provide any advantage at court.  If anything, the stealing parent may face a disadvantage for showing reckless disregard of the child’s feelings.  The court recognizes the real concerns of parents and looks favorably upon those who work within the law for the child’s best interest.

 

 

Modification of Parental Rights.  Even a “final” child parenting order is always subject to later modification by the court if it is in the child’s best interest and certain legal requirements are met.  These are set out in Ohio Revised Code Section 3l09.04.

 

It is important to realize that the court will not change the final custody order just because the other parent now might provide a better situation for the child.  It is very difficult to change custody once there is a final order, and the statutory requirements must be met.  There is a strong presumption against changing a final parenting order, because the courts want to maintain a stable home for children.

 

Shared Parenting.  One alternative to a contested custody battle is Shared Parenting.  This allows both parents to enter a written agreement to decide where the child will live and for how long, as well as education and support.  If a Shared Parenting Plan is filed with the court by either party, the other party is given a chance to file its own plan, and the court must award shared parenting unless it specifically finds that shared parenting is not in the best interest of the child.  Of course, Shared Parenting does not mean that each parent has the child an equal amount of time, and can have many options.  It also does not mean that no child support is paid.  Child support depends on the relative incomes of the parents and the amount of time each has with the child.

 

Parenting Times.  The “non-residential” parent almost always will be awarded parenting times (formerly “visitation”) with the minor child.  The court encourages contact by both parents.   If the parents cannot agree upon a schedule, the court typically will order alternate weekends and a period of summer vacation unless the child is very young or has a particular problem.  The court has a standard parenting order which it often follows, known as Rule 27.  I have enclosed a copy of that order.

 

Effect on Children.  Divorce is a terrible experience for children.  They sometimes blame themselves for the divorce.  This experience is made worse by parents who place their bad feelings against the other parent ahead of concerns for their children.  Using children to get back at a spouse can cause serious problems for the children.  If you see any of this happening, I strongly recommend that you take your child to a counselor or psychologist to help them adjust to this drastic change in the child’s life.  It may avoid damage that will last through the child’s life.

 

 

CHILD SUPPORT

 

When custody is determined, the court also will determine how much child support the non-custodial parent will pay.  Support orders now are calculated by using the “child support guidelines”.  The total gross income of both parents is used to determine the total support required for the number of children in the marriage.  Each parent then is responsible for a percentage of that amount, based on the percentage of income from each parent.  Childcare expenses that are job-related also are figured into the support guidelines.

 

All child support must be paid through the Bureau of Support by direct payroll deduction from the wages of the non-custodial parent or deduction from a bank account.  The parties cannot agree to have direct payments.  Any payments which do not go through the Bureau of Support are considered a gift.

 

Child support is not considered income to the residential parent and it is not deductible by the paying parent.  The residential parent is entitled to claim the tax exemption for the minor child unless it is agreed otherwise between the parents and the residential parent signs a waiver, which the non-residential parent must file with his or her tax return.

 

Like custody, child support is subject to later modification by the court, but only if one parent can show a “substantial change in circumstances” which makes the present order unfair.  A slight change in income or expenses of either party is not sufficient.  A ten per cent variation in income probably will justify a new support order.

 

 

PROPERTY

 

The court first determines what is “marital property” and what is “non-marital property”.  Basically, marital property is that accumulated during the marriage.  Non-marital property includes that owned prior to the marriage and that which comes from a source that is related to one spouse only, such as an inheritance, family gift, or the proceeds of an injury claim.  However, if non-marital property is co-mingled with marital property for a sufficient time, it may be considered marital property.  If the parties cannot agree on how property will be divided, the court may order it sold and the cash divided between them.  This applies to real estate, also.

 

Retirement Plans. Often the most valuable asset in a long-term marriage is a retirement plan.  These can be worth over a hundred thousand dollars.  The part of the retirement plan accumulated during the marriage is considered a marital asset to be equally divided between the parties.  There are companies, such as QDRO Consultants, who can determine the present value of these plans.  More often, plans are divided with Qualified Domestic Relations Orders.  These must be approved by the plan administrator for the individual plan before the Court will sign the order.  I generally have “QDRO’s” prepared by one of the companies that specialize in this work.  They generally charge about $400.00.

 

The court starts with the presumption that all marital property should be divided equally.  However, one party may be awarded more property than the other, based upon the facts of the case.  A division of property may be “equitable” without being equal.

 

DEBTS

 

The court will determine which party will pay which debts of the marriage.  Usually the party who receives a particular piece of property pays the debt that goes with it, but not always.  The Court looks at relative incomes of the parties in determining who should pay what debts.

 

It is important to understand that even if the court orders your spouse to pay a joint debt, your creditors can still enforce the debt against you.  If one spouse does not pay as ordered, the only remedy of the other spouse is to file a contempt action to force payment.  If your spouse files bankruptcy to discharge a debt, other than child or spousal  support, you can no longer file a contempt action, and your creditors can look to you for payment if it was a joint debt.

 

 

SPOUSAL SUPPORT

 

What most people think of as alimony is properly called “spousal support”.  The purpose of spousal support is to provide income for a former spouse.  Spousal support generally is not awarded unless there has been a long marriage and a spouse has lost earning capacity for such reasons as staying out of the workforce to raise children or by becoming disabled.  Even a short-term marriage may result in a spousal support order where a spouse becomes disabled during the marriage.

 

The factors used in determining whether spousal support should be awarded are set out in Ohio Revised Code Section 3l05.18.

 

Spousal support is taxable as income to the person receiving it.  It is deductible from the income of the person paying it.  This is unlike child support, which is neither taxable nor deductible.

 

Permanent spousal support may be ordered by the court for an indefinite period, in order to provide future income to a spouse.  If the parties agree on spousal support, they can set their own limits.  Spousal support ordered in a divorce decree may be modified after the divorce if there is a substantial change in circumstances of either of the parties.   However, once spousal support is agreed upon in a dissolution, it cannot be modified because of a later change in circumstances of either party unless the right to modify is stated in the decree of dissolution.

 

The court may also order temporary spousal support, even if it does not order permanent spousal support.  Temporary spousal support may be considered to allow one spouse the extra income needed to get started in a new life, especially where it will take time to locate a new residence and obtain employment.

 

CONTEMPT

 

Once the court issues temporary or permanent orders, both parties are required to comply with those orders.  If one party does not comply, the other can file a motion to have the other held in contempt of court.  Unfortunately, it takes several weeks to obtain a hearing, and some parties are not easily persuaded to obey the court.

 

If the court finds that a party is in contempt, it can do several things.  First, it can sentence the offending party to jail.  Second, it can place greater restrictions on that party’s rights in the divorce proceedings.  Third, it can order the offending party to pay the costs and attorney fees that the other party paid to bring the contempt action to court.

 

Contempt proceedings can be filed against a party who violates a court order either during or after a divorce or dissolution.  Attorney fees must be awarded against a party who is in contempt for failing to pay child support ordered by the court.