Unlike a dissolution, divorce happens when one or both parties to a marriage decide to terminate the marital relationship and there is no agreement as to how to divide the assets, share the debt and, if children are involved, agree on the custody of the minor children of the marriage. In Ohio the divorce proceeding begins when one of the parties to the marital relationship files a complaint in the Common Pleas Court of the county having jurisdiction over the proceeding. In Ohio, the plaintiff, (the person filing the lawsuit), must be a resident of the State of Ohio for at least 6 months before filing the divorce complaint and must be a resident of the county where the complaint is filed for at least 90 days before filing. Once the complaint is filed it must be served upon the other spouse according to the Ohio Rules of Civil Procedure and, according to the Ohio Civil Rules, the party served has normally 28 days to serve a responsive pleading to the complaint. The responsive pleading may be in the form of an answer, a motion, and or a counterclaim for divorce. Once the parties file all of the preliminary pleadings that are allowed or otherwise appropriate, the court will normally schedule the matter for a pre-trial conference. If motions are filed that require a hearing the court may schedule a hearing on the motions prior to pre-trial. Any hearing scheduled prior to the pre-trial conference will normally involve an emergency situation, or at least a situation that needs to be addressed prior to the scheduled pre-trial hearing.
As soon as possible, and hopefully before the pre-trial conference, it is advisable for the client to accumulate documentation regarding assets and liabilities of both spouses. That documentation includes, but is not necessarily limited to, what you and your spouse own and what you and your spouse owe. Your attorneys will want this information before pre-trial. Most of the above information will be supplied by you to your attorney at the initial consultation or soon thereafter.
After the pre-trial conference some courts will schedule a settlement conference to enourage the parties to resolve the marital issues prior to trial. If the settlement conference does not resolve the marital issues, the court may elect to schedule the matter for trial. If the matter is scheduled for trial, the parties will try the case, as in any civil case, in accordance with the rules of evidence and civil procedure.
The Court does have the power to schedule a contested divorce for mediation before trial. Mediation is an alternative dispute mechanism designed to resolve marital conflict on issues of disagreement before trial and in an effort to avoid trial.
Contested vs. Non-Contested Divorce
All divorces begin contested. A divorce by nature, if not by definition, means that at least one or more issues, that must be determined, are in dispute. For example, a marital couple may have reached an agreement regarding all issues relevant to their marital conflict yet are unable to reach an agreement regarding the custody of their child or children. In this example a divorce must be filed if the spouses desire to terminate their marriage. While all divorces begin contested, more often than not, the contested issues are resolved before the final hearing or trial. If resolved, the court will schedule a non-contested hearing and the agreement will simply be presented to the judge for approval. Many times, as in the example above, the marital couple may be unable to reach a full agreement. In such a case the couple may choose to submit their agreement to the judge for approval and leave it to the judge to decide, after hearing or trial, the issue(s) in dispute.
Grounds for Divorce
When people think of the process of divorce one of the first things which often comes to mind are the "grounds" for divorce. In Ohio there are eleven (11) enumerated grounds for divorce set forth by state statute. Simply stated, those grounds are:
*Either spouse had a husband or wife living at the time of the marriage;
*Willful absence of the adverse party for one year;
*Gross Neglect of Duty;
*Imprisonment of the adverse party in a state or federal correctional facility at the time of filing the complaint for divorce;
*Procurement of divorce outside of state releasing procuring spouse of obligations while non-procuring spouse is still subject to obligations;
*Living separate and apart without interruption for one year without cohabitation; or
*Incompatibility, unless denied by either party
With very few exceptions, most divorces proceed and are granted without any challenge or dispute as to the issue of grounds. In fact, most of the time divorces are granted to both parties if properly requested in a complaint and counterclaim for divorce.
Major Divorce Issues
The issues which must be resolved or decided in a divorce proceeding are far to numerous to list. Every divorce case is different and it is important to discuss your domestic relations matter with an experienced divorce attorney. A sample of the issues which are common in divorce are as follows;
*Division of marital property, including household goods, furnishings, real estate, pension, retirement benefits and other personal property;
*Allocation of marital debt;
*Custody of Minor Children (Sole Custody/Split Custody/Shared Parenting);
*Parenting Time (Visitation) of Minor Children; and
*Spousal Support (Alimony)
Needless to say, the decision to terminate a marriage can be an emotional, exhausting and complicated undertaking. With some exception, agreements made to resolve a divorce between spouses or a judge's decision on a contested issue can sometimes be irreversible. With your future, and possibly the future of your children, hanging in the balance it is very important that you speak with a divorce attorney if you are contemplating the termination of your marriage.
At W. Randall Rock, Attorney at Law, we have the experience of over 32 years of providing legal counsel and representation for those experiencing the break up of their marriage. If you have questions which need answers, CONTACT US NOW and put your mind at ease. Together we can navigate and calm your legal concerns.
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