Like weddings and having children, divorce is a life changing event. It is typically highly emotional for both parties, their children, their families and friends. Medical science tells us that our thinking capacities are not at their best when we are emotionally upset. This article is intended to cover the basics.
The language of divorce among the lay population can be confusing. Let’s see if we can clarify a few things. First the legal processes available in Ohio include annulment, divorce, dissolution and legal separation. In each a court proceeding is involved which voids your marriage (annulment), terminates your marriage (divorce or dissolution) or legally allocates your parental rights, divides your assets and liabilities and specifies support from one spouse to the other, if appropriate without terminating the legal marriage relationship (legal separation).
The difference between divorce and dissolution is that divorce is an adversarial proceeding and dissolution is non-adversarial. An action for divorce is a lawsuit where one party is the plaintiff and the other is the defendant. In a dissolution both parties are called “petitioners” and they are jointly asking the court to terminate their marriage.
Ohio law requires that three categories of issues to be resolved. The first is the allocation of parental rights and responsibilities, and includes designation of residential parent, how parental decisions are going to be made, the allocation of parenting time, etc. Ohio Rev. Code §3109.04, et seq. The second category is the division of marital assets and liabilities, which includes the identification of separate property of the parties and the equitable division of the parties’ marital assets and liabilities. Ohio Rev. Code §3105.171. The third category of issues is the support, both child support and/or spousal support (previously referred to as alimony) that will be paid by one spouse to the other. Both the amount of support and the duration must be determined. Ohio Rev. Code §3119.01, et seq.; Ohio Rev. Code §3105.18. Generally, child support is calculated under a statutory formula and is payable until a child reaches the age of 18 or graduates from high school, whichever is later; but not beyond age 19. There are exceptions for children with special needs. Spousal support, on the other hand, is determined using fourteen general statutory factors plus “any other factor that the court expressly finds to be relevant and equitable.” Thus, the amount and duration can vary from court to court.
In an action for divorce that ends in a trial, one or more of the above categories of issues are decided by the judge or magistrate. In a dissolution, all issues must be agreed to in writing in advance. Those agreements (a separation agreement and sometimes a shared parenting plan) must be attached to the dissolution petition.
There are various processes that may be employed by divorcing couples to negotiate the essential elements of a separation agreement and parenting plan. These include mediation, collaborative law, principled negotiation, and, in some cases, arbitration.
We do not promote or encourage couples to divorce. Our clients typically come to the office with the decision to divorce already made or made for them by their spouse. They are confused, seeking information and hurting. Divorce is a life-changing experience and a decision which should be made after careful and considered deliberation. We encourage prospective clients to consult with a counselor, spiritual advisor, financial consultants and close family and friends for advice and consideration of options short of divorce.
The decision-making factors also vary across age groups. Younger couples with families have different issues than baby boomers. The literature is now replete with articles on the increase in “grey divorce.”
Our role is to advise the client regarding the legal issues and consequences of divorce, once terminating their marriage seems to be the only alternative.