I. DIVORCE [O.R.C. 3105.01].
A. Divorce is a civil law suit which ends a marriage. A person filing for a divorce must allege grounds or the reason for the divorce. The most common grounds are incompatibility and living separate and apart without cohabitation for one year. Other grounds rarely used are bigamy, willful absence, adultery, extreme cruelty, fraudulent contract, gross neglect of duty, and a spouse's imprisonment.
B. All marital rights and responsibilities are terminated by a trial or by the parties' Separation Agreement which is incorporated into a Final Order.
C. Beginning a Divorce
1. A Plaintiff files a Complaint, which must allege jurisdiction and grounds, and make a request for relief. Jurisdiction is living in the State of Ohio for at least six (6) months and in Stark County for at least ninety (90) days. Relief may be a division of property, support, and parental rights, and may also include a request for attorney fees and costs.
2. Within twenty-eight (28) days of receiving a divorce complaint, a Defendant files an Answer and/or a Counterclaim that alleges jurisdiction and grounds, and makes a request for relief.
3. Mutual restraining orders (which state that the parties cannot sell, transfer, or destroy assets and they are not to threaten or interfere with the other party, incur further credit, change insurance coverage, nor remove the children from Stark County) are effective until the case is finalized. (Local Rule 34.05).
4. Either party may request a temporary hearing, which is conducted by a magistrate who determines child/spousal support, parental rights/ responsibilities, use of the marital home, and payment of certain debts. Temporary orders are in effect until modified by the Court or until the matter is finalized.
D. Contested Divorce Procedures [Local Rule 32.01]
1. Status call--Only cases that are going forward uncontested shall appear in Court on the status call date and those cases shall be heard on that date. If no answer has been filed in the case, the Court will hear the case as an uncontested's case on that date.
2. Pretrial conference--This conference is scheduled with the Judge, the parties, and the attorneys after the status conference. The purpose is to negotiate a settlement. If the case is not settled, the issues are identified, and a trial is scheduled.
3. Trial--The parties present evidence (testimony, witnesses, exhibits), and the Court makes the final decision. Most parties settle their issues with a mutually agreed Separation Agreement which has been decided prior to trial.
E. Uncontested Divorce Procedures [Local Rule 32.01].
1. If the Defendant does not file an Answer to the Complaint, the case is set for an uncontested hearing. This hearing takes place at the status call.
2. Except for grounds for divorce, the Defendant may show evidence for all issues, such as parental rights, support, and property.
3. Uncontested hearings are scheduled with a magistrate. If there are disputed issues, the case is set for a pretrial.
F. Magistrate's Hearings [Civil Rule 53(C)(3), (D)(3)].
1. Magistrates hear all temporary and post-decree motions, most uncontested divorces, and other related matters.
2. If a party thinks a magistrate made an unfair Order or Decision, he/she may appeal:
a. A Magistrate's Order--by filing a Motion to Set Aside a Magistrate's Order within ten days from the day the Magistrate's Order is filed; or
b. Magistrate's Decision--by filing an Objection to the Magistrate's Decision within fourteen (14) days from the day the Magistrate's Decision is filed. The other party may file a Response no later than ten (10) days from the day the Objection is filed.
G. Judge's Decision
1. If a party thinks a judge was arbitrary, made a mistake, or made an unfair decision he/she may:
a. File a Motion for a New Trial no later than fourteen (14) days after the judgment entry is filed [Civil. R. 59(B)]; or
b. File a Notice of Appeal with the Fifth District Appellate Court within thirty (30) days of the final judgment entry being filed. [App. R. 4(a)].
II. DISSOLUTION [O.R.C. 3105.62 - 3105.65].
A. Dissolution is a legal action where the parties mutually agree to end their marriage. They sign a separation agreement, which is a complete settlement of all property, support, and parenting issues.
B. Dissolution Procedure
1. Husband and Wife file a Petition for Dissolution;
2. The parties must schedule a hearing thirty (30) days after filing, but not more than ninety (90) days after filing;
3. The Court will review the Agreement.
4. At the hearing, the parties testify under oath:
a.They have lived in Ohio for six (6) months;
b.The accept their Separation agreement and are satisfied with its terms; and
c.They voluntarily seek a dissolution of their marriage.
5. The parties may change their Petition for Divorce into a Dissolution within thirty (30) days after filing the Petition for Divorce, or either party may change a dissolution into a divorce proceeding.
III. LEGAL SEPARATION [O.R.C. 3105.17]
A. Legal Separation is a civil law suit which does not end a marriage. It allows the Court to make orders concerning a division of property, parental rights and responsibilities, child and spousal support, and other related issues.
B. Legal Separation Procedure
1. The procedures are the same as filing for a divorce. One must allege jurisdiction and grounds, and make a request for relief.
IV ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES FOR THE CARE OF THE CHILDREN [O.R.C. 3109.04].
A. Parenting Plans
The parties may decide the rights and responsibilities of each parent for the care of their children, or the decision is made by the Court. The plan may be either a sole parenting plan or a shared parenting plan.
1. Sole Parenting Plan
In a sole parenting plan, the parental rights and responsibilities for the child(ren) are given primarily to one parent, who is the residential parent and legal custodian. The nonresidential parent is given visitation/companionship rights (parenting time), according to the parties' agreement. The Court may decide the parenting times in any manner which is in the best interest of the child(ren).
2. Shared Parenting Plan
A shared parenting plan must be filed by either one or both parents prior to the final hearing. In a shared parenting agreement, each parent is the residential parent and legal custodian, regardless of where the child(ren) is living at a particular point in time, as stated in the Order for shared parenting. [O.R.C. 3109.04(K)(6)].
3. When deciding if a Shared Parenting Plan is in the best interest of the child(ren), the Court considers the following factors: [O.R.C. 3109.04(F)(2)(a through e)].
a. The ability of the parents to cooperate and make joint decisions with respect to their child(ren);
b. The ability of each to encourage the sharing of love, affection, and contact between the child and the other parent;
c. Any history of or potential for child or spousal abuse or other domestic violence;
d. The geographic proximity of the parents to each other; and
e. Recommendations of the Guardian ad Litem of the child
4. When deciding the "best interest of the child(ren)" in both sole parenting plans and shared parenting plans, the Court considers the following factors: [O.R.C. 3109.04(F)(1)(a through j)].
a.The parents' wishes;
b. The child(ren)'s wishes;
c. The child(ren)'s relationship with family members;
d. The child(ren)'s adjustment to home, school and community;
e. The mental and physical health of those involved;
f. The parent more likely to honor and facilitate companionship;
g. Whether child support is current;
h. Whether either parent has been convicted of or pleaded guilty to child abuse;
i. Whether one parent has continuously or willfully denied the other visitation; and
j. Whether either parent has or plans to establish a residence outside the state.
The nonresidential parent has visitation/companionship rights. Third parties, such as step parents, grandparents or other relatives, may also request visitation rights. In deciding whether to grant visitation rights, the Court considers the following factors: [O.R.C. 3109.051(D)(1 through 15)].
1. The prior interaction with the person requesting visitation if that person is not a parent, brother or sister, or relative;
2. The geographical location of each parent and the distance between the residences or the residence of the person requesting visitation if not a parent;
3. The child's and parents' available time, including, but not limited to, the parents' work schedules, the child(ren)'s school schedule, the child's and parents' holiday and vacation schedules;
4. The age of the child;
5. The child's adjustment to home, school and community;
6. The child's wishes;
7. The health and safety of the child;
8. The amount of time that is available for the child to spend with siblings;
9. The mental and physical health of the parties;
10. Each parent's willingness to reschedule missed visitation to encourage the other parent's visitation rights;
11. Whether the parent or other party requesting visitation has been convicted or plead guilty to child neglect;
12. Whether the parent or other party requesting visitation has been convicted or plead guilty to child abuse;
13. Whether either parent has continuously or willfully denied the other visitation;
14. Whether either parent has established or plans to establish a residence out of state; and
15. Any other factor in the best interest of the child.
V. CHILD SUPPORT [O.R.C. 3109.05 and O.R.C. 3113.21 through 3113.219].
A. Child Support Calculations
1. The amount of child support is based upon the combined gross income of the parties. After certain adjustments are made (for example, local taxes, day care and health insurance costs, support paid for other children), the parents pay support on a pro rata share of their income pursuant to the statutory amount of child support. [O.R.C. 3113.215(B)(5)].
2. The parties shall file with the Court a child support worksheet that calculates the statutory monthly support obligation. [O.R.C. 3113.215(B)(1)].
3. Child support is paid to the parent (oblige) who has the primary responsibility for the care of the child(ren). All child support is withheld or deducted from the wages of the parent required to pay (the obligor), and is paid through the Child Support Enforcement Agency (CSEA). [O.R.C. 3109.05(A)(2)].
4. Child support remains in effect beyond the child's eighteenth (18) birthday so long as a child attends on a full-time basis an accredited high school. In no event shall it continue beyond age nineteen (19) unless there is a court order.
5. One or both of the parents shall designate the child(ren) as dependents on his or her employer provided health insurance. The parent who is receiving the child support by statute is responsible for the first $100 of out-of-pocket health care expenses incurred per child during each calendar year. “Out-of-pocket" expenses include, but are not limited to deductibles, co-pays, uninsured health care expenses orthodontia and psychological treatment. [O.R.C. 3113.215(A)(12)].
B. Deviation Factors [O.R.C. 3113.215(B)(3)(a through p)].
1. If the amount of child support is unjust and inappropriate and not in the best interest of the child(ren), the parties or the Court may deviate from the child support schedules. The Court considers the following factors when deciding whether the support to be paid will be different from the child support schedule:
a. Special and unusual needs of the children
b. Extraordinary obligations for minor children or obligations for handicapped children;
c. Other Court-ordered payments;
d. Extended times of visitation and extraordinary costs associated with visitation;
e. The obligor obtains additional employment. . . in order to support a second family;
f. The financial resources and earning ability of the child;
g. Disparity in income between parties or households;
h. Benefits that either party receives from remarriage or sharing living expenses with another person;
i. The amount of Federal, State, and Local taxes actually paid or estimated to be paid by a parent. . .;
j. Significant in-kind contributions from a parent including, but not limited to, direct payment for lessons, sports equipment, schooling or clothing;
k. The relative financial resources, other assets, and resources, and needs of each parent;
l. The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued. . .;
m. The physical and emotional condition and needs of the child;
n. The need and capacity of the child for an education. . .;
o. The responsibility of each parent for the support of others; and
p. Any other relevant factor.
C. Imputed Income for Unemployed/Underemployed [O.R.C. 3113.21.5]
1. If the Court finds a parent to be underemployed/unemployed, the Court may impute income to him/her in thee amount the parent would have earned if the parent was fully employed. The Court decides this amount by reviewing the following criteria: [O.R.C. 3113.215(5)(a)].
a. The parent's prior employment experience;
b. The parent's education;
c. The parent's physical and mental disabilities, if any*;
d. The availability of employment in the geographic area in which the parent resides.
e. The prevailing wage and salary levels in the geographic area in which the parent resides;
f. The parent's special skills and training;
g. Whether there is evidence that the parent has the ability to earn the imputed income*;
h. The age and special needs of the child for whom child support is being calculated*;
i. The parent's increased earning capacity because of age or experience*;
j. Reasonable child care costs for the child for which child support is being calculated*; and
k. Any other relevant factor*.
* Proposed Legislation
D. Tax Deductions (Proposed Legislation)
1. The following factors may be considered in determining whether the residential parent and legal custodian may claim the child(ren) as dependent(s) for Federal income tax purposes:
a. The deduction furthers the best interest of the children;
b. The net (total) tax savings;
c. The relative financial circumstances and needs of the parents and child(ren);
d. The amount of time the child(ren) spend with each parent;
e. The eligibility of either or both parents for the federal earned income tax credit; and
f. Any other factor concerning the best interest of the child(ren).
VI. PROPERTY DIVISION
The Court has jurisdiction over all property in which one or both spouses have an interest. The Court decides what is marital property and what is separate property, and divides the property equitably between the spouses. [O.R.C. 3105.17.1(B)].
B. During the Marriage [O.R.C. 3105.17.1(A)(2)(a),(b)].
The period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation. If the Court determines that the use of either or both dates is inequitable, the Court may select dates that it considers equitable when determining what is marital property. If the Court selects other dates, the date of marriage is the period of time between those dates specified by the Court.
C. Marital Property [O.R.C. 3105.17.1(A)(3)(a)(i through iv)].
1. Marital property is all real and personal property in which one or both parties own or have an interest. This includes retirement benefits.
2. The division of marital property shall be equal. If an equal division is inequitable, the Court shall divide the property between the parties in the manner the Court determines equitable. [O.R.C. 3105.17.1(C)(1)].
3. Each party is considered to have contributed equally to the production and acquisition of marital property. [O.R.C. 3105.17.1(C)(2)]
4. When dividing marital property, the Court considers the following factors: [O.R.C. 3105.17.1(F)(1) through (9)].
a. The duration of marriage;
b. The assets and liabilities of the parties;
c. The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the residential parent;
d. The liquidity of the property to be distributed;
e. The economic benefits of retaining an asset or an interest in an asset intact;
f. The tax consequences of the property division;
g. The costs of sale, if it is necessary that property be sold to make an equitable distribution of property;
h. Any property division made in a separation agreement that was voluntarily entered into by the spouse; and
i. Any other factor that the Court expressly finds to be relevant and equitable.
D. Separate Property: [O.R.C. 3105.17.1(A)(6)(a)].
1. Separate property is all real and personal property and any interest in real or personal property that is found by the Court to be any of the following:
a. An inheritance of one spouse received during the marriage;
b. Any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage;
c. Passive income and appreciation acquired from separate property by one spouse during the marriage (Passive income means income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse). [O.R.C. 3105.17.1(A)(4)].
d. Any property or interest (real or personal) acquired by one spouse after a decree of legal separation;
e. Any property or interest (real or personal) that is excluded by a valid prenuptial agreement.
f. Compensation to a spouse for the spouses personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets;
g. Any gift of property given to one spouse during the marriage that is proven by clear and convincing evidence to have been given to only one spouse.
VII SPOUSAL SUPPORT [O.R.C. 3105.18].
1. Spousal support is a payment(s) made to a spouse that is both for sustenance and support of that spouse.
2. Each party is considered to have contributed equally to the production of marital income.
3. The Court may award temporary, reasonable spousal support to either party. After the Court divides the marital property, the Court may grant reasonable spousal support for a specific period of time, or permanent spousal support if the parties have a marriage of long duration.
4. Spousal support may be property or money payable in a lump sum payment or in installment payments. It terminates by the remarriage or death of either party unless the Order expressly provides otherwise.
5. When determining whether spousal support is appropriate and reasonable, and when determining the amount, terms of payment, and duration of spousal support, the Court shall consider all of the following factors:
a. The income of the parties from all sources, including, but not limited to, income gained from property divided, disbursed, or distributed;
b. The relative earning abilities of the parties;
c. The ages and physical, mental, and emotional conditions of the parties;
d. The retirement benefits of the parties;
e. The duration of the marriage;
f. The extent to which it is appropriate for the custodian of a minor child to remain in the home and not seek outside employment;
g. The standard of living of the parties established during the marriage;
h. The relative extent of education of the parties;
i. The relative assets and liabilities of the parties, including but not limited to, any Court-ordered payments by the parties;
j. The contribution of each party to the education, training, or earning ability of the other party;
k. The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
l. The tax consequences for each party;
m. The lost ability to earn income by either party because of that party's marital responsibilities.
n. Any other factor that the Court expressly finds to be relevant and equitable.
B. Modification of Spousal Support
1. In order for the Court to be able to change/modify spousal support, the Decree of Divorce, Dissolution or Separation Agreement must contain a specific written provision giving the Court the authority to modify the amount or terms of spousal support [O.R.C. 3105.18(E)].
2. To modify spousal support, the Court must first find a change of circumstances which includes, but is not limited to, any increase or voluntary decrease in either party's wages, salary, bonuses, living expenses, or medical expenses. [O.R.C. 3105.18(F)].