dIVORCE AND DISSOLUTION IN MEDINA, OHIO

I recommend marriage counseling. It is difficult to work through these issues without the help of a trained professional. 

There are several possible options, depending upon the facts and circumstances of your situation. 

1. Divorce
2. Dissolution of Marriage
3. Legal Separation
4. Annulment

All four options are discussed on this website. 

A Dissolution of Marriage is a legal proceeding in which a termination of marriage can be granted by a Court when both parties are in total agreement regarding all matters such as property division, debt division, spousal support, child support, custody, and parenting time.  The paperwork is not filed with the Court unless and until the parties have reached a full agreement on every issue. 

No. That would be a conflict of interest.  Although, one Attorney often prepares the necessary paperwork, that Attorney can only represent one of the parties.  The other party can choose to have his or her own Attorney, or the other party can waive that right.  

After the paperwork is filed with the Court, the Hearing is usually scheduled between 30 and 90 days.  

In the typical Dissolution of Marriage, the parties appear for one relatively brief hearing.

Both parties must appear and testify. Typical questions asked of the parties include, but are not necessarily limited to, name, address, how long each has been an Ohio resident, date of marriage, place of marriage, whether each party made a full and complete disclosure of assets, debts, income and expenses, whether each party voluntarily signed the agreement(s), whether each party believes the terms of the agreement(s) are fair, just and equitable, and whether each party believes that any agreements pertaining to minor children are in the best interest of such minor children.  

One of the spouses in an action for a Dissolution of Marriage shall have been a resident of the State of Ohio for at least 6 months immediately before filing the Petition for Dissolution.  In addition, at any time before a final judgment is entered in a divorce action, the spouses may convert the action for divorce to an action for dissolution of marriage by filing a motion with the court in which the divorce action is pending for conversion of the divorce action.    

No. Grounds are necessary for a Divorce, not a Dissolution. 

Absolutely. 

A Dissolution of Marriage is generally faster, less time consuming and less expensive than a Divorce. 

One big disadvantage is the inability to conduct discovery procedures such as Interrogatories, Requests for Production of Documents and Depositions.  Such discovery procedures are available in Divorce cases.  However, in a Dissolution of Marriage, each party must depend upon the honesty, openness and accuracy of the other party to provide necessary information and a full disclosure of assets, debts, income and expenses.  

Divorce is a legal proceeding in which a marriage contract between two people can be terminated upon the request of one party or both parties when grounds for divorce are present.  

The person who files first for the divorce is generally known as the “Plaintiff”, and the other spouse is generally known as the “Defendant”.  The Plaintiff commences the divorce action by filing a Complaint for Divorce in the proper Ohio county. Along with the Complaint for Divorce, the Plaintiff can request other relief such as Restraining Orders and Temporary Orders while the divorce case is pending.  The temporary orders often address issues such as child support, spousal support, the allocation of expenses, custody and visitation.  The Divorce complaint is served upon the Defendant - often by certified mail or sheriff service.  There are additional methods to serve the Defendant which are permitted by the Ohio Civil Rules of procedures.  The Defendant generally has 28 days from the date of service to respond to the Plaintiff’s complaint.  However, if Temporary Orders have been requested by the Plaintiff, the Defendant may have a shorter period of time to respond to the request for Temporary Orders.  The Defendant has a right to file a counterclaim for divorce and request such other relief as the Defendant deems appropriate.  During the divorce process the parties are required to make a full complete disclosure of all assets, debts, income and expenses.  Often, this information is provided to the court and to the other spouse by fill-in-the-bank forms, which are generally available through the Supreme Court of Ohio and/or the divorce court.  In addition, each party may conduct discovery which may consist of Interrogatories (which are questions to be answered under oath), requests for production of documents and depositions.  An important goal in the discovery process is for each party to discover, find out or confirm, all property, debts, income and expenses of the other party so that an equitable outcome and division can be achieved.  This can be done through negotiation or by the court.  In addition, the court generally schedules several court appearances to deal with issues that come up during the dependency of a divorce.  A final trial date is generally scheduled as and serves the date or dates in which evidence will be presented to the court so that the Court can make a final determination of all contested matters.  Not every divorce case results in a trial.  Divorce cases are often settled by an agreement of parties.  However, the parties’ agreement must be presented to the court for approval.  If the court approves the parties agreement, the agreement is adopted by the court,  and it becomes a court order.  

You have the right to represent yourself.  However, the typical divorce involves a mixture of statutory law, case law, rules of civil procedure, and rules of evidence, among other things.  For a person going through the legal process as a Plaintiff or Defendant, it is often difficult to put aside the natural feelings and emotions which are often caused by the stress of the situation. This makes it difficult to represent oneself.   For example, even attorneys going through this process usually get lawyers to handle the case for them.  There is an old saying which I remember from law school, which is “a lawyer who represents himself or herself has a fool for a client”.  It is wise to seek the assistance of an experienced and knowledgeable attorney to help you, guide you and advise you.  Attorney Gerald D. Piszczek has over 40 years experience in this field of law.  Call him today at (330) 723-2200 to schedule your complimentary consultation/strategic session.

Ohio law requires that the Plaintiff must be a residence of the State of Ohio for at least six (6) months immediately before filing a Complaint for Divorce, and actions for divorce must be bought in the property county pursuant to the Ohio Rules of Civil Procedure.  

The Ohio Civil Rules of Procedure states which county in Ohio where a divorce action may be commenced.  This is known as venue.  Most of the time divorce cases are filed in the county in which the Plaintiff is and has been a resident for at least 90 days immediately proceeding the filing of the Complaint for Divorce.  

Yes.

The Ohio Revised Code Sets forth specific grounds for divorce which are as follows: Either party had a husband or wife living at the time of the marriage from which the divorce is sought; wilful absence of the adverse party for one year; adultery; extreme cruelty; fraudulent contract; any gross neglected duty; habitual drunkenness; imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint; Procurement of a divorce outside of the State of Ohio, by husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party; on the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation; and Incompatibility, unless denied by either party. 

Maybe. It depends upon the course of action which you and your attorney have agreed upon.  Like many other decisions which are made during the course of the divorce process, whether or not you should file first is a matter of strategy which is in turn based upon the facts and circumstances of your case.  This decision, like many others in a divorce case, should be made after consultation with your attorney. 

Not necessarily. If the parties cannot agree, the Court makes the final decision regarding contested matters such as property division, spousal support, debt allocation, custody, and child support.  Often times, however, the parties are able to reach an agreement regarding some or all of the previously contested issues.  After a full disclosure of assets, debts, income and expenses has been accomplished, your attorney should be able to advise you regarding the fairness of any proposed agreements.  There is no substitute for knowledge and experience when it comes to these types of matters.  

Generally, yes. The court will schedule court appearances.  Some of the court appearances may involve your testimony, and some may not.   It is important that you and your attorney have a clear understanding of the purpose of each hearing and what to expect so that you can plan your strategy.  

Witness are often needed for evidentiary hearings and/or the final trial.  It is a good idea to ask your attorney whether witnesses or other evidence is necessary in advance of each scheduled court appearance so that you are fully prepared.    

Relatives and friends can be witnesses. It would be helpful for you to provide your attorney with some information about possible witnesses so that you and your attorney can together determine whether such persons should be witnesses in your case.  Although an independent person can be an effective witness as well, sometimes in matters involving a divorce or custody, relatives and friends are in the best position to have personal knowledge of the situation.  Therefore they often make effective witnesses. 

It is a good idea to determine why the witness is refusing to come to court.  For an example, if the witness is willing to come to court, but court date conflicts with the witness’ work schedule or some other important event in the life of the witness, then  a Motion for a Continuance may be an appropriate course of action.  Alternatively, you or your attorney can compel the attendance of the witness by a proper subpoena.  However, if the witness is avoiding a court appearance for other reasons, such as the witness knows that he or she is likely to provide testimony which is damaging to your case, this is a different situation.  This circumstance should be discussed carefully with your attorney. 

Typically, a pre-trial is a court proceeding in which the two sides discuss the facts and issues of the case with the court.  The court often offers guidance and suggestions regarding possible resolution(s) of contested matters.  Evidence is generally not presented at a pre-trial. Depending upon the Court, sometimes the parties are present during this discussion, and sometimes they are not. 

As the name implies, an evidentiary hearing is a court appearance in which it is anticipated the production of evidence will occur.  Depending upon the situation, such evidence could include witness testimony, exhibits and the presentation of documents, etc. The type and form of evidence depends upon the facts and circumstances of the case and carefully planned in advance.  Generally these hearings are conducted according to the rules of evidence.   

As the name implies, an evidentiary hearing is a court appearance in which it is anticipated the production of evidence will occur.  Depending upon the situation, such evidence could include witness testimony, exhibits and the presentation of documents, etc. The type and form of evidence depends upon the facts and circumstances of the case and carefully planned in advance.  Generally these hearings are conducted according to the rules of evidence.   

A Legal Separation is a Court proceeding in which the Court can grant one or both parties

the right to live separate from the other party.  In a Legal Separation, the Court can order a property division, debt divisions, spousal support, child support, custody and visitation. A Legal Separation and a Divorce are two different types of legal proceedings. However, 

there are similarities.  A Legal Separation proceeds through the Court system similar to a

Divorce case.  However, a Legal Separation does not grant a Divorce.  Similar to a 

Divorce, the Court can grant restraining orders and temporary financial orders.  

The Court of Common Pleas may grant legal separation on a complaint or counterclaim,

regardless of whether the parties are living separately at the time the complaint or counterclaim is filed, for the following causes:

1. Either party has a husband or wife living at the time of the marriage from which legal separation is sought;
2. Willful absence of the adverse party for one year;
3. Adultery; 
4. Extreme cruelty;
5. Fraudulent contract; 
6. Any gross neglect of duty;
7. Habitual drunkeness;
8. Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;
9. On the application of either party, when a husband and wife have, without interuption for one year, lived separate and apart without cohabitation;
10. Incompatibility, unless denied by either party.

The filing of a complaint or counterclaim for legal separation or the granting of a Decree of Legal Separation does not bar either party from filing a complaint or counterclaim for a Divorce or Annulment or obtaining a Divorce or Annulment.

Sometimes a party or parties do not want to terminate their marriage, but instead they

wish to live separately with Court orders in place dividing property and debts, establishing custody and visitation rights.

An Annulment is a legal proceeding in which a marriage can be terminated as if it never

took place.

A marriage may be annulled for any of the following causes existing at the time of the marriage:

1. That the party in whose behalf it is sought to have the marriage annulled was under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;
2. That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;
3. That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;
4. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, cohabited with the other as husband or wife;
5. That the consent to the marriage of either party was obtained by force, unless such party afterwards cohabited with the other as husband or wife;
6. That the marriage between the parties was never consummated although otherwise valid.

Ohio law requires that the Plaintiff must be a resident of the State of Ohio for at least (6) months immediately before filing a Complaint for Annulment, and actions for annulment must be bought in the proper county pursuant to Ohio Rules of Civil Procedure.  

No. The circumstances which support the specific grounds for an Annulment do not 

occur as frequently as grounds for a divorce or grounds for a legal separation.  If you believe that your situation is appropriate for an Annulment, it is wise to speak with an experienced knowledgeable attorney who can advise you on the law as well as specific grounds and any time limitations.

The court is required in divorce proceedings to determine what constitutes separate property and what constitutes marital property.  After the court makes such determination, the court is mandated to equitably divide the marital and separate property between the spouses in accordance with the Ohio Revised Code.  With some exceptions, the division of marital property is generally equal between the parties.  However, when an equal division of marital property would be inequitable, the court divides the marital property between the spouses in the manner the court deems equitable.  

Some exceptions include financial misconduct of a spouse or the substantial failure of a spouse to disclose important information such as marital property, separate property, debts, income or expenses.  In these events the court may compensate the spouse with a greater reward of marital property or a distributive award.

The Ohio Revised Code defines separate property to include, among other things, an inheritance received by a spouse during the marriage, property that was acquired by a spouse prior to the date of marriage (pre-marital asset), property excluded by a valid antenuptial agreement and property acquired by gift by a spouse during the marriage that is proven by clear and convincing evidence to have been given to one spouse.  

Generally, with limited exceptions, separate property is retained by the person who acquired the separate property.   

If the separate property is traceable, it retains its identity of separate property.  If it is not traceable, then it loses its identity as separate property, and in such event it is generally divided equitably between the parties.  

No. Each spouse is considered to have contributed equally to the production and acquisition of marital property.    

The Court must use the same analysis pertaining to as retirement benefits as any other property.  By that I mean there must be a determination of whether retirement benefits are separate property, or marital property or a combination of separate property and marital property.  For example, if a spouse accumulated retirement benefits both before the marriage and during the marriage, the portion of the retirement benefits which were accumulated prior to the marriage would be considered separate property, and the portion of the retirement benefits accumulated during the marriage would be considered marital property.   This analysis can get complicated in a situation when there is passive growth pertaining to the separate property. In some cases it is necessary to obtain a professional evaluation of such assets to assist the Court and the parties in the determination of an equitable division of separate and marital property. 

Most retirement assets require special court orders to accomplish the division ordered by the court.  The type of special court order depends on the type of retirement asset.  For example, the division of a pension may require a Qualified Domestic Relations Order (QDRO);  The division of an Ohio Public Employees Retirement System benefit may require a Division Of Property Order (DOPO); and the division of benefits payable under the Federal Employees Retirement System may require a Court Order Acceptable For Processing (COAP).  These additional court orders are very technical and require the approval and acceptance by the court and the retirement plan.  An experienced attorney should be able to help you though this process.  

Yes, for example, two categories of retirement plans are Defined Contribution Plans and Defined Benefit Plans.  Some examples of Defined Contribution Plans include 401(k)s, 403(b)s, and Deferred Comp. Pension Plans fall into the Defined Benefit Plan category.