How can I end my marriage in Ohio?
In Ohio a marriage can be ended in three ways, through Divorce, Dissolution and Annulment.
What is an annulment?
An annulment decree declares that a marriage never existed, unlike a divorce decree that terminates a marriage. An annulment can only be obtained if some defect existed at the time the marriage was entered into. Most people do not qualify for an annulment. Even if you have been married for a few weeks, you will probably have to file a divorce complaint to end your marriage. It is important to understand that a religious annulment and a legal annulment are not the same. O.R.C. 3105.31 lists the following as the only legal grounds for an annulment:
A) 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 in section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;
B) 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;
C) That either party has been adjudicated to be mentally incompetent, unless such party after being restored to competency cohabited with the other as husband or wife;
D) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting fraud, cohabited with the other as husband or wife;
E) 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;
F) That the marriage between the parties was never consummated although otherwise valid.
What is a dissolution?
A dissolution is a termination of a marriage where the spouses must agree on all issues of the separation. They must agree that the marriage is over and should be terminated, on how to divide their assets, and on such issues as child custody, child support, spousal support, and parenting time. In addition, both parties must appear and testify in court that they are satisfied with the agreement; that they have made full disclosure of all assets and liabilities; that they have voluntarily signed the agreement; and that they both want the marriage dissolved. The court must also approve the parties' agreement. A Dissolution will not be granted when the parties cannot agree on all the issues. When spouses cannot agree, the marriage must be terminated by Divorce.
What is a divorce?
Divorce differs from Dissolution in that it does not require the agreement nor even the presence of both spouses. To obtain a divorce a spouse must allege, in a complaint for divorce, one of the eleven grounds for divorce. These grounds come from ORC 3105.01 and include:
A) Either party had a husband or wife living at the time of the marriage from which the divorce is sought;
(B) Willful absence of the adverse party for one year;
(D) Extreme cruelty;
(E) Fraudulent contract;
(F) Any gross neglect of duty;
(G) Habitual drunkenness;
(H) Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;
(I) Procurement of a divorce outside this state, by a 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;
(J) On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation;
(K) Incompatibility, unless denied by either party.
To obtain a divorce under most of these grounds a spouse has to prove that some wrong has been committed against them, (such as adultery,) this wrong then becomes grounds for divorce. However, not all grounds for divorce revolve around the concept of fault. A spouse can obtain a divorce by proving either that the two spouses have lived "separate and apart without cohabitation and without interruption for one year" or that the spouses are incompatible.
What happens after the filing of the complaint?
After filing a complaint, a divorce can proceed in two ways, contested and uncontested. A divorce is uncontested if the defendant spouse fails to file an answer to the complaint filed or the parties have reached an agreement regarding all issues in the case. If the defendant spouse fails to appear before the court after being properly served, the plaintiff must merely present sufficient evidence to establish a prima facie case to allow the court to grant the divorce and rule on the division of property, parental rights and responsibilities regarding the children and any support orders. A divorce cannot be granted, however, unless the testimony of the complaining party is supported by a witness.
A divorce is contested if the defendant spouse files an answer to the complaint. The answer will admit or deny the various allegations in the complaint. If the defendant spouse denies the allegations he/she may also raise any defenses that he or she has. Additionally, the defendant spouse may also file a "counterclaim" asserting any claim that he or she has against the plaintiff spouse for divorce.
If the defendant spouse files a counterclaim, the plaintiff must file a reply. In this reply the plaintiff must admit or deny the allegations in the counterclaim and raise any defenses that the plaintiff may have.
A party to a divorce may request the court to grant temporary orders to be in effect while the case is pending. The court's goal in issuing temporary orders is to preserve the family's status quo, both financially and as to responsibilities to any minor children. Temporary orders include those for designation of residential parent and allocation of the parental rights and responsibilities of minor children, child support, spousal support, and payment of attorney fees and litigation expenses.
A party to a divorce may also request temporary restraining orders. A temporary restraining order is an order of the court which prohibits the opposing party from doing certain things. A party also may be ordered to refrain from physically and verbally harassing the other, and to keep marital assets intact so that the court can divide them as part of its final orders. In order to obtain a temporary restraining order the party must swear that he or she is fearful that unless the court acts to restrain the opposing party, he or she will do the acts alleged in the motion.
What is a legal separation?
Ohio also allows a couple to obtain a legal separation. A legal separation allows couples to live separate and apart and formalize their legal duties to one another through a written agreement or court order. The process to obtain a legal separation is the same as a divorce. The length of time and expense is the same. The only difference is at the end of the legal separation you are not free to remarry. Except for religious reasons, there are very few advantages to a legal separation over a divorce.
Please contact Laura Helmbrecht to schedule a free consultation to discuss your case.