FAQs (Relating to Termination of Marriage)

How do I get started, if I and my spouse, or either one of us, have made the decision to terminate our marriage or I am considering this?

First, call my assistant, Susie. She will obtain information over the phone from you about your circumstances, and she will also give you some basic direction (which is NOT legal advice) but will help you know how to proceed - for example, where and how long you have resided and in what county in Ohio you would have to file; whether you are currently physically separated from your spouse; whether there are minor children and what the issues might be that relate to the children, etc., etc. She also reviews with you on a preliminary basis how I handle matters, my billing rate and policy, how client are billed, that we accept payment by Mastercard and Visa, and what you can expect if you schedule an initial consultation in my office.

The next step is to schedule an initial consultation in my office. The initial consultation provides you with a wealth of information, as well as a better understanding the legal options available to you, the pros and cons of each option, a "ball-park" figure regarding the costs involved, and alternatives as to how to proceed. In many instances, at the time of the consultation, I know approximately what total cost is involved, and I provide this to the prospective client. You will have an opportunity to summarize your particular circumstances, and I will discuss with you your specific circumstances to determine what the issues may be and how simple or complex the matter may be. You will leave with some understanding of what Ohio law and local practice are on the various issues involved in your case. The cost of the initial consultation is based on the actual time incurred by me in our meeting, at the rate of $250 per hour for my time and is due at the end of the consultation. For your convenience, I accept payment by MasterCard and VISA as well as cash or check.

Additionally, in domestic matters, I have my legal assistant meet with you, immediately prior to your meeting with me, to provide and review with you a packet of material containing the court forms that are required in a divorce/dissolution action as well as a written summary of the information and financial documents that you will be required to provide to me, your spouse, and the Court in this process. My assistant will also review how I handle my cases and work with and for a client. There is no cost to you for the packet, the forms, or the time spent with my legal assistant.

It is my objective that you will leave my office after this consultation knowing some basic Ohio law that may be applicable to your case, what procedures may be involved, what may be the unknowns, what your basic options are, the pros and cons of each, the information and documentation you will need to provide or obtain in order to proceed, the cost that may be involved, the outcome you may anticipate including the time to accomplish the outcome, what may be some preliminary steps you can be working on prior to commencing the process to terminate your marriage, and to the extent possible, answers to your questions that you had prior to the initial consultation. Depending on issues and whether there are children, the consultation generally takes thirty minutes of my assistant's time and one hour of my time, but I often spend one and one-half hours or two hours with a prospective client in order to have a meaningful consultation. There is never any obligation or pressure that you retain my services before you leave my office, and my preference is that you leave and reflect on what you have heard before you retain me, should you decide to do so. Often I provide the names of other attorneys who may be willing to provide a consultation and give you another opinion, particularly if your case presents unusual facts or legal issues.

Can a marriage be terminated if one of the parties will not agree, and do I have to have grounds for divorce if my spouse does not agree?

If one party to a marriage wants to terminate the marriage, it will be terminated, and it is only a question of by what process and at what cost. A dissolution requires the agreement of both parties on all issues, including that the marriage is to be terminated, before anything is filed with the Court; however, a divorce does not require such agreement, and usually there is disagreement over one or more issues, which is why the divorce, rather than a dissolution, is being filed. If you file a divorce action, yes, you have to state at least one ground for divorce. Grounds for divorce include adultery, gross neglect of duty, extreme cruelty, continuously living separate and apart for a period of one year and incompatibility, unless denied by the other party. My experience is that grounds is never ultimately an issue before the court but that if one party wants to terminate the marriage, the Court will not force a party to remain married but will turn attention to the issues that must be resolved in connection with the termination, e.g., division of assets, child custody, child support, spousal support, etc.

What is generally involved in terminating a marriage?

The substantive issues that have to be addresses all relate to the following issues:

The determination of marital property (assets and debt) and the division of that property. This may includes the determination of whether there is separate property of one or both spouses.
The appropriateness of spousal support in terms of both amount and duration.
All issues relating to any child who has not yet graduated from high school, which include but are not limited to custody, shared parenting, support, parenting time (formerly known as visitation), and health insurance.
All these matters can be agreed upon, in which event the case may proceed as a dissolution or uncontested divorce. If the parties do not reach an agreement on these matters, (presumably after efforts to reach an agreement have failed), the case must be filed as a contested divorce action.

What is involved in terminating a marriage by dissolution?

There must be a complete agreement on all issues that have arisen by virtue of the marital relationship in a writing called a "Separation Agreement", and all related but necessary filings are also signed. There is a Petition for Dissolution which both parties must also sign that merely requests that the marriage be dissolved; there is no ground stated nor do the parties state any reason why they want their marriage dissolved. The hearing is set not earlier than 30 days after all the papers are filed in court, but not later than 90 days after this filing. The parties also must be living separate and apart for thirty days before a final hearing (whether dissolution or divorce), and a good rule of thumb is to be prepared to separate (one or the other party moves out) at the time the Separation Agreement is signed, if this physical separation has not already occurred. Both parties to the marriage must be present at the final hearing, and if one party cannot be present (e.g., he/she has moved out of state and cannot or will not return for the hearing), the matter would proceed as an uncontested divorce, not a dissolution. At the final hearing, the parties have to both state they understand the terms of the Separation Agreement (and any Shared Parenting Plan, if that was also signed and filed) and that they believe what has been signed and filed is fair and equitable and they still desire their marriage terminated by the Court. No witness is necessary. The Court signs the Decree, and the marriage is terminated as of the filing of the Decree - usually the same date of the final hearing. For those clients having a private judge and hearing, please refer to the material elsewhere in this web site for information on this.

What is generally involved in a contested divorce proceeding?

The case commences when a complaint for divorce is filed. The Complaint and summons are served on the other spouse (the defendant) usually by a special process server who finds the defendant and personally hands him/her the papers. While this may be more dramatic than certified mail service and is at a cost to the client, usually certified mail service is unsuccessful because the defendant does not pick up or accept the certified mailing. On request of either party, by motions and affidavits filed, a court magistrate may issue whatever temporary orders (custody, support, parenting time with child/children, payment of existing debts, etc.) are necessary and which will likely be in effect during the pendency of the case. Formal discovery is also involved and typically includes requests for the production of documents (usually financial documents) and depositions of the parties and non-parties. Property may need to be appraised, and if so, experts may be retained and testify. If custody is an issue or there are other issues relating to the child/children, the court may need to appoint a guardian for the child/children, and the guardian will provide a report to the court that includes the facts that the guardian, through investigation, believes to be true and relevant, as well as an opinion as to what the guardian believes to be in the child?s best interest. At some point, the parties and their attorneys will be before the Court at a pretrial which is usually the first opportunity for the judge assigned to the case to hear what the issues are in the case, to inquire why the case is not settled, and to assist the parties to move toward resolution in an appropriate and timely manner. If the case is not likely to be resolved, a trial will be scheduled. Depending on numerous factors, the time from initial filing of the Complaint to final trial may be one year or longer.

Can a contested divorce become uncontested or converted to a dissolution?

Yes, if the parties reach an agreement on all issues, the case may proceed immediately as an uncontested divorce, usually with each party obtaining a divorce from the other, or the case may be converted to a dissolution. There is often little or no substantive difference between these alternatives once an agreement has been reached.

When do you believe there is no alternative to filing a contested divorce action?

Here are my "rules of thumb":

You will need financial support from your spouse for yourself and/or your children during the pendency of the matter, and it is unlikely your spouse will voluntarily continue support without a court ordering him/her to do so.
There has been an incident of domestic violence or you believe that such may occur, and you need a restraining order.
You fear that your spouse may sell or gift away marital assets, change or terminate insurance coverage(s) or make other changes that would be to your detriment, unless restrained by the court.
You fear your spouse may remove your minor child/children from the jurisdiction of the court.
You reasonably believe your spouse will never agree to anything reasonable, and negotiating would be a waste of time and money.
You have been negotiating for some time and there has been no final agreement and no final agreement is likely.
(Note, this is NOT an exclusive list, but is intended to help you know when you should file for divorce.)

What is shared parenting or joint custody?

Shared parenting is now the proper terminology; we do not use "joint custody". There is no specific definition in the Ohio Revised Code or in case law for the term "shared parenting." Often parents assume that shared must mean that each parent has the child/children an equal amount of time. This may or may not be true, and a 50/50 time allocation is not a prerequisite for having shared parenting. Shared parenting is essentially anything that the parties can agree upon in a written Shared Parenting Plan that is filed with the Court and made an order of the Court by incorporation into a Decree of Shared Parenting; however, the essence of shared parenting is that both parents are considered the residential parent when the child/children are with that parent, and usually both parents retain their parental rights to jointly make decisions about and for their child/children on all subject matters.The allocation of time between the parents shoould be "age appropriate". Shared parenting, in Franklin County, is the norm, not the exception, and if a parent does not want shared parenting, that parent usually has the burden to prove to the Court why shared parenting is not in the child/children's best interests. Because of how Shared Parenting Plans may differ one from another, I tell clients who initially want sole custody that they should never reject a request for shared parenting without understanding the proposed specific terms of a shared parenting plan and how those proposed terms translate into the particular family involved and affect not only the child/children but also each parent. Generally, shared parenting is in the best interests of the child/children whose parents are terminating their marriage, and the sooner the parents realize this the better. I do not take on a case for any client where I believe that shared parenting is being rejected without basis to do so or where the best interest of the child/children is not foremost on the parent's list of concerns.

How is child support determined?

The Ohio Revised Code contains what is referred to as Child Support Guidelines. The Guidelines are a formula as well as a chart with income levels. I do not advise that you attempt to complete this on your own, as this should be done by an attorney. Not only are there numerous issues that may be involved in correctly calculating the amount of child support using the formula and the table, but there are also numerous other issues involved in determining child support and whether there should be a deviation. However, so that you can initially see what is involved in the calculation to be reviewed with an attorney, I am providing you with Child Support Guidelines material.O.R.C. 3119.021 and 3119.022 Click here if you would like to obtain a copy of the formula and the table. If you need to download Adobe Acrobat Reader, click here. Child support is not deductible on the income tax return of the parent who pays, nor is it included in the taxable income of the parent who receives its.

What is Rule 27 Visitation?

Each of the Ohio counties has adopted, by local court rule, a child "visitation" schedule that may be applied in domestic cases, where the parties do not otherwise agree. These rules may be similar, but there is variance from county to county. The rule in Franklin County, Ohio is referred to as Rule 27 because it is number 27 of the Court's Local Rules. To obtain a copy of Rule 27, click here. If you do not have a copy of Adobe Acrobat Reader, click here first.

How are marital assets and marital debts generally divided?

Generally (but not always!) marital assets and marital debts are divided equally between the parties. There may be more than one way to divide assets and debts, and after tax considerations must be included in the analysis to determine what is fair and equal, as not all assets are of equal value even though they may first appear to be so.


Are there any non-marital assets that are not divided?

Yes, as a general rule, separate, non-marital property is not divided. This may include any property owned prior to the date of the marriage, any property received as an inheritance or gift during the marriage (subject to proof), and any property excluded as the result of an antenuptial agreement. Some property can be both marital and separate, non-marital, e.g., a home which was purchased with a down payment that came from one spouse's inheritance, yet the mortgage was paid for by the earned income of either one or both parties during the marriage.

How is spousal support determined?

Unlike the formula that often applies in determining child support, there is no formula for spousal support in Ohio. Rather, the Ohio Revised Code Section 3105.18 lists a number of factors that are to be considered by the Court in awarding spousal support, determining the amount of the support and the length of time the support is to be paid. There is little consistency in spousal support awards from county to county and even among judges on the same court in the same county. Hence, this is one of the most difficult issues in a marriage. Generally speaking, in Franklin County, there is little or no support in marriages of short duration, but in long term marriages permanent spousal support may (but not always) be awarded and in an amount that on an after tax basis equalizes (again, not always) the after tax cash to each party. Because spousal support is usually (but not always) tax deductible by the payor and is also usually (but not always) included in the taxable income of the receiving spouse, the after tax equalization must be done with the assistance of an CPA or the FinPlan software, which is what I routinely utilize. Mid range marriages also present difficulties for the lawyer, and generally speaking (but not always), support is awarded for some period and in an amount that takes into consideration all the factors listed in the applicable statute. I emphasize that this is an extraordinarily difficult subject, and it is not possible to advise a client as to what may be awarded without a thorough review of all facts and circumstances unique to the client.

If I or my spouse own a business, how is the business as an asset valued and handled?

First, not all small, closely held businesses have a value for purposes of placing that value on the marital balance sheet; however, generally the business will have value and its value will be placed on the marital balance sheet. In order to determine the value, if the parties do not agree, a qualified expert skilled at providing business evaluations is retained to review the business records and provide this information. Sometimes it is necessary to involve a CPA who is uniquely skilled and certified to determine if there may be fraud or understatement of income and/or misrepresentation of assets on a corporate balance sheet and on corporate income statements. While a spouse's business interest may be marital and, if so, may be on the marital balance statement, it is highly unlikely that the Court would give both spouses a continuing interest in the business post marriage termination. Rather, on termination of the marriage, one spouse who has been active in the business will continue to own the business, but the other spouse would receive other marital assets of a value equal to the value of the business or if that is not possible (e.g., there are no other sufficient offsetting assets) property settlement payments over time for half of the value of the business.