Family Law 101
Jurisdiction & venue
If you have resided in Ohio for six months and your county for 90 days, congratulations! You have satisfied the most basic requirements for the filing of a divorce or dissolution action in Ohio.
Filing & service
A divorce case is commenced with the filing of a Complaint with accompanying affidavits. Due process requires that the other party receive notice of the action and an opportunity to be heard. This is accomplished by service of process and may be done by certified mail to a residence address, process server/Sheriff's service, and by notice in a newspaper if the person's address is unknown. The other party receives a summons and copies of all the documents and orders filed and the server or clerk of courts prepares a return of service.
In a Dissolution, both parties waive service of process.
Temporary orders control who pays what, and who does what, during the time the divorce case is pending. Because divorce can take many months or even years in some jurisdictions, temporary orders may be modified more than once. Temporary orders are available in legal separation actions but not dissolutions.
Most counties have a procedure to establish temporary child and spousal support orders approximately fourteen days after service is completed on the other party. Some counties allow an attorney to calculate temporary support and prepare affidavits relating to child custody and actually have an order established without advance notice to the other party.
An "oral hearing" is available if either party wishes to contest a temporary order.
If there are minor children born as issue of the marriage, both parents will be required to attend a Parenting class in the county where the case is filed. The time requirements and content vary from county to county, but the class is usually two to three hours long and covers issues such as conflict reduction and cooperation for the sake of the children.
If there is to be a disputed custody issue, then the Court will most likely appoint an expert to evaluate the family and help the Court determine what is in the "best interests" of the minor children. A Guardian Ad Litem is usually an attorney who completes interviews of the parents, children, school teachers, and so forth, and makes a written report to the Court. A "GAL" is a critical player in a custody or parenting time dispute and they are usually very dedicated to doing what's best for the children. Where there are more complex psychological issues, then the Court may appoint a psychologist or psychiatrist to perform mental health evaluations on the parents, children, and even other people living in the household. Psychological evaluations are very expensive and the trend is to use them sparingly.
A domestic violence matter may be criminal, civil or both. A criminal domestic violence may involve threats of force or actual force against a family or household member.
A civil domestic violence case typically results in a Civil Protection Order which may be obtained initially without notice to the other side. It is possible to require the offending party to vacate a marital residence if there is an initial finding of domestic violence. The offending party has the opportunity to present evidence at a full hearing and contest the validity of the order. A Civil Protection Order may last as long as five years.
Shared parenting is still sometimes referred to informally as joint custody. In Shared Parenting, the parents are making philosophical statements to the Court that his/her partner is a good parent and there is no need for much Court supervision in parenting issues. In Shared Parenting, there must be a "Plan," which is essentially a schedule of when the minor children will be with each parent. Shared Parenting may involve a deviation from the Ohio Guidelines for Child Support where both parents have the children much of the time.
Differences between divorce & dissolution
The initial decisions in a family law matter are the most important. Many clients ask me about the difference between divorce and dissolution. Here are the main differences as I see them:
- Dissolution is 100 percent no-fault—no one will ask you why your marriage is terminating. In a Divorce, most counties treat the case as essentially no fault, and most divorces go forward on the grounds of "incompatibility." Other fault grounds are available but most Courts tend to avoid them.
- In a Dissolution, you and your spouse must be in full agreement on every property issue, child issue, support issues, retirement issue and debt issues. The reality is that most couples are unable to agree on everything up front, but may be able to agree later, with the passage of some time.
- A Dissolution has a 30 day waiting period for a hearing, which doesn't start to run until the case is filed. In a Divorce, a hearing may not be scheduled until 42 days after service. A Dissolution can theoretically be faster, but many couples spend months negotiating a dissolution and lose any time advantage.
- Dissolution is for couples who trust each other and are reliable. Drug or alcohol abuse, or physical abuse, "game playing" or other monkey shines are not a good predictor for a successful dissolution.
- If you are undecided about whether you should try a dissolution or simply file for divorce, then give yourself a deadline. By this I mean some period of time after which you will file for divorce if a dissolution is not filed, or ready to be filed. Most couples who do successful dissolutions are able to get the case filed in less than a month of negotiations.
- Run your credit report before you file and sometime while your case is pending.
- Don't spend too many $275 attorney hours fighting over who gets the furniture.
- Never hide assets, run up debts, or post scandalous material on the internet out of anger or spite.
- Be discreet about new love interests during your case.
- Remember that your children will eventually be your judge and jury — so treat your ex accordingly.
- Understand that your standard of living will not go up right after you end a marriage.
- Don't expect a court proceeding to be an episode of the Oprah show. Feelings are important, but the Court has heard it all before.
- Let your attorney do her job and ignore her advice at your peril.
- Assemble your tax returns, including attachments, and all financial statements before you first meet with an attorney.
- Don't change attorneys more than once.