Dissolution and divorce outline
1. DISSOLUTION
An agreed end of the marriage. Everything must be agreed to. There can be no disputes or unresolved issues.
DISSOLUTION PROCESS
The parties each sign and file a petition asking the court to end the marriage, a separation agreement, waiver of service (no need for sheriff to serve papers on you), and an acknowledgement of who is your and your spouses attorney.
FORMS
Both Dissolutions and Divorces need a Court Form 2 (background information, assets, budgets, etc.) and, if there are children, a child custody affidavit. In Divorces, we also file a Court Form 3; a request for temporary order.
DISSOLUTION HEARING
The hearing on a Dissolution cannot take place until 30 days after the filing of the papers. In Huron County, the hearing is on the second Thursday of the month at 9:00 a.m. You, your spouse, and all attorneys must appear. At the hearing, the court confirms your intent to seek and end to the marriage and reviews, briefly, the separation agreement and your right to counsel.
ATTORNEYS
In a Dissolution, one of you can hire an attorney to do the paperwork. The other spouse may or may not hire and attorney. In no event can both of you use the same attorney for counsel and advice. In a divorce, both spouses need their own attorney.
2. DIVORCE
An end of the marriage when, at the beginning, there is no complete agreement. It can, though, be resolved by an agreement.
DIVORCE PROCESS
Starts with a complaint filed by one of the parties which is served on the other party. Service can be done by certified mail or by Sheriff's deputy.
GROUNDS FOR DIVORCE
Lawyers have little choice in what to file. Universally, we allege gross neglect of duty and extreme cruelty. Technically, you must prove grounds if you seek a divorce. We can also allege incompatibility, but this is grounds for divorce only when the other side does not contest incompatibility. When both sides agree to end the marriage, there is no reason to argue about grounds. Fault in divorce has no relevance to custody and visitation or to the division of assets.
TEMPORARY ORDERS
The court orders issued in a Divorce after both sides have filed a Court Form 2 and Court Form 3. These orders cover custody, child support, use of marital home, visitation, allocation of debts, use of vehicles, spousal support and other issues. They last until the case is done.
During your Divorce, you should not file a tax return, sell as asset, or purchase real estate without discussing the matter with your Attorney.
PRETRIAL
An informal conference. Counsel and parties review agreements (stipulations) and disagreements (contested issues) with the court. The scheduling of the final hearing is also discussed.
FINAL HEARING
This is the “trial” of your divorce before a Magistrate. The first final hearing is scheduled for 1 _ hours. This is generally not sufficient time to try any contested case. Therefore, we generally change the final hearing at the pretrial and find either a half-day or full day later on the calendar. We often convert the first final hearing to another pretrial.
3. MAGISTRATE
Our Magistrate is Brad Sales. He works under Judge Conway's direction. If he hears a final hearing, he issues a Magistrate's Decision. If either side objects, the objections can be filed and those objections will be heard by Judge Conway.
4. A LAWYERS ROLE IN DOMESTIC RELATIONS CASES
- Lawyers should diligently exercise their counseling function in assisting their clients to avoid inappropriate conflict in dealing with custody-related issues, including the ways in which the parties and counsel pursue litigation. Lawyers should discuss with their client parents the negative consequences of custody conflicts and disputes on their children and should advise parents about the availability of resources to reduce conflict.
- Lawyers should discuss alternatives to litigation, such as mediation, with their clients.
- As a general rule, lawyers should encourage their clients to cooperate with forensic custody and mental health evaluations.
- Lawyers have a duty to realistically evaluate their client's cases and not raise false expectations.
- Lawyers should assist one another and the court in expeditiously determining the best interests of the child by cooperating in defining and limiting the issues, procedures and evidence necessary to determine the best interest of the child.
- Lawyers should maintain a civil demeanor and encourage their clients to follow their example.
5. RETAINER
A deposit to start a case. All time in the case is billed against the retainer. When the retainer is used up, the client is billed for the additional fees.
6. QDRO
A Qualified Domestic Relations Order how we divided monthly pension benefits between the parties. Please remember that all benefits of employment, pension, 401K, profit sharing, etc., are marital assets when incurred during a marriage. * REGARDLESS OF ANY OTHER FEES QUOTED, THERE IS AN ADDITIONAL FEE CHARGED FOR QDRO'S.
7. RESIDENTIAL PARENT
This is the parent who has traditional custody.
8. SHARED PARENTING
Used to be called Joint Custody. There are no set guidelines for shared parenting. It is, in essence, an agreement to work together to raise the kids. It is not directly linked to the amount of time either parent spends with the children.
9. A CHILD’S RIGHT TO CHOOSE
Children no longer have the right to choose which parent they live with or how much time they spend visiting either parent. The “election” was abolished many years ago. Now, any child who is mature enough, is allowed to discuss custody and visitation with the Judge or Magistrate in chambers, called in-camera.
10. SPOUSAL SUPPORT
Used to be called alimony. There are no set guidelines for spousal support. It is based on numerous factors, including need, length of marriage, and the relative incomes of the parties. Spousal support is not awarded, generally, to a spouse that is cohabitating.
11. COURT COSTS (DEPOSIT)
$350.00 is due at the filing of a divorce complaint or petition for dissolution of marriage. The Defendant, in a divorce action, must deposit $175.00 if a counterclaim for divorce is filed. The total amount due may exceed the deposit, but it varies from case to case.
12. MARITAL ASSETS AND DEBTS AND JOINT DEBTS
Any Joint debts will remain Joint debts after the Divorce, regardless of what the Divorce Order states. A Divorce does not control banks and other creditors. To remove a name from a Joint debt, the debt must either be paid in full or refinanced.
13. TAX RETURNS AND INSURANCE
Please, under no circumstances, are you to file a tax return or change any insurance coverage, especially health insurance, without first consulting your attorney.
14. SEPARATE ASSETS
Assets acquired before marriage, personal injury awards, gifts to you alone and inheritances may not belong to both spouses. It is important that you tell your attorney about any asset that could be considered, in whole or part, as separate. Assets on Court Form 2 should be identified as marital, separate, or mixed.
15. CHILD SUPPORT GUIDELINES
This is the state mandated child support which is generated by computer program. It is based on the combined gross incomes of both parents.
16. CHILD SUPPORT AND SPOUSAL SUPPORT PAYMENTS
Child Support payments must be made by wage withholding notices to employer and Spousal Support may be made by wage withholding notices to employers. Administered by the Child Support Enforcement Agency (CSEA). An additional handling fee (poundage) of 2% is charged and collected by CSEA.
17. CASH MEDICAL PAYMENTS
When there are children, and there is no private or employer provided health insurance, child support is changed in order to add a cash medical payment. This amount may go to the State of Ohio if the children have a medical card.
18. COPE AND KIDDS
If there are children of the marriage, both parents must attend a one morning or one evening course called COPE. If there are children over the age of 5, they must attend a program called KIDDS. We will provide you with a handout concerning these two (2) programs.
19. DRESS CODE FOR COURT HEARINGS
At all Court hearings, the acceptable dress is business casual, i.e. no shorts, jeans, flip-flops, etc.
There is much more for you to learn about divorce or dissolution. Don't hesitate, with our advice, to read pertinent parts of the Ohio Revised Code. Most book stores and libraries have excellent materials on domestic relations. The purpose of this brochure was to help make your first appointment easier and more informative.