99 Questions for Domestic Cases

What is the difference between a divorce and a dissolution?

A divorce is a formal legal process wherein one spouse sues the other – just like any other lawsuit. Property division and children issues will be decided and at the end, the marriage is terminated.

A dissolution is a legal process where both spouses enter into a CONTRACT (called a Separation Agreement) that spells out everything about property division and children issues. That contract is acknowledged by the court and the court dissolves the marriage according to the terms of the contract.

What is a legal separation?

A lawsuit where one spouse sues the other (just like a divorce). The court process is exactly the same as a divorce: at the end of the case, the court divides all property and makes all rulings on children issues, BUT does not terminate the marriage. You are still married.

What is Spousal Support?

A legal obligation to provide financial support to one’s spouse from the other spouse after marital separation or from the ex-spouse upon divorce.

When is Spousal Support awarded?

Once dissolution proceedings commence, either party may seek interim support during the course of the litigation. When a divorce or dissolution is granted, either party may ask for post-marital spousal support. It’s not an absolute right, but it may be granted. The amount and terms vary with the circumstances.

Who pays the attorney fees when a divorce is filed?

If one spouse has financial resources which far outweigh the other spouse, the wealthier spouse may be ordered to provide financial assistance. Otherwise, each spouse pays for their own attorney fees.

What is child support based upon?

Child support is based on the policy that both parents are obliged to financially support their children, even when the children are not living with both parents. Child support refers to the financial support of children and not other forms of support, such as emotional support, physical care, or spiritual support. When children live with both parents, courts rarely, if ever, direct the parents how to provide financial support for their children. However, when the parents are not together, courts often order one parent to pay the other an amount set as financial support of the child(ren). In such situations, one parent (the “obligee”) receives child support, and the other parent (the “obligor”) is ordered to pay child support. The amount of child support may be set on a case-by-case basis or by a formula estimating the amount thought that parents should pay to financially support their children.

Child support may be ordered to be paid by one parent to another when one is a non-custodial parent and the other is a custodial parent. Similarly, child support may also be ordered to be paid by one parent to another when both parents are custodial parents (joint or shared custody) and they share the child-raising responsibilities. In some cases, a parent with sole custody of his or her children may even be ordered to pay child support to the non-custodial parent to support the children while they are in the care of that parent.

What do you do with the home you own in a divorce or dissolution?

Sell it and split the proceeds-transfer title from one to the other-one stay and pay the other their fair share

When do I have to respond to divorce or dissolution papers?

Within 28 days from the certificate of service.

Can I get a divorce if my spouse is in the military?

There are special provisions in place for divorce when one or both spouses are in the military.

Governed by the Servicemembers Civil Relief Act (SCRA), men and women in the military are given certain protections with regard to their legal interests, including divorce proceedings. The stated purpose of this Act is to ensure men and women serving in the military can “devote their entire energy to the military needs of the nation.”

Under these provisions, a spouse being filed against who is in the military can put a temporary stay on the proceedings. The delay is typically for 30-60 days, though depending on the circumstances, could be for a longer period. However the delay cannot be indefinite, and must meet the standard of a “reasonable amount of time.”

Note that a military spouse isn’t required to delay divorce proceedings. This is merely an option. A military spouse may allow for standard proceedings, or in some cases may fail to respond all together, allowing the divorce to eventually be granted by default.

How long does it take to get a Dissolution?

10.1. You can’t get a dissolution earlier than 30 days from the filing date nor longer than 90 days from the filing date.

What is an annulment?

12.1. An annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that all annulled marriage is considered to be invalid from the beginning almost as if it had never taken place (though some jurisdictions provide that the marriage is only void from the date of the annulment). Annulment, despite its retrospective nature, still results in any children born being considered legitimate.

I have only lived in Ohio for one month and my spouse lives in Virginia can I file for divorce here in Ohio?

To get a divorce in Ohio, you must reside here for six months.

My spouse is from another country and I live here in the United States. Can I get a divorce?

I have not seen or lived with my spouse for 5 years. Can I still get a divorce?

Yes, one of the grounds for divorce in Ohio is willful absence for a year or more.

Do I have to have an address for my spouse in order to get a divorce?

If you do not know the whereabouts of your spouse, you can apply to the court for the divorce to go ahead. However, you must show the court that you have tried to contact your spouse. If this is necessary, it will take longer to get the divorce and will cost a little more.

If I have stocks and bonds from before I was married, do I have to share it with my soon to be ex-spouse?

No: assets that you had before the marriage that have not been touched since are separate property and should be listed as such.

My wife and I have been married for 12 years and she worked the whole time of the marriage, while I stayed home with and raised our children. Am I entitled to spousal support?

I have heard you don’t have to go to court to get a dissolution. Is this true?
 
Yes, most counties allow a dissolution hearing to be done by a private judge. If you use a private judge, the hearing can be done in the office instead of in court.

What is the difference between sole custody and shared parenting?

When a parent has sole custody, that parent is the sole legal custodian of the children and the children will live with that parent. As such, that parent will make all decisions regarding the children’s upbringing and care. This includes religion, education, and discipline.

When the parents choose shared parenting, which is also referred to as joint custody, both parents are the children’s legal custodians and both will make joint decisions on the children’s upbringing and care. A primary consideration when determining which type of custody is appropriate is whether the parents can work together and keep the children’s best interests in mind.

How is child support determined?

Each parties gross local income with or without bonuses will determine the amount of child support.

Do I have to pay child support if I have my children 50% of the time?

Yes and no. Child support is not only determined by time. If you are sharing expenses, sharing time, and income is similar, then there can be a deviation from child support.

What is an Obligee?

The obligee is the person who is entitled to receive the support payments whether it is child support or spousal support.

What is an Obligor?

The obligor is the person who is required to pay support, whether it be child support or spousal support.

What is split parental rights and responsibilities?

Split parental rights and responsibilities means that there is more than one child to allocate parenting time and responsibilities to and each parent is the residential parent and legal custodian of at least one of these children.

How long do I have to pay child support?

Normally child support is in place until the child or children reach the age of 18 or are enrolled in an accredited high school. Child support will also stop if the child passes away before the age of 18.

Is Child Support taxable income?

No. Child support is not considered income.

Is Spousal Support taxable income?

Yes. If you are the obligee of the spousal support, you will have to consider this as income and taxable. If you are the obligor, spousal support may be a deduction on your taxes.

After I am ordered to pay child support, can it be modified or changed?

Yes, it can be modified or changed if it is in the best interest of the child or children by motion and order of the court.

Do you have to file for a divorce in the county you live in?

The plaintiff may file for divorce in the county in which they have been a resident for at least ninety (90) days.

If I have been served with divorce papers, how long can I wait to respond to those papers?

You have 28 days to respond to a divorce complaint.

Do you have to be a resident in the State of Ohio to file for dissolution or divorce in Ohio?

One of the spouses must have been a resident of the State of Ohio for at least six (6) months immediately before the filing of the dissolution action.

What is an antenuptial agreement?

An antenuptial agreement is a contract you and your spouse enter into prior to getting married. It is meant to resolve issues of child support and the division of finances, in the event that either you or your spouse die, or you terminate your marriage.

Are the terms in an antenuptial contract rigid?

Though an antenuptial agreement is a contract, typically a court will consider the circumstances of your divorce, should you file for one. An antenuptial agreement is, therefore, not a conventional contract.

What constitutes ‘fairness’ in an antenuptial agreement?

A fair provision is one that takes into account you and your spouse’s relative wealth prior to the marriage. Your assets should be divided with respect to fairness. If a provision calls for most of the assets to be given to your spouse and not you, especially if you were the wealthier party prior to your getting married, it may be considered unfair.

Will unfair terms in the antenuptial agreement be enforced?

In an antenuptial agreement, your spouse may have inserted unfair terms in the agreement, depriving you of what is rightfully yours. If the court finds one of these terms to be exceedingly unfair to you, they may ignore the term outright.

My husband/wife lied to me before we got married, and hid some of his/her assets when we wrote our antenuptial agreement. Is the agreement still valid?

If your spouse hid any of his/her assets or finances from you and failed to disclose them on your antenuptial agreement, this is considered fraud. Both you and your spouse should have entered into the agreement with full knowledge of each other’s assets, rights, and property. If you choose to pursue legal action against your spouse for this fraud, the entire agreement can be rendered null and void.

Do I need a reason to file for divorce? What if we just don’t get along anymore?

Bear in mind that you don’t need a specific reason to have a divorce. As your spouse cannot legally object if you are seeking a divorce, all you need to cite as the reason for your divorce is ‘irreconcilable differences’. This is called a no fault divorce, wherein neither party is guilty of anything heinous or illegal. If, however, you want to find your spouse at fault for the divorce, your circumstances ought to be among the following:

Your spouse has been married to another person while simultaneously being married to you.

 Your spouse hasn’t lived with you, or has been away for at least one year.

Your spouse is cheating on you.

Your spouse treats you cruelly.

Any of the terms in your antenuptial agreement (marriage contract) are fraudulent.

Your spouse neglects his or her duties.

Your spouse is frequently drunk or under the influence of drugs.

Your spouse has been incarcerated.

Your spouse already filed for divorce outside of Ohio.

Can a divorce turn back into a dissolution after it has been filed?

Yes

What is a restraining order?

A form of legal injunction that requires a party to do, or to refrain from doing, certain acts.

What are temporary orders?

A motion for temporary orders is asking the court to deal with important issues while you wait for the final hearing. If you get a temporary order, it will last until the judge makes a new order or a final decision.

How are assests and liabilities divided? What is the determination?

All assets accumulated during the marriage, by either spouse’s efforts, are considered to be marital, and are to be divided “equitably” between the parties. The exception to this law is if the parties signed a pre-marital agreement. “During the marriage” is generally defined to be from the date of the ceremonial marriage until the date the court terminated the marriage. While the statute instructs the courts to divide the marital assets “equitably” between the parties, in almost all divorce cases, the court interprets this to mean “equally.”

How does a court divide marital debt?

This issue is handled on a case-by-case basis. The judge might divide the current debts one of four ways: 1) equally; 2) proportionate to income; 3) assigning the debt to the account owner; or 4) assigning the debt to the person who incurred or caused the debt.

How can I get a dissolution or divorce from my husband who is incarcerated?

In this situation, it is better if your spouse is in agreement with the divorce and signs the divorce papers. A non-contested divorce is the easiest route.

I filed for bankruptcy. Can I change attorneys?

Of course. Keep in mind that whatever fees you have already paid you may lose, but yes, you can always change attorneys in any situation at any time.

What happens if both parties file for divorce at the same time?

File a motion to consolidate.

How do you file for contempt with a parenting time issue?

The party must file a motion supported by an affidavit in order to initiate the action and then have the offending party personally served. A hearing will be conducted, at which time the moving party must show by “clear and convincing evidence” that the offending party has violated the parenting order by denying parenting without just cause. A finding of contempt can result in a fine and/or jail time for the offending party, as well as an order for make-up time and an award of attorney fees and costs.

Can a marriage be terminated if the wife is pregnant?

No. The matter will be put on hold until three hundred days after the parties separate pursuant to a separation agreement.

How do you file for a modification of custody?

64.1. You must file a motion and a new custody entry with the court in order to formally modify that order. For a change of custody, the court must find that a change in the circumstances has occurred since the date of the existing order and it must find that the change of circumstances is significant enough to warrant a modification in the best interests of the child.

How do you file for a modification of parental rights?

You must file a motion and a new shared parenting entry with the court in order to formally modify that order. For a modification of parental rights and responsibilities, the court must find that the requested modification is in the best interests of the minor child. The best interests test to be applied is the same as that used in determining the original order.

How do you determine Child Support guidelines and calculations?

You must know the gross income of each party and whether that income is W-2 wages or from self-employment.

The amount of bonuses and/or overtime earned for each of the past 3 years.

The local tax rate each party pays.

Whether either party has another child that is not subject to the pending child support order.

Whether child support is paid or received for that child.

The amount of spousal support, if any, being paid from one party to the other.

The cost of any work-related daycare.

The cost of health insurance coverage being provided for the subject minor child.

If one or both of the parties is/are self-employed, the calculation consists of the gross business revenues, minus the necessary and reasonable expenses incurred to produce the income. Reasonable and necessary expenses do not include all expenses or amounts that are deductible for tax purposes and do not include personal expenses paid from business accounts. Given that many self-employed people do not keep complete and detailed records, determining what expenses are deductible from income for calculation purposes can require significant discovery and research.

How do you determine deviation from the guideline support amount?

Once a child support obligation has been determined pursuant to the statutory requirements, the court may order a higher or lower amount, depending on the circumstances of the parties. The support amount is often deviated downward when both parties have substantial parenting time or when a payor has extraordinary living expenses. Child support can be deviated upward when one party has the child virtually all of the time or when the parties have established a higher standard of living for the child or if the child has a significant health issue with substantial ongoing medical care expenses.

What are the primary factors the court considers in determining spousal support?

Length of marriage

Incomes of the parties

Their earning abilities

Their age

Their health

Typically no spousal support is awarded for marriages under 5 years.

When the marriage is of long enough duration for the court to award support, there seems to be a very loosely followed rule of thumb that one (1) year of support is awarded for every three (3) years of marriage. If the marriage is of long duration, meaning approximately 25 years or more, spousal support is often awarded for an indefinite period of time, although it will normally remain modifiable.

How is the amount determined for spousal support?

There is no statutory guideline calculation for determining the amount of spousal support to be paid. The amount of spousal support to be paid after marriages not of long duration, is generally based upon consideration of the recipient’s reasonable living expenses, minus his/her income. Reasonable living expenses may also include the cost of education or training that will enable the recipient to obtain more gainful employment. After marriages of long duration, the starting point for determining the amount of support to be paid is usually “income equalization,” which generally means equalization of the net incomes of the parties.

Is mediation between the parties binding? Can they have an attorney present but not in the room?

No, unless binding mediation is ordered by the court. Yes.

What should you do if you have not received Interrogatories and/or Request for Production of Records from opposing counsel within 28 days?

Call opposing counsel and request the discovery. Document each and every attempt to contact opposing counsel. If you file a Motion for Contempt for failing to give discovery, you need to include a statement of the efforts you made to receive discovery without any court intervention.

How many interrogatories can you serve upon a party without leave from the court?

No more than forty may be served upon a party without leave from the court. Each question asked is an interrogatory, and each subpart of a question is also an interrogatory. Don’t waste your interrogatories on questions such as “What is your name?”, “Where do you live?”, “What is your age?”, etc. These questions are all answered on some other pleadings, so you do not need them to be answered on the interrogatories. If you have been served with more than 40 interrogatories, respond to every interrogatory after 40 with: “Objection, need leave of court to ask this interrogatory.”

If the parties have written into their final agreement that they shall mediate before they proceed to court for any modifications to the agreement, what should you do?

In the future, think about not putting that language in the final agreement about “shall mediate.”

Is CSEA required to recalculate child support cases periodically?

Yes, every two years.

Can I run a credit report on a party?

Yes, but you have to get their signed permission and you can get that through discovery.

If a party receives an inheritance during the marriage is that marital property?

No. That is that party’s property, but they should put that inheritance in a separate account. If the money is co-mingled with other money in an account, there will be issues down the road.

If the other party opposes the grounds for divorce and you have only alleged incompatibility, can the Judge dismiss the case?

Yes, so always allege another ground along with incompatibility.

What is a collaborative divorce?

This is where the parties first meet with an attorney for a neutral evaluation, and then work together with their separate counsel towards a resolution. The advantages of this method are chiefly in the preservation of civil relations between the couple and the time and money saved by not engaging in protracted litigation. Couples who choose this method need to have a high degree of trust and communication, and equal knowledge of the financial aspects of their relationship. The disadvantage is that if the collaboration fails, both parties must retain new counsel for the contested case.

If the custodial parent does not have insurance and their gross income is $36,000.00 or below per year, are they eligible for medical coverage for their children?

Yes, they can contact their county department of jobs and family services for child-only coverage eligibility.

If a couple had a child before marriage, what has to be filed?

A man is presumed to be the natural father of a child born prior to the marriage if an acknowledgement of paternity affidavit was executed and filed and has become final. If this is the case, you only need to state in the Decree that the child was born prior to the marriage, but as issue of the parties and that the father-child relationship was established by the filing of an acknowledgement of paternity affidavit that is on file with the Central Paternity Registry. If this has not been completed, the divorce will need to include a parentage count.

If the custodial parent does not have insurance and their gross income is $36,000.00 or below per year, are they eligible for medical coverage for their children?

Yes, they can contact their county department of jobs and family services for child-only coverage eligibility.

I receive spousal support and my fiance will be moving in with me, so who can I contact so that they can discontinue my spousal support payments?

You will need to contact the Child Support Enforcement Agency to inform them of the change in circumstances for your spousal support in the separation agreement.

I was just served with divorce papers. It says I have 28 days to file an answer. There is also a paper with temporary orders. When do I have to reply to those?

Temporary orders have to have a reply within 14 days. So it is very important to get to an attorney as soon as possible so those temporary orders can be addressed. Otherwise, the Magistrate will sign the orders if there is no response within the 14 days.

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