Jack Carney-DeBord | Profile for Jack's Law Office Blog

Informative posts about Divorce, Dissolution, Child Custody and Family Law.

What You Need To Know About Uncontested Divorce in Ohio

What happens if a divorce complaint goes unaswered? Usually if one spouse files for divorce, the other spouse jumps in to make sure his or her competing interests are represented. 

Not always. Sometimes the alotted time to respond passes, and prompting the court grant an uncontested divorce. 

No contest! The person who filed is granted the divorce. Possibly "as is," or with some modifications at the judge's discretion. 

But not answering a complaint is no way to prevent a divorce from happening. No reply just means the other party wins by default.

Uncontested Divorce in Ohio

In Ohio, the other party has 42 days to respond to respond to a divorce complaint. It that period passes with no response from the opposing party, the judge will grant an uncontested divorce.

relieved woman

Often the judge will award the divorce “as is,” according to the original complaint. But sometimes the judge will make some changes at his or her discretion and then grant the divorce.

Obviously the party who does not respond is at a disadvantage. Everyone should have his or her interested presented in an important matter such as ending one’s marriage.

Uncontested Divorce vs. Dissolution

Sometime people confuse an uncontested divorce with a dissolution. But these are two very different procedures, and in fact, a dissolution is not a divorce at all.

In the case of a dissolution, both parties come to agreement about how to end their marriage. Both parties have a say in what happens.

negotiations couple

A dissolution is generally the least stressful, least time consuming, and least expensive way to end a marriage. There is no prolonged court battle and though both parties may have to compromise significantly, the parties have more control over the outcome.

In the case of an uncontested divorce, the terms are set by the party filing the complaint. The person who fails to respond is not represented at all, except at the discretion of the judge who may modify the agreement based on other factors such as fairness.

Divorce Evolves Over Time

Getting divorced wasn’t always as easy as it is today. In some cases, it wasn’t even possible.

no divorce

Today the complications are typically legal, where historically they were religious.  Instead of divorcing, couples could get their marriage annulled. 

When a marriage is annulled, it is erased, it is as if it never happened.  An annulment is an option today in Ohio if the couple meets certain requirements.

Historical Perspective

Have you ever wondered what it might have been like to divorce 500 years ago? Or even 50 years ago?

Quite a lot different from today, as a quick glance of history will show. One of the most famous early divorce cases took place over 400 years in Europe.

vintage couple plays tug of war

In 1552 CE when King Henry VIII divorced his wife Anne Boleyn, it did not end well for her! He declared himself the head of the Church of England and divorced Anne for treason, adultery, and incest.

As a result, Anne was beheaded.

Back then, divorce was relatively uncommon and difficult to obtain. This was especially true for women.

Fortunately, divorce today is far less terrifying and unpredictable, and takes into account the interests and wellbeing of both parties.  

Divorce in America: Then and Now

There isn’t much information on divorce in the United States until 1867 CE.  Americans used legal loopholes at the time to dissolve marriages. 

Marriages were mainly fault-based. One spouse had to divorce the other for specific reasons which could be testified by a witness and proven in court. 

queens trial

The laws were complicated and at times ridiculous. Change was glacial up until the 1950s when divorce law came into the public spotlight.

One of the most significant changes is the move toward “no-fault” divorce, including the concept of incompatibility between spouses. A landmark changed occurred in 1969 with the signing of the Family Law Act.

Among other things, the Family Law Act formally introduced the concept of irreconcilable differences or “no-fault” or “uncontested” divorces. 

Couples could decide to no longer be married without having to prove the other spouse did something wrong.  While there were still stigmas and religious issues with divorce, legally it became a lot easier to become divorced if your partner was in agreement.

How Divorce Works Today

When a couple wants to get married, they first have to get a marriage license from the state of Ohio. 

divorce today

While the vows may say “till death do us part,” it’s often not the case.  A married couple can decide to no longer be married, to legally become divorced. 

The process isn’t always easy if couples share assets like a bank account, investments, a home, car, dog, or the most complicated: children.

Contested Divorce vs Uncontested Divorce

Usually we hear about “uncontested” divorce rather than “contested.” This is because a contested divorce is the standard scenario where spouses cannot arrive at an agreement on their own.

If they could agree, they might instead opt for a dissolution where they spell things out together and the court will generally dissolve their marriage according to their wishes. That is not always possible, so couples must turn to the court.

absent spouse

An uncontested divorce is not a dissolution. It’s the same type of procedure as a contested divorce, except that the opposing party fails to respond.

There is no battle between the two sides in an uncontested divorce. One party files and is granted the divorce, which is likely to be on terms very favorable to the spouse who actually filed.

In most cases, the other party is of course going to “contest” the divorce by filing a response. The court will then attempt to sort through everything and grant a settlement that.

Unfortunately, when a couple is dividing a finite set of resources, they are both likely to be worse off. But the idea is to end the marriage on terms that are as fair and reasonable as possible to all parties, including any minor children.

Fault vs. No Fault Divorce

One of the biggest changed in divorce law came with the concept of a “no fault” divorce.

Previously a divorce complaint had to show the other party was at fault. The filing spouse had to prove the allegations for the court to grant a divorce.

In Ohio, grounds in a fault divorce include adultery, extreme cruelty, gross neglect, extreme cruelty, habitual drunkenness, and abandonment. As you can see, these grounds don’t include every possible reason for divorce.

incompatible couple

Maybe the couple is simply incompatible, and that has led to irreconcilable differences between the spouses. If both parties agree they are incompatible, this is ground for a no-fault divorce.

Neither party is “at fault” for their basic incompatibility. Incompatibility is not the most common grounds for divorce in Ohio.

If the parties can agree on matters such as property division and child custody, they may be able to convert to a dissolution instead of a divorce.

The grounds must be supported by a witness.  You can’t divorce your spouse because you don’t love them anymore, not unless they are in agreement and want to file a no-fault divorce. 

The Contested Divorce Process

If you want to start the divorce process, you first file a “complaint” (the wish to get divorced and the legal grounds behind it) to the county of clerks. 

Another stipulation in filing for divorce in Ohio is that the spouse who is filing for divorce must have been an Ohio resident for at least six months before filing.

The county of clerks will “serve” the papers to the spouse being divorced. This is where the phrase “you’ve been served” comes into play.  

stressful court

Fun Fact: If they can’t find the spouse’s who’s being served address, then the “serving” will be posted in the local newspapers. 

Six weeks after the papers have been served, the process beings.  The process is simple if the papers are signed and the couple can decide on how to split the assets and handle child custody, but this is not often the case. 

The six weeks starts after they have legally received the filings. Giving them a heads-up text doesn’t count.   This time period is to give the couples time to think about the divorce, making sure it’s not a rash decision brought on by anger.

Most divorces are "contested" since the opposing party will usually reply tot he complaint. Only when the party fails to issue any sort of reply does the divorce become "uncontested." 

Asset Division

In a contested divorce, the assets are divided in court, each side typically has a lawyer and they present their terms to the court.  The terms regard how to split up property and if there is any spousal or child support needed.

The old saying “what’s mine is yours” applies here.  Unless there was a prenup agreement, “marital property” (real estate, assets like cars, bank account, investments, retirement, etc.) is typically divided 50/50. 

modern tug of war

If there is “separate property” (assets like home, car, etc. that were obtained before the marriage and inheritance) the court will evaluate whether or not it is to be considered “marital property” legally, based on how long the couple has been married.

If one of the spouses makes significantly more than the other, they may have to pay spousal support.  The court looks into certain factors such as age, health, earning ability, length of the marriage, and standard of living during the marriage. 

On top of the spousal support, there is also child support that is factored by the courts.  One parent can get custody of the children or the parents can share custody. 

If one parent is given full custody (even in some joint custody cases) the other parent may have to pay child support.  The money is meant to go towards the children’s needs and make sure they are not economically and financially affected by the divorce.

Annulment

Marriages that are not seen as legitimate by the courts can be annulled, which means that the marriage was legally invalid, unbinding, and it is as if it never existed.

erase anull

Grounds for annulment:

  • Bigamy (marriage to more than one person) and the other person must still be living
  • Mental incompetence of one of the spouses
  • Fraud (less than two years must have passed since the spouse discovered the fraud)
  • Duress (forced into marriage) and less than two years must have passed since the marriage date
  • Marriage was unconsummated
  • One of the spouses was underage (it must be less than two years since they have become legally of marriage age).

Currently, in Ohio females can get married at 16 years old, if both parents give their consent. 

Females under 16 years old are allowed to get married if they are pregnant and have parental consent and the juvenile court approval. Males have to be 18 years old before they are legally allowed to be married.

The state is rethinking their current marriage laws and passed House Bill 511 which would make the minimum age for marriage 18.  Exceptions would only be made to 17 year-olds who have consent from juvenile court, after a 14-day waiting period, and their partner cannot be more than 4 years older than them.

Conciliation

The court has the authority after 30 days of the “summons” to file a Petition for Conciliation, which forces the couple/family into counseling.  This is true for divorce (both uncontested and contested), annulment, or legal separation.

reconcile couple

A spouse can file for the petition, as well.  When the petition is filed and approved, the couple must enter marriage counseling (family counseling if children are involved). There will no more decisions or actions taken against the divorce legally until the counseling is over and has been reported to the court.

What Actually Happens in an Uncontested Divorce?

So you’ve filed for divorce and your spouse has failed to respond. What do you do?

In Ohio, once someone is “legally served” divorce papers, the other party has 42 days to respond. 

Ohio Divorce Complaint - 42 Day to Respond

If the other party does not respond or appear in court, the spouse who filed “wins.” He or she is granted the divorce.  The person who didn’t respond neglected to “contest” or challenge the divorce. 

By not responding to the divorce papers, the spouse is effectively agreeing with the divorce.

Since the other spouse is not there to negotiate terms, the judge can either choose to approve the agreement “as is” or they can choose to amend it.

Once the amendments are made, the divorce is granted.

Dissolution of Marriage

Let’s say you are married and you don’t want to be together anymore. Yet you and your spouse are still on amicable terms, and feel you can agree on how to dissolve your marriage.

Maybe you’ve already tried separation (or maybe you haven’t) and you both agree; you’d be happier if you were no longer married to each other. 

couple has grown apart

Neither party did anything wrong, no one cheated, there was no violence or substance abuse. You just grew apart and do not love each other in that way anymore. 

Instead of one person divorcing the other, you can decide to file for a dissolution of marriage. 

Preparing for a Dissolution of Marriage

You can file for a dissolution if either couple proves that they have “lived separately and apart for two years without cohabitation” or the one spouse files claiming “incompatibility” and the other does not deny it. 

In order to file for a dissolution of marriage, one of the spouses must have been an Ohio resident for the past six months before filling.

The couple appears in court 30 to 90 days after filling for the dissolution of marriage.  They each have to go under oath, agree to voluntarily separate and agree to the other terms outlined in the settlement, and that they wish no longer be married.

dissolution agreement

The separation agreement outlines how the assets will be divided and who will have custody of the children (if the couple has children under the age of 18 together). 

The couple will need to decide how if there will be spousal support and the amount, how marital property (and debt) will be split, child custody (and visitation rights), and child support. 

The couple will have to agree on each term.

A couple can convert their petition for divorce into a petition for marriage dissolution if the courts have not made their final judgments yet. There are no court fees or costs associated with changing the petition.

Because the parties agree, a dissolution is “uncontested” in the literal sense. This may be why people frequently conflate dissolution and uncontested divorce.

It’s important to remember these are actually two different things.

Can I get a Dissolution of Marriage in Ohio?

A dissolution of marriage can be a faster and easier option for some couples who meet certain criteria.

ohio map usa

Criteria:

  • Either you or your spouse must have been considered an Ohio resident for the past six months
  • One of your must have been a resident of the county you are filing in for at least 90 days
  • You and your spouse must both be voluntarily entering the petition for dissolution
  • You and your spouse must agree and each and every point in the divorce settlement outside of the court (you can do this together or use a mediator)

Points to settle:

  • How to divide assets (bank account, joint property, investments, etc.)
  • Child support
  • Spousal Support
  • Child Custody
  • Child visitation rights

Exactly What You Need to Discuss

If you’re thinking about ending your marriage, there are a number of things you need to consider. This is true whether or not you are seeking a divorce or dissolution.

If you’re the spouse who files a divorce complaint, you need to take into account all of the following and how you would like to see them settled.

If you’re the spouse who must respond to a divorce complaint, know that failure to respond means you can’t represent your interests with regard to these important matters. A good lawyer can really help in making sure you’re fairly represented.

Assets

When you get divorced, whether it is contested or not, you still have to go through the motions of deciding how you want to split things. 

asset division in divorce - keys to home and car

If you do not have a prenup, once you are married all of the investments, assets, retirement funds, and debts can be considered “marital property.” These assets need to be divided because they are technically owned by the couple together.  You need to decide who gets the house, who gets the car, the joint bank account, the dog, etc.

Spousal Support

Couples do not always make the same amount; one may make significantly more than the other.  The one who makes more may need to give the other spousal support, to make sure their standard of living doesn’t drop dramatically once they are divorced. 

negotiate spousal support

Together, the couple can decide how much and for how long the spousal support must be paid.

Children

If a couple has a child together and they are a minor (under the age of 18), they must decide who has custody. 

This only applies to children from the marriage or children outside the marriage that have been adopted by the other spouse. Custody can be physical and legal. Physical custody is who the child lives with and legal is who can make decisions for them (medical, religious, educational). 

coparenting child

Parents can have full or joint custody.  If a parent has full custody, they can give the other parent visitation rights and organize how often that will be.

The parent who does not have custody will often need to pay child support to the parent will full custody. Together the parents can decide how much that should be.

In a joint custody case, the parents will decide when/how to switch off, who gets what holiday, birthday, etc., and child support is less common.

Why You Still Need to Lawyer-Up

Whether you opt for a dissolution or a divorce, hire an attorney.

Each side should have an attorney just to make sure the settlement is being drawn up correctly, fairly, and there is no deceit.  An attorney will make the court proceedings much smoother, as all of the settlements and paperwork are completed correctly and on time.

happy divorce outcome

When a couple wishes to no longer be married, they can choose to have a divorce or a dissolution of marriage.  A divorce is often a long legal battle and will not necessarily lead to a more favorable outcome for you. 

The court ultimately decides and approves the settlements, asset division, spousal support, child support, and child custody.

Conclusion

If the spouse does not respond to the divorce filing, it is called uncontested and the divorce is granted to the filing spouse.

When a couple agrees on getting divorced and is able to do the settlement outside of the courts, they can enter a dissolution of marriage. A dissolution is not a type of divorce, but rather scenario where both parties agree on the terms and dissolve their marriage.

Divorce happens when the parties are not able to agree, so the court decides. Typically, one party files a divorce complaint and the other party responds. Only when the other party fails to respond is an uncontested divorce granted.

Are you ready to file for divorce or dissolution? If you move forward with a divorce, what do you think the odds are your spouse may fail to respond, leaving you set for an uncontested settlement?


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Comments 1

 
Guest - BlakemoreBaylor on Tuesday, 04 August 2015 03:36

Good review with valuable information.

Good review with valuable information.
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