Ohio men’s divorce attorneys provide answers to frequently asked questions with regards to divorce laws and the divorce process in Ohio.
What are the grounds for divorce in Ohio?
Under Section 3105.01 of the Ohio Revised Code, the Court of Common Pleas may grant divorces for the following causes:
- Either party had a husband or wife living at the time of the marriage from which the divorce is sought
- Willful absence of the adverse party for one year
- Extreme cruelty
- Fraudulent contract
- Any gross neglect of duty
- Habitual drunkenness
- Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint
- Procurement of a divorce outside of the State of Ohio, by husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party
- On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation
- Incompatibility, unless denied by either party
What is a divorce going to cost me? Can I afford it?
The cost of a divorce varies from case to case, but often it can be expensive. It is impossible to give an exact quote, as there are countless variables to consider.
For example, you may need to hire an expert to write a report or testify on your behalf, or you may need to subpoena seven years of bank and/credit care records. Such action results in costs you will incur in addition to your attorney fees. Attorney fees often increase as a result of interim matters such as temporary orders or contempt motions.
A good question to ask yourself when contemplating filing for divorce is, “How much do we agree upon?” The more you and your spouse agree upon, the less the action will cost. The more issues that are contested, the more the action will cost.
Another factor that increases the cost of a divorce action is the presence of minor children born of the marriage. Often, if the parties do not agree upon child custody and support, costs unrelated to attorney fees will be incurred.
For example, you may incur costs for having a Guardian Ad Litem appointed or you may incur costs that may be associated with attending the mandatory parenting class. These are both costs, which would be in addition to attorney fees.
As is depicted above, any number of variables will contribute to the cost of any particular divorce action; only you will be able to determine if you can afford it.
Do I really need to hire a divorce attorney?
Yes! The State of Ohio does not require parties to a divorce action to employee an attorney; the court will allow you to proceed pro se.
However, proceeding in a divorce action without an attorney would be equivalent to jumping out of a plane without a parachute. You can, such is your choice, but you know what the consequences of your choice will be.
In making such a decision it is important to remember that if you choose to proceed without counsel the court will hold you to the same standard licensed attorneys are held.
Does Ohio grant divorces based on marital fault?
No, Ohio is a no fault state. The goal of the court is to simply equitably divide assets and debts, and if applicable, appropriately deem a legal custodian of any minor children.
Can I get spousal support or will I have to provide spousal support to my spouse?
It depends. Typically, in the state of Ohio, if there is a significant discrepancy in income, then the party who earns more income will most likely pay a spousal support obligation to the other.
This issue will vary on a case-by-case basis because issues may arise such as misappropriation of funds, or lack of need do to a trust fund or inheritance, which may eliminate or significantly decrease a support obligation.
There are a number of factors the court may consider in any divorce case that will have an impact on whether spousal support is ordered. A list of all factors can be found in section 3105.18 of the Ohio Revised Code.
Can I change my name at the time of divorce?
Yes, in the State of Ohio, you have the option of incorporating a name change in a divorce decree.
Can I get an annulment?
Under Section 3105.31 of the Ohio Revised Code, a marriage may be annulled for any of the following causes existing at the time of the marriage:
- That the party on whose behalf it is sought to have the marriage annulled was under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;
- That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;
- That either party has been adjudicated mentally incompetent, unless such party after being restored to competency cohabited with the other as husband or wife;
- That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, cohabited with the other as husband or wife;
- That the consent to the marriage of either party was obtained by force, unless such party afterwards cohabited with the other as husband or wife;
- That the marriage between the parties was never consummated although otherwise valid.
When can I file for divorce?
If a Plaintiff has adequate grounds as indicated above, then a divorce can be filed once the Plaintiff has lived in the state of Ohio for a minimum of six months immediately before filing the complaint and has been a resident in the county in which they plan on filing for a minimum of 90 days prior to filing the complaint.
When is my case going to be over?
A case is over when all issues have been decided, either by the court or the parties, a Decree and Entry of Divorce has been issued, signed by the judge, and filed with the Clerk of Courts.
Whatever date and time is indicated on the time stamp of your Decree and Entry of Divorce is the official date and time on which your divorce is finalized.
Do I have to go to court?
Yes, you will have to appear in court. Even if the matter is settled, the court will most likely require you to appear to state on the record that you agree with the terms of the settlement.
If attempts to serve my spouse do not work, what is my next step?
If service cannot be perfected via regular means, such as certified mail or process server, your next step would be to file an affidavit for service by publication with the clerk of courts.
Said affidavit will consists of all of your efforts to perfect service, including but not limited to, checking directories in the area of the last know address, contacting persons who may know your spouse’s location, searching the Internet, searching penitentiary records, or hiring a private investigator.
In short, you have to show “due diligence” was taken in an effort to complete service.
If due diligence is perceived by the court, then the Complaint will be published by publication in the courthouse and two other places in which postings are known to be located. The posting must remain for a minimum of six weeks for service to be perfected. Most courts in Ohio will charge an extra fee for this procedure.
At what point during the process can a spouse remarry or start dating?
A spouse cannot remarry until the divorce is finalized. When one chooses to start dating is a personal choice; there is no rule of law that dictates a specific date.
What if my spouse does not want the divorce?
Your spouse has the option to contest the grounds for the divorce if he/she does not want such to occur. In such a case, whether there are proper grounds for proceeding must be ruled upon prior to proceeding with other contested issues.
It is possible that a judge may send you and your spouse to marriage counseling or a mediator prior to hearing testimony on grounds. However, it is a very rare occurrence that an action for divorce will be dismissed because one party does not want the same. Grounds are almost always proven.
Do the other issues – support, custody, alimony, and property – have to be decided before the divorce is final?
Yes, all issues have to be decided before a divorce is finalized.
After I file for divorce, do I have to continue to live in Ohio?
No, if the divorce does not concern minor children, the court will normally not require a party to remain in the state. However, the opposing party could always file a motion asking the court to order you to remain.
It is also important to remember that you will be required to appear in court and moving a significant distance from the court in which you filed could result in additional time and expenses for you.
The court is more likely to order you remain in the state if the case concerns minor children and you have temporary custody and the noncustodial parent has visitation. The court will not like there to be any unnecessary interference in parent-child relationships while the matter is still pending.
What if I am in the military and out of state?
The Servicemembers Civil Relief Act provides protection for members of the military against default judgments in civil actions, including divorce proceedings, which may be brought against them.
In short, federal law requires plaintiffs in a divorce action to file a Military Affidavit in which it will indicate whether a defendant is an active member of the military.
If the court finds that the defendant is an active member of the military, a judgment may not be issued without the court first appointing an attorney to represent the defendant’s interests in the matter.
If an attorney appointed under the Act to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember.
Essentially, if a divorce action proceeds without your knowledge, then the court will retain jurisdiction to set aside a judgment, if the circumstances meet the requirements of the statute, so that you may present a defense to the action.
Moreover, the Act also provides temporary relief in the form of a stay of the proceedings, in which the court will put the matter “on hold” for no more than 90 days to give the service member time to appear, be located, etc.
For an in depth review of the Servicemembers Civil Relief Act as it applies to divorce actions, please see Servicemembers Civil Relief Act § 521. Protection of servicemembers against default judgments.
What forms do I need to file a divorce in Ohio?
The forms required to file for divorce vary from county to county. They also vary depending on whether the divorce does or does not involve children.
The majority of Domestic Relations Courts in Ohio have websites clearly listing all forms that will be required for filing a particular action.
How and where is a divorce complaint filed?
Upon completion of all required forms and the proper drafting of the complaint, all paperwork will be filed with the clerk of courts in the court that has jurisdiction over the matter.
Please note that the many Ohio courts require all paperwork to go through a compliance office prior to filing and that all divorce actions will have a filing fee to be paid to the clerk of courts. The amount of the fee will vary from court to court.
How do I serve the divorce complaint on my spouse? How long do I have to wait to receive my divorce?
Ohio offers several methods to perfect service on a spouse under Ohio Civil Rule of Procedure 4.1. Service may be perfected via certified or express mail, personal service, or by residential service. If the prior mentioned methods of service fail, a spouse may also be served by publication.
How is a divorce granted? Will I have to go to court?
A divorce may be granted by the court upon a showing of one of the causes listed above. This can be accomplished either via written agreement by the parties with court approval or via contested hearing in which evidence of the cause is brought before the court and then decides whether the evidence presented is sufficient to grant the divorce. Regardless of the method utilized, yes, you will have to go to court.
What typically happens if I go to court to obtain my divorce myself?
Procedurally, the court staff will provide you with a packet of documents you will have to fill out for filing. They will also inform you that they cannot give you any legal advice. Once the documents are filed, you will be informed of all hearings you will be required to attend.
The court will always hold you to the same standard as a practicing attorney and require that you know the law and present your case accordingly. Remember that “ignorance of the law” is not a defense or method by which you can attempt to amend or modify a decree at a later date and time.
How do I prove fault for divorce?
Ohio is a no fault state. Accordingly, proof of fault is not applicable in divorce proceedings.
At any time can a parent change a minor child’s last name without the other parent’s permission?
No. Under Ohio law, a child’s surname cannot be changed without either the consent of both parents or a hearing in which the name change must be proven to be in the minor’s best interest.
Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?
The state of Ohio terminated its recognition of common law marriage in 1991. Accordingly, any relationships that would fall into a common law marriage category that occurred on or after Oct. 10, 1991, in the state of Ohio, will not be recognized by Ohio courts.
If the relationship began prior to Oct. 10, 1991, and falls with in the guidelines provided in O.R.C. 3105.12, then it will be recognized as a legal marriage by the courts.
Ohio will also recognize common law marriages that occurred in other states and were not otherwise terminated in the other state.