Family Law and Divorce Attorneys

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  • DIVORCE
  • CHILD SUPPORT
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  • PROPERTY ISSUES
  • DISSOLUTION
  • MEDIATION
  • CUSTODY/PARENTING DISPUTES
  • CONTEMPT ISSUES

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What is the Domestic Relations Court?

The area of Ohio law called "domestic relations," in short, involves the termination of a legal marriage. In order for someone to legally end a marriage, they must do so through the "domestic relations" court. In some counties, the domestic relations court is a completely separate division of the county common pleas court system. In other counties, a few judges (or a single judge) handle both the domestic relations cases and the juvenile cases in a single division. In the Cuyahoga County Common Pleas Court system, there are five domestic relations judges (and a single Domestic Relations Division) and five juvenile judges (and a single Juvenile Division).

Divorce, Dissolution and Legal Separation.

In Ohio, there are three basic actions which involve the suspension or termination of a legal marriage: (i) divorce, (ii) dissolution and (iii) legal separation. A "divorce" action is, in essence, a lawsuit - a lawsuit where one spouse sues the other spouse seeking to end the marriage, divide up the marital property and determine child support/child custody issues. A "dissolution" is not really a lawsuit (e.g. wife vs. husband). However, it is nevertheless a legal proceeding in the domestic relations court - a legal proceeding which seeks all of the same things as a divorce. In a dissolution, both the husband and the wife file the "petition" for dissolution together in the same document. Attached to this "petition for dissolution" is another document called a "separation agreement." A separation agreement is a contract between the husband and wife which settles all of the issues relating to the termination of the marriage (i.e. the legal termination of the marriage, the division of the martial assets and the allocation of the child support/custody issues. When the husband and the wife file the petition for dissolution (with the attached separation agreement), the domestic relations court sets up a dissolution hearing in about 30 to 60 days. At that hearing, the domestic relations judge will ask both the husband and the wife if they still want to end their marriage, and will further ask if they both want the marriage termination to be controlled by the terms of the separation agreement they attached to the petition for dissolution. If the answer to both of those questions is yes, the judge will grant them a divorce and will transform the separation agreement into a final court order judgment decree.

A "legal separation" has all of the attributes of a divorce or dissolution. However, the spouse who files the legal separation action does not seek the termination of the marriage. Instead, that spouse seeks to live completely separate and apart from the other spouse, seeks to divide up the marital property and seeks to determine all child support/child custody issues - all without actually ending the marriage. A legal separation can be converted into a divorce action if one of the parties files a motion requesting such a conversion.

Basic Domestic Relations terms.

In order to more fully understand the basics of Ohio domestic relations law, a few definitions are in order. As set forth above, there are both similarities and distinctions between a divorce, a dissolution and a legal separation. However, all three of those actions may involve a judicial application of the following terms and issues.

1. "Property Division"

The "property division" stage of a divorce, dissolution or legal separation involves the division and disbursement of all of the property owned by both spouses. Every single item of property owned by either spouse is subject to court jurisdiction immediately upon either spouse filing a divorce, dissolution or legal separation action. How this property is divided up depends, in large part, on whether the domestic relations court defines the property in question as either "marital property" (defined below) or "separate property" (defined below). Generally speaking, the domestic relations court will only divide what the court deems to be marital property. In very limited circumstances, the domestic relations court can divide up separate property. Ohio law requires that the division of the marital property be "equitable" - that is, fair (but not necessarily equal) given the circumstances of the individual case at hand.

2. "Marital Property" and "Separate Property"

"Marital property" is, in general, all of the property which has been purchased or accumulated by either (or both) of the husband or wife. There are some limited exceptions to this general rule. For instance, gifts, prizes and inheritances, even if acquired during the marriage, are not marital property. Generally speaking, all property which is not marital property is "separate property."

3. "Spousal Support"

Ohio does not use the term "alimony" when referring to the monthly payments one spouse must pay to the other after the parties are divorced. Instead, Ohio law calls these payments "spousal support." Spousal support primarily consists of monthly payments which one spouse makes to the other spouse for a specific number of years after the end of the marriage. In general, spousal support is based upon two competing factors: (i) need and (ii) ability to pay. Each case is evaluated differently based upon the individual facts of that case.

4. "Child Support"

Obviously, "child support" consists of the monthly payments one souse must make to the other spouse to assist in the monetary support of the minor children born as issue of the marriage. The amount of the child support payments is strictly regulated by statutory guidelines. These guidelines utilize the incomes of the parties to arrive at the guideline amount.

5. "Parental Rights and Responsibilities"

A few years ago, Ohio legislators did away with the word "custody" and replaced it with the phrase "parental rights and responsibilities." Those legislators felt that the continued use of the term "custody" encouraged divorcing spouses to think of their children as chattel - rather than children. Now, when the domestic relations court determines what was formerly called "custody" issues, the law says that the court is "allocating parental rights and responsibilities." When the domestic relations court allocates parental rights and responsibilities, it is required to take into consideration primarily that evidence which concerns the "best interest of the child." The decision the domestic relations court makes in this regard is often not simple.

6. "Shared Parenting"

Under old Ohio law, there was a concept called "joint custody." However, in order for the court to have awarded joint custody under the old law, both the husband and the wife had to have agreed to joint custody. Under the new law, joint custody has been re-named "shared parenting." Further, the domestic relations court can order shared parenting even if both parents do not agree on the concept or the terms, so long as one of the parties proposes and acceptable "shared parenting plan."

7. "Motion to Show Cause"

When one of the parties to a divorce, dissolution or legal separation action violates one of the terms of an order issued by the domestic relations court, the non-violating party may file what is commonly referred to as a "motion to show cause." This term is short for "motion to have the order violator show cause why he should not be held in contempt for violating a court order." The motion to show cause usually requests the court to determine that the violator has violated a court order, that such violation resulted in harm to the non-violating party, that the violator should be held in contempt for such violation and that the court should appropriately sanction the violator (e.g. jail fine and assessment of the non-violating party's attorney fees). These motion to show cause motions usually involve the failure of one spouse to pay child support or spousal support. Technically, the alleged violating party is entitled to a hearing on the motion (almost like a criminal defendant accused of a crime). However, most of these types of motions are resolved by the parties without a hearing. These types of motions can be filed during the divorce process and even long after a divorce has been finalized.

8. "Motion to Modify"

When one of the parties to a divorce, dissolution or legal separation action determines (for any number of reasons) that the current court order should be modified, that party can file what is common referred to as a "motion to modify." By far the most common types of orders which may be modified include (i) child support orders, (ii) parental rights and responsibilities orders and (iii) spousal support orders. Technically, the moving party is entitled to a hearing on the motion. However, like motions to show cause, most of these types of motions are resolved by the parties without a hearing. Like motions to show cause, these types of motions can be filed during the divorce process and even long after a divorce has been finalized.

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