Tag Archives: Dayton Divorce attorney
Often, people want to know whether they can leave the state with their child during or after a divorce. Like many answers to legal questions, a good attorney will tell the client, “it depends.” Here is a very brief overview of the law and considerations.
Prior to the Divorce Process
If the two parents are still married and there has not been a complaint for divorce filed in any court of this state, Ohio law states that parents stand on equal footing as to custody of the children, and that both parents are considered the residential and legal custodian of the children. This means that yes, technically, there is no crime involved for taking the children and moving to another state. As a legal custodian, the parent that wants to move certainly can determine where and with whom the child shall reside.
However, it should be noted that while a parent that is the legal custodian of the children can move and relocate with his or her children, this fact may in fact impact a court’s later determination on how to allocate parental rights and responsibilities (custody and parenting time/visitation). Some of the factors that a court is to consider is whether a parent is or is planning to establish a residence outside of Ohio, whether a parent is more likely than the other to facilitate and promote visitation, and finally, whether the other parent has been guilty of parental kidnapping. Please note that although no criminal charges will follow, taking the children out of state may be considered “parental kidnapping.”
During the Divorce Process
When the parents are not yet divorced, but a complaint for divorce has actually been filed in an Ohio court, there still has not been a FINAL allocation of parental rights and responsibilities. However, unless the parents are still residing in the same household, the Court will issue temporary orders as to custody and visitation. The Court will normally award one parent the interim temporary custody of the children during the pendency of the case. If the parent that was not designated as the temporary custodian takes the children, then that parent will be guilty of contempt of court for violating a valid court order.
Furthermore, it is very common and routine for both parents to seek and obtain temporary restraining orders during the pendency of the case. Normally these restraining orders prohibit a parent from removing the children from the state of Ohio, except for vacations of 14 days or less. Again, if the non-residential (temporary) custodian removes the children to another state, that parent will be in violation of a valid court order.
If a parent believes it is necessary to move to another state, that parent will have to file a motion requesting the court allow that parent to do so.
Again, this is a very brief sketch as to this subject and it cannot be urged strongly enough that any parent that wants to move out of Ohio consult an attorney to ensure that it will not negatively impact that parent’s case for custody or subject him or her to civil or criminal penalties.
Divorce is purely a matter of statute and each of the acceptable grounds for divorce in Ohio are fixed by statute. This means that you and your spouse cannot simply list whatever reasons you personally have for wanting the divorce in your Pro Se complaint and have the Court accept them. Rather, your complaint for divorce must list one or more legally sufficient grounds, enumerated under the applicable statute, and put on evidence of that ground at the hearing.
So, what are legally sufficient grounds in Ohio? Generally, any of the following will suffice:
1. Either party entering into a bigamous marriage
2. Willful absence of the adverse party for one year
3. Adultery (obviously!)
4. Extreme cruelty (carefully defined under statute)
5. Fraudulent contract (marriage is a contract, after all)
6. Any gross neglect of marital duty
7. Habitual drunkenness
8. Imprisonment of the adverse party in a state or federal prison when the petition is filed with the Court
9. Procurement of a divorce outside Ohio, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while such obligations remain binding upon the other party
10. On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation
So there you go, now you know that “he is a jerk” will not suffice as legally sufficient grounds to state in your complaint. You must plead and prove one of statutorily enumerated grounds established by the Ohio Legislature to obtain a divorce.
Interim custody, attorney fees, spousal, and child support while a divorce case is pending in an Ohio Court
It is often the case that a couple that is going through a divorce has one of the spouses move out of the home, leaving the other spouse with primary custody of the children. The vacating spouse is often the breadwinner of the home, however (after all, he or she has the funds to rent an apartment during the course of the divorce action). This can leave the remaining spouse in the home with the children and no source of (or not enough) income to continue to run the household and properly care for the children. So, what is that spouse to do? One answer is to file a motion with the court requesting that the other spouse be required to pay monthly child support until the final divorce decree is filed with the court.
This temporary child support is but one example of “interim orders” that the court is empowered to issue while the divorce case is proceeding through litigation and until there is a final resolution to the case. Other interim orders that the court may grant include: (1) Temporary spousal support; (2) award one spouse sole occupancy of the marital residence; (3) award interim attorney fees for one of the spouse to be paid by the other spouse, among others. Therefore, when you speak with your attorney, be sure to bring up all financial concerns that you may have with filing for divorce and there may be a remedy available.
Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation (937) 432 – 9775.
Bankruptcy and Divorce
Lets take the following hypothetical situation:
Ryan and Lauren are married but soon to be divorced. Ryan is planning on moving from the marital residence in Miamisburg, Ohio, to Tennessee with his new girlfriend Jennifer. Lauren has already moved to Kettering, Ohio. Can they file a joint bankruptcy together in Dayton? Would it be better to wait and file their bankruptcy after the divorce is final?
Divorces breed bankruptcies. During the marriage there was one household with one set of expenses. Once one spouse moves out, there become two households and two sets of expenses, and divorce litigation can be very costly. Filing bankruptcy is often the only solution for people getting divorced. But how does separation and divorce affect a Chapter 7 bankruptcy or a Chapter 13 bankruptcy?
Ryan and Lauren can file a joint petition at any time during their marriage, even if they are maintaining separate residences. Filing joint bankruptcy is cheaper because saves the additional filing fee. However, most bankruptcy attorneys will not advise filing a Chapter 13 bankruptcy in anticipation of a divorce. Chapter 13 bankruptcies require that the debtors make monthly payments for 36 or 60 months. This is impractical to do if the individuals involved will no longer be married.
The timing of the two separate cases in Ohio is also important. Filing either a Chapter 7 bankruptcy or a Chapter 13 bankruptcy will stall any existing divorce proceedings. The bankruptcy court issues what is called an Automatic Stay at the beginning of the bankruptcy that prohibits anyone from taking action on any debts. Therefore, the divorce court cannot divide the debts of the spouses until the divorce case is final or a Relief From Stay is obtained from the bankruptcy court. It is often considered preferable to file the joint Chapter 7 bankruptcy a couple of weeks before filing the divorce case, as the Chapter 7 bankruptcy does not generally take as long as a contested divorce.
A skilled bankruptcy attorney will be able to answer all of your questions about filing bankruptcy in the context of a divorce or separation. Many Dayton-Springfield area attorneys offer free bankruptcy consultation.
Montgomery, Greene, Butler, Clark, Miami and Warren County Ohio: Divorce Fact 5/10: Restraining orders of bank accounts & life insurance policies
RESTRICTIONS ON THE PARTIES WHILE THE CASE IS PENDING: By Ohio Revised Code, neither party is permitted to cancel or change beneficiaries of any life or health insurance policies while the case is pending. Do not change or cancel insurance policies while the action is pending. This is a matter of statutory law and applies to all parties to a divorce in Ohio. In other words, this is not something that your attorney will seek to have the court order for your case – it is simply the law for every case. In fact, the Court would not have the power to allow a party to change or alter the provisions of insurance policies that are in place at the time of the filing for divorce.
However, it is also quite common for both parties to file for Temporary Restraining Orders to restrain the opposing party from doing something while the case is pending. These restraining orders are actual, binding court orders that restrict the parties from doing certain activities while the case is pending. Some common temporary restraining orders that our firm might file include:
a. Restrain the parties from incurring further debt in the other party’s name
b. Restraining the parties from depreciating assets
c. Restraining the parties from removing the children from the state of Ohio
d. Restraining one of the parties from re-entering the marital home, if that party has been voluntarily absent from the home for more than 30 consecutive days.
e. Restraining the parties from abusing, annoying or harassing the other party
This Ohio divorce fact was brought to you by the Miami-Valley law offices of Morrison & Nicholson. Author: Charles W. Morrison, Partner at Morrison & Nicholson. Call today to schedule a free consultation with an attorney by calling (937) 432 – 9775.