Tag Archives: Ohio Custody
Often, married couples that are divorcing want to make the process as quick and painless (and inexpensive) as possible. They have come to some sort of agreement as to division of real and personal property, alimony amounts (if any), who they want to be the residential parent, and so on. But, just as frequently, divorcing couples cannot come to an agreement as to one or more of the above issues. In the latter case, this would be a contested divorce. When the divorce is contested, attorneys first work to resolve these issues by way of settlement in order to avoid a trial.
However, many times couples are so at odds with one another that nothing is negotiable and a trial is the only way that a resolution to one of the common issues can be reached. The trial is not unlike a criminal trial in that witnesses will be called to present testimonial evidence and documents will entered as exhibits to prove whatever the party introducing the evidence wants to prove (e.g., that a retirement account or home should not be considered maritial property).
Because a contested divorce can go to trial, one must be cognizant of how many courts differ in the trial process. In short, trial processes are very county-specific and it is important to be familiar with the Court’s local rules and customary practices. Some counties require several “pre-trials” beforehand and ask for several formal statements to be submitted to the court and filed with the Clerk of Courts ahead of the pre-trial or trial date. Some courts require the parties to submit to mediation before a trial is finally conducted, while other counties do not provide a mediation program for Domestic Relations matters at all. In other words, A divorce action in Greene County, Ohio can differ dramatically from a divorce action in Montgomery County, Miami County, Warren County or Butler County, Ohio. Familiarity with the judges and the court-specific rules can really help divorcing couples avoid a long and protracted divorce action and help make the entire process easier to meander through and more cost-effective for all involved.
Easiest way to terminate the marriage when one spouse no longer lives in Ohio | Dissolution vs. Divorce
The Courts of Ohio have jurisdiction to terminate the marriage of any Ohio resident that has lived in the state for at least six months. This is the case even if the marriage took place in another state. The termination can be by way of Divorce, Dissolution or annulment (in rare circumstances). Often, couples that have separated and are living apart want to terminate the marriage and have already come to an agreement on all relevant issues (property division, child custody, spousal support, etc). In other words, the parties agree to go their separate ways and really do not want (or have anything) to fight over.
Frequently, when the parties agree on all material issues, the best mechanism for terminating the marriage is a dissolution. When parties petition the Court for a dissolution, they submit a separation agreement to the Court along with the petition. Both parties later appear in court for a brief hearing where they affirm their desire to dissolve the marriage and to declare their agreement on all material issues, as is evidence by the signed separation agreement. This seems easy enough, right? Well, maybe not.
A dissolution will not work when one of the parties to the marriage is unable to appear in Court here in Ohio. At the heart of the dissolution is the idea of agreement by the parties, and if one of the parties does not appear in court to formally declare their agreement, the Court cannot terminate the marriage. In this scenario, the parties should look into an “uncontested divorce.”
Generally speaking, an uncontested divorce is where one party files a complaint for divorce and the other spouse fails to file any responsive pleading or otherwise appear and defend the action. The Court can terminate the marriage by simply having the plaintiff-spouse testify (along with one other witness to corroborate the testimony) and the defendant-spouse need not appear at all. Although this seems rather intuitive, the real benefit of an uncontested divorce is that the parties can still enter into a separation agreement, just as in a dissolution, and submit it to the court for incorporation into the final divorce decree.
So, whenever two spouses reside far apart, they should consider an uncontested divorce action to save the absent spouse travel expenses. But, remember that this will only work when both spouses are in agreement on the division of property, child custody, spousal support, etc.
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Child Support in Ohio – How can I have the amount adjusted if I can no longer pay the current amount?
Child Support in Ohio is established by statute and is based upon a standard formula. Only in rare cases does the Court deviate from the amount that the formula prescribes for the divorcing couples’ situation (if the divorcing couple makes a lot of money or very little money combined, the Court has the power to ignore the prescribed formula and establish an amount itself). This formula is useful and may be fair at the time of the divorce decree, but many clients want to know what happens if circumstances change such that the amount of child support is too much or too little a few years down the road. For example, maybe the father has lost his job and can no longer pay the amount originally set-down in the divorce decree. Or, say the wife wins the lottery and now has a better financial position than she did when the couple divorced. Well, a child support obligor can ask for an Administrative review of the child support amount (through the Child Support Enforcement Agency) and ask that it be reduced based upon a change of circumstances. Or, the obligor can file a motion with the Court (as a post-decree motion) and ask that the Court modify the amount based upon the change in circumstances. If the Child Support Agency (CSEA) declines the obligor’s request for a modification downward, he can appeal that ruling to the Court afterward. So, in short, if you are a current child support obligor and you feel that based upon a change in circumstances, the amount you are paying is no longer appropriate, there are avenues to pursue where you might have it reduced. Speak with an attorney or contact our firm for a free consultation to determine whether you can have your child support reduced (or increased) and how best to go about it.
We have previously posted on the topic of filing a motion to change custody of minor children from one parent to the other (a motion to “reallocate parental rights and responsibilities”). As was discussed in that post, the petitioning parent that wants to become the custodial parent has the burden to prove that there has been some substantive change in circumstances of the current custodial parent or the minor child (not the petitioning parent’s circumstances). This can be a rather high burden for the petitioning parent to meet, and if the child appears to be doing alright in the current situation, the chances of success are not that great, even if the petitioning parent’s home would be a better destination for the children. Courts are loath to shift the children around after custody has been established, and therefore, a change in circumstances is needed. Once the parent shows that there is such a change, he or she must demonstrate that a change in custodial status would be in the children’s best interest. If the parent cannot first adequately show a change in circumstances, there is no need to even evaluate the children’s best interest.
However, what if the petitioning parent does not want to obtain legal custody, but rather wants to merely increase visitation with the children? Although the motion would still be considered a motion to reallocate parental rights and responsibilities, the standard for modification of the prior Court Order is not as high. The petitioning parent need not show that there is any change in circumstances in order to prevail on a motion to increase parenting time (“Visitation”). Rather, all the petitioning parent must do is demonstrate that increasing visitation is in the child’s best interest. Essentially, a petitioning parent skips straight to the best interest issue, and never has to show that something has changed with the custodial parent or child. Motions to increase parenting time are common and are often granted, considering that increasing visitation would not fundamentally disrupt the children’s life and more contact with a parent is in most cases beneficial to the child.
Brought to you by the Ohio law offices of Morrison & Nicholson. Call today Family Attorney Charles “Bill” Morrison for a free consultation (937)-432–9775.
It can be very confusing as to which court is the proper court to file a motion for alteration of parental rights and responsibilities. Do I file in the Domestic Relations Court? Or, do I file in the Juvenile Court? How are they different? It seems that they both handle child custody issues in Ohio, so which is the right one? Well, the answer is a simple one. If the parents were married and divorced, then the Domestic relations Court will handle all post-decree motions, including those related to child custody, child support and spousal support. However, if the parents were never married, then any original custody determination was made in the Juvenile Court and that Court would handle all subsequent motions related to child custody. Basically, go back to the Court where the original determination was made. If you cannot remember which Court or find your papers, then simply apply the general rule.
If you have never been married to the other parent, and there has never been a Court Order determining child custody, then you would need to file in the Juvenile Court initially.
In Sum: always file in the court that originally issued any order respecting child custody. If there has never been a Court Order respecting child custody and you are not married to the other parent, then file in the Juvenile Court. If you are married but have lived a part for several years and you want a custody determination, then look to the Domestic Relations Court.