Tag Archives: pending divorce action
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.
Montgomery, Greene, Butler, Clark, Miami and Warren County Ohio: Divorce Fact 6/10: How long will my divorce / dissolution case take?
THE TIMING OF THE CASE WLL VARY DEPENDING ON SERVICE OF PROCESS AND THE COURT’S DOCKET: If you are the Plaintiff (filing for divorce first), you must first “perfect service” of process and the court summons on the other party (Defendant) before the court (Greene, Butler, Montgomery, Clark, and Warren County Courts) will schedule a court date. The Court does not have jurisdiction over the opposing party until he/she has been properly served with the appropriate paperwork. Service is typically perfected via certified mail, issued by the Clerk of Courts shortly after the case is filed. Essentially, the Clerk gathers all of the documents filed, creates its own summons, and requests that the postal service deliver the documents to the defendant via certified mail. The Court will not consider service perfected until the U.S.P.S. sends the return receipt to the Clerk of Court’s office.
If the defendant refuses to sign or otherwise claim the certified mail, the clerk of courts will then notify your attorney that service was not perfected. The attorney will then ask the clerk to “re-issue” service via regular mail, as Ohio law allows service by regular mail if the certified mail was unclaimed or refused by the defendant. Service can also be perfected via personal service by the county sheriff or a special process server (although these methods are more expensive than certified mail). Regardless of how service is ultimately perfected, the court will not schedule the case for a hearing until service has been completed. Further impacting the scheduling of the case is the court’s own docket. Logically, if the court has a backed-up docket, your case will be scheduled out further than if the court’s docket is not as crowded. How quickly you receive a court date cannot be controlled by the attorneys.
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.