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Divorce &
Dissolution: Some Helpful Facts You Should Know by James H. Allison, Attorney at Law A marriage can be legally ended by a divorce or a dissolution. A dissolution action must be preceded by a written separation agreement by the husband and wife that settles the issues of custody of the children, visitation rights, and disposition of the assets and liabilities of the parties. A divorce involves the filing of a written complaint where the parties are not in agreement as to all issues. DISSOLUTION DIVORCE
By contrast, a divorce action is an adversary proceeding where the parties cannot agree upon all issues. The following information concerns the procedures involved in a divorce. First, the law requires that child support payments be withheld from the wages of the obligor by his or her employer. If the obligor is unemployed, there are special provisions to secure child support payments that deal with workman's compensation, financial bank accounts and the posting of a bond with the court. Second, in the event support payments are not being made by the father for the benefit of the minor children, the Court demands that an affidavit be filed with the County Prosecutor's Office, before the Court will allow the Judgment Entry of Divorce to be filed. Finally, if there are no children or all children are over 14 years of age, your case may be docketed for final hearing 42 days after your spouse is served with a summons and a copy of the Complaint. If your spouse files an Answer contesting the action, the case may not be scheduled for the final hearing until all parties are in agreement, the final entry approved, and signed by each spouse's attorney. A contested case will be scheduled for final hearing by the Assignment Commissioner's Office, approximately 6 to 9 months after the initial Complaint was filed. GENERAL CONSIDERATIONS APPLICABLE TO BOTH DISSOLUTION
AND DIVORCE If there are not exceptional temporary orders sought, the first Court hearing following the filing for a divorce is a hearing on temporary decisions regarding custody, visitation, child support, and payment of bills. Temporary orders are effective only until the court grants a divorce after which the matters subject to the temporary orders will be governed by the terms of the divorce decree. After the initial calming down that ensues once the first hearing is completed, the attorneys begin to unravel the ownership and equities of the assets. Often the depositions of the parties are taken. All of this is done to prepare the case for trial, but a good job of preparation can often lead to a negotiated settlement, which is most often preferable to taking the case to trial. DISPOSITION OF THE BUSINESS AND OTHER PROPERTY
The basic rule applied by the Court in a domestic property settlement is: one-half of the property to the husband, one-half to the wife. The court may also grant to either party the entire interest in the property while giving the other party a set-off equal to one-half the value of the property awarded to the other. Generally, all property acquired since the date of the marriage is divided between the parties. The normal and sensible approach to the problem of the split of the family property is a negotiated settlement. Careful and thorough valuation and inventory of assets and rational proposals will usually result in rational results. SPOUSAL SUPPORT
Formerly known as alimony, spousal support is sustenance payment to an ex-spouse which can be ordered by the Court or agreed to by the parties as apart of the settlement. Spousal support may be ordered for either a husband or a wife. Usually, however, it is the wife who receives spousal support. There are no fixed rules for the amount of spousal support that may be awarded. Spousal support is based upon a demonstration of need by the recipient spouse. The age, background and training of the spouses will determine whether spousal support will be awarded and in what amount. A spouse who is capable of supporting him or herself may get no support, whereas a spouse who has no means of supporting him or herself may be entitled to spousal support for life. The income of the spouse and his/her ability to pay will affect the size of the spousal support payments for the other spouse. The extent of the property of the non-supporting spouse which is available for the production of income will also be considered. Sometimes spousal support will be paid for a few years or months during which time the supported spouse has an opportunity to prepare him or herself for an independent earning life. Each case is different. Imaginative efforts can fashion a spousal support plan that meets the needs of the husband and the wife. PARENTAL RIGHTS AND RESPONSIBILITIES FOR CARE OF CHILDREN
Under current Ohio law, it is presumed that the best interests of the child will be served if both parents are given equal rights and responsibilities for the care of the child, In making a determination under this presumption, the court will assign one parent as the residential parent and legal custodian of the child and the other parent as the non-residential parent. The court will then decide the remaining issues, including, but not limited to, the responsibility to provide support for the children and the rights of the parent who is not the residential parent to have continuing visitation with the children. Child support is usually ordered in periodic payments. Frequently the Court will also order support in other ways such as the payment of medical, dental, hospitalization, special education, camp, or travel expenses. TAX IMPLICATIONS
Payment of spousal support may result in a tax deduction to the husband and income to the wife (or vice-versa), or the spousal support may be structured so as to avoid a taxable event. There are certain criteria that have to be met for spousal support payments to be deductible to the payor and taxable to the recipient. Your lawyer can inform you as to these criteria. Further, unless the parties otherwise agree in writing, only the residential parent may claim the children for purposes of dependency exemptions. No gain or loss is recognized on a property transferred to a spouse or former spouse so long as the transfer is made incident to a divorce or dissolution. PSYCHOLOGICAL PROBLEMS
By the time a divorce or dissolution action is considered, further discussion about the problems of marriage may seem hopeless. Yet some marriage can be saved at this crucial time with the help of a clinical psychologist or psychiatrist. The spouses must both want to solve the problems or the counseling will be a waste of time and money. The attorney handling the legal problems can usually recommend psychological counselors. The psychological problems may be much more important than the legal problems. No breakup of marriage can ever be deemed a "success" but some are more "successful" than others. The key is dealing with the emotional problems realistically. CONCLUSIONMarriage breakup is always tragic but real effort and goodwill coupled with professional expertise can relieve the emotional trauma. In the absence of an antenuptial agreement, there are no effective techniques to protect assets acquired during the marriage from the settlement. The practical solution is a negotiated settlement. As in other negotiating situations, if one party insists upon an agreement which is too one-sided, no settlement will result, and a decision will have to come from the judge to whom the case has been assigned for trial.
Information provided by:
James H. Allison, Esq.
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