Divorce is always challenging, even when it’s amicable. Separating finances, assets and personal lives isn’t easy, regardless of how long you were married or how many assets you have. You don’t just need to separate on paper; divorcing couples also face a changing lifestyle, moving houses and adjusting to a new normal.
Working with the experienced Cleveland divorce attorneys at KJK can help you focus on moving forward from your divorce and ensure you receive your fair share of your marital assets. We pride ourselves on providing support throughout the entire divorce process, whether you want to go through mediation or need to take your divorce to trial, or if you choose to avoid divorce by ending your marriage through dissolution.
Navigating the Complexities of Ending a Marriage:
Helping Ohio Families Through Mediation and Divorce
Divorce becomes even more complicated when you have children. It’s essential you do your best to minimize the disruption in your children’s lives. Having a long, drawn-out court battle could mean constantly changing custody schedules and uncertainty, affecting your children’s mental health.
At KJK, where possible, we believe in trying to resolve the termination of a marriage without going to court. Besides the traditional alternatives to litigation, we also offer dissolution services.
In Ohio, dissolutions have the same effect as divorces. To achieve a dissolution, you and your spouse must reach an agreement on all the same aspects as you would with a divorce, including dividing marital property, child custody and support, and alimony, if necessary, before ever appearing before the court.
If you and your spouse choose to end your marriage through dissolution, you and your attorney will attempt to negotiate without involving the court. This process is often less stressful than going through a divorce. While you cannot use subpoenas to learn information about your spouse, your attorney can bring in experts to examine financial information or advise you on the best way to handle child custody.
Once you and your spouse have agreed on all the dissolution terms, you then must file your dissolution with the court to legally dissolve your marriage. Between 30 and 60 days later, you and your spouse must appear at a final hearing where you both provide basic and straightforward testimony to the court as to your full and complete disclosure of your assets and liabilities, the agreed-upon terms of your dissolution, and your desire to terminate the marriage. The court then must approve your agreement, which officially ends your marriage.
Division of Marital Property
One of the biggest hurdles in divorces and dissolutions is dividing your marital property. However, to divide it, you must first determine what is marital property and what is separate property.
Ohio law presumes that all property acquired during the marriage is marital property and subject to equitable (presumed equal) division between the spouses. Separate property, however, is typically retained solely by the owning spouse and not subject to division between the spouses. Limited, specifically defined types of assets, including those that are premarital, those that are inherited and, in certain cases, those that are gifted, may fall into the category of separate property.
An experienced divorce attorney with KJK can help you go through your assets, financial documents and property lists to determine what is marital property and what is separate property.
Once you and your attorney have identified the marital property, you must then divide it. Usually, in Ohio, the courts divide the property equally. However, some factors could mean one spouse receives a greater share of the property, including:
- How long the marriage lasted
- Tax consequences of division for each spouse
- Who receives primary custody (particularly when dividing up the primary home)
- Debts, both shared and individual
- How liquid the assets are, and if selling them would adversely affect one or both spouses
- Other factors the court deems relevant
Alternatives to Litigation:
Divorce Doesn’t Have to Be Messy
While divorce is almost always hard, it doesn’t need to be messy. Protracted legal battles cost a lot of money and can wreak havoc on your lives, preventing you from moving on and healing from the separation.
At KJK, we provide legal counsel for couples that want an alternative to an adversarial court process (litigation) when ending their marriage with the following alternatives:
The ultimate goal of the collaborative process is a dissolution rather than a divorce. You, your Cleveland spousal support attorney, your soon-to-be ex and their attorney all meet together to discuss the options and resolve issues using interest-based negotiation techniques. Without involving any litigation or court proceedings, you create a dissolution agreement that’s beneficial to both parties.
If an impasse is reached during negotiations, the couple can also select a non-biased party to help them reach an agreement, like a private judge or mediator. Like other non-litigation methods, the goal is to create a dissolution agreement without the court’s input that works for everyone.
At KJK, we also offer Cleveland marriage mediation. In this litigation alternative, a single neutral lawyer helps the couple have constructive conversations to see if there is enough common ground to reach an agreement. Mediation is also a common tactic in litigated divorces, often ordered by the court. In most of these cases, the court orders mediation to help solve child custody concerns, including visitation and determining the child’s primary caregiver.
These non-court processes can be used to resolve financial issues including the allocation of assets and debts, spousal support and child support, and can be used to resolve issues relating to children as well. Couples often find that these processes offer them more control over their own futures and more creativity in the options they explore.
While most couples wish to avoid the expense and emotional stress of a legal battle, that isn’t always possible. Especially if you leave your spouse because of abuse or domestic violence, mediation or a collaborative process may not be an appropriate option for you. However, if possible, avoiding litigation can help you complete the divorce process faster, save you money, and cause less upheaval in your children’s lives.
We’re Here for you:
Talk with a divorce attorney
Divorce cases are the most common type of legal matter handled by KJK’s Family Law attorneys, and we are sensitive to how difficult and emotional these cases can be. If you and your spouse are considering divorce, we can help you find the best way forward. Contact the team at KJK today to schedule your initial appointment.
Divorce & Dissolution of Marriage Frequently Asked Questions
How long will my divorce take?
It’s difficult to predict. However, the Ohio Supreme Court provides Guidelines to Ohio’s courts that help shape the suggested, outermost boundaries for how long divorce lawsuits are to take. Specifically, for divorce matters without children, the Guidelines instruct the Ohio courts that such proceedings, from start to finish, are to be concluded within twelve (12) months from the date they are initiated. For divorce matters with children, the Guidelines instruct the Ohio courts that such proceedings, from start to finish, are to be concluded within eighteen (18) months from the date they are initiated. In practice, some divorces are concluded substantially before the expiration of the relevant time period in the Guidelines, while others take longer than the Guidelines, and others are right on schedule per the Guidelines. There are a variety of factors which may result in a shift from one end of the spectrum to the other in terms of duration of a divorce proceeding.
What’s the difference between a dissolution and a divorce?
A dissolution and a divorce are two (2) different legal processes in Ohio with the same end result: the termination of the marriage. However, what makes a dissolution and a divorce distinct is the process by which that end result is achieved.
In order to pursue a dissolution, the spouses must have a full and complete agreement, signed by both parties, as to all issues relevant to the termination of their marriage. Those issues include the division of their property and debts, other financial issues, and where relevant, custody and parenting issues. Once the parties finalize their agreement, they then jointly file it with the court, along with a Petition for Dissolution. The court then holds a brief administrative hearing, during which it reviews the parties’ agreement and usually adopts it as an order of the court, terminating the marriage.
In contrast, a divorce is an adversarial legal proceeding between two spouses, which means that, in effect, a spouse is suing the other spouse for a divorce. Although the end result of a divorce is also the termination of the marriage, the court has much more of a direct role in a divorce proceeding when compared to a dissolution. A divorce is initiated by filing a Complaint for Divorce with the court. Thereafter, and until the matter is resolved, the court holds a number of proceedings in order to see if an agreement can be reached on the issues involved in the matter. Once again, those issues include the division of the property and debts, other financial issues, and where relevant, custody and parenting issues. Ultimately, if the parties to a divorce action cannot reach an agreement, then the matter is set for a trial, and the court will, if necessary, take evidence and issue a Judgment Entry of Divorce to resolve the matter, in its entirety.
What is a collaborative divorce?
A collaborative divorce offers an alternative to the traditional adversarial court process in order to terminate the marriage. In connection with the collaborative process, the couple and their respective lawyers meet together to resolve issues using interest-based negotiation techniques, with the goal of, ultimately, ending the marriage through a dissolution, rather than a divorce. The collaborative process is completely voluntary and must be jointly elected by both spouses (who must be represented by collaboratively-trained attorneys) in order to proceed. Another unique aspect of the collaborative process is the option, where appropriate, to also involve various third party neutrals, including financial experts and parenting coaches, in the matter. The benefits of including these third party neutrals can take many different forms, but as a general matter, they help provide the parties with the information and tools necessary to achieve an informed and mutually agreeable outcome to the matter.
What is mediation?
Mediation is a voluntary, alternative process to traditional litigation which can be used to resolve disputes, including those in connection with the termination of a marriage, custody of a child, and the like. As a practical matter, in mediation, the parties work with a third party neutral (the mediator) in order to facilitate a dialogue, the goal of which is to help the parties make their own decisions to resolve their dispute. As a result, the mediator is not a judge or a decisionmaker. Instead, the mediator’s role is simply to create a space where the parties can work together to make collective decisions about the relevant issues. Mediation can take many different forms. Sometimes the parties are present at a mediation session along with their attorneys and the mediator. Other times, it is only the parties and the mediator in attendance at the mediation session. Ultimately, given the real-world implications of the issues involved in a domestic relations matter, mediation can be very useful tool in order to achieve a mutually satisfactory—and oftentimes creative—outcome to these types of disputes.
Can my spouse and I share a lawyer during our divorce?
No. In Ohio, it would be a conflict of interest—and thus, a violation of a lawyer’s ethical duties—to represent both spouses in connection with the termination of their marriage. Instead, the lawyer can only represent one (1) of the two (2) spouses. In that scenario, if the other spouse wanted to be represented by legal counsel in connection with the termination of the marriage, then that spouse would need to find and retain his or her own separate lawyer. While it is not required for both spouses—or either spouse—to be represented by counsel in connection with terminating their marriage, obtaining professional legal representation is always advisable.
Who has to move out of the house?
It depends—and, in Ohio, the answer differs based on the facts of each case. If a party desires to physically separate from his or her spouse, the easiest solution is that the couple reaches an agreement on which spouse is going to stay in the house and which spouse is going to move out. However, if the parties cannot reach an agreement, then the issue will have to be presented to the court for a determination. In reaching this determination, several factors that the court may take into account include the relative finances and incomes of the parties, the conduct of the parties—including whether there is a particular party who is primarily the source of any distress or conflict in the household— when the house was purchased and who purchased it, and if there are minor children, which party primarily cares for them on a day-to-day basis.
Why do I have to pay spousal support?
In Ohio, the purpose of spousal support (also referred to as alimony) is to provide for the sustenance and support of a spouse or former spouse. Whether an award of spousal support is appropriate and reasonable depends on the facts of each case. In making this determination, the Ohio courts are guided by certain factors which must be considered, including but not limited to the duration of the marriage, the lifestyle enjoyed by the parties during the marriage, as well as the parties’ incomes and relative earning abilities. As with most issues in a divorce or dissolution matter, there is no one-size-fits-all approach or formula to determine whether spousal support is appropriate and reasonable, or to determine the amount and duration of the same. However, as a general matter, it is not uncommon to have a spousal support award in cases where there is a disparity in the parties’ incomes and/or where the marriage at issue is in excess of a few years.
Will my spouse be required to pay my attorney fees in our divorce?
The usual presumption—and most common outcome—in Ohio courts is that a party’s attorney fees and expenses incurred in connection with a divorce proceeding are to be his or her sole responsibility. However, Ohio courts do have the statutory ability to order a party to pay all or a portion of his or her spouse’s attorney fees in connection with a divorce matter. In making this determination, Ohio courts are empowered to evaluate a variety of factors, including the conduct of the parties as well as the marital assets and income, in order to determine if an award of attorney fees to a party is equitable, under the particular circumstances of the case.
If an asset is titled solely in my name, will I have to share it with my spouse?
It depends. In Ohio, for purposes of the termination of a marriage, the titling of an asset is usually less important and has less relevance to the ultimate disposition of the asset than how and when it was acquired. For example, if an asset was acquired during the term of the marriage, then at the conclusion of the divorce or dissolution proceeding, it will likely be subject to division between the parties, even if it is titled solely in the name of one party. However, if an asset was acquired prior to the marriage—or was acquired by a party by certain other means, including gift, inheritance, or a personal injury settlement, to name a few—then, as long as it can be traced (i.e. its separate nature shown from origination through to the present), it will likely be returned to the originating spouse, even if it is, currently, titled jointly in the name of both parties.
After getting divorced, do I have to share my pension or other retirement that I earned with my former spouse?
Possibly. In Ohio, if a pension or other retirement benefit was earned during the term of the parties’ marriage, then yes, it will likely be equally shared between both spouses in connection with the termination of the marriage. However, as a general matter, a party will only be required to equally share the portion of his or her pension or retirement benefit that was actually earned during the term of the marriage, plus any passive growth on that portion. As a result, if a portion of a party’s pension or other retirement benefit was earned prior to the date of marriage, then, in connection with the termination of the marriage, that party will likely be entitled to retain 100% of the premarital portion of the pension or other retirement benefit, plus any passive growth on that portion.
My spouse is not following the court’s orders—what can I do?
In Ohio, when a spouse (or former spouse) has violated a court order, the affected party has the right and ability to request that the court hold the non-complying party in contempt—and thus, accountable—for his or her actions (or lack thereof). If the non-complying party is found to have violated the court order at issue, then the court is empowered to issue sanctions against that party, including monetary fines, jail time, and/or an order that the non-complying party pay the attorney fees of the affected party.
Can I change my surname during our divorce, or can I require my spouse to change his or her surname during our divorce?
At the conclusion of a divorce or dissolution action in Ohio, a spouse who changed his or her name in connection with the marriage is permitted to return to his or her former name. However, he or she is not required or obligated to do so, and the other spouse has no control over the decision. Ultimately, if the spouse desires to return to his or her former name, then an order to that effect will be specifically included in the Judgment Entry terminating the marriage. After the divorce or dissolution proceeding is concluded, any further name changes will need to be handled through the court’s Probate Division, and thus, can no longer be accomplished through the court’s Domestic Relations Division.