Termination of Marriage FAQ

Family Law / Termination of Marriage FAQ

LEGAL SEPARATION

Q: Why would a couple want a legal separation?

A: Situations may exist where two people wish to live separately, but do not wish to terminate their marriage. For example, religious beliefs may cause them to want to keep the marriage intact. Or, practically speaking, the need to continue medical insurance coverage for one spouse through the employer of the other may be a reason for not legally ending the marriage. Many medical policies now, however, provide that a legal separation may disqualify a spouse from coverage.

Q: How is a legal separation obtained?

A: A legal separation may be obtained by filing an action which alleges one or more of ten “grounds,” or reasons why the separation should occur. Many of these grounds are the same as those used to obtain a divorce, and include incompatibility, adultery, willful absence for more than one year, extreme cruelty, habitual drunkenness, and gross neglect of duty. While one party may seek only a legal separation, the other may seek a divorce. All of the temporary orders and procedures available in a divorce case also apply in a legal separation case.

Q: What’s the difference between a legal separation and a divorce or dissolution?

A: In a legal separation, the marriage remains legally intact, whereas in a divorce or dissolution, the marriage is ended. Nevertheless, the issues addressed by the court in a final order or agreement of legal separation are the same matters dealt with in a divorce or dissolution. They include designation of a residential parent and legal custodian, parenting rights, child support, spousal support, division of property, and payment of debts. The agreement or order of legal separation may later become the basis of a final divorce or dissolution, but the marriage will remain legally intact unless one of the parties takes some further action to terminate the marriage. The rights and obligations of the parties are governed by the agreement or order, which is enforceable through the court.

ANNULMENT

Q: What is an annulment?

A: When certain circumstances exist, a court can grant a marriage annulment, which means that the marriage is not only terminated, but treated as if it never took place.

Q: What are these certain circumstances?

A: The circumstances under which a marriage is annulled are called “grounds.” There are six grounds for an annulment. You may qualify for an annulment if, at the time of the marriage:

1. You were under the age required for marriage (males must be 18 and females must be 16), and you did not thereafter live with your spouse in a husband-wife relationship. This annulment action must be brought within two years after you attain the legal age for marriage.
2. Either you or your husband/wife was already legally married and the spouse from the other marriage is still alive.
3. Either you or your spouse had been declared incompetent, unless competency was later restored and you lived together afterward as husband and wife.
4. The marriage consent of either you or your spouse was obtained by fraud, unless, after learning all of the facts, you lived together as husband and wife. (For example, consent may be obtained by fraud when a woman falsely tells her “significant other” that she is pregnant and that he is the father. Or, consent may be obtained by fraud when a spouse seriously misrepresents his/her identity or gender.) An annulment action based on fraud must be filed within two years after discovery of the facts that constitute fraud.
5. The consent of either you or your spouse was obtained by force (such as in a so-called “shotgun wedding”), unless afterward you lived together as husband and wife. This annulment action must be filed within two years of the date of the marriage.
6. Your marriage was never consummated. This means that you and your spouse failed to have physical relations at any time following the marriage ceremony. Such an annulment action also must be filed within two years of the date of the marriage.

Q: Can I get alimony if I file for an annulment?

A: No. The Ohio statute that provides for spousal support (previously known as alimony) does not apply to annulments.

Q: Can I be awarded attorney fees if I file for an annulment?

A: Generally, no. The main statute that allows a party to recover attorney fees does not apply to annulments. However, courts may award fees in civil cases where fraud is involved. Courts have awarded attorney fees to parties who have obtained an annulment on the grounds of fraud.

Q: Do I need an attorney to file for an annulment?

A: All persons have the right to represent themselves in any case. However, because the grounds for annulment are complicated and the actions the court must take in annulment cases are not always clear, it would be in your best interest to hire an attorney.

Q: How long can it take to get an annulment?

A: Just as with divorce cases, it depends on the circumstances. If you and your spouse can reach an agreement, your annulment can be completed within several months. If an agreement cannot be reached, and the case must be tried before the court, the case can last a year or more.

Q: How can I decide whether to file for a divorce or an annulment?

A: You should consult an attorney who practices in the area of domestic relations. If you have grounds for both divorce and annulment, you will want to consider the amount of property you have and the relief (financial compensation) you need. You can obtain certain types of relief through a divorce case that you probably cannot obtain through an annulment, such as attorney fees and spousal support. If the facts of your case indicate that you are likely to receive an award of attorney fees or spousal support, an action for divorce would give you access to these remedies while an annulment would not. Similarly, the equitable division of marital property possible through a divorce case may be a better option for you than an annulment if you have accumulated a great deal of marital property.

Q: Will an annulment cost me more than a divorce?

A: Generally, no. In fact, since most grounds for annulment come up rather early in a marriage, there often is not as much work for the attorney to do. Otherwise, the attorney fees charged for an annulment should not be much different from fees charged for a divorce.

TERMINATION OF MARRIAGE-DISSOLUTION VS. DIVORCE

Q: In what ways can a marriage be ended?

A: Marriages may be legally ended in one of two ways–divorce or dissolution of marriage. In order to obtain a divorce, one party must allege that his or her spouse has been at fault under one of the statutory grounds. The only true “no fault” grounds for divorce permitted by Ohio is “living separate and apart for one year without interruption and without cohabitation” and incompatibility not denied by either party

Q: What are “fault grounds”?

A: Fault grounds are legally “acceptable” reasons why one spouse decides to bring the other to court to ask for a divorce. These fault grounds, by law, include adultery, willful absence for more than one year, extreme cruelty, habitual drunkenness, gross neglect of duty, fraudulent contract, imprisonment in a state or federal penal institution, and procuring a divorce outside this state if the Ohio spouse is still bound to the marriage. A divorce cannot be granted, however, unless the testimony of the complaining party is supported by a witness.

Q: What happens in a divorce proceeding?

A: The divorce proceeding begins with the filing of a complaint. Following this, divorce “papers” are served to the other party, but the divorce cannot be granted for at least six weeks after the other party is legally notified. This six-week time period is a cooling-off time that allows the parties to carefully reconsider the termination of their marriage.

A party to a divorce may request the court to grant temporary orders to be in effect while the case is pending. The goal in issuing temporary orders is to preserve the family’s status quo, both financially and as to responsibilities to any minor or handicapped children. In many cases, there is insufficient income to support separate households. Temporary orders include those for designation of residential parent and allocation of the parental rights and responsibilities of minor children, child support, spousal support, and payment of attorney fees and litigation expenses.

A party also may be ordered to refrain from physically and verbally harassing the other, and to keep marital assets intact so that the court can divide them as part of its final orders.

Throughout the divorce process, hearings may take place to determine the merits of temporary requests or to make a party comply with the court’s temporary orders.

While a divorce case is going on, each party has the right to find out about all property, marital or not, owned by either or both parties. Professionals are often brought in to determine the value of assets such as real estate, businesses, and pension plans. These professionals can be brought into court through the use of subpoenas.

In Ohio, there are no jury divorce trials. Divorce cases are either settled by agreement of the parties or tried before a trial judge or magistrate. If a case is settled, the agreement becomes the court’s order. One or both of the parties may obtain the divorce without lengthy testimony about the grounds for the divorce, and it may not be necessary for more than one party to appear at the final hearing.

If a divorce case is contested all the way through a trial, and one or both parties are unhappy with the court’s decision, an appeal may be filed with the court of appeals. A three-judge panel will review the court’s decision.

Q: What is a dissolution of marriage, and how is it different from a divorce?

A: A dissolution of marriage process may eliminate much of the divorce process and expense. Unlike a divorce, fault grounds are not at issue. Dissolution is often thought of as no-fault divorce.

A dissolution petition is not filed with the court until the parties have reached an agreement on all the issues that must be addressed in a divorce matter. Designation of a residential parent, parental rights, visitation, child support, spousal support, division of property, payment of debts, and payment of attorney fees must be considered in either case.

While the parties are negotiating, there is no subpoena power available, so the parties must voluntarily trade information. Professionals can, however, be hired to evaluate property, etc.

When an agreement is reached and filed with the court, a hearing must take place within 30 to 90 days. Both parties must appear and testify that they are satisfied with the agreement; that they have made full disclosure of all assets and liabilities; that they have voluntarily signed the agreement; and that they both want the marriage dissolved. The court must also approve the parties’ agreement.

Because there is no court involvement until an agreement is reached, all the temporary orders and possible hearings that might occur in a divorce case are avoided. The end result of both a divorce and a dissolution of marriage is the same: the marriage is terminated.

ATTORNEY-CLIENT MEETING

Q: What can I do to make the most of my time with a divorce attorney?

A: By working with your attorney and assisting him or her by providing necessary information, you can:

1. Save money on attorney’s fees
2. Educate yourself about the true financial picture of your marital estate
3. Increase your understanding of the divorce process, which may, in turn, increase your chances for a better settlement
4. Better understand the complexity of your own divorce case and the advice your lawyer will provide

Q: What should I do to prepare for my first meeting with my attorney?

A: Since the law looks at a marriage like a business partnership, the court will be dividing your assets and liabilities at the termination of that partnership. In order to do that, the court will need an inventory of all property and the value of each asset, as well as a list of creditors and the amount of each debt. If the court needs this information, it only stand to reason that your divorce lawyer will need it first.

Try to locate the following, bringing everything to your first interview:

1. Your tax returns for the last five years with all attachments, and your spouse’s, if you did not file jointly
2. Net worth statements, if available
3. Descriptions of retirement plans (Summary Plan Descriptions or SPDs)
4. Statements of individual retirement accounts (IRAs)
5. Deeds to all real estate owned by either you or your spouse
6. Real estate tax bills
7. Declaration pages of all life insurance policies
8. Information about all group life insurance policies which you and your spouse have through your employment
9. Medical insurance information for yourself, spouse, and children
10. All bank accounts, numbers, and balances, and the exact names on each account
11. Records of stocks, bonds, and brokerage accounts
12. The exact names of all businesses, companies, partnerships, and corporations in which you or your spouse have an ownership interest
13. All trust agreements and trust accounts in which you or your spouse is a trustee or beneficiary
14. Records of all safety deposit boxes owned by you or your spouse
15. All written appraisals of any property owned by you, your spouse, or both
16. Records of all credit cards (VISA, MasterCard, department store or gas cards, etc.), including the exact name(s) on each account, the account number, account balance, and charges and cash advances for the last year
17. Records of all loans, whether from a bank or relatives, the dates the loans were made, amount borrowed, balance due, monthly payment, and the purpose of the loan
18. Records of all mortgages on real estate, the date and amount the mortgages were made, balance owed, and monthly payment. If the monthly payment includes real estate taxes and insurance, identify the amount for real estate taxes as well as the amount for insurance. Also identify the amount that goes to principal and the amount towards interest. If the monthly payment is for the mortgage only, identify the amount for real estate taxes and the amount for insurance.

Q: Should I postpone my appointment if I cannot locate all of this information?

A: Absolutely not. It is important for your divorce lawyer to be able to identify the information you cannot locate. Your divorce attorney will discuss with you what legal steps may need to be taken in order to obtain the information.

Q: Is there any other information my divorce lawyer needs?

A: Be prepared to tell your divorce lawyer why you or your spouse wishes to terminate your marriage. You should be able to identify specific reasons, apart from emotional reasons, such as, “I don’t love my spouse anymore”. Think about underlying reasons and focus on how and why your marriage has changed. Do not be concerned that your first account is the only one your divorce lawyer will hear.

Q: Should I ask questions in the initial interview?

A: Yes. Bring with you a written list of questions you have. You will find that, during the initial interview, many of your questions will be answered so wait until your attorney asks for questions. You will also find that you have thought of new questions as a result of your divorce lawyer’s explanation of the divorce process. Remember, there is no such thing as a dumb question, only an unasked question.

Q: How can prepared information for my divorce lawyer help me?

A: The more work you are willing to put into your own divorce, the more money you will save and the better the result you will obtain for yourself and your family.