Ohio Divorce Law - Filing for Divorce Frequently Asked Questions

How may a marriage be terminated or ended in Ohio?

In Ohio, a marriage can be terminated through court actions of divorce, dissolution, annulment, or the death (or presumed death) of one of the parties (a presumption of death requires an unexplained continuous absence from the home for a full seven years).

What is the difference between "divorce," "dissolution," and "annulment?"

A "divorce" is a court judgment that a marriage is legally over. The court will only enter a judgment of divorce if it finds that certain grounds for divorce exist. A divorce puts an end to the marital relationship.

A "dissolution" of marriage is a way to end the marriage without a determination of fault, where both spouses have agreed upon all of the terms of the dissolution (such as division of marital property, spousal support, parental rights and responsibilities, child support, etc.) and are requesting that the court terminate the marriage and approve their agreement. A dissolution is not adversarial (the parties have already agreed upon every aspect of the termination, and the court does not have to make any of the decisions it would have to make in a contested divorce. Additionally, it is usually concluded faster and with less expense than a divorce action.

An "annulment" is a court decree that a marriage is legally invalid because of some defect that existed at the time the marriage was entered into. An annulment decree declares that a marital status never existed, unlike a divorce or dissolution judgment, both of which end the marriage. The grounds for an annulment include: an underage marriage; bigamy (one of the parties has another living spouse); mental incompetence of one of the parties; fraud; duress and nonconsummation of the marriage (which may include impotence).

What is necessary in order to obtain a divorce in Ohio?

In Ohio, in order to grant a divorce, the trial court must find:

• at least one spouse must have been a resident of the State of Ohio for at least 6 months immediately prior to the filing of the complaint; and
• that "grounds" (legal reasons) for divorce exist for the granting of the divorce.

What are "grounds" or legal reasons for divorce in Ohio?

Ohio law permits the granting of a divorce only upon a finding by the court that there are statutory grounds to terminate the marriage. There must be testimony by the plaintiff and a corroborating witness (or an admission by the other spouse) as to these specific grounds.

Ohio has both "no-fault" and "fault" grounds for divorce. The "no-fault" grounds include "incompatibility" and "living separate and apart without cohabitation for one year." There are nine "fault" grounds in Ohio. These "fault" grounds include:

1.  another spouse living at the time of marriage (bigamy);

2.  willful absence of a party from the marital home for one year;

3.  adultery;

4.  extreme cruelty (defined as "acts conduct calculated to destroy the peace of mind and happiness of one of the parties to the marriage");

5.  fraudulent contract (for example, one spouse was induced to enter the marriage as a result of a fraudulent representation that materially affects the essential elements of the marriage);

6.  gross neglect of duty (for example, a failure to support the family);

7.  habitual drunkenness;

8.  imprisonment of the adverse party in a state or federal institution at the time of the filing of the complaint; and

9.  an out-of-state divorce.

How is a divorce case started in Ohio?

A divorce case is commenced by the filing of a "complaint." The spouse who files the complaint is called the "plaintiff." The other spouse is called the "defendant." The complaint must allege that the plaintiff has lived in Ohio for the required period of time (6 months) immediately prior to the filing of the complaint and must indicate the date and place of marriage along with the name and birth dates of any minor children. There must be an allegation of at least one of the statutory grounds for divorce, and the complaint must contain a demand for the relief being requested from the court.

The plaintiff must serve (deliver the papers to) the defendant in order to allow the court to make decisions. There are several methods of service available, even if the defendant spouse lives in a state other than Ohio.

The defendant spouse should then file an "answer" to the complaint, admitting or denying the allegations. The defendant may also raise any defenses to the allegations, or file a "counterclaim" asserting claims against the plaintiff spouse. If the defendant spouse files a counterclaim, the plaintiff must file a "reply," either admitting or denying the allegations contained in the counterclaim and raising any defenses that the plaintiff may have.

What if the defendant spouse cannot be located or evades service of the complaint?

If you can’t find the defendant spouse, you can publish the complaint in the newspaper if you get the court’s permission. Service by publication permits the court to rule on the status of the marriage and the marital property located within the state. Unless the defendant has been personally served or has voluntarily entered an appearance in the case, however, the court cannot rule on property outside the state and cannot make a ruling on spousal support.

What if the defendant is served with the complaint but does not file an answer or otherwise make an appearance in the case?

The court rules in Ohio don’t allow judges to grant a default judgment in a divorce case—meaning, they aren’t allowed to rule against a party who hasn’t appeared in court without a hearing. Instead, where the defendant has been personally served but has failed to file an answer or otherwise appear, the plaintiff must present sufficient evidence to establish a case for divorce, and then the court can grant the divorce and rule on the division of property, parental rights and responsibilities, and any support orders.

What happens after the filing of the complaint and answer/counterclaim?

While the divorce case is pending on court, either spouse can request temporary orders for child support, spousal support (alimony), parental rights and responsibilities (commonly referred to as temporary custody or visitation rights), and any other temporary order that may be called for, such as a temporary restraining order to keep either spouse from removing the children from the jurisdiction of the court or restraining one or both spouses from harassing, threatening, or physically abusing the other.

During this time one spouse may ask the court to order psychological evaluations of the other spouse or the children, or a home study, to aid the court in making decisions about custody. The spouses may use discovery procedures, such as interrogatories and depositions, to ensure each spouse has all the financial and other information needed to present a case. Either spouse may hire experts to appraise property and businesses.

The court will probably hold one or more pretrial hearings during this time in an attempt to determine whether a mutually agreeable resolution of the case can be had and, if not, what issues will have to be decided at trial. If the case cannot be resolved, the court will set dates for the conclusion of the discovery procedures, for the production of expert reports and evaluations and for the date of the final hearing (trial).

Can the children's interests be protected?

The court can appoint a "guardian ad litem" (GAL) at the request of either party or upon the court's own motion to represent the interests of the minor children of the parties. The GAL is usually an attorney familiar with domestic relations law, whose job is to act in the best interests of the children. The parents will generally be required to pay the fees of the GAL if they are able to do so. The GAL will be asked to make recommendations to the court and will have considerable influence when it comes time for the court to make determinations relating to the children.

Is there a right to a jury trial in a divorce case?

No. Ohio does not permit jury trials in divorce cases. If the case goes to trial, the judge will make the final determinations.

What are the major legal issues in a divorce case?

Generally, the major issues in divorce cases are the grounds for the divorce, parental rights and responsibilities (custody, child support, and visitation), spousal support (alimony), and the division of the marital property and debts of the parties.

How does the judge make a final decision?

Both spouses will provide the judge with information and documentation regarding all of the issues relevant to the case. The court will hold hearings and a trial where the parties present witnesses, including expert witnesses, testimony, and any other evidence that is properly admitted at the time of trial. The judge will consider the recommendations of the guardian ad litem, if one has been appointed. The judge may interview the children if requested or if the judge feels it would be helpful. The judge is then required to make a decision based on the evidence presented and the law.

What if I'm not happy with the judge’s final decision?

A party who is not satisfied with the final decision of the trial judge has a right to appeal the decision to the Court of Appeals. Appeals are expensive ($10,000.00 - $15,000.00 is probably the minimum cost) and there is no guarantee that an appeal will be successful. Generally, the only matters that can be appealed are that the judge has abused his or her discretion or that the judge misapplied the law in making the final determination. An appeal is not a new trial. It is a wholly strictly a legal proceeding where no witnesses or evidence are presented. An appeal is based solely on the proceedings in the trial court and whether or not substantial justice was done.