Almost All You Ever Wanted To Know About Divorce
By: Jack W. Abel
Managing Partner, Abel & Zocolo Co., L.P.A.
Chances are that if you are reading this article you have been married for more than three years, you have two or more preschool and school age children, and you are contemplating a divorce. Chances furthermore are that you have sought counseling on one or more occasions, that things are getting worse instead of better, and that you simply don’t know which way to turn. Chances are also good that you have spoken to a lawyer on at least one occasion in the past and that you are still terribly confused about what to expect in a divorce proceeding. Although every case is different, the following may serve to answer some of the more common questions.Initially, the two basic forms of divorce in Ohio are Dissolution of Marriage and regular divorce proceedings. Although both result in the termination of your marriage, the procedures are somewhat different. A dissolution of marriage is essentially a “no fault” divorce with neither side having to prove how terrible the other has been during the marriage. The advantages of a dissolution of marriage are that it generally is faster (thirty to ninety days following the signing of the papers), that it is less expensive (less court time is involved) and that it is somewhat emotionally less traumatic (fault or improper conduct on the part of your spouse need not be proved). As good as this may sound, however, this procedure is not for everyone. A dissolution can only be used when both parties are in agreement that they want the marriage to end, and before it can be filed with the court, a separation agreement must be signed by both parties providing for all terms regarding child custody and support, spousal support (alimony), visitation and total division of all property. Obviously, in order to take advantage of a dissolution of marriage, both spouses must be able to communicate well enough with each other to be able to agree that marriage should be ended, to decide among themselves issues of child custody, support and visitation, and must be able to agree about how the property will be divided. Although reaching such an agreement may seem to be out of the question, consultation with an attorney and negotiation between attorneys often can result in the setting forth of reasonable guidelines upon which you and your spouse may be able to agree.
In the event, however, that you and your spouse can barely speak, let alone agree, that custody of your children is an issue, or that your spouse simply does not want a divorce, your only alternative is to file for a divorce. The disadvantages are that a divorce is generally more costly than a dissolution. It may be bitterly contested (especially if custody is involved) and usually takes more time than a dissolution of marriage. A divorce may also involve depositions, several court appearances and an ultimate knock-down, drag-out trial. A divorce proceeding may also, however, be much less difficult than anticipated, and more often than not, will ultimately result in a separation agreement similar to that of a dissolution of marriage. Once such an agreement has been reached, your case can be heard and concluded in a very short period of time. Experience has shown, that very few divorce proceedings ever go to a contested trial, and then, only in those few instances where either large amount of money or custody is bitterly disputed.
Notwithstanding the fact that the vast majority of divorces are resolved prior to trial, there are several real problems that always must be faced pending a divorce. The most common problem is that of finances. Although the law provides that support must be paid for both the spouse and the children during the interim of the divorce, such temporary support should not be relied upon as it may take several months before it is actually received. Initially, a motion for support must be filed with the court and the court’s order for support may not be made for up to two months following the filing of the divorce. Additionally, once the order is made, it must be processed with the spouse’s employer before it is regularly deducted. Therefore, you should be prepared to shoulder the financial responsibility while your divorce is pending.
Another major problem often encounters is actual violence or fear of violence by your spouse. Fortunately, this can often be prevented by the use of restraining orders, easily available at the time of the filing of the divorce. Simply stated, the court will issue, without the need for a formal hearing, an order restraining your spouse from causing you any physical or emotional harm or distress. To do otherwise, will place your spouse in immediate contempt of court for which he may be subject to jail or other penalties. Other restraining orders that may be equally available are orders preventing your spouse from selling or disposing of any personal or real property, orders preventing your spouse from disposing of certain types of bank accounts or cancelling insurances, and orders permitting you the use of an automobile.
A divorce may well be one of the most difficult experiences that you will have to face in your life. It does not, however, need to be devastating. There are protections and guidelines that have been incorporated into the legal process. If a divorce is nonetheless imminent, know your rights and options and above all, seek competent legal assistance. Such assistance will ensure your rights and may help to make a difficult experience bearable.
Jack W. Abel is the former chairman of the Family Law Section of the Cleveland Bar Association. He is a mentor for the Ohio Supreme Court Mentoring Project, a former Guardian ad Litem for the Court and focuses on all family law matters including divorce, custody, juvenile and paternity matters.