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The following list discusses
some of the most common myths and misconceptions about
divorce
in Ohio. The information provided in these Divorce Myths is very
general information and is not
intended to be specific legal advice.
If you have a question about a specific legal issue, you
should contact
an attorney for assistance.
Myth #1: Litigation
is the only alternative to resolve domestic
relations law disputes.
Litigation is not the only way. There are a number of interest-based alternatives to litigation including: collaborative law and principled negotiations. Mediation and arbitration may also be viable alternatives. While each alternative is not always appropriate in each unique situation, many situations do present one or more alternatives for the client and the attorney to jointly consider.
Myth #2: One
lawyer can represent both parties in a Petition
for Dissolution.
This belief is completely false. A lawyer may not represent both spouses in a dissolution of their marriage. The lawyer may never appear as counsel of record for both parties in the proceeding. Under certain circumstances, a lawyer may represent one party to the dissolution and prepare the marital Separation Agreement; but, even under these circumstances, both parties should have separate counsel for advice.
Myth #3: The only grounds for divorce are fault grounds.
In Ohio, there are two "no fault" grounds: (1) living separate and apart without cohabitation for one year, and (2) incompatibility, unless denied by either party. Either one of these "no fault" grounds entitle a spouse to a divorce, whether or not traditional fault grounds exist.
Myth #4: All property is split equally in a divorce.
The notion that all property owned by either spouse is divided equally between the parties is inaccurate. First, all property owned by either is identified and categorized as either separate or marital property. If one spouse is able to show that some specific property is his/her own separate property, then that spouse is generally allowed to retained said property. On the other hand, property categorized as marital property is divided equally between the parties unless the court determines that an equal division would be inequitable. Therefore, if it is determined that an equal division of marital property is inequitable, the court may divide the marital property between the spouses so as to effectuate an equitable (but not necessarily equal) result.
Myth #5: The
court has a statutory table for computing spousal
support (alimony) similar
to that
of child support.
Just because the court has a statutory formula to calculate child support does not mean that such a formula exists for calculating spousal support. Although our state's legislature has been considering the implementation of a spousal support formula (to ensure greater consistency and predictability in spousal support awards), no such formula has yet been enacted and it is indeed error on the part of a court to implement a formulaic approach. Instead, the courts have wide discretion to determine the amount and duration of spousal support awards on a case by case basis, after taking into consideration the statutory factors currently in place. Those statutory factors include: the relative earning abilities of the parties; the ages and health of the parties; the retirement benefits of the parties; the duration of the marriage; whether either party should stay home to care for minor children; the standard of living established during the marriage; the assets and liabilities of each party; the contribution of either party to the education, training or earning ability of the other spouse; the time or expense necessary for a spouse to obtain appropriate education or training; the tax consequences of a support award; the lost income capacity of a spouse resulting from marital responsibilities; and any other factor the court finds relevant.
Myth #6: If there is shared parenting, then there is no child support.
The designation A shared parenting refers to sharing both parenting time with, and decision making for, the children. Whether or not there is shared parenting, child support is still calculated pursuant to statute. In the event that the child support obligor enjoys extraordinary parenting time with the children pursuant to the Shared Parenting Plan, then the court may consider deviating from the statutory calculation on that basis. However, there is no automatic reduction or elimination of the child support obligation merely because the parties agree to shared parenting.
Myth #7: The
court's standard parenting time (visitation) schedule
is the only acceptable
schedule.
The court's standard parenting time schedule is just a guideline. The court may, and frequently does, deviate from those guidelines based on a number of statutory factors. Additionally, the parties have the ability to create their own parenting time schedule.
Myth #8: A pension is not property that can be divided.
When preparing for divorce, many people incorrectly assume that pensions cannot be either valued or divided. Virtually every pension (or other retirement plan interest, stock option, etc.) can be valued and the marital component of the pension can be divided equally as marital property. Ohio law concerning pensions and other similar assets is complex and may require that you seek the advice of an experienced legal professional.
Myth #9: A
prenuptial (antenuptial) agreement is absolutely
binding no matter the circumstances.
A prenuptial agreement is a contract that sets forth the parties rights and obligations in the event of divorce and/or the death of either party. As with all contracts, the law provides requirements for its enforceability, including, without limitation: it must be in writing; there must be full disclosure; it must be supported by adequate consideration; it must not violate public policy; and it must be executed without duress or overreaching. Further, in Ohio, spousal support provisions in prenuptial agreements are examined for fairness as of the date of the enforcement of the agreement, not as of the date of the execution of the agreement. Due to these requirements and limitations, a party seeking to enforce or nullify a prenuptial agreement should consult with an attorney. Finally, to avoid potential pitfalls, parties wishing to enter a prenuptial agreement should consult with their attorneys well in advance (several months) of their planned nuptials.
Myth #10: If
you move to Ohio, then your domestic relations case
automatically moves
with you.
Many people associate residency with jurisdiction. It may be logical to associate the two, but jurisdictional issues can be much more complex than just looking at one's residency. Determining what state has jurisdiction may involve a variety of factual issues, and often depends on the specific issue involved (e.g., custody, child support).
Myth #11: A party is powerless to enforce a court order.
There are certainly ways to enforce a court order. A party who wishes to enforce a domestic relations court's judgment or order can bring a motion for order to show cause and/or other motions to enforce the court's order. If the other party is found by the court to be in contempt, a reasonable amount of attorney fees may also be awarded to the enforcing party.
Myth #12: All attorneys are alike.
Many people say that all attorneys are alike. This notion could not be farther from the truth, especially when it comes to choosing a family law attorney. There are as many different philosophies and approaches to family law cases as there are family law attorneys. Further, some family law attorneys are certified specialists and/or exclusively practice in family law, whereas others are just general practitioners who do not necessarily concentrate in this area. It is extremely important to take the time to carefully select a family law attorney who has the qualifications, philosophy and approach with which you will feel comfortable, and who will provide you with the alternatives you desire.
The information provided
in these Divorce Myths is very general and there
are
always exceptions to
every rule. Please
contact an attorney if you have a question
about a specific legal issue.
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Cleveland, Ohio 44113