Divorce is the legal means of ending a marriage. Depending on how long you have been married, whether or not you have minor children, and the amount of assets or debts that you have accumulated during your marriage, a divorce proceeding can be a very complicated and often frustrating process.
A divorce complaint — as opposed to a dissolution petition — is filed when the parties are not in complete agreement as to all the terms for ending their marriage at the beginning. Most cases will fall into this category.
Filing a Divorce
A divorce can be filed in Ohio if the filer has has been a resident of Ohio for at least six (6) months, and a resident of the county where the divorce is to be filed for at least ninety (90) days.
The case is initiated by the filing of a complaint which sets forth certain basic information about the parties, alleges the ground for the divorce, and requests relief such as custody, a particular division of property and debt, spousal support, and child support. The complaint is accompanied by certain affidavits which provide basic financial information to the other side and provide the court with information about the children, if any. Generally, we also file certain motions and temporary orders with the complaint that will provide for temporary custody of minor children, protection of the parties, and support.
Temporary Orders
In general the court will award temporary custody at the onset of the case to the parent that has physical custody of the children, and order the other parent to pay child support. In cases where there is a drastic discrepancy in the parties income, the court can and often does award the party with the higher income to pay for the attorney’s fees of the party with the lower income.
Although temporary orders are made early in the case and these orders can be modified by the court at any time, temporary orders are very important for three reasons:
- It is not unusual for a divorce case to remain pending for one year or more during which time both parties will be legally bound by the temporary orders,
- The temporary orders set boundaries for the relationship of the parties during the pendency of the divorce case and give an opportunity for the parties to calm down and accustom themselves to their new relationship, and
- In some cases, the court makes a final ruling which is similar to the temporary orders the parties have been under while the case is pending.
For this reason, it is very important for the case to be exceptionally well prepared by the attorney prior to any temporary orders hearing in order to achieve the most favorable outcome for the client.
Responding to a Divorce Complaint
The defendant has twenty-eight (28) days in which to respond to the complaint from the day it is served on the defendant. The answer will be accompanied by affidavits similar to the ones filed by the plaintiff. After the defendant answers, the court will set the matter for a preliminary scheduling conference. At this hearing, the court will get a picture of what the issues in the case are and how long it will take to complete the case. The court will issue a scheduling order the provides deadlines for completing certain aspects of the case and will also schedule hearings on any temporary orders or motions to modify, if necessary.
Soon after the complaint for divorce is filed, the attorney is obligated to engage in discovery. This is a legal term meaning exchange of information. Written questions, which are called interrogatories, will frequently be sent to the other party along with a request for the production of documents. It is also common for wage information, monetary and credit account information, and other financial data to be obtained from employers, banks, and other financial institutions in the early stage of the case. This is done by the issuance of subpoenas to these institutions.
If we represent the plaintiff, then we will generally serve the discovery requests with the complaint and summons. If we represent the defendant, then we will generally serve the discovery requests with the answer and counterclaim.
In many cases, it is necessary to take depositions. Depositions allow your attorney to question the other party or witnesses under oath and gather information about assets, debts, income, expenses, child custody, medical issues, criminal issues, or any other matter that may be lead to the discovery of admissible evidence.
Settling the Divorce
During and after the conclusion of the discovery phase of the case, the attorneys and the parties will have settlement discussions. Many divorce cases end in an agreement between the parities, but this is usually not possible until after the discovery has been completed and the parties have sufficient knowledge to intelligently settle the case. At Allen Law Firm, we make sure that we gather all the necessary information to put our clients in the best position possible to negotiate a favorable settlement.
Divorce is a complicated legal process. When a marriage is terminated by divorce, the court must allocate parental rights and responsibilities (also known as determining custody), make a child support order where appropriate, determine whether either party should pay the other party spousal support (formerly known as alimony), and equitably divide the parties’ assets and debts. After temporary orders are issued, the court will schedule a pretrial hearing. The purpose of the pretrial hearing is for the attorney to explain to the Judge what the case is about, clarify areas where the parties can agree, and identify those areas where the parties disagree. At this point in the case, all financial information and any needed appraisals of assets such as real estate or business interests should be completed. The Judge will attempt to assist the parties in reaching a settlement. If no settlement can be reached, a trial will be scheduled at a future date and the attorney will attempt to reach a fair settlement while continuing to prepare the case in order to present evidence for the Court to decide contested issues at the final trial.
If the case cannot be settled, then it will proceed to trial On the day of the divorce trial all witnesses must be prepared to testify and all documents ready to be presented to the court. Each party will present his or her case. This can take anywhere from several hours to several days or more, depending on the nature and complexity of the issues within the divorce or child custody case. At the conclusion of all the evidence, the court will usually take the case “under advisement,” which means the judge will consider all the issues and write an opinion and judgment entry to be sent to each party after the divorce trial is over.
Careful preparation, planning and aggressive presentation are the most important ingredients of any successful divorce or custody trial.
For aggressive, effective representation in complex divorce and custody matters, contact the Allen Law Firm NOW.
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