TOLEDO DIVORCE LAWYER

CONTESTED VERSUS UNCONTESTED DIVORCE

Not every divorce ends up in court before a judge. Instead, a couple can agree to an uncontested divorce. This is the easiest way to get divorced and undoubtedly the fastest. With an uncontested divorce, a couple agrees to the following:

• Child custody
• Child support
• Division of marital property and debts
• Spousal support (once called “alimony”)

If you can come to an agreement, you should draft and both sign a settlement agreement. Then you submit the agreement to the judge for review. Most judges will sign off on a settlement agreement so long as it is not unreasonable. However, not every couple can agree, even when they have the best intentions, so some divorces are contested. This means a judge will need to decide the issue you are deadlocked on. A contested divorce can take a year or longer from start to finish.

CHILD CUSTODY

Child custody refers to the rights and responsibilities each parent has with his or her children. It can include the ability to make important legal decisions for a child as well as the right to have physical possession of the child. Child custody can be shared between parents, or one parent can be named the residential parent and legal custodian. Even when parents share custody, this does not mean each has the child for 50% of the time. The necessity of attending school means that one parent usually has more time with the child. A parenting plan will lay out when each parent has the children. Parents are free to come up with a parenting plan that works for them. When parents cannot agree, then a judge needs to award custody based on the “best interests of the child.” This concept is a little vague but requires that a judge look at many different factors, which are listed in ORC 3109.04(F)(1):

• The physical and mental health of the children and parents
• How well children have adjusted to school and home, along with the community
• The child’s relationship with each parent and siblings
• Whether either parent has willfully denied the other parent time with the children
• Each parent’s wishes
• The child’s wishes (with relative weight being given depending on the child’s age)
• Whether either parent or a household member has a history of child abuse or neglect

Judges can look at any factor that seems relevant. If you are seeking shared parenting, a judge will also look at other factors, such as the ability of parents to agree and communicate. Meet with an attorney to determine how a judge might analyze your own situation.

CHILD SUPPORT

Child support is fairly easy to determine because the state has created guidelines judges use to determine an amount. The judge plugs certain information into the guidelines:

• Each parent’s income
• The amount of time each parent has with the child
• The number of children to be supported

The guidelines then spit out a monthly number. Parents do not have the power to waive child support on behalf of their children because child support belongs to the child.

Judges can also depart from the guideline amount, ordering more or less, although there needs to be a good reason for doing so. For example, a child might have high medical expenses due to a disability, which warrants more support.

DIVISION OF MARITAL PROPERTY

SPOUSAL SUPPORT (ALIMONY)

Spousal is money or property paid by one spouse to the other to support them after the divorce. Spousal support can be made in a lump sum or, more frequently, in monthly installments.

Once upon a time, judges typically ordered alimony because wives did not work and were financially dependent on their husbands. After divorce, wives would see their finances drop dramatically. To mitigate the unfairness, a judge would award alimony.

Today, more women work than ever before. There is no assumption that a wife is entitled to support after divorce. However, judges will sometimes award alimony, and both men and women could qualify. A judge looks at many factors, such as the duration of the marriage and each spouse’s relative education, health, and earnings capacity.

TOLEDO DIVORCE FAQs

We Were in a Same-Sex Marriage; Will Our Divorce Be Different?

No. Folks in a same-sex marriage will get divorced according to Ohio’s divorce laws, just like people in opposite-sex marriages.

There might be unique issues in a same-sex marriage, however. For example, one spouse might be the biological parent of any children but the other spouse has not formally adopted the children. Protecting parental rights in this situation can be complicated. Review the particulars of your situation with a Toledo divorce lawyer.

How Do We Tell Our Children We Are Divorcing?

This is never easy, especially when children are young. But older children might also struggle with the news that their parents are divorcing. After all, older children probably use their parent’s marriage as a model for their own. Finding out that Mom and Dad are heading to divorce court can cause even grown children to question the solidity of their own marriages.

Ideally, both parents will be present. It is important to provide a united front. Also, it is important for both to be present so that neither spouse misrepresents the truth. It is very easy to say, “Your father wants a divorce!” when that’s not the entire truth. Of course, having both parents present is not always possible, especially with a history of domestic violence.

Schedule some quiet time so you can all be together. Make sure all children are there because you don’t want your children to hear about the divorce from someone else.

Tell your children you love them but that you are divorcing. You don’t need to go into detail or point the finger. Make sure your children understand that they are not to blame for the marriage and that both parents will continue to be a part of their lives. Also, be prepared for any reaction your children have. There is no “right” reaction. Some children have dozens of questions; others will cry; others will stalk off.

Should I Take the House in the Divorce?

Possibly. For many couples, their home is their largest asset. However, it is also an expensive asset that needs regular upkeep. You should talk to your divorce lawyer about what assets you should request. Some of the negatives of a home are:

• Costs of maintenance and insurance
• Difficulty selling (depending on the market)
• Possible continuing mortgage payments

Other assets, like retirement accounts, might be better choices for you, depending on the circumstances. Retirement accounts could be less expensive and more easy to convert into an income stream when it is time to retire.

Of course, some people request the home because they intend to live in it and raise the children after the divorce. However, it is possible for both spouses to get a share of the home but delay the sale until the children are grown. Talk about these options with your attorney.

Who Gets Our Pets?

Although you might consider Fido a member of the family, Ohio law considers pets’ personal property. This means your dog or cat or rabbit is really no different than the living room sofa—at least as far as Ohio marital property law is concerned. A couple can reach an agreement to determine who gets the pets.

What happens if a couple cannot agree? Unfortunately, judges will not decide “custody” of pets like they do children. A judge also will decline to come up with a “parenting plan” and visitation schedule—though owners are free to do this themselves.

If you can’t agree on who gets the pets, a judge will need to decide on this issue.  A judge will look at many factors, such as who has had primary responsibility for taking care of the pet, who has bought most of the pet supplies, and which spouse has bonded the most.

I Signed a Prenuptial Agreement, but Can I Get It Set Aside?

It will be difficult. So long as the prenuptial agreement was valid, a judge will enforce it. You might be able to show the agreement was invalid if it was not obtained voluntarily. For example, you might have been lied to or coerced. Your spouse might have sprung it on you the night before the wedding, in which case you didn’t really have time to read it. However, it is very difficult to get it set aside, and judges have upheld prenuptial agreements in most circumstances.

Prenuptial agreements don’t have to be fair. But they also can’t be so one-sided that a spouse ends up on public assistance after a divorce. For example, if a prenuptial agreement denies a disabled spouse any alimony, a judge might set it aside.

Can We Hire a Toledo Divorce Attorney on Contingency?

No. With a contingency agreement, a lawyer does not charge attorneys’ fees. Instead, he or she takes a cut of whatever money you earn in a settlement or a jury verdict. Unfortunately, Ohio’s Rules of Professional Conduct, Rule 1.5, does not allow contingency agreements in divorce cases. We will be happy to discuss how we bill for divorce cases if you schedule a free consultation.

Can I Still Get Divorced if I Can’t Locate My Spouse?

You can, though the process is more cumbersome. You will need to convince a judge that you have performed a diligent search for your spouse. Generally, this requires that you contact your spouse’s family and try to track down your spouse’s current location. You should fully document your search. You will also need to advertise the divorce in a newspaper for a certain number of weeks. Contact an attorney to review the required steps.

Can a Child Decide Who to Live With?

This is not your child’s choice to make alone. A judge analyzes what is in the child’s best interest by looking at all relevant factors. However, a judge certainly considers what your child wants. And the older your child is, the more weight a judge will give his or her preference. It is hard to force a 17-year-old to live with a parent he doesn’t want to, and many judges recognize this fact.

TEMPORARY ORDERS

Temporary orders last just for the duration of the divorce when the judge replaces them with permanent orders. Some Toledo divorce lawyers overlook the importance of temporary orders. We don’t.

The problem is that judges do not like to disrupt the status quo, and it is very easy for temporary orders to ripen into permanent ones. Here is a common scenario:

When a couple agrees to divorce, the husband moves out of the house, essentially giving physical custody of the children to his wife. He also might not keep close contact with his children because he is busy with work and travelling a lot. A judge might quickly award temporary custody to the wife, and this sets the stage for the wife to get a permanent physical custody award in her favor once the divorce has finished.

Instead of quickly agreeing to temporary orders, you need to carefully consider how they will affect the final divorce orders.

CONTACT A TOLEDO DIVORCE LAWYER AT GROTH & ASSOCIATES

Divorces are messy, but the right attorney can simplify the process and protect your rights. Contact us today to schedule your free consultation.