Ways of Terminating a Marriage in Ohio
Most Ohioans are aware that Divorce is not the only option for a separating couple. In Ohio, a marriage may be terminated by:
Note: that when the parties chose to pursue a Dissolution of marriage they must submit, and the Court must accept, a Separation Agreement that delineates how property will be distributed and determines all child custody issues (i.e., who will be the “residential parent” of the minor children and the amount of spousal support, if any, that one spouse will pay to the other). Please also note that a “Legal Separation” does not terminate the marriage at all. For a greater discussion of Legal Separation, please see the section specific to that proceeding.
An annulment is fundamentally different from a divorce or dissolution under Ohio law in that an annulment proceeding basically avoids the existence of a valid marriage altogether for reasons that existed at the time the parties entered into the marriage. In other words, a party seeks an annulment when they eventually learn of reasons they should not have been married in the first place, but he or she learns of these reasons only after they have married their spouse. An annulment declares that for some reason the parties were not able to validly marry at all. The marriage is effectively voided as having been inappropriate from the start and the parties do not accrue any rights whatsoever because they were never validly married (e.g. there is no martial property that the parties each have an interest in).
In contrast, a divorce (or dissolution) proceeding is based upon reasons for separating that arise after the marriage was validly entered into by the parties. A divorce or dissolution recognizes that the parties were validly married, but now they are terminating the marriage for reasons that arise after the valid marriage was entered into (e.g. incompatibility or adultery or extreme cruelty). Therefore, if the couple gets married and then one spouse cheats on another, the parties should file for divorce and not an annulment as there were no defects or disabilities at the time of the married which renders the marriage void from the start.
Annulments have a retroactivity aspect to them that do not exist with Divorce or Dissolutions. When a marriage is annulled, it is retroactive to the time the marriage was improperly entered into and it is as if the parties were never married. A divorce or dissolution simply terminate a valid marriage that did exist and continues to exist up until the time the decree is issued by the Court.
There are six statutorily enumerated grounds for having an invalid marriage annulled. The key is that the grounds listed below must have existed at the time the parties married:
(A) That the party in whose behalf it is sought to have the marriage annulled was under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;
(B) That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;
(C) That either party has been adjudicated to be mentally incompetent, unless such party after being restored to competency cohabited with the other as husband or wife;
(D) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, cohabited with the other as husband or wife;
(E) That the consent to the marriage of either party was obtained by force, unless such party afterwards cohabited with the other as husband or wife;
(F) That the marriage between the parties was never consummated although otherwise valid.
With respect to the consummation ground, it is important to remember that unless there was some form of fraudulent intent at the time the marriage was entered into, the simple refusal of one spouse to engage in intercourse with the other spouse generally does not constitute a reason for annulment.
Note: Just because there are six grounds enumerated in the statute for annulling a marriage, this does not necessarily limit the Court from considering other grounds not specifically listed. Ohio Case law should be consulted in situations where a reason to void a marriage is not listed in the statute, but is relied upon by a party seeking annulment.
There are certain defenses to an annulment action. When a marriage is voidable based upon some enumerated ground, the action may be defended on the basis that the party seeking the annulment did some act that ratified the marriage after learning of the fact, or that the party knew of the facts that could render it void at the time the marriage was entered into and went ahead and married anyway.
The date on which the action for annulment must be commenced depends on the grounds alleged. Typically, an action for annulment must be brought within 2 years of the date of the marriage when the grounds are duress or failure to consummate the marriage is advanced. When the plaintiff cites fraud as the ground for annulment, that party must bring the action within 2 years of learning of the facts that constitute the fraud. When the ground advanced for the annulment is that one party was underage, the action must be brought within 2 years of that party attaining the age at which he or she can legally marry – or by a parent or guardian before that party attains the appropriate age. If the grounds for the annulment are that a party was adjudicated mentally incompetent, that action may be brought by the other spouse (or guardian of the incompetent spouse) anytime before either party dies.
When the Court annuls a marriage (determines it void from the start), neither party has a right to spousal support. This fact is one of the distinguishing features of annulment as opposed to divorce or dissolution. However, the Court is empowered to grant temporary Spousal Support while the suit is pending in certain circumstances.
The Court in an annulment action has the power to determine child custody and child support issues, just as it does in an action for divorce. The parentage of a child may also be determined in an action for annulment as long as it is plead in the complaint for annulment by the Plaintiff. Just as with the spousal support, the Court is empowered to order temporary child support orders that control throughout the pendency of the suit.
The Court does not order the division of property in an annulment proceeding in the same manner as it does in a divorce or dissolution. Basically, the parties are returned to the same position they would have been in had the marriage not taken place.
The Court has the power to restore the wife to her maiden name when granting an annulment.
A Dissolution action is completely based on the splitting parties' consent and agreement. The major distinguisher between divorce and dissolution is that a dissolution is not based on the fault of either party, but that the parties wish and consent to split. A divorce on the other hand can only be granted if the plaintiff pleads and proves that one of the statutorily enumerated grounds for the divorce exist at the time of the filing. This is why a dissolution is often referred to as a “no-fault” divorce.
Parties to a dissolution voluntarily submit a separation agreement that determines all issues that must be decided between the separating couple. For instance, the agreement must determine all issues related to the division of marital property, child custody and spousal support obligations. In fact, when the parties file for a dissolution, the Court is not automatically empowered to determine spousal support. Rather, that issue is completely left to the parties to voluntarily agree to. Now, the parties to a divorce can (and often do) submit a separation agreement to the Court, but the Court does not have to accept the terms and can unilaterally set-down its own terms for spousal support.
In order to be granted a dissolution, the Complaint (or “petition”) for dissolution must be signed by both parties and must be accompanied by a separation agreement. The separation agreement must address all issues of division of property, child custody and child support, visitation rights of non-residential parent, and spousal support obligations. In order to have a valid separation agreement, each party must fully disclose the existence of all property (whether jointly owned or individually owned) and any failure to disclose all property can be the basis to later set aside the dissolution decree through a post-decree motion.
The absolute cornerstone of a dissolution is the agreement of the parties to both the dissolution itself as well as all the terms of the separation agreement. If the parties do not agree on the dissolution or the terms of the separation agreement, the Court does not have the power to grant the dissolution, although one party may sue the other for divorce.
One the parties sign and file the complaint (petition) for dissolution, they must appear before the Court and swear under oath that they agree with the dissolution and with the terms of the separation agreement that were incorporated into the complaint. The parties must appear for this hearing within 90 days of the filing of the complaint, but not sooner than 30 days – essentially, there is a 30 waiting period. You may see this period referred to as the “30-90 day period”.
If the separation agreement is inequitable, when viewed in light of the statute governing spousal support generally, the Court can refuse to accept the separation agreement. Should the Court do this, it would also be required to dismiss the dissolution petition altogether because the hallmark of any dissolution proceeding is agreement by the parties of both the separation agreement and desire to dissolve the marriage.
If the court approves the separation agreement (including any amendments the parties later agree to) it will grant a decree of dissolution that incorporates the voluntarily separation agreement signed by both parties. A dissolution decree has the same effect upon the property rights of the parties, including rights of dower and inheritance, as a decree of divorce. The court has full power to enforce its decree and retains jurisdiction to modify all matters pertaining to the allocation of parental rights and responsibilities for the care of the children, to the designation of a residential parent and legal custodian of the children, to child support, to parenting time of parents with the children, and to visitation for persons who are not the children's parents. Please note that just as with a divorce, the parties may submit a shared parenting plan which the Court can adopt as long as it meets with the statute governing these plans (O.R.C. 3109.04).
Note: Although the Court retains the power to modify spousal support originally determined in the dissolution decree (by way of the separation agreement), it does not have the power to modify alimony determinations, unless the separation agreement specifically states that the Court is to retain this power. Also, any modification of Spousal Support must meet the statutory guidelines and therefore the power of the Court is curtailed somewhat by those rules.
When there are minor children of the marriage, the Court may require the parties to engage in counseling for the benefit of the children. The Court also determines reasonable visitation for the non-residential parent and must include a parenting time schedule for the visitation based upon what is in the best interest of the child.
All divorces in Ohio are absolute; that is, there is no form of divorce which grants a divorce only for bed and board (like a legal separation does). All grounds for divorce are specifically enumerated in the Ohio Revised Code and are strictly the province of the legislature to determine as a matter of policy.
Divorces are only granted when the plaintiff specifically pleads and proves one of the enumerated grounds of divorce. It is important to note that some divorce grounds are also grounds for an annulment. Under statute, the following are grounds for divorce in Ohio:
Notice that the last two grounds are really no-fault grounds in that neither party must prove that the other party did anything wrong, just that the parties have not lived together for a year, or that they are incompatible.
With respect to Willful Absence for a period of one year, this means a voluntary and intentional absence by the responsible party and must be without the consent of the other spouse. If both spouses agree or consent to a separation, willful absence will not be grounds for divorce. Rather, the responsible party must unilaterally “abandon” (for lack of a better term) the other spouse for a continuous period of one year.
With respect to Extreme Cruelty, there is no precise definition available. However, extreme cruelty can generally be said to encompass acts and conduct which destroy the peace of mind and happiness of one of the parties to the marriage and thereby render the marital relationship intolerable. It is within the province of the fact finder to determine if the acts alleged have indeed made the marriage intolerable. There are, however, some acts that will likely be considered to be extreme cruelty, including the following:
With respect to Gross Neglect of Duty, this ground generally means that the defendant has failed to do some legal obligation or some obligation established by the marriage. Simple neglect is not enough - it must be severe enough or must last for long enough to constitute “gross neglect” of marital duty. Typically, the following are considered gross neglect of duty:
The difference between a Contested Divorce and an Uncontested Divorce is whether the defendant contests the grounds asserted in the Complaint by the Plaintiff. If the defendant files an Answer contesting the grounds for divorce, and/or counter-sues for divorce of their own under one of the enumerated grounds listed above, or otherwise appears in court and contests the grounds advanced by the plaintiff, the divorce is considered contested. If, however, the Defendant does not file an Answer to the divorce complaint and fails to appear and contest the evidence submitted by the Plaintiff, then the Court will proceed with the case as an uncontested divorce action. An uncontested divorce is one where the plaintiff procures a divorce in an ex parte proceeding (where the other party does not show up and put on evidence or otherwise participate).
Even if the defendant did not appear to contest the divorce, the Court must still take testimony and perhaps other forms of evidence to establish the grounds for divorce. If the Court is satisfied that the Plaintiff established the grounds for divorce by a preponderance of the evidence, it will grant the plaintiff a decree, even if the defendant never appeared at any juncture of the proceedings.
It is important to note that there must be some corroborating evidence to the plaintiff’s evidence purporting to establish one or more grounds for divorce. This usually means that the plaintiff testifies as to some facts that establish a ground for divorce and then a separate witness will testify to corroborate those specific facts alleged by the plaintiff. Unlike almost all other forms of civil suits, divorce is not a proceeding where a party may satisfy the preponderance of the evidence standard by putting forth some uncontroverted evidence. Rather, the plaintiff must put forth some evidence and then have that evidence corroborated in some form, even if the defendant never contests the evidence.
FAMILY LAW ISSUES
* Alimony & Spousal Support
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* Post-Judgment Modifications
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* Unmarried Child Support & Visitation