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Turning Points Blog

A family law blog about tying and untying knots and other common threads


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Posts filed under Divorce & Dissolution

Geography of divorce: what court has jurisdiction over assets?

May 2010

What do you have to do to get a divorce or a dissolution of marriage in Ohio? You need to meet two simple requirements:

  1. You must live in Ohio for six months and
  2. You must live in one Ohio county for 90 days.

That’s it. Never mind where you  were married or whether your spouse is living in Ohio. None of that matters. Divorce is known in legal circles as an in rem action. Briefly, that means a civil court has jurisdiction over ‘the thing’, the marriage itself. It has no jurisdiction over the person (unless the person is a resident of the state or has certain kinds of contacts with the state, which you can read about below).

Because the court has jurisdiction over the marriages of its citizens, you can establish residency in Ohio in the way described above and get your divorce or dissolution.

BUT there’s an important but. If there are marital assets –a home, a pension, investments— it’s not quite that simple.

Let’s say you married in Georgia and lived in Georgia with your spouse and all your joint assets for a decade. Now you’ve lived in Cuyahoga County, Ohio for six months. You file for divorce and ask for a property division and a share of your spouse’s pension benefit.

Can the Cuyahoga County Court of Common Pleas, Domestic Relations Division grant the divorce? Sure.

Will it divide the property and pension between you and the other party? That’s far less likely. In exercising control over the marriage, the court will also have to exercise control over those marital assets. It will have to decide how to divide the assets. And that means it has to be able to order you and your spouse to do things—provide information, for instance, or sign over to the other party an interest in some asset.

Like every state, Ohio strictly defines when courts have control over non-citizens of the state. The domestic relations court cannot simply reach out and exercise jurisdiction over a spouse who has never lived in Ohio or who, in some cases, has never even been in the state.

Even more important, the U.S. Constitution brings due process considerations into play. In effect, constitutional law says that there must be a minimum level of contact between a person and a state for the civil courts of that state to exercise control over that person.

So the court is not going to take jurisdiction over the marital assets. The only way it might is if you can establish that your spouse meets the constitutional ‘minimum contacts’ standard. If your spouse has been visiting Ohio to do business here over the years or has come up to visit you on a number of occasions, that might meet the standard.

If you can make the argument and present convincing evidence, the court just might decide it has jurisdiction over your spouse’s person, as well as over your marriage. I say might—not will.

But barring that, the court is going to suggest that you go back to Georgia to get your divorce and the property settlement you seek.

When does legal separation make sense?

November 2009

Separation makes sense in many situations and for a lot of reasons. First, a separation agreement formalizes the relationship between the parties. It divides the marital property and debts and specifies how the parties will parent their children so that each knows specifically what their rights and responsibilities are.

Second, it lays the groundwork for living separate and apart, clarifying the problems that are likely to arise. Some people are even able to solve some of their marital difficulties during separation.

Finally, a separation is sometimes the only way to continue a benefit that both spouses agree to. For instance, in one case where the couple was quite elderly, one spouse desperately needed to retain health care coverage owned by the other spouse. Divorce would mean the non-owner’s coverage would be terminated. Since remarriage is often not an issue with quite elderly parties, they could agree to a legal separation without a divorce so that both parties retained necessary benefits that would otherwise be lost.

What is the right time for a separation agreement? As soon as possible. Putting off the written agreement for too long to after you begin living apart can cause avoidable misunderstandings and disputes over responsibilities. Lack of a written agreement opens the way for disputes as to what each party agreed to and whether either has the right to change their mind at will.

A lawyer is not a stick: against high-conflict divorce

November 2009

Ending a marriage is difficult enough without getting bogged down in a high-conflict divorce. That is when at least one partner is less committed to fairness than to fighting court battles of revenge and personal animosity, often using children to accomplish various ends.

People need good representation to make sure that they are treated fairly. But trying to establish that the other party is an unmitigated creep and a toad is no route to protecting property and parenting rights.

Does some part of you want the court to publicly convict your spouse as the guilty party? Do you want a lawyer to be a stick to beat your former spouse? Those are understandable human impulses but they’re almost impossible to satisfy. Domestic relations courts aren’t set up to see blame as a relevant issue. And they are not set up to make one side pay the bill for the pain and unhappiness of the other.

Courts are set up to determine the disposition of property and debts fairly and equitably, to decide whether and what amount of spousal support is fair, and to approve parenting arrangements that are in the best interest of minor children. It’s time-consuming and terrifically expensive wheel-spinning to try to get courts to assess blame and avenge wrongs. Here are some things people sacrifice by doing battle:

Privacy. Court proceedings and documents are public. People can learn things said about you and your relationships, true or not. High-conflict fireworks can attract media attention. Privacy survives if you can agree on issues outside court.

Dignity. How much pride can you swallow? A commitment to conflict assures the indignity of professionals evaluating your home and family, of a judge deciding about the details of your life, your finances, and your parenting. Many people find that humiliating— and unsatisfying.

Children. High conflict divorces can cause toxic stress to children. Constant, open battle has been shown to interfere with mental, emotional and physical development and can be devastating to children’s futures.

Tomorrow: Will it really benefit you to reveal personal flaws and failures in court? You can’t erase allegations made on the record. What if one day that makes it hard for a former spouse to get a job or a promotion or live in a way that serves things you value— financial contribution, good parenting, getting on with life?

The day always comes when you want to stop looking in the rear view mirror and look to the future. If that day is now, high-conflict divorce is not for you. Instead, seek legal counsel that enables you understand what the law says and how the process works so that you have the ability to make your own good decisions about what’s worth fighting for. Then demand a strong voice for your reasonable interests if you face a partner who wants to fight.

What is no-fault divorce?

November 2009

Technically, Ohio law does not use the term ‘no-fault’. But, in a practical sense, most divorces are no-fault. That means you and your spouse agree that you are incompatible and/or that you have voluntarily lived separately more than one year. You also agree that neither of you is to blame for the situation. Dissolutions, by the way, are always no-fault. They’re lumped into the general category of no-fault divorces where people can dissolve their marriages without giving any reason at all.

Even if you feel your spouse is to blame and you have strong grounds for divorce, no-fault maintains privacy as you end your marriage. It keeps the details between you and your spouse, which may be better for your children and for your own sense of dignity.

A no-fault divorce usually means that the parties sign a written separation agreement outlining the disposition of all property and debts, if and who will pay spousal support, and the future parenting of minor children. In a dissolution, as opposed to an uncontested divorce, the two parties must appear in court to testify that they want the court to end their marriage in accordance with their agreement.

Does ‘no-fault’ mean you give away your ability to contest issues? Not at all. You can actively pursue all matters involving property, support and children. If things change, you can change your mind and revise your complaint to add a fault. ‘No-fault’ is simply the best place to start.

What do you think about when you think about divorce?

November 2009

When the end of a marriage appears inevitable, it can be hard to keep a cool head. On top of that, most people have no reason to know in advance what needs to be done, when, and exactly how. So here’s some knowledge that can help you get organized:

The nuts and bolts. When you file for divorce or request a dissolution, the court expects two things: 1) you have been an Ohio resident for at least six months before you file, and 2) you have been a resident of the county in which you’re filing for at least 90 days.

The documents. You will need them for the attorney you choose to represent you or, if you represent yourself, the court that will hear your case. Here’s what you need: 1) all documents concerning your marriage such as your marriage license; 2) birth certificates of children born to you and your spouse; 3) all information about your property such as copies of deeds, financing statements, lists of personal property and the like; 4) all information relevant to employment, such as your and/or your spouse’s employer, past w-2’s and tax returns, records of education and training; and 5) copies of all of your most recent bills whether they are for household utilities or credit cards, whether they are in your name or your spouse’s.

The main topics. No matter how you end your marriage, the law requires decisions on three things: 1) how to divide property; 2) who is responsible for what debts; and 3) whether a spouse requires support. If you have children, add 4) how to allocate parental rights and responsibilities; and 5) determining child support. Expect to face these questions. Every dissolution or divorce spells out solutions, whether the parties agree in advance or they argue their cases and the court writes an order.

The children. For many divorcing couples, children are the single most important concern. From early on, try to think about how you and your spouse can go about preserving the family, including helping your children to understand that their family is still two-parents strong. Many people find it beneficial to get the services of a professional who knows about parenting plans. Their experience can bring additional insight into all of the possible problems you and your children may run into as well as good ideas for resolving them.

The budget. Go through the exercise of creating two budgets. Base one on the past experience of your family. Base the other on what you see as the future living conditions of each of the parties. If you want to be taken seriously by the court (not to mention your spouse), you must show that you have considered realistically not only your own needs and those of your children but also the needs of the other party. Also, it’s good to understand in advance the court’s usual view: if there has to be a lower standard of living, it will be shared to some degree by both parties.

The discussion. Once you have thought through the items above, consider whether you and your spouse will be able to discuss the important things: division of marital property, allocation of parental rights between you, and child and spousal support. If you are able to agree on any or all of these matters before you begin or early on in the process, you are likely to reduce the difficulty of ending your marriage.

 
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