Divorce Process Facts

DIVORCE

A Divorce is one of the legal methods by which you can terminate your marriage. A Divorce begins with one of the spouses filing a Complaint for Divorce. A Complaint is a legal document that sets forth your grounds for divorce (the legal reason that entitles you to a divorce) and the relief requested from the Court (what you want the Court to do for you).

A Motion for Temporary Orders is usually filed with the initial filings. This document asks the Court to determine, for the time being, and until the divorce is final, certain things such as Custody and Visitation of the children (now called the Allocation of Parental Rights and Responsibilities AND Parenting Time), Child Support and Spousal Support, who is allowed to live in the family residence, who should make payment of family debts, who is allowed to use which car, and other matters. There will usually be a Court appearance scheduled for hearing on this Motion about 3 to 4 weeks after filing, depending on the first available time with the Magistrate of record.

Along with a Complaint, the initial filings sometimes include an Affidavit for a Restraining Order when there are third parties to be restrained. This Affidavit is a sworn statement giving the reasons you are asking the Court to restrain (forbid) certain actions by your spouse or third party, actions such as harassing you, disposing of property, obtaining new debts, returning to the home, etc. Even without the Affidavit, there is always a Mutual Restraining Order signed by the Judge forbidding those certain bad actions by the parties transferring/removing/dissipating possessions, bad conduct, incurring additional credit, changing any insurances, and removing the minor child(ren) from the jurisdiction) in every case. The Restraining Order governs both parties. If such a Restraining Order is disobeyed, the violator can be jailed and/or fined by the Court. Also, banks, pension plans, or others who hold property of the marriage (third parties) can be stopped from transferring property by a Restraining Order.

If you are the person filing for the divorce first, you are called the Plaintiff, and the other spouse is called the Defendant. If your spouse filed first, he/she is the Plaintiff and you are the Defendant. The Defendant will be served with the divorce papers by certified mail or personally, whichever the Plaintiff chooses. If you are the Plaintiff, do not, under any circumstances, sign for certified mail addressed to your spouse.

The next step after the initial filing is the Temporary Hearing on the Motion for Temporary Orders. There may be two Motions filed, one by you and the other by your spouse, which are heard by a Magistrate at the same time. Remember that you have hired the Attorney to speak for you, so speak to the Magistrate in the hearing room only when asked a question. Again, it is imperative that you hold your anger in check at the hearing. Only the Attorneys and the parties may be present in the hearing room, but you may, if you wish, bring support persons with you but they must stay in the waiting room.

Going to court for a hearing or trial is bound to increase anxiety. Knowing what will happen and how to act will hopefully decrease your anxiety. For your court appearance, dress conservatively, in a manner that shows respect to the Court. Dress as you would for a job interview, when you want people to react positively to your appearance, and that means no jeans or shorts or ripped clothing, at the very least. Because more than one case is scheduled to be heard at the same time, there may be some waiting involved on your part, while the other cases are being handled, so bring supplies with you to get you through the wait: a pen, a notepad, aspirin, hard candy, a book, etc. Your lawyer will usually consult with you before each court appearance, as well as during the trial or hearing. Please remember that your lawyer must listen to what is being said by the witness, the hearing officer and the other attorney at all times, and watch the reaction of the hearing officer, and be ready to object, so do not distract your lawyer by speaking, but instead write a note. Never react to the testimony of the others, no matter how strongly you disagree with it. Gasps, gestures or other reactions are never appropriate. Such behavior will reflect poorly on you, and may result in a reprimand from the hearing officer.

The Magistrate will write up his/her Findings of Fact and Recommendations and Magistrate's Order/Temporary Order after the hearing. It will be mailed to the Attorney(s), and you will receive a copy. A Motion to Set Aside a Magistrate's Order can be filed within ten (10) calendar days after the Order is file-stamped, and must contain specific facts or law supporting the overturning of the Order. There is no automatic stay of the temporary Magistrate's Order unless a separate Motion is filed and the Judge approves a separate Order. A transcript of the hearing before the Magistrate must be filed with the Motion to Set Aside. There will be a charge for the transcript by the Court Reporter. The Judge will decide whether the Magistrate was correct or not, and issue a Finding. If there is no Motion to Set Aside, the Magistrate's Temporary Order is effective when it is filed.  You must obey all of the Orders of the Court. If you do not, you may be found in Contempt of Court and jailed and/or fined for disobeying.

You must obey all of the Orders of the Court, even while there are Objections or Motions to Set Aside pending. If you do not, you may be found in Contempt of Court and jailed and/or fined for disobeying.  If you are required to pay child support, you must begin to pay immediately even if a Motion to Set Aside or an Objection is filed and/or even if it is not being taken out of your wages or bank account yet. Until the automatic withholding from your paycheck begins, you must pay child support directly to the Child Support Payment Central, the statewide agency in Columbus. If you are to receive support, it may take several weeks to receive your first child support check, even when it is paid or withheld from wages on time. Under law, direct payments to the residential parent are not allowed. All child support and spousal support must be paid through the CSPC.

If there is a disagreement regarding custody or visitation of children, there will be a meeting with a Court Social Worker and your spouse, scheduled by the Family Court Services Department, held after the Temporary Hearing. The Attorney cannot go to this meeting. Remember to tell the absolute truth to the Evaluator, hold your anger or ill feelings towards your spouse in check (what is important here are the children, not the spouses) and dress as you would to a job interview. If parenting rights (custody) will be contested, there may be a home visit by a Guardian ad Litem (person who presents and speaks for the child) appointed, inquiries made and Reports filed with the Court. If a Guardian ad Litem (GAL) is appointed, you will have to pay at least part of the minimum $700 GAL fee. If the parties make an agreement at the first meeting either that no conflict as to custody (now called "allocation of parental rights") exists, or agree to go to mediation, the evaluation ends with the first meeting. If there is no agreement at the first meeting or if mediation fails, then the evaluation will continue or recommence, and the evaluator will, at the end of the investigatory process, make a recommendation to the Court for the children.

The Family Court Services Department at the Court can refer the parties to a Mediator, or you can choose to go to a Mediator by agreement, so that you can settle the parenting issues without having a full-blown evaluation and Trial. The purpose of a Mediator is to help you reach an agreement. The Mediator does not act as either side's advocate and does not make decisions. 

It is mandatory that every couple with children going through Domestic Relations Court attends a parenting class, a program called Remember the Children in Summit County. The Court will send information on when and where the mandatory meetings are held.

As you go through the divorce process, please stay focused on your children's welfare. Remember that your relationship with your spouse will not end with the Decree if you have children, but you will continue to have contact beyond the time when your children graduate high school. For the sake of the children, try your best to keep the lines of communication open. Don't let your children be the losers in the Divorce. Involving the children in the parents' disputes can do long-term damage. Help your children maintain a positive relationship with the other parent, and give them permission to love that parent. Do not make derogatory remarks about the other parent to the children or within earshot of them. Do not undermine the other parent's authority with the children. Honor your parenting schedule and reschedule any visits that have to be missed, as children may view missed visits as rejection of them. Do not use the children as messengers or spies. Never pump the children for information about the other parent. Strive for agreement with the other parent on issues affecting the children. Don't be surprised if the other parent "cleans up his/her act" during the divorce process, gaining new skills or dropping bad habits, and because the children will benefit from having a better parent, please don't be angry with this. Your children cannot lose if they emerge from the divorce process with a more caring, understanding, skilled and attentive parent. If your spouse makes the same effort that you do, your children will come out of the case with two parents who are functioning on a higher plateau.

An Answer is the written response to the Complaint, and is required to be made within 28 days of service of process. An Answer admits or denies the allegations contained in the Complaint. A Counterclaim is a Complaint made by the Defendant, usually filed with the Answer.

The next step in the process of divorce is discovery and negotiation. During this stage, both sides try to gather all the information necessary to settle the case or try it before the court. Discovery relates to the ability to collect primarily financial information, and devices include depositions, interrogatories, requests for documents. Usually interrogatories are filed first, and if additional information is needed, requests for depositions are done. A deposition involves taking the sworn testimony of the deponent before a court reporter outside of the courtroom.

In the negotiation phase, settlement is attempted. Please note that our approach in matrimonial litigation is always to make a situation better and not worse. We will try to diffuse tensions, avoid hostility and maximize the parties' ability to develop a negotiated agreement on fair and equitable terms. A court will never know the case as well as the participants do, and they can fine tune a case to meet their exact needs, rather than take a one-size-fits-all solution. It is always prudent to work out a settlement if possible. If the other spouse is agreeable, a contract called a Separation Agreement, setting forth all of the rights and responsibilities of both spouses, regarding property, debts and the children, is written. If an agreement is reached, or if there is no Answer filed to the Complaint, or if an Answer is filed but later withdrawn, an Uncontested Divorce Final Hearing is scheduled by the Attorney. The soonest an Uncontested hearing can be scheduled is 42 days after service of process. If there are children, you must attend the Remember the Children program before the Court will allow the hearing to be scheduled.

The Final hearing on an Uncontested Divorce is usually held before a Magistrate. You will need two people to go to Court with you for the Final hearing: a Character Witness and an Occurrence Witness. The Character Witness cannot be a relative and must know you pretty well and know other people who know you and are familiar with your reputation for being truthful and honest. The Occurrence Witness can be a relative, and must have first-hand knowledge of the facts that entitle you to a divorce on the grounds in your Complaint. After the hearing, the Magistrate files a Magistrate's Decision, which can be objected to within 14 days, or if no objection is filed, the Decree of Divorce is final. You will receive a time-stamped certified copy of your Decree of Divorce. Remember that you are still married until that Final Decree is filed.

If the Defendant spouse files an Answer to the Complaint, denying the grounds for a divorce, the process is called a Contested Divorce and a Trial is then scheduled by the Court, usually 10 to 12 months from the initial filing (up to 18 months if there are children of the marriage). The Defendant may also file a Counterclaim for Divorce, alleging grounds why the Divorce should be denied to the Plaintiff, but granted to the Defendant.

There may be Status Conferences and/or Pre-Trial Conferences scheduled by the Court to determine what issues can be agreed upon and what must be proved at Trial. The Status Conference is usually held about 6 months after the Complaint is filed, and only the Attorney(s) must attend. The attorneys must meet and exchange relevant documents before the Discovery Status Conference, and attempt agreement on facts. At the Status Conference, the Magistrate narrows the issues with a view toward settlement. At the Pretrial, the Judge again tries to narrow the issues and permits Stipulations (agreementsof the parties as to certain facts or certain issues). You must be present at the Pretrial.

Despite best efforts, a small percentage of the time, there are times when a case does not settle. Settlement may be impossible due to unrealistic expectations or disputes as to facts or the law or novel issues raised. Settlement sometimes occurs just before trial is supposed to start, or the Judge may permit settlement negotiations to take place during the time set aside for trial. If the issues go to Trial, it is safe to say that you will need more than the two witnesses discussed above to testify at Trial, and you may need Expert Witnesses as to certain issues. An Expert Witness is a professional (Doctor, Appraiser, Psychologist, etc.) who is paid for his/her time on your case. There will be a lot of preparation necessary for a Trial, including at least two meetings with the Attorney. Trial may last anywhere from one-half of one day to several days. Trial is very expensive. After the trial the Judge will issue a Finding, which determines the issues and grants a divorce. There are various legal remedies if you are unsatisfied with the terms of the Decree, including an appeal to the Court of Appeals.

The Court can also require the parents to attend family therapy if there are children and may, if requested, order a period of conciliation counseling if the Court believes the marriage can be saved. If conciliation is ordered, the case is placed "on hold" for up to 90 days.

If you have children, the Court retains jurisdiction over them until they are adults, and if a change in circumstances is significant, either you or your spouse can request a Modification of the Decree from the Court.

Remarriage of either parent does not automatically result in a change of circumstances. Child support, allocation of parental rights (custody) and visitation (parenting time) are the most frequently requested changes. Until a Court Order is changed, it stays in effect, no matter what else goes on. Do not disobey a Court Order; file a Motion to change it!

If you lose your job or some other change in circumstances arises, it may be necessary to change the amount of child support, and this requires either a request to CSEA for modification of the support order or filing a Motion to Modify the Court Order. If you do not request a change in support, it will remain the same, no matter how circumstances have changed since your Decree, unless you file a Motion, or request CSEA to modify the support, which usually takes a longer period of time to accomplish. Visitation or change of residence may also be changed by Court Order if the ex-spouses are unable to agree on their own on what is best for their own children.

Please obey all of the Orders of the Court that you will receive. If you do not obey them, you may be found in Contempt of Court and can be fined and/or jailed for your failure to obey a Court Order. If you and your ex-spouse agree to a change in your agreement or Decree, make sure it is in writing, notarized and filed with the Court as an Agreed Order.

After a hearing on post-decree issues, the Magistrate may make a Magistrate's Decision, regarding a determination of the parties' rights (as opposed to temporary orders), when there are modification issues of child support, residential parenting or visitation (parenting time), or enforcement of property and debt division. The Decision can be objected to for a good reason. An Objection, a written document, arguing for overturning the Magistrate's Decision, with facts and/or law supporting that argument, must be filed within fourteen (14) days after the time-stamped date of the Decision. The other side then has ten (10) days to respond in writing to the Objection. The Judge will then decide whether the Decision will be upheld or not, and issue a Finding. If there is no Objection within the time period, or following the Judge's Finding on the Objection, the Court Order prepared and signed by the Judge will be final.

THIS INFORMATION IS INTENDED TO BE A BRIEF OVERVIEW OF THE PROCESS OF A  DIVORCE IN SUMMIT COUNTY, OHIO AND IS NOT INTENDED AS LEGAL ADVICE ON YOUR  PARTICULAR CIRCUMSTANCES. IT IS ONLY INTENDED TO ASSIST YOU IN UNDERSTANDING THE PROCESS.  IF YOU SHOULD HAVE ANY QUESTIONS, PLEASE DO NOT HESITATE TO CONTACT THE OFFICE TO SCHEDULE AN APPOINTMENT - 330-996-4099.

Call today to schedule an appointment with Melissa Graham-Hurd.
Ohio Divorce Attorney

Melissa Graham-Hurd
333 South Main St.
Suite 301
Akron, Ohio 44308
330-996-4099

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Melissa Graham-Hurd provides legal services for clients in Akron, Barberton, Bath, Canal Fulton, Canton, Copley, Cuyahoga Falls, Fairlawn, Green, Hudson, Jackson Twp., Lakemore, Macedonia, Massillon, North Canton, Norton, Peninsula, Springfield Twp., Stow, Twinsburg, Wadsworth, Wooster, Stark County, Summit County, Wayne County, and Medina County