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Columbus Ohio Divorce Lawyer on Divorce in Ohio Part 5: Preparing to File Divorce Papers

COLUMBUS OHIO DIVORCE LAWYERThis is the 4th installment in a series by Virginia Cornwell, a Columbus Ohio Divorce Attorney and Ohio State Bar Association Certified Family Relations Specialist.  Virginia is one of approximate 100 attorneys in Ohio to have received this honor.  This article is about the process and options for ending your marriage in Ohio, and about Ohio divorce laws.

COLUMBUS DIVORCE LAWYERIn addition to making any necessary safety preparations and preparing for temporary restraining orders, you will need to think about where you are going to live during the divorce, prepare for some unpleasant realities associated with the initial stages of divorce, and gather information you will need to have available to you during the divorce.

WHERE ARE YOU GOING TO LIVE DURING THE DIVORCE?

Generally, both Husband and Wife are allowed to live in the marital home while the divorce is pending.  Civil Rule 75 gives the court the authority to enter temporary orders regarding spousal support and the expenses of the parties during the litigation.  In addition, Civil Rule 75 gives the court the authority to make orders regarding the support, maintenance, and allocation of parental rights and responsibilities for the care of children of the marriage.  It does NOT however, give the court the authority to make orders regarding the use of property during the divorce.  Attorneys sometimes file what is called  a “Motion for Beneficial Use” of the house or a certain vehicle, but it has been a long time since I have seen a court grant the motion without the parties’ agreement.  In theory, it is possible a court can still make such orders under its general equitable powers, but many judges and magistrates are reluctant to do so, and for good reason.

OHIO DIVORCE ATTORNEYOhio Revised Code 3105.171 requires a court to divide the property of the parties in a divorce, but the statute requires the court to FIRST determine which property is marital property and which property is separate property.   This is something the court does at the end of the case, after parties have presented evidence at a trial.  Although ORC 3105.171(J) states that the court may make “An order granting a spouse the right to use the marital dwelling or any other marital property or separate property for any reasonable period of time”, that section does not excuse the court from the requirement to first determination what is marital property and what is separate property, and the court cannot do this without evidence.

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In addition, Ohio Revised Code 3103.04 states: “Neither husband nor wife has any interest in the property of the other, except as mentioned in section 3103.03 of the Revised Code, the right to dower, and the right to remain in the mansion house after the death of either. Neither can be excluded from the other’s dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction.”  Those two sentences seem to contradict each other, but when you look at how that law is actually applied, it usually is applied only to the marital residence.  If one party moves out of the marital residence and and leases an apartment or another residence, I have never yet seen a court use 3103.04 as authority for one spouse to come to the new residence without the invitation of the other or a court order for exchange of children.  In addition, for a spouse who is currently in a divorce to attempt to gain entry to his or her spouse’s new residence, or be present on those premises without invitation may give a court just cause for entering a Domestic Violence Protection Order.  Even though Ohio courts do not make orders for beneficial use of property as often as they used to, they still enter Domestic Violence Protection Orders.  For all the reasons stated above, although courts may be reluctant to make contested orders regarding beneficial use of residences or property, there is a very good reason not to the put the court in that position.

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DIVORCE LAWYER INMoving out of the marital residence does NOT mean that you are abandoning your legal interest in the home.  However, if you have children, if at all possible, you should find a home located in a place where the children will not have to switch schools.  This is not always possible, but significant effort should be expended before you give up on this idea.  Children in divorce experience so much stress, and retaining at least some things that are familiar to them will make things easier for the children.

Sometimes, for financial reasons,  it is not always possible to obtain a new residence of your own.  Some people must continue to live in the marital residence during the divorce, and others are required to move in with relatives for a period of time.  You must consider what is right for you, and if you have children, what is best for them.  If there are children in the marriage, the father away you move from the other parent, the more details you will have to either work out or have a court decide, and the more opposed the other parent will be to the decision.  You also need to think about what impact Temporary Restraining Orders may have on your decisions.

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You may be interested in some of our other divorce articles:

CALL NOW  (614) 225-9316 

For information regarding who gets the house AFTER divorce, see the following article on our web site:  http://www.cornwell-law.com/10/who-gets-the-house-10-things-you-need-to-know-about-what-happens-to-your-house-in-an-ohio-divorce/.

In addition to the other installments in this Divorce in Ohio Series (see links at top of the page), you may also find the following topics, which relate to divorce, to be helpful.

AdulteryAnnulmentAlimony (Spousal Support)Best Interest of the ChildChild CustodyChild Custody Jurisdiction, Child Support (deviation)Child Support (how much)Child Support (how to pay)Child Support (lower)Child Support (myths)Child Support (resources), Child Support (sign up),ContemptDissolutionDivorce BasicsDivorce MythsForeclosure MediationGrandparentsGuardian ad LitemHouseInternational Abduction,Legal SeparationMediationMovingPacket of Forms vs. Getting a LawyerPrenuptial Agreements (Antenuptial Agreements)Shared Parenting,Temporary OrdersTemporary Orders AffidavitsWhere to File for Divorce

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Ohio Child Custody Part 4

This is Part 4 of a Columbus Ohio Child Custody Lawyer series on the Ohio Child Custody Process. DISCLAIMER

To view the other installments in the series click the links below:    

4.  Contested Custody

JURISDICTION OVER INTERSTATE CUSTODY:  UCCJEA (U.C.C.J.E.A.)

The Complaint to get court ordered shared parenting, visitation or custody must be filed in the State which has jurisdiction over the custody of the Child. Most U.S. states follow the Uniform Child Custody Jurisdiction Enforcement Act, or the UCCJEA.  The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) in most jurisdictions, including Ohio, in order to conform state law with a federal law, the Parental Kidnapping Prevention Act, or the PKPA.

To learn more about the UCCJEA and interstate child custody jurisdiction, please see the following articles on our web site:

http://www.cornwell-law.com/10/10-things-you-need-to-know-about-interstate-custody-jurisdiction/

http://www.cornwell-law.com/06/interstate-family-law-jurisdiction-attorney-series-part-i/

VENUE

In addition, to being filed in the State that has the proper jurisdiction, the Complaint must be filed in the County which has the proper venue.  In Ohio, venue in custody cases is governed by the Rules of Civil Procedure.  You can look at the Rules of Civil Procedure by clicking here.

GETTING THE COURT PROCESS STARTED

The custody process starts by filing a Complaint, along with various other pleadings and forms, depending upon your situation and the County you live in.  Custody matters for parents who were not married are usually filed in Juvenile Court, and custody matters for married parents are settled as part of their divorce, dissolution or legal separation, are usually filed in Domestic Relations Court.  For more information on whether your case would be filed in Juvenile Court or Domestic Relations Court, see the following statute from the Ohio Revised Code.

http://codes.ohio.gov/orc/2301.03

TEMPORARY ORDERS

In order to avoid the child being turned into a wishbone while the case is pending, the Law provides that the Court can make temporary orders to decide, at a minimum, the following issues:

  • Which parent (or both) will be residential parent while the divorce is pending
  • Parenting time
  • Child support
  • Health insurance for the child
  • Which parent (or both) will pay medical expenses of the child which are not covered by insurance while the case is pending

To learn more about temporary orders and modification of temporary orders, see the following posts and information:

http://www.cornwell-law.com/08/temporary-orders-affidavits/

http://temporaryorders.com/

DISCOVERY

In order to prepare your case for trial, each side in the case is allowed to do discovery.  Discovery is a process by which each of the parties find information about the other’s side’s case in order to determine whether the case should settle or go to trial.  In Ohio, discovery in custody cases can be:

  • Request for Production of Documents
  • Interrogatories
  • Depositions
  • Request for Admissions
  • Subpoenas
  • Physical Examinations
  • Psychological Evaluations Discovery is governed by the Rules of Civil Procedure (Domestic Relations Cases) and the Rules of Juvenile Procedure (Juvenile Court cases), and by the Local Rules of Court for the Court your case is in.

A GUARDIAN AD LITEM

Upon the motion of either party, or on the Court’s own motion, the Court can appoint a Guardian Ad Litem.  The term Guardian Ad Litem is Latin and means, “guardian during litigation”.

In Ohio, guardian ad litems (or guardians ad litem) are usually attorneys (but not always).  Some guardian ad litems are appointed BOTH as a guardian of the best interest of the Child AND as an attorney for the wishes of the Child.  This is done more often in Juvenile Court than in Domestic Relations Court.  Other Ohio guardian ad litems are appointed ONLY to represent the best interest of the Child, not the wishes of the child.  For more information about the responsibilities and obligations of a Guardian Ad Litem in Ohio, see the articles linked below.

http://www.cornwell-law.com/answers/what-is-a-guardian-ad-litem/

http://www.cornwell-law.com/02/supreme-court-of-ohio-adoptions-new-rules-governing-guardians-ad-litem/

THE BEST INTEREST OF THE CHILD

In Ohio, the Best Interest of the Child is a legal standard, set by statute in Ohio Revised Code 3109.04.

To learn more information about how the Court determines the best interest of the Child when deciding custody and shared parenting cases, see the following article from our web site:

http://www.cornwell-law.com/answers/childrens-best-interest/

To learn more information about additional considerations the Court must make when determining whether shared parenting is in the best interest of the Child, see the following article from our web site:

http://www.cornwell-law.com/answers/shared-parenting-what-does-shared-parenting-mean-in-ohio/

SHARED PARENTING

For information about shared parenting in Ohio, see the following pages of our web site:

http://www.cornwell-law.com/answers/shared-parenting-what-does-shared-parenting-mean-in-ohio/

http://www.cornwell-law.com/07/shared-parenting/

http://www.cornwell-law.com/09/residential-parent-and-school-placement-parent/

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Columbus Ohio Father’s Rights Attorney

Father Infant Visitation Ohio Father's LawyerColumbus Ohio Father’s Rights Attorney

In Ohio, does a father have a right to get visitation, even if paternity has not yet been established?

Does the law regarding an Ohio Father’s Rights include  the right for the father to request temporary orders regarding visitation or custody, even if paternity has not yet been established?

Franklin County Ohio Father's Rights LawyerThe answer is YES.  Since  the husband is presumed to be the biological father when a child is born to a couple who is married, this issue applies to Ohio Father’s Rights situations where the mother and father of a child were never married.  Ohio Revised Code 3109.043 (Temporary Custody Order While Action is Pending) states the following regarding an Ohio Father’s Rights to visitation and/or custody while a court case is pending, or temporary orders:

In any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, when requested in the complaint, answer, or counterclaim, or by motion served with the pleading, upon satisfactory proof by affidavit duly filed with the clerk of the court, the court, without oral hearing and for good cause shown, may make a temporary order regarding the allocation of parental rights and responsibilities for the care of the child while the action is pending.

If a parent and child relationship has not already been established pursuant to section 3111.02 of the Revised Code, the court may take into consideration when determining whether to award parenting time, visitation rights, or temporary custody to a putative father that the putative father is named on the birth record of the child, the child has the putative father’s surname, or a clear pattern of a parent and child relationship between the child and the putative father exists.

Effective Date: 05-17-2006

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Licking Union Richland Knox Morrow County Ohio Father's AttorneyThere are several things about that statute that you want to read carefully.  Every word matters.  Here is some additional information about important phrases from the statute:

PROCEEDING PERTAINING TO THE ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES :

    • First, this means a COURT proceeding.  It does NOT apply to an administrative proceeding for child support through the CSEA.  The CSEA has no authority to order visitation.  Sometimes, during an administrative child support proceeding, if the parties agree, the CSEA attorney or liason will give the parties a form to seek court ordered visitation, but that form is still submitted to the COURT, and is not ordered by the CSEA.
    • Second, notice the phrase “parental rights and responsibilities”.  This means that if a Father files a motion in an actions which was only filed as a grandparent visitation proceeding, the court may find that it has no authority to make temporary orders for visitation for the Father.  The Father may file a motion to be made a party to the grandparent visitation proceeding, but unless he files a Complaint for the Allocation of Parental Rights and Responsibilities (and, if applicable, for establishment of paternity), the court may find that the action is not a “proceeding pertaining to the allocation of parental rights and responsibilities), and therefore deny the Father’s request for Temporary Visitation.  (The Mother would, at that point, still have full custody of the child pursuant to 3109.042, and would not need temporary orders for visitation.)
    • Temporary Orders are available during the INITIAL proceeding, not in post-decree proceedings.
    • Temporary Orders of visitation are not available in a court proceeding which is merely an objection to an administrative child support order.  The court proceeding has to include a complaint, answer or counterclaim for parental rights and responsibilities.

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Visitation in Ohio no not DNA tests birth certificate child supportWHEN REQUESTED IN THE COMPLAINT, ANSWER OR COUNTERCLAIM, OR BY MOTION SERVED WITH THE PLEADING:

To establish an Ohio Father’s Rights to temporary visitation or custody, the Father, or his Ohio Father’s Rights Attorney, should request temporary orders pursuant to Ohio Revised Code 3109.043 in his Complaint, or his Answer to the Mother’s Complaint, if the Mother filed the Complaint.  In the alternative, the Father can seek his Ohio Father’s Rights by filing a motion.  It is unclear from the statute whether his Motion must be served with his Complaint, Answer or Counterclaim, but it is the better practice to file the Motion at the outset of the case.  In addition, sometimes a request tucked at the end of a Complaint Answer or Counterclaim escapes the notice of the court at the initial hearing, but a Motion which is pending on the Court’s Docket is more likely to be noticed and addressed at the first hearing.

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Paternity established no child support order visitation go to courtSomething that is important to note is that if child support is not yet established, but paternity is established (perhaps through an Affidavit signed at the child’s birth which allows the Father’s name to be on the child’s birth certificate), Ohio judges and magistrates almost always establish a temporary order of child support.  If the father, or his attorney, has not already filed a Motion for Temporary Orders or requested temporary orders in his complaint, this would be a great time to point out that Ohio Revised Code 3119.08 mandates the following:

Whenever a court issues a child support order, it shall include in the order specific provisions for regular, holiday, vacation, parenting time, and special visitation in accordance with section 3109.0513109.11, or 3109.12 of the Revised Code or in accordance with any other applicable section of the Revised Code.

Effective Date: 03-22-2001

Ohio County Temporary Orders Affidavit Motion Affidavit Temporary Orders

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UPON SATISFACTORY PROOF BY AFFIDAVIT:

If you don’t know what an affidavit is, there are several sources you can consult to make sure you know what it is and you are preparing your affidavit correctly.  Here are some additional resources regarding Temporary Orders Affidavits:

http://www.cornwell-law.com/08/temporary-orders-affidavits/

http://temporaryorders.com/

Book and Forms Temporary Orders Affidavits in OhioWITHOUT ORAL HEARING AND WITH GOOD CAUSE SHOWN:

This means that the court does not have to require a full hearing, with the presentation of testimony, to make temporary orders.  It also means that the burden is upon Fathers to show the court good cause in their affidavits regarding why they should have temporary custody or visitation.  If your county doesn’t have a form affidavit that you can use and which asks all the court needs to know about the best interest of the child, then you may have to submit narrative affidavits.

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Temporary Orders in Ohio Divorce and Custody Cases: an Ebook by Virginia C. Cornwell

We are pleased to announce that Virginia Cornwell’s first book is now available for purchase.  You can find out more information about this book at http:/www.temporaryorders.com.    The book can be purchased for $27.00 from with any major credit card or with PayPal.   If the book does not immediately download when you purchase it, send us an e-mail at info@cornwell-law.com and we will e-mail a PDF file to you.  This book is an e-book only, and is not for sale in a bound format.

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Temporary Orders Affidavits

COLUMBUS CUSTODY LAWYERWhat is the difference between temporary orders and temporary restraining orders?

Temporary Restraining Orders

In family law, sometimes temporary restraining orders are made at the beginning of the case.  These orders are general orders and usually are not specific to the facts of a certain case.  In custody cases between parents who were not married, they are usually limited to an order that the minor child cannot be permanently removed from the state of Ohio.  In divorce cases, temporary restraining orders require that the other party refrain from harassing you at work or at home, selling, hiding or giving away assets, incurring debt in your name, changing beneficiaries of life insurance, canceling health insurance and taking the minor child and permanently leaving the state.

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COLUMBUS CUSTODY LAWYERTemporary Orders

In an Ohio divorce or custody cases, Temporary Orders are orders which the court issues to establish how the parties are going to operate while their case is pending.Temporary orders are VERY important because even though they are temporary, they often set a precedent that determines how the case is going to turn out at trial.For this reason, it is very important that for both parties and witnesses giving affidavits in support of temporary orders to do their best job of collecting and presenting information in support of the position they are supporting in their temporary orders affidavit.

TEMPORARY ORDERS OHIO DIVORCE, CUSTODY, VISITATIONIf you want to learn more about Temporary Orders in Ohio divorce, custody and visitation cases, you may be interested in purchasing a copy of Virginia Cornwell’s ebook on Temporary Orders in Ohio Divorce and Custody Cases.  You can click the e-book photo on the left or click the icon in the sidebar on any page that looks like this -> COLUMBUS OHIO TEMPORARY ORDERS ATTORNEY

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Here are some examples of forms affidavits that Ohio counties use.  Please note the first link, from the Supreme Court of Ohio can be used in divorce and legal separation cases in any county in Ohio, although the county may require their own form IN ADDITION to the Supreme Court’s form.  These forms contain SOME of the relevant information the court needs.  Courts change their web sites from time to time, so if the link that you try does not work, try another one.  In addition, you may have to copy and paste the link into your browser if it does not work the first time you try it.  There is also a form affidavit for temporary orders available from the Supreme Court of Ohio Web Site that can be used in any Ohio County – for divorce or legal separation cases only.

http://www.supremecourt.ohio.gov/JCS/CFC/DRForms/

http://www.perfectprobate.com/pdf/hamiltondomesticrelations/2456.pdf

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COLUMBUS CUSTODY LAWYERWe  have never yet seen a form which contains all of the information which should be submitted with temporary orders affidavits.  Especially when there are children involved, it is nearly impossible to create the perfect form for temporary orders affidavits.  This means that in addition to whatever local forms a county uses for temporary orders affidavits (if any ), the party to the litigation also needs to submit narrative affidavits and/or give testimony at a hearing, depending on the local court’s preferred procedure.

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