Ohio Judicial Conference Family Matters: The Legal System

Transcription

1 Ohio Judicial Conference Family Matters: The Legal System People go to a divorce lawyer for many reasons. Some want to get their spouse's attention, change behavior or send a warning. Others, having given up on the marital relationship, want to end it as quickly as possible. If I have serious marital problems, what are my legal options? States provide a variety of legal options to meet the various needs. The following is a list of remedies available in most states: conciliation, legal separation, annulment, dissolution, or divorce. Conciliation You may want to work out your differences. Some states have a procedure whereby one spouse may file a request for conciliation. The court may order conciliation, usually in the form of marriage counseling. Many couples try marriage counseling on their own before taking legal action. Legal Separation or Separate Maintenance You may want to remain married but live apart. In an action for legal separation you may arrive at an agreement with your spouse or the court may issue an order if you cannot agree. The order usually provides for a division of your property, child support, spousal support and payment of debts. Annulment You may have reason to annul your marriage. An annulment means the marriage is void. It is as if it had never happened. Grounds for annulment vary from state to state. Failure to consummate the marriage or fraud on the part of one of the spouses are typical grounds for annulment. Dissolution of Marriage or Amicable Divorce You and your spouse may be in complete agreement regarding ending your relationship. Some states allow you to file your agreement with the court. It must provide for the division of your property, arrangements regarding your children, including their residence, child support and visitation rights, payment of debts, and all other issues of concern between you and your spouse. The court will review your agreement. If it finds the terms to be fair, the court will issue an order terminating your marriage. Divorce State laws differ widely regarding divorce. Each state has its own set of reasons, called grounds, for allowing a divorce. Some states have "no fault" divorces. These are divorces granted without proof of marital misconduct. Other states require proof of traditional grounds for divorce such as cruelty or adultery. Some states have a combination of no fault and traditional grounds. Almost all states have a minimum period of residency before either Page 1 of 5

2 spouse can file for a divorce. Many divorces are settled without going to trial. This is usually accomplished through negotiation between the parties and their attorneys. A new trend in settling divorce cases is the use of a professional mediator to assist the couple in reaching an agreement. If an agreement cannot be reached through negotiation or mediation, the divorce will go to trial and the court will decide all of the issues concerning the parties, their children, their property and their debts. How long does it take to get a divorce? After one spouse files for a divorce, the other receives a copy of the document either through the mail or by a process server. He or she is then given a period of time in which to file a response. If no response is filed, the case should be quickly scheduled for a non-contested hearing. However, most states have some minimum waiting period before a divorce can be finalized. This waiting period varies from a few days to more than a year. If a response is filed, then the case is contested. A contested divorce takes much longer. Contested cases can take a year or more, depending upon the issues involved and the unwillingness of the parties to compromise. Do both of us need to hire an attorney? It is highly recommended that each spouse be represented by a lawyer. Ending a marriage may involve complicated issues: child support, division of the property, distribution of pension benefits, payment of debts, tax consequences of property division, and spousal support awards usually require the services and advice of a lawyer. Many people want to get out of a marriage quickly. Having an attorney of your own should prevent you from making uninformed decisions which will have a profound, negative effect on your future. How do I find an attorney to represent me? Talk to people who have filed for divorce whose opinions you respect. You may also contact your local bar association to see if it recommends lawyers experienced in domestic relations law. If in doubt, interview more than one lawyer before you make a final choice. When you have selected a lawyer, make a list of each and every concern you have about the divorce and discuss them with your lawyer. How much will a lawyer cost? Page 2 of 5

3 Most attorneys charge by the hour. Consequently, the fee will vary depending on the hourly rate and the amount of time spent on the case. Generally, the more a couple disagrees, the higher the fee. Fees may range from hundreds to thousands of dollars depending upon the case. In addition to attorney fees, there will be court costs and other expenses. Discuss the fee arrangement and other costs with your attorney early in the case. Ask for itemized statements. If you believe you can't afford an attorney, call your local legal aid society or check with your bar association to see if free legal services are available in your community. While the divorce is pending what happens to our property, our bills, and our children? After a divorce has been filed and the other spouse has been served with a copy of the proceedings, the parties may agree on temporary arrangements. If they do not agree, the court will issue orders to make certain that assets are protected, bills are paid and the minor children provided for. Each spouse may be awarded temporary use of certain assets, such as a car, until the case is resolved. The issue of fault is usually not considered when the court makes such temporary orders. What if we disagree regarding custody of the children? There are many possible solutions. You may be referred to a mediator who would attempt to help you and your spouse reach an agreement regarding custody. If you cannot agree, you may be referred to an investigator, guardian ad litem, social worker, psychologist or other neutral person who will make a recommendation to the court. Ultimately, the court will hear the testimony of each parent and consider the reports of the experts before making a final determination regarding the children. What if I don't know what the assets or debts are? It is your attorney's responsibility to determine the assets of the marriage and their values. You must help your lawyer by providing copies of your tax returns, bank statements, employee benefit statements, lists of property, and similar documents. Also provide your lawyer with a copy of any bills along with the current balance due and information about why and when the debt was incurred. Attorneys routinely exchange this kind of information. Sometimes it is necessary to employ experts to determine the value of real estate, pension plans or businesses. Who decides who gets what? Page 3 of 5

4 In most divorces, the spouses eventually come to an agreement regarding property division, support, and the issues involving their children. Some of the areas of dispute are resolved because of the law or the local court policies. Also, many courts have established visitation schedules. For example, federal law requires each state to have guidelines to determine child support. Likewise, some states have property division guidelines. Guidelines and standards tend to reduce the areas of disagreement and promote settlement. Only when settlement is impossible is the decision made by the judge after trial. Isn't it better to let the judge decide? Many people believe that telling their story to the judge will result in some kind of victory. In fact, depending upon the law in your state, fault may have little to do with property division or spousal support. Parties to legal disputes should never try to contact a judge privately concerning a case. The judge understands that there are always two sides to a story. In divorce, nobody "wins." If my ex-spouse doesn't obey the court's order after a divorce is granted, why do I have to go back to court? Why doesn't the court just make the other party comply? It is the legal responsibility of the party, not the court, to seek enforcement of court orders. If your ex-spouse does not obey the order of the court, you must file a motion. There is an exception in the case of child support orders. Federal law requires that the local child support enforcement agency enforce all child support orders. The agency is also required to seek a change in the support order when requested. If you need enforcement or modification of a child support order, contact your local child support enforcement agency. Other things to remember... Consider all available options. Talk with your pastor, priest, rabbi or other religious leader. Consider counseling--jointly, or individually if your spouse won't go. Think through the consequences for you and your child or children. Have a preliminary meeting with an attorney to review the income and property you may have after the divorce. Prepare a budget for yourself and anyone you will be supporting. Use a state's domestic violence laws to protect yourself and your children. Page 4 of 5

5 Remember, divorce is a process... At first emotional; At separation, it becomes economic; and Upon filing, it becomes legal. The process ends when a husband or wife has finished the legal divorce, is economically independent, and emotionally re-adjusted. Experts say that the process may take two to five years. Page 5 of 5