Dissolution or Divorce?

By J. Kevin Lundholm, Esq.

Kyler, Pringle, Lundholm & Durmann, L.P.A.
405 Chauncey Avenue, NW
P.O. Box 668
New Philadelphia, OH 44663

In Ohio there are two ways to end a marriage, either through dissolution or divorce. A dissolution can occur only when the parties are able to agree on all matters: property division, spousal support and child custody issues. If all matters are agreed upon, the parties sign a comprehensive document called separation agreement. The separation agreement sets forth the rights and obligations of the parties and ultimately will become the order of the court. The separation agreement, along with a Petition for Dissolution, is filed with the court and within 30 to 90 days after filing the court must schedule a hearing.

The hearing on a petition for dissolution lasts for only a few minutes. The court, in most counties through a magistrate, will hear testimony from the parties and verify the information in the petition, e.g., name, address, date and place of marriage. The court also confirms the fact that the parties desire the marriage to be terminated, that they have disclosed all of their assets and debts to the other and that they believe the separation agreement they have signed to be fair.

A divorce, on the other hand, means that some issues are being contested by the parties. Perhaps there have been negotiations before the filing of a Complaint for Divorce which have failed, or there has been a precipitating event which required an immediate filing. Common events which may result in an immediate filing for divorce are the discovery of financial misconduct or physical violence.

A divorce is a type of civil litigation where the court will decide the contested issues. Many courts enter a mutual restraining order against both parties to prevent assets from being transferred or harassment of the other party. In a divorce proceeding the court has the power to enter temporary orders which will govern the rights of the parties while the case pends. The temporary orders will set forth living arrangements, custody, support and visitation, as well as how the bills will be paid. The temporary orders attempt to maintain the status quo until the time of the final hearing.

Often times a divorce may pend for approximately a year or so before the court schedules a final hearing. In many courts there is a referral to mediation a few months before the final hearing to see if any differences can be agreed upon and resolved. Even if mediation is available or the case has been set for a final hearing, the parties are free to resolve or settle their differences at any time.

Usually, because of the time and costs incurred, it makes sense to see if a dissolution is possible instead of a divorce. This requires the parties, at a very difficult time in their relationship, to agree on who will receive certain assets or which one will pay certain debts. In the event of children, they must also agree to all things relating to custody, visitation and support. The key point for a dissolution is that every issue must be agreed upon. If not, a dissolution is not an option.

In many situations the parties hold differing views on whether the marriage is over. As long as one party is steadfast in the desire to end the marriage, this will take place eventually through a divorce. Grounds, or reasons why the divorce should take place, are required under Ohio law, but courts do not dwell on which party was ?at fault? for the failure of the marriage. Grounds can range from something as harmless sounding as incompatibility to reasons which are far more inflammatory, such as adultery. Regardless of grounds the court is charged with the duty to equitably or fairly divide marital property.

Marital property means assets accumulated during the marriage, irrespective of who paid for them. While married, each party is deemed to have contributed equally to the acquisition of property even if one party has substantially less or even no income at all. In contrast, separate property means property owned before the marriage or something acquired during the marriage by one party only through gift or inheritance. The separate property of one party can be awarded by the court to the other in some circumstances, but this is rare. On many occasions it is unclear whether a gift is to one or both parties; this can lead to a contested issue. The debt of the parties is something that the court will apportion, as well.

In many counties a magistrate hears dissolution or divorce cases in the first instance. Magistrates are lawyers appointed by the court to help judges deal with the demands of their caseload. The judge assigned to the case has the power to review what the magistrate has ordered in divorces, and if warranted, change things. In dissolutions, objections to the matters agreed upon, are typically waived.

Certain issues will be final in a divorce or dissolution, others will not be. For example, the court may or may not retain jurisdiction to modify spousal support awards. The court will always retain jurisdiction to hear a show cause or contempt motion if an order of the court has not been followed. Likewise, the court retains jurisdiction over issues relating to minor children and their care. Issues which arise after the final hearing are called post-decree matters and may occur well after the termination of the marriage.

Divorce has impacted nearly everyone in our society. People have had their own marriage terminated or have a friend or loved one that has been through the process. As a result, many opinions are held by people based upon their own personal experience. Cases, however, will turn upon the peculiar facts presented in each one. It is important to get your legal advice from a lawyer, who has training and experience with a large number of cases. Friends or relatives can provide emotional support, but their "legal" advice can often be flawed.

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