Legal Separation in Ohio Explained
In Ohio, legal separation is usually the first step that a couple takes in determining what their final outcome will be: a divorce or continued marriage. It’s also, technically, a step before divorce—a significant step, to be sure—but it’s not the same as divorce, although many of the steps are quite similar. Legal separation generally refers to a formal acknowledgment and agreement that a couple will no longer share a residence or resources. However, it is important to understand that while they are separate, they are not divorced, so all obligations under marriage remain in force—such as spousal support and child support, for example. The options of legal separation and divorce are the most common methods couples use to end their union, but there are others . A couple may choose a "no-fault" marriage termination (such as the dissolution) or an annulment, both of which carry different legal effects and are often used in specific instances, but it is the traditional form of separation or divorce that remains the most common method of ending a marriage in Ohio. A legal separation is more than just a couple moving from the same home to separate homes as it has many implications under the law: custody, child support, division of property, etc. And that’s one of the reasons a couple may choose to legally separate rather than divorce. There are many specific circumstances in which a couple may choose one over the other, but most often, they may do so because a separation helps them determine if divorce is their best option.
Requirements for Filing For Legal Separation
Eligibility Requirements for Filing for Legal Separation
Before filing for legal separation in Ohio, there are a few eligibility requirements that must be met.
Residency Requirement
You must be a resident of Ohio for at least six months before filing for legal separation. If you are not a resident of Ohio as of the time of filing for legal separation, you must have been a resident of Ohio for at least one year and your spouse must currently reside in the county in which you file for legal separation. You must also be a resident of the county in which you file for legal separation.
Spouse’s Residency Requirement
If both you and your spouse are residents of the state of Ohio, the county where you are filing for legal separation must also be your spouse’s residence.
Waiting Period after Filing for Legal Separation
The time it takes for your case to move through the divorce or dissolution process will vary with the circumstances of each case. Generally, for separations or divorces with few assets, private asset valuations and minimal issues, some cases may be able to finalize within 90 – 120 days. The average timeline though is six months to a year for most divorces and separations. For complex cases, cases with significant asset issues, such as a divorce with a business involved, a divorce with a high net worth, or a case involving contentious custody issues, it can be anticipated that your case could take two years or more to finalize.
How to File For Legal Separation
A legal separation in Ohio may be granted if the parties no longer wish to live together, though they wish to remain legally married. While you may divorce your spouse and be free of the legal obligations imposed upon you by Ohio law, if you are not ready to end the marriage, a legal separation is a viable option.
Filing for a legal separation may seem complicated, though you do not have to hire a lawyer. You should consider hiring an experienced divorce attorney who can prepare and file the necessary documents, represent your interests at court, and make certain that all of your best interests – both in the present and in the future – are protected.
The following are a few of the steps upon which you will need to embark when seeking a legal separation.
Step #1 – Filing of a Complaint. The legal proceedings begin by filing a complaint for legal separation, which should be done before the family law division of the county common pleas court where the spouse filing the complaint (the "plaintiff") resides, or, since this is a civil case, a complaint for legal separation can be filed in the municipal or county court where the spouses last resided together. The complaint should include information regarding the plaintiff’s name, the spouse’s name, the date of the marriage, the date of the separation, actions taken during the marriage, and other pertinent information. A filing fee, which can vary by county, will be assessed. A valid Complaint for Legal Separation contains the following:
Step #2 – Serving the Complaint. The plaintiff must serve the legal separation complaint on the defendant. To this end, the plaintiff can either hire a professional process server or ask the court to serve the defendant. The defendant must be served both the complaint and the summons to warn her/him about the pending legal action against them.
Step #3 – Filing of Answer, and/or Counterclaim. After the defendant has been served the summons and complaint, he/she has 28 days to file an answer to the complaint and/or a counterclaim for divorce or legal separation. If the defendant files a counterclaim, it should be submitted at the same time that the answer is submitted. A valid legal separation answer contains the following: A counterclaim must seek the relief requested in the divorce complaint. For example, if the complaint asked for a divorce, support, or custody, the counterclaim also must seek relief in those areas, as well.
Step #4 – Perform Discovery. With legal separation discovery, the parties investigate the facts of the case by serving basic written questions on each other designed to discover what the person holds in terms of financial assets, whether defendant has been abusive, etc. Common forms of legal separation discovery include: Each party must answer the discovery requests within 28 days. If either party fails to respond to the discovery requests, the requesting party may file a motion to compel. Failure of the responding party to comply with the court’s order may result in a hearing on contempt.
Step #5 – Divorce Proceedings. After discovery has been served and completed, the parties will participate in a case management conference. If there are still issues remaining between the parties, they will be ordered to a contested hearing. If there are no issues remaining, the parties are permitted to file a consent entry finalizing the legal separation. The bottom line is that a legal separation gives the parties the benefit of being legally separated but still being married. The situation can be very beneficial to certain individuals and families. Be sure to understand the requirements prior to filing for alleviating emotional and legal stress.
Necessary Legal Paperwork and Forms
Filing for legal separation in Ohio requires specific legal documents and forms. Not every Ohio county requires the same forms to be filed, but the vast majority of Ohio counties will require at least a Complaint for Legal Separation and a Notice of Hearing to be filed. The Ohio Rules of Superintendence for the Courts in Ohio Rule 47 requires that each Ohio County Court of Common Please must adopt local rules specifying the form for these required documents. The Ohio Uniform Family Rules require that every county in Ohio must adopt one or more of the Model Forms supplied by the Supreme Court of Ohio. Most of the documents listed below are modeled on forms supplied by the Supreme Court of Ohio. However, some counties supply their own local forms which may deviate slightly from the Model Forms supplied by the Supreme Court of Ohio so it is always best to check the local rules for the specific county in which you are filing to determine what the local rules are. Almost every Ohio county will require a Complaint for Legal Separation, Notice of Hearing, Request to Serve Process, Entry Setting Case for Hearing, Notice of Appearance, Judgment Entry and a Domestic Relations Information Sheet. Most local rules require that you provide a completed Affidavit of Income and Expenses and a Child Support Calculation Worksheet (if there are minor children of the marriage). Most counties with a general processing rule will require that you provide two copies of the proposed Judgment Entry. All of these proposed documents and all other documents required to be filed are available online on the Supreme Court of Ohio website or from your county Clerk of Courts, Family Court.
Temporary Legal Orders and Agreements
In the legal context, "temporary" is often a word with a definition limited to the short term. But that’s not always the case. During a legal separation in Ohio – as in a divorce – all questions related to the allocation of parental rights and responsibilities, including temporary custody of children, temporary child support, temporary spousal support, and temporary property division, are addressed. With regard to child support, the amount to be paid by the parent who will not be the residential parent can be established, along with how or whether these amounts will be paid . Likewise, parenting time is allocated. Temporary spousal support can be addressed, when one spouse will receive temporary spousal support from the other. Temporary orders can also include a requirement that either or both spouses be prohibited from disposing of certain property, which is particularly relevant for businesses, retirement accounts, and other assets that have the potential to change value dramatically during the period of a separation.
Possible Problems and Considerations
While legal separation can offer a pathway to a more amicable and orderly ending to a marriage, it is not without its challenges.
First, it is important to acknowledge that depending upon the parties’ circumstances, the process may be lengthy. Even though a legal separation is typically a more amicable process, it does not guarantee that the parties will not dispute over one or more issues. Disputes over custody time, parenting time, child support, spousal support and division of assets are all issues which require agreement between both parties prior to filing for legal separation. Even if both parties have a deep desire for the marriage to be over, they may not agree on how best to pick up the pieces.
As these issues are litigated, the parties’ ability to work together can erode quickly. It is not unusual for parties to front-load their attorney fees at the beginning, only to slow down or stop altogether as the case wears on. This delay can lead to the case taking longer than anticipated to resolve. In Ohio, cases that are active for more than 18 months can be dismissed based upon a local rule in the Hamilton County Court of Common Pleas.
Of course, while one of the stated reasons for pursuing a legal separation is to protect the status quo, this may not be the outcome. For example, a party may have been the primary caregiver for the parties’ children while the other goes to work. This was, at times, a convenient arrangement for both parties. Once the other spouse has "officially" moved out of the residence, however, the roles may change. A party still employed full-time outside of the home may no longer have the ability to do pick-ups and drop-offs at school for the children because the other party has moved out.
The emotional toll of a failed marriage can also affect a person’s performance at work. Many people are forced to ask for more time off work than usual to attend to court dates and mediation sessions. This inconsistency has the potential to affect performance evaluations, leading to missed promotions and raises that may otherwise be in order. In this way, the costs of divorce can be felt beyond the walls of the Court.
Finally, Ohio only recognizes the grounds of irreconcilable differences for divorce. A legal separation does not establish grounds for divorce. Therefore, regardless of how amicable the proceedings have been, after 1-year, a party wishing to move forward with the divorce will need to prove the marriage is viable and submit to the terms of an agreed or contested divorce.
Pros and Cons of Legal Separation
Many couples consider legal separation as an alternative to divorce. This process involves legally recognizing a couple’s separation without formally ending their marriage. Ohio allows couples to file for legal separation under a court decree of separation.
Benefits of legal separation can include: Legal separation does not legally terminate a marriage, leaving the door open for reconciliation. This can be a necessary first step towards divorce, capture conflicting responsibilities, and provide financial support. It removes the pressure to file for a divorce, especially for religions that do not support divorce. Legal separation also protects the rights of both spouses concerning children and marital property. Enforcing the terms of your legal separation is no different from a divorce decree, and so if your children move out of state, as an example, you have the leverage of a legal separation to pursue a court order. Drawbacks of legal separation often hinge around the emotional issue of letting go of the marriage. Most couples decide to separate only to reconcile later on; in fact, about half of couples who file for legal separation do go on to divorce within one year. The cost of legal separation versus divorce is also a consideration. Typically, a divorce is cheaper, thanks to the absence of attorneys’ fees, and most of the steps during the legal separation process are free until the beginning of the proceeding. A legal separation does require spouses to disclose all debts and assets during the proceeding to determine equitable distribution. Finally, the issue of custody and child support can be a source of conflict between legal separation and divorce. Child support can change, and custody arrangements can alter, leaving both parents at odds on the most important element of the separation, the kids.
Getting Legal Advice and Support
Filing for legal separation in Ohio is a significant decision that can have long-lasting implications for both parties and any dependents involved. Consulting with an experienced family law attorney is not only advised but often necessary for the entirety of the separation and divorce process.
A lawyer can guide you through the various options available to you when it comes to household assets and debts. For example, if you have a retirement package , the latter may be subject to division as marital property in the event of a divorce. An attorney can help you make informed decisions with regard to your assets and liabilities.
Experienced attorneys can also help you draft legal agreements and files necessary documentation, such as your separation agreement. They can help you abide by Ohio family law throughout every step, including settlement, negotiation and even litigation.
Not all divorces require legal representation, but gaining a better understanding of the process and the law should always be a priority. When you seek the help of an attorney, you have a better chance of making educated choices regarding your future.