Family Law FAQs
Q: What is the difference between a divorce, dissolution and legal separation?
A: Not much! A legal separation is a legal proceeding where two parties separate, and all of their assets, debts and liabilities are split, however the parties remain married. Mostly this is done in instances of religious beliefs, or in order to maintain medical insurance. This proceeding is rare in that most end up being converted to divorce. In 50-plus years’ combined practice of law, Kirner & Boldt Co., L.P.A., has completed about three legal separations.
Divorce and dissolution are far more common. Both of these actions are essentially the same type of action. The only real difference is when you agree upon the terms of the termination of marriage. In dissolution the parties agree upon terms beforehand, documents are prepared and filed with the court. The court then schedules you for a final hearing within 90 days. In divorce, you do not agree upon the terms. You may agree on some terms but not all. In divorce you have two options: You can reach an agreement at any time along the way, or you can have a trial and let the court decide what are fair and equitable terms.
Q: Can you represent both husband and wife in a dissolution?
A: No. We can only represent one of the parties in a dissolution. There would be a conflict of interest in representing two people on opposite ends of the same matter. One party can retain us, and our only goal will be to represent the best interests of that person. We will, however, prepare whatever agreement the represented party requests.
Q: Can you get a dissolution if you have kids?
A: Absolutely!
Q: What is the difference between shared parenting and sole custody?
A: Sometimes, not much! If one party has custody over the child, it really only boils down to decision-making ability. Does the child attend private school or public school? Does the child receive surgery? Does the child go to a Catholic church, a Jewish temple or not go to church at all? These are the questions the sole residential parent would answer. Custody does not stop visitation. Visitation is required. How much visitation is a question for the parties or the court. It could be “standard,” it could be extensive, or it could be as the parties agree. Shared parenting only deals with the decision-making ability for the child. Visitation or parenting time can be determined by the parties or the court. Shared parenting is a “warmer, fuzzier” approach to parenting. It allows both parents to jointly parent the child(ren). In most instances, the court assumes that shared parenting is the route that should be taken. In shared parenting, one parent must be named the residential parent for the purposes of school. This only means that this parent resides in the jurisdiction in which the child will attend school. Generally, this is the parent that will receive child support as well. Dependent on your visitation schedule, child support may be deviated from. For example, if each parent has the child 50 percent of the time, then it may be reasonable to have no child support paid by either parent.
Q: I am a grandparent and I have been denied visitation, do I have rights?
A: You sure do. Grandparents have rights to visit with the minor grandchildren. Come see us; we will file a motion.
Q: Will I have to pay/receive alimony (now known as spousal support)?
A: It depends. “Alimony” is an archaic word, seldom used. Traditionally alimony was paid by husbands to wives, due to the disparity in income between the two. Today, we refer to such payments as spousal support. Spousal support may be paid by either husband or wife. Now, will it have to be paid? In Cuyahoga County, there is a general unwritten rule of thumb of one year of support for every three years of marriage. In Lorain County, it is one year of support for every five years of marriage. If both parties make similar income, then generally no, you will not have to pay. If one party makes substantially more than the other, then it’s likely there will be spousal support. Such factors that come into play in calculating support are earning ability of one of the parties, education level, history of employment, children being at home, quality of life, health, etc. The bottom line, it depends.
Q: How much will this cost me in legal fees?
A: It depends. We have files that only have a few documents in them; we have other files that fill several boxes. We charge hourly, so the amount of work will dictate the cost.
Q: Do I need an attorney or can I do this myself?
A: You do not need an attorney. A wise man once told me, you do not need a surgeon in order to remove your appendix, you can do that by yourself as well. However, you lack education, the skill, precision, training and expertise to successfully navigate such an undertaking. Further, just like in removing your own appendix, if you falter, cleaning up the mess after the fact may be difficult if not impossible. We do not advise it.
Q: My spouse cheated on me/abused me/has a new lover/etc., what do I get for that?
A: Unfortunately, not much of anything. Ohio does not much care about the reason you are getting a divorce, it only cares that the assets are distributed equitably.
Q: What should I expect to lose/get out of this divorce?
A: Basically, half. Each party is entitled to half of everything, except nonmarital and premarital assets. That is half of the house, half of the pensions, 401(k)s, half of the bank accounts, half of the furniture, you name it, it should be split in half, unless there is financial misconduct.
Now while that is simple to say, it is sometimes difficult to execute. For example, what value does a six-year-old couch have? Any? Or what about a diamond necklace? What if each party has a pension worth similar amounts? Each party can waive their interest in the other’s accounts.
Q: What is financial misconduct?
A: Financial misconduct is present when one party to the marriage uses funds wastefully. Gambling is an excellent example. Even if gambling cannot be proven, large or repetitive cash withdrawals may be sufficient to show that something “fishy” was or is going on with marital funds.
The court may award more assets to the nonwasteful party to offset what the offending party has taken away from marital assets.
Q: What should I expect when getting divorced?
A: Divorce is a long, drawn-out process; much of it is a waste of time. The first step is to file for divorce. Documents will be prepared and filed with the court. There is a filing fee of approximately $200 filed with the court at this time. The next step is service. The law requires your spouse be properly served with divorce papers. This process will take place via certified mail and then ordinary mail if that fails. Generally, this takes around 30 days or more. The court will then schedule a pretrial. In some instances the court will set a hearing for temporary support (if requested). As with any court proceeding, there are two avenues. The first is to reach an agreement; the other is to have a full hearing. In most instances of divorce, the parties will sit in the hall and not actively participate until the final trial. The court’s goal is to settle the matter without a trial, and they will attempt to broker an agreement. If the parties are agreeable, they can attend a mediation to attempt to resolve this matter. Several pretrials will take place, all with a goal of reducing the disputed issues. If the parties cannot reach an agreement, a trial will be scheduled and eventually held. Trials are costly and timely. It is always better to settle! By example, a few years ago we had a divorce trial that went forward for five days, costing each side approximately $7,000, and was not yet resolved. At the end of those five days, the two individuals got together and reached an agreement rather than the court drafting one. The parties reasonably determined that they just wasted $14,000 of funds that could have been spent on their kids instead.
Q: What is mediation or ADR?
A: ADR stands for alternative dispute resolution. Trial is an adversarial approach to resolution. ADR is an approach to be a kinder, gentler, more collaborative approach to resolution. Mediation is one type of alternative dispute resolution. Mediation is when the parties (generally no attorneys present) meet with a neutral party, the mediator, to discuss the issues and to hopefully reach a resolution. The mediator will tell the parties what is reasonable and will again try to broker an agreement.
Q: Can I get support while the divorce is pending?
A: Sure! A motion can be filed for temporary support (spousal and child). The technical legal term is pendente lite but is often referred to as a TA (temporary alimony) order or temporary orders. A court can order support depending on the circumstances, income of the parties, who is caring for the children, who is residing in the marital home, etc. The court can award a dollar amount to be paid or require a party to continue to pay for the mortgage, utilities, insurance, etc.
This order will terminate at the time of the final hearing and whatever final agreed upon or court-ordered support will go into effect.
Q: How do I determine the value of my pension?
A: Kirner & Boldt Co., L.P.A., works with a company by the name of QDRO Consultants and for a cost, they can determine the present value of any pension.
Q: What happens to my pension upon a divorce?
A: Unless there are some other cash or assets that can be sacrificed to balance out your spouse’s interest in said pension, then they would be entitled to half of the interest during the period of coverture (duration of marriage). Anything earned before the marriage would be solely yours, and anything earned after the marriage is solely yours. A document called a QDRO or DOPO would need to be drafted to divide said interests.
Q: What is a QDRO/DOPO?
A: A QDRO is a qualified domestic relations order and a DOPO is a division of property order. They are identical; however, a QDRO is used for private plans, and DOPOs are used for state plans, like teachers’ and firefighters’ pensions.
Q: What happens if my ex-spouse dies before the QDRO is put in place?
A: You may be out of luck and lose everything that you may be entitled to. A QDRO should be put in place immediately. It’s of greater concern if an ex-spouse dies who is a participant under a state plan (firefighter, teacher, etc.). Even if the DOPO is in place, you would lose all benefits if they were to pass away. It is imperative that a life insurance plan be put in place for the duration to protect the value of the benefits for which you would be entitled.
Q: Can my child support payments ever be changed?
A: Absolutely! The court requires a change in circumstance to take place. That change in circumstances needs to amount to a 10 percent deviation in the final support number. So if you are receiving $1,000 a month for four children and one or both of the parties’ incomes goes up or down, making the calculation go up or down by $100, then one party is entitled to a modification.
The Child Support Enforcement Agency (CSEA) will generally independently review and modify support approximately every three years, or they can do the same at your request.
You can file for a modification at any time. If there is no change in circumstances, you will not be granted a deviation, but if you believe something has changed, you can simply make the request.
You can work with the CSEA to seek a change or you can file a motion with the court. It is always better to file a motion with the court. Once a motion is filed with the court, the clock starts ticking on a modification. If the matter is not heard for six months, the start date of said modification will be back dated to the date of filing. This is generally not the case if you go through the agency.
Q: What is the Child Support Enforcement Agency (CSEA)?
A: CSEA is a governmental body that monitors, collects, distributes and enforces child support and spousal support payments.
Q: Can my spousal support payments ever be changed?
A: Maybe. The courts need to specifically reserve the right to modify or terminate support. If there is no language in your divorce decree that specifically reserves the right to modify or terminate support, then the order will remain as is.
Q: My spouse works under the table; what do I do?
A: The court will generally only look at tax returns and pay stubs in calculating support. If an individual is working under the table, it would need to be proven. The difficult part is that an employer or customer would never testify to breaking the law and not paying taxes, so proving this is often difficult. Hiring a private investigator is always an option!
Q: I have children and there is a dispute, what court will I be in?
A: If you are married, you will be in domestic relations court. If you are unmarried, you will be in juvenile court.
Q: How much child support will I get or have to pay?
A: It depends. Whether you get sole custody or you are the residential parent under the shared parenting plan, you are entitled to child support. Child support is statutory, meaning it is set by law. There is a very specific formula to calculate support. The main factors controlling the amount of support are the parties’ incomes, overtime worked, bonuses, day care and health care costs. The amount of support must be calculated specifically for each person.
CHILD CUSTODY:
Q: Who gets custody of our children?
A: It depends. Ohio wants to know what is in the best interest of the minor child.
Q: Who gets custody of our pets?
A: While you may both love your pets dearly, in Ohio pets are only “property.” Pets are seen as no different than a microwave oven or a couch. It may boil down to a flip of the coin to see who gets the pets.
Post-Decree Matters:
Q: What does “post-decree” mean?
A: A divorce decree is the final document filed with the court upon completion of your divorce and/or dissolution or juvenile court orders. This decree is an order of court that both parties must comply with fully. A “post-decree” matter is some type of filing that takes place after the divorce is finalized. This can be a motion to show cause, motion to modify support, motion to modify custody and others.
Q: My spouse is not paying support; what do I do?
A: The Child Support Enforcement Agency should do something about it, like ceasing a tax refund or suspending any licenses, including professional and driver’s. That may not be enough. You should file a motion to show cause. You may be entitled to attorney fees and further punishment may result in jail.
Q: My spouse is denying visitation; can I refuse to pay child support?
A: Two wrongs do not make a right. Support and custody/visitation have absolutely nothing to do with one another. You have to do what you agreed to do and what is now a court order, as does your spouse. You should file a show cause motion. You may be entitled to attorney fees and further punishment may result in jail.
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