Summary of Ohio Divorce Law

Separation and Divorce in Ohio

Legal Separation in Ohio

The term “separation” may refer to either an informal separation or a “legal separation.” In Ohio, neither an informal separation nor a legal separation is necessary if spouses are planning on divorcing.

Legal Separation in Ohio is a civil lawsuit that does not legally terminate the parties' marriage in the same way that a divorce would. In a legal separation suit, orders concerning property division, spousal support, child support, and allocation of parental rights and responsibilities (custody and visitation) could be issued in the same way in a divorce action. A husband and wife cannot, by any contract with each other, alter their legal marital relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation.

Legal separation (as opposed to informal separation) is typically undertaken instead of a divorce. Reasons for obtaining a legal separation include spouses wishing to avoid divorce for religious reasons and spouses wanting to maintain insurance coverage.

Residency Requirements for Divorce in Ohio

To obtain a divorce and annulment in Ohio, the plaintiff (that is, the spouse who is filing for the divorce) in action must have been an Ohio resident for at least six months immediately prior to filing the action for divorce.

The proper court in which to file is generally the Court of Common Pleas. In general, the divorce is filed in the county in which the filing spouse resides.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. Ohio recognizes both fault and no fault grounds for divorce.

A “no fault” divorce is simply a divorce for which it is not necessary to prove that there was any fault or wrongdoing by either spouse. In Ohio, a court may grant a no-fault divorce upon a showing: (1) that husband and wife have, without interruption for one year, lived separate and apart without cohabitation, or (2) of incompatibility, unless denied by either party.

Ohio also has fault ground for divorce. Situations where a divorce may be filed under fault grounds include:

• • Bigamy
• • Willful absence of the adverse party for one year
• • Adultery
• • Extreme cruelty
• • Fraudulent contract (that is, one spouse used fraud to induce marriage)
• • Any gross neglect of duty
• • Habitual drunkenness
• • Imprisonment of the non-filing spouse in a state or federal correctional institution at the time of filing the complaint
• • Procurement of a divorce outside this state, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party. (Ohio Code - Sections: 3105.01)

Division of Property

In Ohio, courts generally encourage spouses to come to an agreement themselves regarding property division (often in the form of a “Marital Settlement Agreement”). If spouses cannot agree, the court will divide the property according to Ohio law.

Ohio is referred to an “equitable distribution state.” This means that Ohio courts will go through the following process in dividing property between the spouses: First, the court will consider the property and debts of each of the spouses and whether specific property and debt should be considered marital property or separate property. Second, the court will assign a value to the marital property and debt. Finally, the court will distribute the marital property (and debt) equitably.

It’s important to know what it means to divide property “equitably.” It does not necessarily mean equal or 50/50. Its meaning is closer to “just” and “reasonable.”

Marital property generally includes property acquired by the spouses during marriage. Inherited property is generally considered separate property. Other property that is generally considered to be separate property includes property owned before the marriage, passive income or appreciation acquired from separate property during the marriage, property acquired after a legal separation, property excluded by an prenuptial agreement, personal injury awards, and gifts given to only one spouse

In making a division of marital property and in determining whether to make the amount of any distributive award, courts may consider the following factors:

• • The duration of the marriage
• • The assets and liabilities of the spouses
• • The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage
• • The liquidity of the property to be distributed
• • The economic desirability of retaining intact an asset or an interest in an asset
• • The tax consequences of the property division upon the respective awards to be made to each spouse
• • The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property
• • Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses
• • Any other factor that the court expressly finds to be relevant and equitable.

Alimony in Ohio

Alimony (also known as spousal support or maintenance) is the court-ordered financial support of one spouse by the other spouse as a part of a legal separation or a divorce.

In Ohio, after determining the division or disbursement of the parties' property, the court determines an award of alimony (spousal support). An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court considers equitable.

In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, courts consider the following factors:

• (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed in the divorce settlement
• (b) The relative earning abilities of the parties
• (c) The ages and the physical, mental, and emotional conditions of the parties
• (d) The retirement benefits of the parties
• (e) The duration of the marriage
• (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home
• (g) The standard of living of the parties established during the marriage
• (h) The relative extent of education of the parties
• (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties
• (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party
• (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought
• (l) The tax consequences, for each party, of an award of spousal support
• (m) The lost income production capacity of either party that resulted from that party's marital responsibilities
• (n) Any other factor that the court expressly finds to be relevant and equitable

Courts may award maintenance in the following situations:

First, a court may award maintenance for a spouse during a period of mental or physical incapacity. In order to do so, a court must find a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected.

Second, a court may award maintenance in an amount and for a period of time that it considers appropriate if the court finds that:

• (a) a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse's needs; and
• (b) the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment;

Courts may award maintenance in the following situations:

First, a court may award maintenance for a spouse during a period of mental or physical incapacity. In order to do so, a court must find a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected.

Third, a court may award what is called “rehabilitative maintenance” in an amount that it considers appropriate and for a period of time not to exceed three years from the court’s final decree, after the court considers:

• (a) the educational level of each spouse at the time of marriage and at the time the action is commenced;
• (B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
• (C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
• (D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment.

Modifying & Terminating Alimony Orders in Ohio

A court may increase or decrease the amount of money paid as alimony if either spouse requests it from a court. It is generally required that a court determine that “changed circumstances” of the parties warrants such a modification.

When do Alimony Payments End?

Any award of spousal support terminates upon the death of either party, unless the order containing the award expressly provides otherwise.

A court generally may not increase or decrease the amount of money paid as alimony unless the court determines that the circumstances of either party have changed and unless one of the following cases applies:

• • In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.
• • In the case of dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.