How long do you have to live in the state of Ohio and your county before you can file for divorce, annulment or legal separation?

September 27, 2014

Virginia Cornwell is a Franklin County Ohio Divorce Lawyer, Columbus Ohio Divorce Lawyer, and Ohio State Bar Association Family Relations Specialist.

You do NOT have to have been married in Ohio to end your marriage in Ohio. Where you file your divorce is about residency.

RESIDENCE IN THE STATE OF OHIO TO FILE DIVORCE OR ANNULMENT

In Ohio, pursuant to Ohio Revised Code 3105.03 states that The plaintiff in actions for divorce and annulment shall have been a resident of the state at least six months immediately before filing the complaint. Note that Ohio Revised Code 3105.03 does not mention legal separation or dissolution.

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WHICH COUNTY YOU SHOULD FILE

DIVORCE, ANNULMENT OR LEGAL SEPARATION IN?

If you want to file a divorce, annulment or legal separation in Ohio, the Ohio Rules of Civil Procedure tell you which county to file in and how long you have to live there to file:

RULE 3. Commencement of Action; Venue

(B) Venue: where proper.

(9) In actions for divorce, annulment, or legal separation, in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint;

Neither ORC 3105.03 or Civil Rule 3 place restrictions regarding the filing of dissolutions.

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Need some help? We would be happy to schedule a consultation with you. Please give us a call, and one of our Family Law Attorneys will meet with you to discuss your case.

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

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How long do I have to wait to get a divorce, annulment or legal separation in Ohio?

August 22, 2014

Ohio Rule of Civil Procedure 75(K) says:

(K) Hearing. No action for divorce, annulment, or legal separation may be heard and decided until the expiration of forty-two days after the service of process or twenty-eight days after the last publication of notice of the complaint, and no action for divorce, annulment , or legal separation shall be heard and decided earlier than twenty-eight days after the service of a counterclaim, which under this rule may be designated a cross-complaint, unless the plaintiff files a written waiver of the twenty-eight day period.

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Clear as mud, right? To understand the rule you have to break it down a little bit.

First, no divorce, annulment or legal separation can have it’s final hearing earlier than 42 days after the Defendant was served with the Complaint.

Second, if the Defendant filed a counterclaim, then the final hearing cannot be held earlier than 28 days after the service of the counterclaim.

This is the fastest that anyone can get a divorce, annulment or legal separation in Ohio. You should know that unless both parties are cooperating, this is not a realistic timeframe. Even if the parties are cooperating, there may need to be extra time factored in to accommodate the schedules of the parties, the court and the attorneys.

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Does this still sound complicated? We would be happy to schedule a consultation with you. Please give us a call, and one of our Columbus Ohio Divorce Lawyers will meet with you to discuss your case and

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Can you get a divorce in Ohio while pregnant (or a dissolution, annulment or legal separation)?

January 21, 2012

Virginia Cornwell is a Columbus Ohio Family Law Attorney who assists clients with family law matters throughout Ohio.

COLUMBUS OHIO FAMILY LAW ATTORNEYS Trying to end your marriage in Ohio can be difficult if the wife is pregnant. Difficult, but not impossible.

Ironically, the difficulty does not come from any obstacle in the law, but rather from the practices in your county, or from the preferences of the Judge in your case. Ohio law does not contain any authority for a Judge or Magistrate to refuse to grant a divorce, dissolution, annulment or legal separation on the basis of pregnancy. Nevertheless, for several reasons, many Ohio courts will delay granting the divorce (or ending the marriage) if the wife is pregnant.

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COLUMBUS OHIO DISSOLUTION ATTORNEY One reason that Ohio courts will sometimes decline to grant the divorce until the child is born is so that child support will be established. The court does not want the child to go without support for several months while paternity is established and support is ordered through the child support enforcement agency.

Another reason the court may be reluctant to grant the divorce while the wife is pregnant may be that the Judge does not want the mother and father to have to go through yet another court action to establish parentage, support and parental rights. In such cases, it is possible that the domestic court believes that if the paternity is not established in the divorce case, that the father will have to seek parental rights in a juvenile court case. The domestic court Judge may also be concerned that if the father has to file a separate action in juvenile court to establish paternity of the child, he will be disadvantaged. For various reasons, unmarried fathers in Ohio juvenile courts sometimes have to work harder to receive the same rights they would receive in domestic court.

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DIVORCE ATTORNEY COLUMBUS However, Ohio Revised Code 3111.06(A) states:

If an action for divorce, dissolution, or legal separation has been filed in a court of common pleas, that court of common pleas has original jurisdiction to determine if the parent and child relationship exists between one or both of the parties and any child alleged or presumed to be the child of one or both of the parties.

This would allow the domestic relations court to retain jurisdiction over the parents for purposes of establishing paternity of the unborn child. The statute does not limit such jurisdiction only to the divorce proceedings. Thus, there appears to be no legal reason the court cannot grant the divorce now, and deal with paternity, support and parental rights later, on a post-decree basis in the domestic court (divorce, dissolution, annulment, or legal separation) case.

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DIVORCE LAWYER COLUMBUS If the parties want to get divorced NOW, and do not want to wait until the child is born, there may be some steps the parties can take to convince the court to approve the divorce.

First, the issue of whether a Judge will or will not grant a divorce while the wife is pregnant often boils down to the preferences of the individual Judge (and possibly Magistrate) assigned to your case.

Second, the level of cooperation between the parties may have some influence on whether the Judge will trust that the issues of paternity, support and parental rights will be dealt with quickly after the child is born. There are several ways the parties can cooperate to assure the Judge there is no reason to hold the case open.

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If the husband and wife know that the husband could not possibly be the father of the baby, they should stipulate to this fact in the divorce decree. The court can then make findings rebutting the legal presumption that the husband is the father and “disestablish paternity” in the divorce decree.
The parties can give the court stipulated findings of fact that contain all information needed to make a child support order.
The parties could bring a post decree motion to establish paternity, support and parental rights of the child to the court for filing on the day of the divorce decree, file the motion on the day of their final hearing, and set the first hearing date to occur in front of the same judge a few weeks after the child’s due date. If either of the parties wants genetic testing, they could agree to the manner in which the genetic testing will be done. If the parties use a private service for the testing, they could have the results before they attend their first hearing.

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COLUMBUS DISSOLUTION ATTORNEY You might wonder how courts can just decide to hold a divorce case open for many months against the parties’ wishes. First, domestic courts have broad discretion. They cannot just do anything they want, but they can do a lot.

Second, even if a party were to try to take the issue up the court of appeals, babies develop faster than appellate courts make decisions. By the time your case was heard in the court of appeals, the baby would be born, rendering the issue on appeal moot.

Third, even if somehow the court of appeals agreed to hear your case quickly, I’ll say it again: domestic courts have a lot of discretion in Ohio. They are probably going to be allowed to do what they think is best in this case.

An Ohio family law attorney can help you decide what is the best course of action in your case.

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You may also be interested in some of our other divorce articles:

DISCLAIMER – Read it, it’s important!

ANNULMENT IN OHIO: 10 THINGS YOU DIDN’T KNOW

January 17, 2012

Virginia Cornwell is a Columbus Annulment Attorney and Columbus Family Law Lawyer, representing clients throughout Ohio.

FRANKLIN DELAWARE OHIO ANNULMENT ATTORNEY 1. Annulment (sometimes called annulment of marriage) is not the same thing as dissolution (sometimes called dissolution of marriage, dissolutionment, disolutionment, etc). In a dissolution, the marriage is ended by agreement, but as far as the law is concerned, the parties had a legal marriage, it is just over now. In Annulment, the marriage is voided, erased. Legally, the law has erased the marriage.

2. Unlike dissolution, where the parties must agree on everything and file together, an Annulment can either be agreed OR contested. That means that the parties can either file together, or one person can file for annulment on his or her own.

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ANNULMENT ATTORNEYS IN COLUMBUS 3. Just like in divorce, there must be grounds for annulment in order for an Ohio court to grant the annulment. The grounds for divorce in Ohio are NOT the same as the grounds for Annulment. The most notable difference in the grounds is that in Annulment, the parties cannot simply agree that they are incompatible. There has to be some defect in the marriage that is serious enough that the law will allow the marriage to be erased instead of simply ended. To read more about the possible grounds for annulment of marriage in Ohio, click here.

4. Even if grounds for annulment exist in your case, it doesn’t automatically mean you can file for annulment. Usually, it has to be the “aggrieved party”, meaning the person who was wronged, who files for the annulment. To learn more about who is the aggrieved party, read Ohio Revised Code 3105.32, and Ohio Revised Code 3105.31. In addition, there are time limits for annulment. In many cases, the person who was wronged must file within two years, but there are different time limits for different grounds for annulment. To read more about time limits for Annulment in Ohio, click here.

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COLUMBUS OHIO ANNULMENT ATTORNEYS 5. Ohio has a separate statute dealing with changing names after an annulment. In annulment cases, the court may, if it wants to, change the name of a person back to what it was before the parties married, even if neither of the parties requests the name change. This differs from the Ohio divorce statute about changing the party’s name , which requires the consent of the parties to change a party’s name. This may be especially important in a case where the husband is the aggrieved party and he wants to have the court “take his name back” from the wife.

COLUMBUS OHIO ANNULMENT ATTORNEY 6. Ohio law allows people to get restraining orders against the other person while an annulment case is pending, in order to prevent the other spouse from harassing or harming themselves or their children. The restraining orders can also prevent people from leaving the state with a child, selling or hiding assets, etc. See Ohio Rule of Civil Procedure 75 (I).

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7. Even though the court may ultimately find the marriage to be invalid, the court may (but is not required to) make “temporary orders” of support while the annulment is pending. The court can also make orders regarding temporary custody while the case is pending. Temporary orders might be issued in a contested annulment case, but are almost never ordered in annulments that are filed jointly. This is probably because when the parties jointly file the annulment papers, they want the marriage to be over as soon as possible, and the case will not be open long enough for temporary orders to be needed.

COLUMBUS OHIO ANNULMENT ATTORNEYS 8. Annulment in Ohio may undo the marriage, but it does NOT undo the legitimacy of any children that were born during the marriage. The children still have the presumption of paternity that is afforded to children born during a marriage.

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9. A court cannot award BOTH an annulment and a divorce (or legal separation, dissolution, etc.) If one party files for annulment and the other party counterclaims for divorce or legal separation, that does not mean that annulment is now off the table. The court must decide if there are grounds for an annulment. Even if there are grounds for annulment, some of the grounds for annulment are also grounds for divorce. The best policy is for the court to allow the aggrieved party their choice of remedy, assuming that party has met his or her burden of proof.
10. In annulment, unlike divorce or dissolution (and sometimes legal separation), there is no property division, and no spousal support after the marriage is annulled.

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You may also be interested in some of our divorce articles:

DISCLAIMER – Read it, it’s important!

Columbus Ohio Annulment Lawyers on Annulment in Ohio

June 18, 2008

Columbus Ohio Annulment Attorney article about Annulment in Ohio.

Annulment is one of the three ways to end a marriage in Ohio. Technically, the marriage does not end when a marriage is annulled, the marriage is voided. Legally, it is as if the marriage never happened. This means there is no property division and no spousal support. It is as if the marriage has been erased.

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In Ohio, there are several grounds for annulment.

(A) The person who seeks to have the marriage annulled was under age (per 3101.01 of the Ohio Revised Code, age 18 for males, age 16 for females,) at the time of the marriage, unless after they became of age, they lived with their spouse as husband and wife). Annulment can be filed by the under age person within two years of reaching legal age, or by a parent or guardian at any time before the minor reaches legal age.

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(B) Either party had another spouse at the time of the marriage, that spouse is still alive, and the marriage with that spouse has not been ended. Annulment can be filed by either party during the life of the other, or by the former spouse.

(C) Either party has been declared legally incompetent, unless they regained competency, and afterwards lived with their spouse as husband and wife. Annulment can be filed by the spouse of the person declared legally incompetent, or by a relative or guardian of the person found legally incompetent during the life of either spouse.

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(D) Either party agreed to the marriage based on fraud, unless after the marriage, willful knowledge of the fraud, they continued to live with their spouse as husband and wife. Annulment can be filed by the defrauded spouse within two years after the discovery of the fraud.

(E) That the consent to the marriage of either party was obtained by force, unless such party afterwards cohabited with the other as husband or wife. Annulment can be filed within two years of the date of the marriage.

(F) That the marriage between the parties was never consummated although otherwise valid. Annulment can be filed by the “aggrieved” party within two years from the date of the marriage.

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If the parties have grounds for annulment, they can petition the court for and receive an Annulment, even if there were children born during the marriage. It is important to note that even if the parents’ marriage is annulled, the annulment does not illegitimize the children of the marriage, nor does it negate the presumption of paternity. In addition, according to ORC 3105.21 the court is required to make orders regarding the care, maintenance and support of the children.

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COLUMBUS OHIO ANNULMENT ATTORNEYS LAWYERS In cases where the marriage is not technically valid, the parties may still wish to get an annulment, and for very good reason. If parties received a marriage certificate, and completed a marriage ceremony, they might have a hard time getting a marriage license to marry again. In addition, it is possible that the other party or the Officiant (priest, judge, pastor, etc.) may correct the procedural defect, and make the marriage valid. By the time the defect is corrected, the person may already be married to someone else. They may even have children with their new spouse – only to find out their marriage has now become invalid. Therefore, if the marriage isn’t valid because of a defect, it may not be the best idea to just ignore the problem. Instead, it might be a better idea to clean up the record before moving on with your new life.

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By far, the most common question our Columbus Ohio Annulment Attorneys hear about annulment is how much does annulment cost? If the parties have ground for annulment and agree to cooperate in the process, then we can represent one of the parties (only) for a flat fee. Our flat fee for annulment is found on our FAQ page. If both parties are not in agreement regarding the annulment, we charge hourly rates, which can also be found on our FAQ page.

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Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

DISCLAIMER – Read it’s important!