Dissolution of Marriage or Divorce
When a couple gets married, it is unlikely that they are thinking about what to do if the marriage fails. However, the reality is that almost 50 percent of marriages end in divorce or dissolution.
Dissolution of marriage procedures vary from state to state. Generally, dissolution and divorce procedures are the same, though Ohio considers divorce and dissolution two different remedies to ending a marriage. Either way, only a court can grant dissolution of marriage or divorce.
Below is the process for divorce or dissolution of marriage in New York, California and Ohio. The procedures are similar, so if you are from another state and wish to end your marriage, you can use them as a guide to get an idea of the process. However, make sure to check with the court in your state, in the county where you reside, for the exact procedure.
Procedures in New York
In New York, to end a marriage, you must file a action for divorce. The procedure for a divorce is as follows:
1) As in all civil lawsuits, the filing spouse, now called the plaintiff, or her attorney, must draft a "summons and complaint" and file it with the court clerk in the county where she resides. At that time, a $210 fee must be paid for an index number, the number that identifies the case and should be placed on all subsequent documents.
2) Under New York law, the non-filing spouse, now called the defendant, must be personally served with the summons and complaint. Civil Practice Laws and Regulations (CPLR) section 308 and Domestic Relations Law (DRL) section 232 require personal service.
3) The plaintiff’s complaint must state the grounds for divorce and request relief. The only grounds for divorce recognized by the state of New York are found in DRL section 170. They are: cruel treatment of the plaintiff, by the defendant, causing physical and mental harm to the plaintiff, making cohabitation unsafe; abandonment by the defendant, for more than one year; the defendant being in prison for three or more consecutive years after the marriage; the defendant has committed adultery; plaintiff and defendant have lived apart for more than a year, under a judgment of separation; plaintiff and defendant have lived apart for more than a year, under a separation agreement.
4) The defendant is given time to respond, by answer, admitting or denying the plaintiff’s allegations, and also, if desired, filing a counterclaim. At this time, the defendant must assert any affirmative defenses or be barred from using such defenses at trial. For example, if the plaintiff has alleged that the defendant committed adultery, the defendant has an affirmative defense if he can show the plaintiff also has committed adultery.
5) The next step is discovery, where parties exchange net worth statements and all real estate and pensions are appraised. Depositions of both spouses and any relevant third parties will take place. If there are any children from the marriage, the court will decide if the children request independent counsel, and, if so, the court will appoint a guardian who will represent the children’s interests.
6) Eventually, a trial date is set. At a pretrial conference, any issues that can be settled are handled. At trial, the plaintiff presents her case by testifying, calling witnesses and submitting any documented evidence. The defense then has the opportunity to do the same. The court then issues a decision. A "judgment of divorce" is drafted by one party, addressing all the issues in the court’s decision. It is not until the court signs the judgment and the document is filed with the county clerk that the parties actually are officially divorced.
Procedures in California
California’s process for ending a marriage is dissolution. Because California is a “no-fault” state, one spouse can file for dissolution if he or she claims that “irreconcilable differences” have arisen, causing a collapse in the marriage that cannot be repaired. Even if the other spouse objects and does not want to end the marriage, a court is likely to grant the filing spouse’s request for dissolution.
Under California’s Family Law, in order to file for dissolution of marriage, one spouse must be a California resident for at least six months prior and the filing spouse must be a resident of the county where the petition is filed for at least three months prior.
When a spouse decides to file for a dissolution or marriage, the procedures outlined below must be followed:
1) Under California’s Family Law, the filing spouse (the petitioner), or that spouse’s attorney, must draft a petition, file it with the court and have it served upon the other spouse (the respondent). Personal service on the respondent is required.
2) The respondent then has 30 days from the date of service to file a response.
3) Next, a hearing will be held in order for a judge to make any orders involving a temporary child custody arrangement (if there are children involved), temporary restraining orders (if necessary), and spousal support.
4) The discover process follows, in which parties exchange any information relevant to the dissolution of marriage. This includes a declaration of disclosure, where parties list any property owned jointly or separately, income and expense information. At this time, depositions or examinations of the parties or relevant witness also will take place.
5) If the parties can agree on a settlement, one party’s attorney will draft a marital settlement agreement, containing all the terms of the dissolution of the marriage. The agreement then is signed by both parties and their attorneys.
6) If a settlement cannot be reached, a trial occurs.
7) Lastly, whether a settlement agreement was signed or a trial took place, one party’s attorney drafts a judgment of dissolution of marriage. The judgment includes the terms of dissolution and any orders from the court. The judgment is filed and signed by the court, dissolving the marriage. A notice of entry of judgment is mailed to both parties once the marriage is dissolved by the court.
Divorce or Dissolution in Ohio
In Ohio, divorce and dissolution of marriage are two different remedies. If spouses cannot agree to all the terms, or if one spouse objects, you must seek the remedy of divorce in Ohio. Dissolution is only for parties who are in absolute agreement on all terms and wish to end their marriage uncontested.
If the end of a marriage is uncontested, spouses can file for dissolution of marriage. The requirements for the action of dissolution are agreement by both parties on all issues and the appearance of both parties at a hearing for dissolution.
There is a common misconception that dissolution in Ohio is only for spouses with minimal assets and no children, however, as long as the spouses can agree on all issues, including property and assets, spousal support and custody of children, dissolution is still an option.
Ohio also has a residency requirement in order to be permitted to file for dissolution. One spouse must have been an Ohio resident for a minimum of six months prior to filing.
Procedures in Ohio
The procedures for dissolution can be found in Ohio’s code from sections 3105.61 through 3105.65. Those procedures are as follows:
1) Spouses must agree to all issues and draft, themselves or with an attorney, a separation agreement. That agreement must include sections for division of property, spousal support and custody of children. Custody is discussed in a section entitled “shared parenting plan.”
2) After the separation agreement is drafted and signed, the agreement, and any other relevant documents, is attached to a petition for dissolution. The petition is filed with the clerk of the court in your local county. (The agreement, petition, and other required paperwork can be prepared by the spouses, but it is always best to consult and/or hire an attorney.)
3) Once the petition is filed, the court will set a hearing date. The hearing will be set for no less than 30 and no more than 90 days after the petition for dissolution was filed. Both spouses must appear at the hearing or the petition will be dismissed.
4) At the hearing, both spouses must testify under oath that they entered into the separation agreement voluntarily, agree to all terms contained in the agreement and wish that the marriage be dissolved.
5) While the court may order changes in the settlement agreement or dismiss the petition altogether, if the settlement agreement appears fair, both spouses are present and agree to all terms, the court will grant the petition, effectively dissolving the marriage.
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