Ohio's laws make express provision for legal separation. The separation must be based on any of the grounds on which divorce could be granted. Filing for separation gives your spouse an opportunity to counterclaim for divorce. In completing a legal separation, you and your spouse must arrange to divide jointly owned property and care for your minor children.
Grounds for Separation
Ohio grants legal separation for any of the same grounds on which a divorce can be based. If you or your spouse had a valid preexisting marriage with another living person at the time you entered the current marriage, this is a grounds for divorce or separation. Other grounds include willful absence of the non-filing spouse for at least one year, adultery, extreme cruelty, fraud in the inducement to marriage, gross neglect of duty, habitual drunkenness or incarceration in a state or federal correctional institution. If you and your spouse have lived separately without interruption for one year, Ohio will grant a divorce or separation. The no-fault option, incompatibility, only works if neither spouse objects.
You don't have to have been married in Ohio to file for legal separation there, but you must meet a residency requirement. You must have been a legal resident of Ohio for the six continuous months immediately preceding the filing and a resident of the county in which you file for the separation for the immediately preceding 90 days. If, however, you are the victim of domestic violence, filing first for a restraining order allows for an exception to the residency requirement.
Counterclaim for Divorce
A spouse who is served with a complaint for legal separation has the right to counterclaim for divorce or annulment. If the grounds for the separation are sufficient, your spouse can elect to terminate the marriage rather than simply enter orders of separation.
Ohio is an equitable distribution state. This means you and your spouse can reach your own private agreement on how to divide your marital assets, but the court, if required to intervene, will consider a variety of factors to determine a "fair" division under the circumstances. Marital property consists of all real estate and personal property acquired by either spouse during the marriage except for inheritances or gifts to just one spouse. The court considers many of the same factors when deciding to award spousal support. The purpose is to allow each spouse to maintain approximately the same standard of living as enjoyed during the marriage, subject to their ability to support themselves. When awarding support, the court considers all of the spouses' income and assets, not simply marital property.
Child Custody and Support
Before finalizing a legal separation, the court will allocate the respective parental rights of each spouse, with the highest priority being the best interests of the child. As such, there is usually a preference for some shared parenting role. The court considers, but is not bound by, the child's own wishes. Child support must be awarded in accordance with the state guidelines based on the income of the parents and the actual cost of medical insurance and other necessary care. The court has little discretion to deviate from the child support guidelines unless it would be manifestly unjust not to do so.
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