OHIO DIVORCE GUIDE

Thursday, February 26, 2015

Ohio Annulments

An Ohio court may determine that a marriage is legally invalid because of one of the causes detailed below that existed at the time of the marriage. An annulment treats the marriage as though it never existed.

3105.31 Causes for annulment.

A marriage may be annulled for any of the following causes existing at the time of the marriage:

(A) That the party in whose behalf it is sought to have the marriage annulled was under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;

(B) That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;

(C) That either party has been adjudicated to be mentally incompetent, unless such party after being restored to competency cohabited with the other as husband or wife;

(D) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, cohabited with the other as husband or wife;

(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;

(F) That the marriage between the parties was never consummated although otherwise valid.

Effective Date: 09-24-1963

3105.32 When action for annulment must be commenced and by what parties.

An action to obtain a decree of nullity of a marriage must be commenced within the periods and by the parties as follows:

(A) For the cause mentioned in division (A) of section 3105.31 of the Revised Code, by the party to the marriage who was married under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, within two years after arriving at such age; or by a parent, guardian, or other person having charge of such party at any time before such party has arrived at such age;

(B) For the cause mentioned in division (B) of section 3105.31 of the Revised Code, by either party during the life of the other or by such former husband or wife;

(C) For the cause mentioned in division (C) of section 3105.31 of the Revised Code, by the party aggrieved or a relative or guardian of the party adjudicated mentally incompetent at any time before the death of either party;

(D) For the cause mentioned in division (D) of section 3105.31 of the Revised Code, by the party aggrieved within two years after the discovery of the facts constituting fraud;

(E) For the cause mentioned in division (E) of section 3105.31 of the Revised Code, by the party aggrieved within two years from the date of the said marriage;

(F) For the cause mentioned in division (F) of section 3105.31 of the Revised Code, by the party aggrieved within two years from the date of the marriage.

Effective Date: 09-24-1963

Underage: Within 2 yrs. of age of consent unless voluntary cohabitation; Previous marriage undissolved: Anytime during life of parties; Mental: Anytime before death; Fraud: Within 2 yrs. of discovering fraud unless voluntary cohabitation; Force: 2 yrs. after marriage unless voluntary cohabitation; No consummation: 2 yrs. from marriage

Thursday, February 12, 2015

Equitable Division of Patents in Divorce

In Ohio, in the context of equitably dividing marital property, the term "during the marriage" is statutorily presumed to run from the date of the marriage through the date of the final divorce hearing. Ohio Rev. Code Ann. §3105.171(A)(2)(a).

However, if the court determines that the use of either or both of these dates would be inequitable, the court may select dates that it considers equitable in determining the value of marital property. Ohio Rev. Code Ann. § 3105.171(A)(2)(b).

It is not uncommon for the court to select the date of separation, the date the parties stopped living together as husband and wife, as the most equitable date for capping the division of marital property. The “Date of Separation” can be critically important regarding division marital interests in patents. Some patents are clearly identifiable as pre or post marital assets, not subject to division.

Generally, spouses who claim marital interest in a patent can hire appraisers to value the property. On the one hand, this can be expensive and speculative. On the other hand, if the rights are subject to valuation, such an option can allow for final division of property without future entanglements with the ex-spouse.

Another option is to negotiate a division of income or royalties from the intellectual property on a go forward basis. Such a division can involve the spouse who manages the property and who is responsible for enhancement of the property value receiving compensation for his or her post divorce labor. This approach also requires agreement on the proportion going to each spouse which can be contentious.

Some patents regarded as marital property can be shown to have no fair market value (the value in money of any property for which that property would sell on the open market by a willing seller to a willing buyer).

The use of a patent valuation expert may be of critical importance. A patent regarded as marital, not prior marketed, may be argued as having no value. The court can only consider evidence before it, unless a later motion alleging such grounds as fraud, newly discovered evidence that through reasonable diligence could not have been discovered at the time, etc., is brought by an aggrieved ex-spouse.

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Saturday, January 4, 2014

Presentation of Competing Decrees and Judgment Entries in Contentious Divorces

Some divorces are so contentious that decrees and judgment entries are submitted by both parties, even after the court directed one of the parties to do the drafting. In some cases, following a lengthy bitter contested divorce that was resolved at trial, the blood continues to be spilled over the wording of the orders summarized in competing drafts of the final decree. Despite the parties’ beliefs that the court’s decision set matters out in black and white, motions for clarification are sometimes filed by both sides and competing drafts of the final decree are submitted by the parties setting in writing their different interpretations regarding what the court meant in the court’s detailed decision.

Sample language in notice of presentation of final decree of divorce:

Now comes _______, Defendant, by and through counsel, and respectfully requests that the Court sign the attached Decree of Divorce, as it accurately reflects the Court’s "Date" Decision. The undersigned prepared the attached Decree and forwarded it to opposing counsel via first class mail and email on “Date”. On “Date”, opposing counsel indicated that both parties simply submit their own drafts and let the Court decide.

Sample County Domestic Relations Court Rules:

Excerpt From Warren County Domestic Relations Court Rules As Amended And Effective April 1, 2012.

6.1 Decrees and Judgment Entries in Contested Matters.

B. Disagreement Concerning Documents Prepared by Counsel.

If the prevailing party prepares the necessary document as noted above but opposing counsel objects to the document as to form or because it does not accurately embody the court’s decision, counsel shall indicate objections by affixing the words “subject to objection” under counsel’s signature. Counsel shall then prepare his or her own entry, sign it and mail the original to the prevailing attorney along with the entry previously mailed to him or her by the prevailing attorney. Either or both counsel shall then set the matter for a hearing on the entry as soon as possible. Each attorney must present a draft entry to the Judge/Magistrate at such hearing. The Judge/Magistrate shall approve and file one or the other of the submitted entries or shall prepare and file his/her own entry or decision.

C. Failure to Respond to Draft Documents.

If the prevailing party prepares the necessary document(s) as noted above but opposing counsel fails to respond with approval or objections, or if the prevailing party fails to timely prepare the necessary document(s) as noted above, counsel may file a “Notice of Presentation of Entry” with the court in substantial compliance with DR Form 9 (included in Appendix 4). Such notice shall include the following:

1. Notice to the opposing counsel that the proposed entry will be presented to the court for approval after the expiration of fourteen (14) days from the date of mailing unless the other attorney, within the fourteen days, files a written objection stating the grounds with particularity, attaches his/her own proposed entry and sets the matter for hearing.

2. Failure to file written objections and/or to set a hearing will be construed as acquiescence to the filing of the proponent’s entry.

3. The proposed entry shall be attached to the notice.

If, after the expiration of the fourteen (14) day period, opposing counsel has not filed a written objection, the counsel who drafted the document shall present both the file stamped Notice of Presentation of Entry and the actual proposed entry to the assigned Judge/Magistrate for consideration.

D. Nothing in this rule precludes the Judge/Magistrate from preparing and filing his or her own entry/decision at any time.

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances. Each divorce has its own unique set of facts and circumstances and is governed by the rules of the Ohio county domestic relations court that has jurisdiction over the divorce.

Friday, December 27, 2013

Should I Be The First To File For Divorce?

When spouses are preparing to divorce each other, they often wonder whether there is a benefit to being the first to file. When you file first you will have to pay the deposit required by the court. Filing first affords you the following opportunities in a contested divorce:

Restraining Orders

In contested divorces, court restraining orders are sometimes needed to protect spouses from each other’s actions. Such orders are Ex Parte in nature (sought by one of the spouses and granted without notice or an initial hearing allowing the other spouse to be heard). Mutual and temporary restraining orders are sought to protect your relationship with your children and preserve your marital assets.

Mutual and Temporary Restraining Orders are Detailed at:

http://ohiodivorceguide.blogspot.com/2013/02/divorce-restraining-orders.html

Temporary Parenting, Temporary Spousal Support, Temporary Child Support Orders

Spouses often request temporary court orders regarding: parenting; temporary spousal support and; temporary child support.

Sample form regarding temporary parenting, spousal and child support orders (Hamilton County Domestic Relations Form 3.2):

http://www.hamilton-co.org/DOMESTIC/Court%20Forms/PDF%20Files/3-2%20Motion%20Affidavit%20for%20Tempory%20Parenting%20Orders%20without.pdf