Sunday, December 19, 2010

Domestic Violence and Divorce

            If your spouse knowingly physically harms or attempts to physically harm you (or your children), such that you fear for your safety, you are a victim of domestic violence (DV). You may choose to take action to prevent future violence or threatened violence.
            One option involves calling the police. If the police determine you are the victim are DV, your spouse will be arrested and a court will most likely order your spouse to stay away from you until the case is decided. If your spouse is convicted of DV, the court may continue the stay away order, often at your request.
            You can also petition your county domestic relations court for a civil protection order (CPO) against your spouse. The court will determine if your allegations meet the criteria for a hearing on your petition. A temporary protection order is issued if the criteria are met, and your spouse will be ordered to stay away from the parties listed to be protected (you, you and your children, etc.). The temporary order becomes effective once your spouse is served with the order. Violation of the order after your spouse is served is a criminal offense.
            The domestic relations court will schedule a hearing where both you and your spouse will be able to present evidence regarding the validity of your petition. Should the court be satisfied the parties listed to be protected need a CPO, such an order will be issued, for up to five years.
            Criminal stay away orders and CPOs may be grounds for the protected spouse to be entitled to exclusive possession of the marital residence, until the residence is sold or otherwise disposed of during a divorce. There are multiple other grounds for exclusive possession of the marital residence to be granted and it is best for you and your attorney to decide if such grounds exist and whether you want exclusive possession of the marital home.
            A spouse’s domestic violence history will be considered in custody and visitation deliberations. Supervised or unsupervised visitation may be at issue.
            Victims of DV may qualify for a legal aid attorney to be appointed to represent them during both CPO and divorce proceedings. The standard will not rest with how much money your spouse earns.
            When your spouse is prosecuted for DV, the matter becomes a public record. CPO filings appear on clerk of courts websites.
            When the police are summoned for a domestic violence call, someone is normally arrested. Sometimes the caller or both spouses are arrested. The police do not act as referees in a domestic dispute. Their role rests with enforcement of the law.
            In Ohio, someone convicted of an offense of DV (§ 2919.25), when the offense is a misdemeanor of the first degree (M-1), cannot have the record of the conviction expunged. A subsequent DV charge, after someone is convicted of an M-1 DV, will be enhanced to a felony due to the prior conviction.
This guide is provided for informational purposes only. It is not offered as, and does not constitute, legal advice. The guide presumes you are not currently represented by an attorney who knows your specific circumstances. The guide is specific to Ohio.

Reprinted by author from:

Tuesday, December 7, 2010

Legal Separation, Dissolution or Divorce?

Why Legal Separation?

Legal separations are mutually agreed upon by the parties. One reason parties seek a legal separation, rather than a divorce or dissolution, can be to ensure both parties receive continued health insurance coverage that would otherwise be lost to a party in either a divorce or dissolution.

The process for a Complaint for Legal Separation is the same as the Complaint for Divorce. The process for Petition for Dissolution presumes the parties are in agreement, just as with legal separation. The outcome with dissolution involves both separation of property and support issues, with the marriage ending. A legal separation also involves separation of property and support issues, but the marriage legally continues. An attorney can help you choose whether legal separation, dissolution or divorce will be your most appropriate option.

Later Divorce?

Legal separations dispose of property division and support issues, but leave the door open for either the husband or wife to later file a Complaint for Divorce. As long as the court granting the divorce does not disturb the previous legal separation orders regarding marital property division, spousal support and so on, the granting of the divorce will not trigger equitability issues. You cannot force a spouse to remain married.

Impact on Child Support

In a legal separation, determination of a child support order will take into account the incomes of both parents. The choice of pursuing a legal separation will not change the criteria applied in the determination of the support for children.

Consult With an Attorney

Ending a marriage can be a complicated undertaking and having the assistance of an attorney is advisable. This information is offered for informational purposes only. It is not offered as, and does not constitute, legal advice.

Sunday, December 5, 2010

Bankruptcy and Divorce

Does your spouse’s threat of filing bankruptcy hold water during divorce settlement negotiations?

Spouses sometimes attempt to scare and intimidate each other with threats regarding their filing for bankruptcy. You should receive notice of any bankruptcy action and assert your interest accordingly. [See: 11 USC 523(a)(15)]

The following is a rough cut, paste and simplification from the Bankruptcy Code. You should only try to understand your spouse's threat of bankruptcy as it specifically applies to your circumstances with the advice of an attorney who is dealing with you and your circumstances directly. Suffice to say, the edited and highlighted portion of the code presented below details the protections imbedded in the code against abuse of bankruptcy law by spouses intent on using bankruptcy to avoid spousal or child support obligations.


§ 523. Exceptions to discharge

A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title [11 USCS § 727, 1141, 1228(a), 1228(b), or 1328(b)] does not discharge an individual debtor from any debt such as those related to domestic support obligations; to a spouse, former spouse, or child of the debtor and not of the kind that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit unless—

    (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or

    (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor 

This information is not reported here as it appears in Title 11, and should be considered with the greatest care.

The above answer is not offered as legal advice and presumes you do not already have an attorney.

Infidelity And Divorce



Normally, neither spouse is "punished" by the Court for extramarital relationships. When admissible evidence of "marital waste" is offered, the Court does consider the "waste" (dissipation of marital funds subject to equitable division) when trying to equitably divide marital assets and debts. "Marital waste" would have to be materially significant for it to be relevant. [O.R.C. ~ 3105.171(E)(3) states, "[i]f a spouse has engaged in financial misconduct, including, but not limited to, the dissipation of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property."]

A few hundred dollars spent on dinners and movies may be considered irrelevant. When a spouse buys an extramarital partner a car that costs several thousand dollars or takes the partner on a cruise costing several thousand dollars, that may be materially significant. If the money spent is clearly identifiable as marital funds (e.g., preseparation marital savings) that were clearly identified as spent on the extramarital partner, offset may be granted by the Court. Claims unsupported by proper exhibits (records) or admissions by the spouse, may be disregarded.

This answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. The answer presumes you are not currently represented by an attorney who knows your specific circumstances.