BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL
Fear can devour divorce clients. Sometimes fear is so sharp that a person delays the inevitable. Unfortunately, fear during a divorce is normal and unavoidable. In a few circumstances, what clients perceive as huge barriers in their cases actually turn out far smaller than they imagined going in.
Many clients first meet with me concerned that their case will be complicated just because it has lasted upwards of thirty years. In reality, long-term marriages, where the partners start out together with clothing, wedding gifts, and starter cars, are easier to end than shorter marriages where the parties are more likely to be on their second (or third) divorce and they started off with property and debts. Usually a longer marriage means that the parties’ children are emancipated by reason of age, so there are no issues of custody or child support. A longer marriage also means that, unless there are inheritances, personal injury settlements, or gifts, then the property and debts are probably going to be considered “marital.” Under Ohio law, an equal division of marital property and debts is presumed to be fair. If all the property and debts are marital, it is merely a matter of itemizing and valuing the property for an equal division. Long-term marriages tend to bring a host of emotional issues. When a person has been married longer than they were ever single, the transition to a divorce can be very traumatic. Most people in this situation, however, have an innate toughness and recover quickly. Again, when the common children are emancipated, it is easier to live separate lives without the constant challenge of co-parenting while divorced. So, terminating a long-term marriage usually causes more emotional issues than legal issues.
Not surprisingly, imprisonment often leads to divorce. Ohio law specifically provides that “imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint” is grounds for divorce. The fact of imprisonment is usually easy to corroborate and service of process can be done to the party in care of the warden of the institution.
The complexities of “prison divorce” revolve around child issues. The mere fact of imprisonment does not mean a party will never again see their children. The fact of imprisonment greatly diminishes a party’s ability to pay child support. In fact, Ohio law now provides that income will not be imputed to a parent who is:
“incarcerated or institutionalized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order when the obligee or a child who is the subject of the support order is a victim of the offense.”
In the usual circumstance, the child support obligation will be set at close to nothing during the time of imprisonment. And, the other parent is usually not surprised and is happy simply to attend a short hearing without the presence of their imprisoned spouse.
Most divorce documents contain language such as “gross neglect of duty,” “extreme cruelty,” and my spouse will “molest and annoy” me unless restrained by order of this court. We field many calls of panic over this language when people are served with divorce.
In reality, the language is boilerplate and taken directly from the statute for grounds and the requirements for a temporary restraining order. I routinely reassure clients that the language is on every lawyer’s computer in town and that we will file the “mirror image” of what their spouse filed.
Incompatibility is the basis for almost all Ohio divorces. The only purpose of a restraining order is to keep the parties in the same position as they were in before the filing. In this instance, “molest” in this contest is an outdated legal term that has nothing to do with sexual abuse.
Divorce is rough, but usually for reasons other than what clients expect in the beginning. At least in the circumstances outlined above, I usually can relieve the immediate terror of what is taking place.
Copyright 2014. All rights reserved. Anne Catherine Harvey LLC