It ordinarily is a good idea to consult with a lawyer about major life events or changes, such as a divorce. S/he will protect your rights, as well as the rights of your children. S/he keeps current with the laws in your state concerning marriage, divorce, marital property, child custody and visitation, and family support.
One of the best ways to find an attorney is via referral from other family members, friends, colleagues or professionals (i.e., accountant, therapist, clergy). For a list of state and local bar association referral programs, see www.findlegalhelp.org for more information and resources.
The grounds for divorce depend on the state, and may be based on no-fault or fault. A no-fault divorce is available in some form in all 50 states; many states, including Ohio, also have fault-based grounds as an additional option. A no-fault divorce is one in which neither the husband nor the wife officially blames the other for the breakdown of the marriage. In Ohio, “incompatibility” is grounds for a no-fault divorce. Another common basis for no-fault divorce in Ohio is that the parties have lived separately for over a year with the intent that the separation be permanent. The list of grounds for a fault-based divorce may include: adultery, gross neglect of duty, extreme cruelty, attempted murder, desertion, incarceration, habitual drunkenness, use of addictive drugs, insanity, impotency, and infection of one’s spouse with venereal disease. See Family Law in the 50 States Tables, click on Grounds for Divorce. Source: Atkinson, Jeff, The American Bar Association Guide to Family Law, 1996.
Generally, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement,” which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of acrimony, a substantial majority are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination. Laws vary from state to state. As a starting point, many states allow both parties to keep their “nonmarital” or “separate” property. In dividing marital or community property, the laws vary from state to state. Some states are community property states. Some states, such as California, believe that marital property should be divided equally unless a premarital agreement specifies otherwise. Most states, however, apply the concept of “equitable distribution,” which means the court divides the marital property as it thinks fair. That division may be 50-50 or something else. Some of the factors considered include: the amount of nonmarital property each spouse has; each spouse’s earning power; services as a homemaker; waste and dissipation; fault; duration of the marriage; and age and health of the parties. See Family Law in the 50 States Tables, click on Property Division. Source: Atkinson, Jeff, The American Bar Association Guide to Family Law, 1996.
If the parents cannot agree on custody of their child, the courts decide custody based on “the best interests of the child.” Determining the child’s best interests involves many factors, no one of which is the most important factor. Source: Atkinson, Jeff, The American Bar Association Guide to Family Law, 1996.
Joint custody is referred to as Shared Parenting in Ohio. Shared Parenting suggests both parents sharing all major decisions affecting the child, which include school, health care, and extracurricular activities. Other considerations under these types of custody agreements may include: college expenses, summer camp, religious training, and methods of discipline. Shared Parenting does not mean an equal division of time with the children. The amount of time can range from a moderate period of time for one parent, such as every other weekend, to a child dividing the time equally between the two parents’ homes. In situations where the time spent with both parents will be divided equally, it helps if the parents live close to one another. See Family Law in the 50 States Tables, click on Custody Criteria.
All 50 states have adopted child support guidelines. Some states use tables that indicate a support amount for different ranges of income, similar to tax tables. Although some states base support on the payor’s income, many states use an income shares model, which is based on the income of both parents. Usually, the parent without the child the majority of the time will pay support, but if both parents share time with the child equally, the parent with the greater income usually pays support. The support may be reduced based upon the amount of time the payor spends with the child. Some states also cap support at a certain income level. If a parent is intentionally not working or is working at less than he or she is capable of earning, the court can “impute income,” which means setting support based upon what the parent is capable of earning rather than actual earnings. States vary on what expenses are included in child support. For example, some states include medical expenses and day care, while other states add those costs on top of the child support. See Family Law in the 50 States Tables, click on Child Support Guidelines.
In 1994, 5.4 million women with children were due child support (far below the number eligible for such orders). However, of the 5.4 million, only slightly more than half received the full amount, while a quarter received partial payment and a quarter received nothing at all. Various enforcement mechanisms exist against these so-called “dead-beat parents,” including automatic withholding of the obligor’s income. The court has the power to hold a party in contempt for violating a court order. The contemnor must be allowed an opportunity to “purge” the contempt, meaning to comply with the order. If the contemnor does not purge the contempt and has the ability to pay, the court has the power of incarceration, although usually for a limited amount of time, such as six months per contempt citation. In addition, many states have criminal penalties for failing to pay child support. Recently, Congress has enacted many new enforcement mechanisms, creating greater collaboration between federal and state governments. These include suspension of driver’s licenses and professional licenses, seizure of tax refunds, seizure of bank accounts and investment accounts, and even publishing the name and picture of the “dead-beat parent” on posters and in newspapers. The law also improves interstate enforcement by bolstering federal services to locate parents across state lines and by requiring all states to have common paternity procedures in interstate cases. Source: Children’s Defense Fund, The State of America’s Children: Yearbook 1997 16 (1997).
Traditionally, the common law denied grandparents visitation with a child over a parent’s objections. But since 1965, all 50 states and the District of Columbia have enacted legislation enabling grandparents to petition the courts for visitation rights with grandchildren. The laws do not make granting of visitation rights automatic—they merely give grandparents the right to ask for a visitation order. Many states permit only grandparents to petition for visitation, but some have extended the right to other relatives, such as great-grandparents, aunts, uncles and siblings, stepparents, and even non-relatives with whom the child has a close relationship. In these and other areas, state law governs. Most commonly, a grandparent (or other permitted third party) may petition for visitation after the death of a parent or upon divorce of the parents. Some statutes allow petitions when a parent is incarcerated, when a child is born out of wedlock, and when the child has previously lived with the grandparent. See Family Law in the 50 States Tables, click on Third-Party Visitation. Source: American Bar Association, Legal Guide for Older Americans, 1997.