The Ins and Outs of Legal Separation in Ohio
In Ohio, legal separation is less familiar concept to many couples. Unlike divorce, legal separation does not permanently end a marriage. Instead, it allows couples to legally separate from each other while retaining certain marital rights. Legal separation is a court-approved agreement in which the spouses divide their assets and provide for spousal support and child support, all of which can later become part of a divorce filing.
Convenience is one of the most popular reasons couples may choose legal separation. Perhaps they want to remain married for practical reasons—like to keep one spouse on health insurance. Legal separation also requires the court to make financial decisions for a couple’s future while permanent divorce takes time and can include a more detailed financial investigation . This circumstance could benefit either spouse, depending on their financial situations.
While divorce and legal separation may sound very similar to each other, there are notable differences. For instance, a divorce ends the legal bonds of marriage, while legal separation continues to exist on paper. Likewise, divorce leaves no possibility of reconciliation, even if spouses change their minds. Wed couples may choose legal separation because they wish to remain married to each other (perhaps for religious reasons in many faiths). Legal separation enables this status of marriage while giving married couples some of the financial independence and protections of divorce.
Who Can File for Legal Separation?
Eligibility Criteria for Legal Separation in Ohio
Before considering legal separation, it is important to be aware that there are certain eligibility criteria that must be met. The first requirement is residency. In Ohio, one or both spouses must have lived in the state for at least six months before filing for legal separation. If there are children involved, you must have maintained a home in Ohio for at least six months immediately before filing for separation or divorce, and the children must not have resided in Ohio for less than six months.
It is also necessary to establish grounds for legal separation. Divergence of interests, incompatibility, extreme cruelty, adultery, fraud, one spouse willfully crashing the other and neglect of duty are all appropriate grounds for legal separation under section 3103.06 of the Ohio Revised Code. Before filing for legal separation, remember that it is often less stressful (both emotionally and financially) and less definite than a divorce. Some couples choose to separate for a short period of time to see if they can work out their differences to save the marriage.
How to File for a Legal Separation
In Ohio, filing for a legal separation without children generally involves the completion of the following steps:
1. Print and complete the necessary forms.
There are typically 3 forms required when filing for legal separation, all of which can be accessed through the Ohio Supreme Court website:
- Affidavit of Income and Expenses: used to set forth income obtained and expenses incurred for party and children.
- Motion for Temporary Orders: party can file this motion when filing for legal separation to ask the Court to order temporary spousal/child support, child visitation, exclusive use of the marital residence and/or legal custody.
- Sheriff’s Worksheet: requires both parties to state whether the wife will be changing her last name or whether the wife desires to use her maiden name. Both parties will also be required to provide their dates of birth.
In most cases, there are no additional forms necessary to file for the legal separation itself; however, it is recommended that the Complaint for Legal Separation be included as it requests Court intervention until a Final Decree of Legal Separation is entered.
2. File the completed form(s).
Once you have completed the required form(s) listed above, you will need to file them at your local Ohio Clerk of Courts. In Ohio, there is not a "legal separation court", thus, general division of the common pleas court is the proper place to file your separation action.
3. Pay the filing fee.
For the filing of a legal separation, you can expect to pay a filing fee of approximately $275.00. Additional costs will arise when filing for temporary orders, filing for service of process, obtaining temporary orders and filing for an agreed entry of separation decree. Fees vary by county and local court rules should always be consulted.
Until the court can process the separation action, the court does not maintain jurisdiction over the parties so please do not proceed with service unless and until Court intervention is sought.
Legal Separation Agreements Explained
Legal Separation Agreements are contracts created by the parties to a legal separation. They contain all the agreements and understandings that the parties have come to with regard to their rights and responsibilities while they are separated, or if there are children of the marriage, the Legal Separation Agreement will address the rights and responsibilities as it pertains to the children.
Most Legal Separation Agreements address issues such as: division of property, division of debts, alimony, tax dependency exemptions, tax filing status, parental rights and responsibilities, parenting time, child support, and health insurance.
Although it is not a physical requirement that you have a lawyer draft the Legal Separation Agreement, it is a legal requirement that you have a lawyer review it. There are several reasons for this, one is that courts require both parties to the Legal Separation to have an independent attorney review the agreement for them. This is to make sure that both parties have had an opportunity to be counseled by separate Counsel to the issues in the Legal Separation Agreement, so they understand the ramifications of entering into the written "contract" of their legal rights going forward until the same issues can be addressed in a Dissolution filed after the separation. Additionally, a Legal Separation Agreement is a legally binding contract with the same penalties for breach as you would find in a contract among private citizens. So if you don’t understand the rights you could have in court, you could subject yourself to extreme liability, including having the court hold you in contempt of court.
Finally, without an attorney to review the same, the agreement is likely to favor the party who has drafted it. If the parties cannot agree to the terms, then it is likely that party litigating divorce or dissolution will see the court determine the rights of the parties in those contested proceedings, having wasted thousands of dollars on a contract that the court did not accept.
Effects on Money & Property
In Ohio, financial responsibility during a legal separation is quite similar to the responsibility during a divorce. Any debts incurred during a separation proceeding are considered the joint responsibility of both spouses, and assets purchased during that time will be jointly owned as well. The exact manner in which finances are managed can be tailored in the separation agreement, which is negotiated between the parties. When it comes to property division, the terms of the separation agreement can also be tailored to meet the needs of the separating couple. Ohio law provides 11 different ways of dividing property during a divorce , however, if the couple can agree on how to fairly divide the property, they are free to make their own agreement. For instance, if one spouse comes into the relationship with a large amount of student loan debt, but also with a substantial retirement savings, the other spouse can agree that he or she will be obligated to pay the student loan debt, and will not receive an equitable distribution of the retirement funds. However, a judge will hold the clients to whatever has been agreed upon, so any agreement should be given careful consideration before being entered into.
Child Custody & Support Issues
When one spouse decides to file for legal separation, it can impact many aspects of household life, particularly if there are children involved. When you file for legal separation, the terms of custody and child support are determined in the same way as a divorce. The main difference, of course, is that in a legal separation, you are still legally married while living apart. Both parents have the right to maintain access to their children, and many states require both parents to file for legal separation in order to have the matter heard in court.
You may be able to negotiate some aspects of custody and support with your spouse, but the court will ultimately have to determine child custody, child support, and visitation, if these aspects are contested. In Ohio, legal separation differs from divorce in the following aspects: In Ohio: A legal separation is a court-approved court order that will determine all matters that would otherwise be determined in a divorce (dissolution) proceeding. Those issues include: You may petition the court for legal separation on your own or in conjunction with filing for divorce. You and your spouse will be expected to provide financial information, income information, and various other information to the court, as in a divorce.
Once the court receives all the necessary information, the court will make an equitable division of marital property and debts between the parties. This does not mean a 50/50 split but one that is fair to both parties after weighing the factors present in the case.
Turning Legal Separation into a Divorce
It is not uncommon for parties to separate, thinking that they will never get divorced, only to later change their mind. In some cases, the custodial parent may believe the other parent is not acting like a parent. In others, the party with a claim for divorce believes that the other party is blowing through marital assets, wasting large sums of money. Even in cases where a party desires a divorce primarily to pursue a claim for spousal support based upon a substantial increase in income, the party may realize it was a mistake to file for legal separation instead of a divorce. For the reasons above, Ohio law is designed to allow parties to convert from legal separation, to divorce.
The legal process begins with a Motion to Convert Separation To Divorce filed with the Clerk of Courts. The Ohio Juvenile and Probate Law Forms website has a sample motion, form 25.9A, that can be downloaded, filled out, and filed with the court. Once the motion is filed, the moving party must cause service upon opposing party pursuant to Civil Rule 4. The typical timelines for filing with the court and appearing in front of the magistrate generally follows the processes most courts have in place for new filings. The motion is heard by the court or magistrate in a hearing scheduled by the moving party with the Court.
If the court grants the motion to convert, the legal separation becomes a divorce. From there, the parties can proceed forward as any filing for divorce would in Ohio. The court does not have to find a reason to grant the conversion; they generally are not deciding the issue of divorce, simply granting the conversion from separation to divorce.
Consulting with an Attorney
In Ohio, seeking the services of a family law attorney has many advantages. They can provide guidance on the process, help you understand your legal rights, assist you in identifying and dealing with lifestyle issues, and refer you to other professionals like financial planners, counselors, and mediators.
A lawyer can explain the difference between legal separation and divorce, and can help you assess the pros and cons of all your options. Legal separation provides a way for couples to decide on matters such as child custody, child support, alimony, division of property without having to divorce immediately. A separation agreement is a legally binding document, and it is important to have an attorney review any separation agreement before you sign it. It may be possible to file for divorce after you have filed for legal separation if you have the right circumstances.
Whenever possible, it is usually best for you and your spouse to reach an agreement on issues such as child custody. However, if this is not possible , a lawyer can advise you and represent you in court.
During a separation or divorce, resolution with your spouse may only be achieved through mediation. Mediation is a form of alternative dispute resolution to which the parties typically agree voluntarily. In mediation, a neutral third party, the mediator, helps the parties listen to each other and reach an agreement by proposing solutions to controversial points.
Even though you are separating, you may still have issues to deal with together. Legal counsel can help you craft an effective parenting plan that addresses the needs of you and your children. For the welfare of your children, separating parents should always do their best to work together.
A family law attorney will also consider whether divorce may be appropriate in your case. There are often several options for moving forward: reconciliation, legal separation, divorce, etc. The lawyer’s job is to weigh those options with you and to assist you in choosing the most advantageous option.