Divorce Basics: Legal Process Options
As discussed in our previous blog post, selecting the right attorney is one of the most important decisions you can make in your family law case (Divorce Basics: Selecting the Right Attorney — Thudium Law | Family and Divorce Law Firm | Cincinnati OH). Once you have chosen a family law attorney, the next step is working with your attorney to determine what legal process option(s) are the best fit for your situation. This blog post will introduce different legal process options available in Ohio for terminating a marriage. In Ohio, a marriage can be terminated by either a divorce or dissolution.
Option #1- Divorce: A divorce begins when one party initiates a lawsuit against the other party. Once a divorce has been filed, the parties and their attorneys may be required to attend several court appearances. Throughout the divorce process, the parties must produce documents and information regarding their assets, debts, custody issues, incomes, and more. Each side then has to present evidence, defending their case. Ultimately, if no agreements are reached, a judge or magistrate decides the outcome of all contested matters in the case. However, it is important to note that even after a divorce is filed, the court still often encourages parties to try to resolve their disputes, sometimes ordering the parties to attend a settlement meeting, mediation, or other alternative dispute methods.
While filing for divorce can be expensive, acrimonious, and lengthy, it is sometimes necessary if one spouse is not cooperating, making unilateral changes to the status quo, or if there are custody issues in need of immediate attention. In that case, Temporary Orders can be sought and obtained. Each Ohio county has a specific process for obtaining Temporary Orders. You should work closely with your attorney to decide if filing for divorce is the right option for you.
Option #2- Dissolution: The second way a marriage can be terminated in Ohio is through a dissolution. A dissolution means that the parties agree upon all terms prior to filing the paperwork with the court. In a dissolution, the parties enter into written agreements regarding the division of assets and debts, support, and parenting agreements. A dissolution is typically less expensive, less adversarial and more efficient than a divorce. There isn’t just one way to complete a dissolution in Ohio. Below, we discuss several approaches that can be pursued. There is no legal requirement that each party have their own attorney to complete a dissolution except in a collaborative dissolution.
Kitchen Table Negotiations: This approach involves a couple having direct negotiation about the terms of their own dissolution at the “kitchen table” so to speak. Upon reaching agreements, the parties can either draft their own legal documents or take their agreements to an attorney to draft (although keep in mind that an attorney cannot represent both parties in a dissolution). The appeal of kitchen table negotiations is that there is limited attorney involvement, and it can be very cost effective for relatively simple cases. However, there are several potential downsides. First, because these are non-binding discussions, sometimes parties think they have come to a full agreement, only for one spouse to later change their mind. Additionally, parties can forget to discuss essential terms that end up becoming material to the deal. Other problems can include an unequal power dynamic between the parties or misunderstandings. Sometimes these problems lead to bad faith between the parties and difficulty in getting the deal done down the road.
Presenting a Written Proposal: This approach involves one party working with an attorney to present a full written proposal to send to the other spouse or their attorney. The other spouse, upon being presented with this proposal, can either choose to agree to the conditions and move forward with the process, send back proposed modifications to the proposal, or ignore it entirely. Potential upsides of this approach – if there are many agreements between the spouses, formalizing those agreements into a written proposal can help cover all of the necessary detail needed to file for a dissolution. This approach can be cost effective because there can be limited attorney involvement. Potential downsides to this approach – the spouse receiving the proposal can ignore it for as long as they want or completely if they choose. Additionally, if a spouse responds with many requested changes, it can be inefficient to go back and forth over mail or email.
Settlement Meeting: This approach involves the parties and their attorneys sitting down together to discuss the terms of a dissolution. If agreements are reached, the legal documents can then be drafted and signed by all parties. A settlement meeting can be very efficient because it allows the parties and their attorneys to discuss different aspects of the dissolution together rather than waiting on one side to send back a written response. Potential downsides are that sometimes a party may not like a suggestion or option from their spouse’s attorney, just because it came from their spouse’s attorney, who does not represent their interests. Or sometimes a party can become positional or deadlocked on particular terms of the deal.
Mediation: Mediation is a non-binding alternative dispute resolution process that involves a neutral third party, called a mediator. A mediator cannot provide legal advice but is trained to assist parties in reaching agreements and devising their own, mutually acceptable solutions. Parties can work with mediators through the court, or they can agree to use a private mediator. Additionally, parties can attend mediation with or without their own attorneys present. Mediation can be very helpful in a situation where a neutral voice is needed. A good mediator can ask questions, reframe issues, and help generate creative options for resolution.
Collaborative Dissolution: The Collaborative Process is a voluntary process for families who know they want to stay out of court and resolve their disputes respectfully. In a Collaborative dissolution, each party hires an attorney (ideally, collaboratively trained) to assist them in the process. There is an option to bring other neutrals into the case such as a family relations specialist (a mental health professional) or a financial neutral. The parties sign a contract at the beginning of the process, stating that the matter is to be resolved outside of litigation. Additionally, everyone must commit to promptly sharing all relevant information and documentation so there is transparency for the participants. The Collaborative Process is meant to keep the focus on the couple’s shared goals and interests and the children. After this initial groundwork is laid, options are generated by the Collaborative Team until a complete settlement is reached. If this process is appealing, you can read more about the Collaborative Process in Cincinnati here: https://collaborativelaw.com/
As you can see, there are many paths when it comes to terminating your marriage, and some of the above options can be combined. Going through a divorce is never an easy process, but having a strong family law attorney to help guide you can make a world of difference.
