Divorces v. Dissolutions: The Pro’s and Con’s

Divorces v. Dissolutions: The Pro’s and Con’s

There are many articles out there exploring the differences between divorces and dissolutions, but not many giving inside knowledge on which is the best for a specific situation. Both are ways to dissolve a marital union and the end results are the same; the difference is the process that the parties go through. There are pros and cons to each method that may not be readily apparent to the parties and in this blog, Sierra Causey discusses the different processes.

Dissolutions require the parties to agree on all aspects of their separation, write down their agreement, then submit it to the court. A divorce is filed by one party and the court will hold a series of hearings to make decisions on the terms of the termination of the parties’ marriage.

Pros of Divorce:

  • You can still make agreements: There is a misconception that divorces require everything to be litigated in a hostile fashion, but this is not true at all. The parties can still make agreements on specific issues and reserve the right to have the court and judge hear issues that cannot be resolved by agreement.
  • It is always moving forward: The divorce process is always moving forward towards the end goal. Unless the filing party dismisses the Complaint for Divorce, there is no way for the other party to stop the process from moving forward.  In the event that there is a Counterclaim for Divorce filed, both parties would need to dismiss to stop the progression of the case.

Cons of Divorce: 

  • It can get expensive: The two biggest determining factors of cost are the following: 1) the parties’ attitude and behavior towards each other and 2) the attorneys if there are attorneys.  The bad news is that litigation can cost the client a lot of money. The good news is that the client has control over their own attitude, behavior, and level of assistance they seek from their attorney, which contributes to the cost.  The more willing and able the parties are to work together, the less the process will cost.  As you are considering whether to invest in the cost of an attorney, you should consider your ability to be objective in a matter of your own heart, and the benefit of having a strategic partner to walk you through the process.
  • It can be a LONG process: A contested divorce can be a long process (especially if there are children involved) so it can drag out for a long period of time, which costs time, money, and mental energy.
  • A divorce can be emotionally exhausting: People have different ways of processing emotions and divorce can have negative effects on anxiety levels, depression, and overall mental health.
  • A divorce can be forced upon you: If a party properly files for divorce, the other party cannot stop the proceeding; the divorce happens regardless of whether the other party wants to divorce or not.
  • This process does not offer closure: Some people need closure at the end of their relationships. Going through a divorce may not give one party the opportunity to express feelings or give a clean break to the relationship, since the parties may not be communicating directly.

Pros of Dissolution: 

  • Cost-effective: The time and money that you are spending on your attorney for the dissolution goes towards drafting the paperwork needed to achieve your separation. No trial prep is required for this option. Further, the parties can cut back on costs if they have already talked about how to split their assets, debts, and custody of any children.
    • Disclaimer: A dissolution is only cost-effective if both spouses are willing and able to work together.
  • It is relatively quick: If you and your spouse aren’t able to negotiate the terms of dissolution within a six month time period, the dissolution process probably isn’t for you and you should talk to an attorney about filing for divorce.  In situations where the parties work relatively well together, the dissolution can go quickly and will only require one final, fifteen-minute hearing at the end of the process.

Cons of Dissolution: 

  • It’s difficult to be a good candidate for a dissolution: Dissolutions require the parties to agree on ALL terms of the termination of marriage including, but not limited to court costs, attorneys fees, division of assets, allocation of debts, custody, parenting time, spousal support, and child support. Many parties cannot agree on everything before the filing of any documents, so dissolution is not an option.
  • A party can back out: When going through a dissolution, the parties take the risk that one of them may not be negotiating the terms in good faith. The parties could get several months into negotiations and one of the parties can refuse to sign any documents.  (This is why we recommend not negotiating a dissolution for more than six months).  Even if all documents are signed, there is a risk that one party will change their mind and tell the court that they do not want to agree to the signed documents at the final hearing. If that occurs, it is likely the Judge will not grant the dissolution at the final hearing, and the parties will need to go back to the drawing board on the terms of the dissolution, file for divorce, or abandon the dissolution of marriage altogether.
    • Disclaimer: It is important to note that any signed agreements may be able to be used in divorce and by signing documents, you are risking that a court will enforce signed agreements. Sign documents only after consulting with an attorney!

How do I protect myself financially once a divorce is filed?

How do I protect myself financially once a divorce is filed?

             Once a divorce is filed, the court automatically issues what is called a mutual restraining order. This restraining order prohibits the parties from taking debts in the other’s name; disposing of or destroying assets; terminating insurance; changing beneficiaries; withdrawing, spending, or transferring funds in a bank; terminating household utilities; among many other actions. If a party violates the restraining order, the other party may ask the court to force the party to pay back the money lost and may award other damages.

Forcing the parties to leave bank accounts untouched is not practical for most people. The parties are expected to continue paying their household bills, in the same manner, they paid them during the marriage.  Sometimes it is best for the parties to each start a new, separate account and begins placing money in that account once the divorce is filed. This enables the parties to abide by the restraining order, but still have access to their money.

Another workaround to the restraining order, are the temporary orders that can be put in place. (If you would like to read more about temporary orders, please click HERE). A party may ask the court to order their spouse to contribute to expenses and debts that the parties have incurred during their marriage. These debts can be as small as utility bills or can be as large as mortgages on a residence. Asking for contribution from the other party may help keep the status quo while the divorce is pending, so one party is not forced to be paying all debts during that time.

 

 

What is a temporary order?

What is a temporary order?

A temporary order is an order from the court, issued at the beginning of a divorce or custody motion that controls the terms by which the parties operate until the case is resolved. Temporary orders are most commonly found in divorces where a party asks the court to give a temporary parenting order so that the parties do not have to wait for the outcome of the case to have a formal parenting time schedule. Temporary orders designating custody, parenting time, and child support resolve issues that parties usually have in the beginning of a case but are only in effect during the pendency of the divorce. Temporary Orders involving only parenting terms generally do not require a hearing.  The Court uses the affidavits filed by each of the parties to issue these orders without holding a hearing. Either party may ask for a hearing if they would like to contest the orders that the Court puts in place.

Parties can also ask for temporary spousal support or payment of debts. Unlike custody, parenting, and child support, motions involving temporary payments of debt or spousal support generally require a hearing before there is an order issued.

Temporary Orders are not final and they typically last only until the final decree of divorce has been journalized.

Divorcing with Children in Warren County — What to Expect from the Court’s Dispute Resolution Services

While courts in Ohio operate under the same statutes, each county’s Domestic Relations Court differs greatly in the services offered outside of litigation, and the procedures for each service. As you begin the divorce process, it is important to be aware of which dispute resolution services are offered, as they can potentially improve your overall divorce process and outcome. Certain dispute resolution services have the potential to 1) allow you and your ex to decide the outcome of your case, rather than the Court, 2) avoid litigation, and 3) reduce the overall costs and time required to complete your case. The Warren County Domestic Relations Court currently offers the following four services:

  1. Mediation
  2. Early Neutral Evaluation (ENE)
  3. Psychological or Psychiatric Examinations
  4. Guardian ad litem (GAL)

Generally, these services can be ordered or requested at any point in the process, including before or after a divorce, as parenting, property, or support issues arise. While all of these services offered are designed to help litigants, each service differs greatly in the role it plays in the court process. Currently, ENE is the only service offered that can address property and support issues, while the rest are reserved for parenting matters.

Mediation & Early Neutral Evaluation (ENE):

In the Warren County Domestic Relations Court, both mediation and Early Neutral Evaluation (ENE) are designed to facilitate a settlement, meaning you can negotiate the terms of your case without the Court deciding for you. It also means your case can potentially be completed much sooner than through the litigation process. They are both confidential processes, and the Court staff who participate would not testify or be a hearing officer at any future hearing. There is no additional cost for mediation and ENE services provided by the Court.

Mediation occurs between the parties and a Magistrate who is a trained mediator. This Magistrate would not be a hearing officer in your case. Attorneys and/or support persons may also attend if advance notice is provided. Any agreements reached in mediation do not become binding until submitted to and accepted by the Court in the appropriate format, such as a Shared Parenting Plan or Agreed Entry. Parties may engage in as many sessions as needed, so long as the mediator agrees that additional sessions are productive.

Local Rule 5.3(A) defines the Court’s ENE service as, “a Court ordered dispute resolution process in which the Early Neutral Evaluator provides an evaluation of the probable outcome of any parenting, property or support dispute.” Unlike mediation, ENE can be used to address any parenting, property, or support issues. The ENE process involves the parties, their attorneys (if represented), and the Evaluator, currently Magistrate Iversen. The Evaluator involved in your ENE session would not be a hearing officer in your case. Parties are first required to complete and submit a brief one week prior to the session, which gives the Evaluator an overview of what each party is seeking and why. During the ENE session, the parties and their attorneys are each given their own designated time to argue their respective positions, without the constraints and formalities of an actual trial. Once the parties and their attorneys have presented their positions, the Evaluator then provides an evaluation of the probable outcome of the case. Following the evaluation, additional time is built into the session to allow the parties to negotiate based upon the evaluation just received. This opportunity can be extremely productive once the parties have been given a realistic assessment of their case. ENE sessions are scheduled for 3-4 hours, followed by a scheduling conference to notify the hearing officer whether any agreements were reached as a result of ENE.

 

Psychological/Psychiatric Examinations & Guardians ad Litem (GAL):

Psychological and/or Psychiatric Examinations and Guardians ad litem (GAL) are utilized to assist the Court during a trial to allocate parental rights and responsibilities, including custody and parenting schedules.

If the Court determines that an evaluation of a party is needed before it can properly allocate parental rights and responsibilities, the Court will order a psychological or psychiatric examination, and the appropriate professional will be appointed by the Court. Attorneys are not permitted to communicate with or provide documentation to the professional unless approved by the Court. Once the evaluation is completed, the professional will provide the Court with a written report and recommendations at least 30 days prior to the hearing. The report is also provided to the attorneys, or the parties directly. The report is accepted into evidence as direct testimony, and the professional is considered to be the Court’s witness. If either party wishes to cross-examine the professional, they must facilitate the professional’s appearance at their hearing, and be responsible for any fees associated with their appearance. The Court will allocate the costs of the evaluation between the parties.

A Guardian ad litem (GAL) is appointed by the Court to represent the best interests of your child(ren). A GAL is often a family law attorney (although not a requirement), who has satisfied specific training requirements set forth by the Supreme Court of Ohio. A GAL will visit your respective homes and speak with the family members individually and any third parties as needed or requested by the parents (teachers, doctors, friends, etc.). A GAL may be appointed upon request of either party or by the Court on its own. Once a GAL has completed their investigation, a report is submitted to the Court (but not filed with the Court) and served upon the attorneys, or parties, at least fourteen days prior to the hearing. A GAL report is accepted as direct evidence. If either party wishes to question the GAL at the hearing, they must subpoena the GAL and will be responsible for their fees related to their attendance. Absent a subpoena, a GAL will not attend the hearing. While other counties determine a standard rate for their GALs, GAL’s in Warren County are permitted to set their own reasonable rate, which ranges generally from $100 to $200 per hour. Absent extraordinary circumstances, total GAL fees are typically expected to be around $1,500 excluding any Court appearances.

 

If you would like to learn more about these services and procedures, please visit:

https://www.co.warren.oh.us/domestic_relations_court/Forms/ENE.pdf

https://www.co.warren.oh.us/domestic_relations_court/LocalRules.pdf

  • 5 Appointment of Guardian Ad Litem (GAL)
  • 6 Psychological or Psychiatric Examinations
  • 2 Mediation
  • 5.3 Early Neutral Evaluation

Divorcing with Children in Hamilton County — What to Expect from the Court’s Dispute Resolution Department

Divorcing with Children in Hamilton County — What to Expect from the Court’s Dispute Resolution Department

While courts in Ohio operate under the same statutes, each county’s Domestic Relations Court differs greatly in the “dispute resolution” services offered, and the procedures for each service. Dispute resolution services have the potential to help your case be resolved by agreement, without the substantial time and costs associated with litigation. It is important to understand early on which dispute resolution services are available as they can dramatically alter the course of your divorce. In Hamilton County, the Domestic Relations Court will often encourage, if not require, that you participate in at least one of their dispute resolution services before allowing a case to go to trial when parenting is at issue. Of the nearby Ohio counties, the Hamilton County Domestic Relations Court currently offers the most dispute resolution services, those services are as follows:

  1. Mediation
  2. Neutral Evaluation (NE or ENE)
  3. Custody Investigation
  4. Guardian ad litem (GAL)
  5. Parenting Coordination (PC)

Generally, these services can be ordered or requested at any point in the process, including, before or after a divorce, as parenting issues arise. While all these services offered are designed to help families, each service differs greatly in the role it plays in the court process.

If you would like to learn more about these services and procedures, please visit:

  1. https://www.hamiltoncountyohio.gov/government/courts/court_of_domestic_relations/dispute_resolution
  2. https://www.hamiltoncountyohio.gov/government/courts/court_of_domestic_relations/local_rules

Mediation & (Early) Neutral Evaluation in Hamilton County, Ohio:

Generally, mediation and Neutral Evaluation (NE or ENE) are designed solely to facilitate a settlement. They are both confidential processes, and the Court staff who participate do not testify at your hearing.

Mediation involves the parties and a Court Social Worker/Counselor who is a trained mediator. Attorneys and/or support persons may also attend mediation, but notice should be provided in advance. If an agreement is reached, the mediator will prepare a written document summarizing the agreements reached, which is then provided to the parties and/or their attorneys. The Magistrate and/or Judge assigned to your case does not receive a copy of this agreement. The mediation agreement is then used to prepare the appropriate Court document, such as a Shared Parenting Plan or an Agreed Entry, which is then submitted to the Court for approval. It is the parties’ and/or their attorneys’ responsibility to prepare this document.

Most often, parties participate in 1-3 mediation sessions, which generally last approximately 2 hours each.  Pre-decree mediation is free to the parties in Hamilton County. Parties may engage in as many sessions as needed, so long as the mediator agrees that additional sessions are productive. Post-decree mediation is a one-time fee of $150, which also includes as many sessions as the mediator deems productive.

Neutral Evaluation (NE or ENE) can be thought of as a hybrid between mediation and a mock trial. The Neutral Evaluation (NE or ENE) process is a single session, lasting approximately 2-3 hours, involving the parties, their attorneys (if represented), a Magistrate, and a Court Social Worker/Counselor (or 2 Magistrates for Financial Neutral Evaluation). The Magistrate involved in your Neutral Evaluation session would not be a hearing officer in your case at any point. Parenting Perspective Briefs are completed by the parties ahead of time (provided by the Court), allowing each party to explain in writing their respective issues and positions. Both parties and their attorneys (if applicable) explain what they are seeking and describe the evidence that supports their positions.  The Evaluators then provide an oral assessment of their respective positions and their predictions of the outcome of the case if it went to trial and the parties are able to prove the positions as they were presented during NE. Additional time is built in to allow the parties to discuss settlement options, considering the feedback received. Neutral Evaluation (NE or ENE) has a one-time fee of $200. Neutral Evaluation (NE or ENE) is the only service offered that can be used to address financial disputes.

If you would like to learn more about mediation services, please visit:

Hamilton County Domestic Relations Court’s Approved Community-Based Mediators: https://www.hamiltoncountyohio.gov/UserFiles/Servers/Server_3788196/File/Government/Courts/Court%20of%20Domestic%20Relations/Dispute%20Resolution/Approved%20Mediators/22-9%20Hamilton%20County%20Approved%20Mediators.pdf

 

Custody Investigations & Guardians ad Litem in Hamilton County, Ohio

Custody investigations and Guardians ad litem (GAL) exist more as a tool to assist the Court in making its decisions, although they can both be extremely helpful in facilitating agreements. Custody Investigators and Guardians ad litem are responsible for making recommendations to the Court regarding primarily custody and parenting schedules, but may include additional recommendations such as communication provisions, school placement, medical decision-making, extracurriculars, and any other issues that are raised by the parents or children during the investigation.

A GAL is appointed by the Court to represent the best interests of your child(ren). A GAL will visit the parties’ respective homes and speak with the family members individually and third parties, as needed (attorneys, teachers, doctors, therapists, friends, etc.). A Custody Investigator is a Court Social Worker who investigates the family through a series of meetings at the Court (or via Zoom/telephone) and information-gathering. They will also speak to third parties who the parties or Custody Investigators determine, as needed to assist in their final report.

Both services result in a final, written report, which contain recommendations that the Court considers, in conjunction with a formal trial, when issuing its Decision. These reports can also be extremely helpful in facilitating a settlement, allowing parties to potentially avoid a trial altogether. Custody Investigators may testify at your hearing about the details of their investigation, so long as they are subpoenaed by the requesting party, pursuant to Local Rule 2.3.  Pursuant to Local Rule 10, a GAL must testify at the hearing for their report to be included as evidence, unless otherwise agreed. Both Custody Investigators and Guardians ad litem may be subjected to cross examination.

Custody Investigations have a one-time fee of $800 for a Full Investigation, and $400 for a Brief Focused Investigation for limited issues. There is no additional cost if the Custody Investigator is subpoenaed to testify in the hearing. Guardians ad litem are paid $175 per hour for all in-court and out-of-court time spent on the case, unless otherwise agreed or ordered.

 

Parenting Coordination in Hamilton County, Ohio:

Parenting Coordination can best be described as a hybrid of the above services. It can be ordered or requested by the Court before a trial, or as part of the Court’s final Decision. For example, parties may be ordered to utilize a Parenting Coordinator to reach an agreement prior to having a trial. Alternatively, parties may be ordered in the final Decision to work with a Parenting Coordinator for a specified period. A Parenting Coordinator works directly with parents to help resolve complex and/or high-conflict parenting issues. Pursuant to Local Rule 2.11, if an agreement cannot be reached, a Parenting Coordinator can issue a written decision that is effective immediately and remains effective until further order of the Court. Parenting Coordinators are paid $175 per hour for their time spent on the case, unless otherwise agreed or ordered.

If you would like to learn more about these services and procedures, please visit:

Hamilton County Domestic Relations Court’s Approved Parenting Coordinator Roster:

https://www.hamiltoncountyohio.gov/UserFiles/Servers/Server_3788196/File/Government/Courts/Court%20of%20Domestic%20Relations/Forms%20Procedures/2-53%20Parenting%20Coordinator%20Brochure%20and%20Referral%20List.pdf

Juvenile Court: Custody of a Child by Two non-married People

My spouse had a baby with someone else during our marriage. I am not legally the parent of that child, right?

Sometimes spouses separate before they are divorced and begin relationships with other people. If one of the spouses has a child or gives birth to a child whose paternity is biologically not part of both spouses, this can cause confusion during the legal process.

A Married person has a child with a Non-Spouse

Ohio law states an unmarried mother is automatically the custodian of the child, unless a court order says otherwise. For paternity to be established formally, the non-married parent that didn’t give birth to the child must petition the court to establish paternity through DNA testing. If married person has a baby with a person that is not their spouse, then that child will not be subject to any divorce proceedings of the married parent, because the person that gave birth to the child is the custodian.  In this scenario, the Spouse of the married parent is NOT considered a parent of the child

A Married Person has a child with Someone other than their Spouse

The situation is completely different if a woman gives birth to a child during the marriage. If a woman gives birth to a child while married, the spouse is automatically presumed to be the other parent under Ohio law and the spouse’s name must be put on the birth certificate. Even if both parties know that a different person is the other biological parent, the hospital will likely still put the spouse’s name on the birth certificate. This presumption that the spouse is the parent, complicates the divorce process. When getting a divorce, the non-biological parent must then ask the court to de-establish paternity on the child to avoid including that child in the divorce process.

Congratulations Sierra!

Please help us congratulate Sierra Causey for her passing Ohio Bar Exam results!

When the Litigation has Ended, but the Conflict has not: Alternatives to Litigating Co-Parenting Disputes

Perhaps unsurprising, your co-parenting challenges may not always end just because the divorce/custody case does. Regardless of how you got to your parenting plan, you may continue to experience frustrating difficulties navigating parenting matters from two households. So, what are your options on how to address these difficulties?

Of course, you can always return to Court. You can file a motion to change custody, modify a parenting plan, or a motion for contempt if you feel that the other party isn’t complying with the court order. However, you may not want to go to back to Court; maybe because of the stress, time, money, or simply because you don’t see how a new Court order will resolve any of your parenting conflicts.

Fortunately, there are several options to address these co-parenting frustrations. The Court and family law attorneys are all too familiar with parties’ frequent return to Court after a recent divorce/custody proceeding. What many in the field are finding is that many of these complaints are not “legal issues” that can easily be resolved in Court. Rather, we are seeing complex parenting challenges that can best be resolved with the help of parenting professionals. The below professional services are designed specifically to help families manage complex parenting challenges, which can be used without, or in conjunction with your attorney:

1) Parenting Coordination
2) Co-Parenting Counseling
3) Collaborative Law Process
4) Mediation

Check your parenting plan or court order to see whether any of these specific services are required before either party is permitted to file any new motions in Court. Then, contact Tibbs Law Office to learn more about these services and to discuss whether they are the right fit for your co-parenting challenges.

Is Mediation Right for Me?

In family law disputes, such as a divorce, you may believe that court is where you need to go — you’ll have your day in Court, justice will be served, and you and your children will have “won.” Unfortunately, people often underestimate the impact that litigation has on a person individually, and on the family as a whole.

For example, the process of obtaining a divorce involving children can easily last one year, often longer. By the one-year mark, parties are often fatigued and generally frustrated by the litigation process. Frequent complaints include having to take time off of work for pretrials, the Court not being on schedule, spending an hour in Court, yet only several minutes in the Courtroom, and of course, the financial cost of going through a lengthy court process.

Once the final trial has finally occurred, it may take several months until the Court issues a Decision. Even if you “won,” you may find that the Decision ignores major things that were really important to you. For example, perhaps the Court grants you full custody of your children, but the schedule the Court ordered is completely unworkable for your family. You, your ex, and your children all hate it. At the end of the litigation process, you’re left with an outcome that may not feel like such a “win” after all.

Because of the personal nature of family law cases, we believe that parents, not judges, should decide matters that will affect what is most important to you, when possible. In our experience, parties who reach their own agreement, compared to having a judge decide their family’s fate, are happier with the outcome. More these reasons, among others, we understand the value of a mediated agreement.

To learn more about mediation, visit our website, or contact us at (513) 793-7544 to speak with one of our mediators to discuss whether mediation is right for your family law matter.

Truth or Delusion? Busting Networking’s Biggest Myths

This book goes through approximately 48 statements and discusses whether those statements are True or false.  Most of these are common sense; however, some of these discussions are helpful.  Sometimes you can tell by the way the statement is worded.  Absolute wording usually signifies that the statement is a delusion.  The most helpful discussions for me personally were about center of influence and where to get the best referrals.  The general advice given in this book is that the obvious choice is not always the best referral source.  This book talks about the difference between visibility, credibility and profitability and how to focus the visibility and credibility to result in profitability.  You cannot move on to the next stage in the relationship with another unless the other person is also ready to move into the next stage with you.  The number one trait of master networkers is that they follow up on referrals given.  Also, the most important concept to remember is that you should treat referrals the way they want to be treated, not the way you want to be treated.  This is something that I need to work on personally.  The key to this advice is figuring out how someone wants to be treated.  The only way to find this out is by getting to know the referral source and asking key questions that will provide insight into their values.  Because I felt this book offered me little that I did not already know or that wasn’t common sense, I give this book 3 stars.