DIVORCE - WHAT TO EXPECT AND WHEN- Part II. - THE LEGAL PROCESS - Uncontested
Either you or your attorney must file these legal papers, to initiate and further the legal process:
Complaint: A Complaint is a legal document which sets out your grounds (legal reason for getting a divorce) and the relief requested (what you want out of the divorce).
Affidavit and Restraining Orders: An Affidavit is your sworn statement setting out the reason you are asking the Court to issue a Restraining Order to order your spouse: (a) Not to bother or harass you; (b) Not to dispose of any property or to incur any more debts on joint credit; (c) To vacate and/or not return to the marital home. ARestraining Order is the order signed by the Judge requiring you and/or your spouse not to: harass each other, dispose of property, or cause further joint debt, and may include Orders pertaining to possession of the marital home. If either of you disobey this order, you may be found in Contempt of Court, and fined and/or jailed. Please discuss Restraining Orders with us if you have any questions.
Note: Banks, insurance companies and other institutions who have property belonging to either party may be named as Defendants and also restrained from transferring property.
Motion for Temporary Orders: A hearing is set when these documents are filed. They request the Court to determine, on a temporary basis, the following:
(a) the allocation of parental rights (who should be the residential parent--custodial parent) and what the companionship schedule (visitation) will be with the other parent.
(b) how much support will be paid.
(c) who will live in the marital home.
(d) whether spousal support (alimony) will be paid.
(e) any other matters that have to be decided, such as payment of the mortgage and other debts, and possession of automobiles.
This hearing is usually set for approximately 3-4 weeks from the date of the filing of the Complaint, depending upon the Court's schedule. This hearing is held in front of a Magistrate. When you receive a Magistrate’s Order and you object, Call your lawyer immediately, as the time in which to file a motion to set aside the Magistrate’s Orders is very short. The Judge reviews the Magistrate's Order and can uphold, change, or remand to the Magistrate for rehearing. If you are required to pay support, you must start to immediately make your payments through the Child Support Enforcement Agency (CSEA) (even if you have filed a Motion to Set Aside) until you see the money being deducted from your paycheck or bank account. Child support, by law, must be paid through the CSEA and must be paid by the employer of the paying spouse (if the spouse is self-employed, receiving worker's compensation, or has other sources of income, a different method will be ordered for payment).
If you are to receive support, it may take several weeks until you receive your first check. Your spouse can no longer pay you directly. Nor should you (if you are ordered to pay support) make any direct payment to your spouse unless the Court specifically orders you to do so.
The legal papers described above must be served upon your spouse before the divorce process can actually begin. Service is performed by Sheriff, Certified Mail or by another person designated to make service. Please check with your lawyer's office seven days prior to any scheduled hearing to make sure that your spouse has been properly served with the necessary papers. Do not sign for certified mail addressed to your spouse (nor should you accept or pick up any certified mail addressed to you) until service has been made to your spouse.
After legal divorce documents have been served on your spouse, he/she may respond to your Complaint as follows:
Answer: An Answer is a written response filed by your spouse, denying the grounds for divorce or requesting different relief from that which you have requested (i.e., she/he wants to be named residential parent, etc.). An Answer is required to be made within twenty-eight days from the date the Complaint was served. Your spouse may also file a Counterclaim for Divorce or Legal Separation at the same time. The Court may allow more than twenty-eight days in which to file an Answer.
Complaint for Legal Separation: This document is a request that the Court order you and your spouse to live separately, but not to end the marriage. In order to receive a Decree of Legal Separation, you must prove your grounds (as in a divorce). Please discuss this option with your lawyer if you have any questions. However, either party is entitled to a Divorce, without proving fault by the other party, merely alleging and proving incompatibility is sufficient.
Uncontested Divorce: If your spouse does not file an Answer to your Complaint for Divorce and does not appear at Court for scheduled hearings, (or if you reach an agreement with your spouse after she/he has filed an Answer and she/he agrees to dismiss their Answer), you may receive an Uncontested Divorce. The earliest time an Uncontested Divorce can be heard is 42 days after your spouse has been served with the Divorce Complaint (it is more likely to be set for hearing within approximately 55-60 days).
Hearing for Uncontested Divorce: A hearing will be held where you will tell the Magistrate why you want a divorce (grounds). Your spouse need not appear, but may do so if she/he so chooses, and she/he can testify. You will need to bring a witness to corroborate your testimony; that is someone (can be a relative) who has actual knowledge (not just what they heard from you) of your grounds for divorce.
When you receive Notice of your Trial date, do not forget to call your attorney immediately to make a pretrial appointment.
You are not divorced until you receive a Final Decree of Divorce. If any court costs remain unpaid, you will not be able to have your Divorce Decree certified (which you need to remarry in Ohio). If you have not received your Divorce Decree within 28 days of your hearing, please call your lawyers office to check on the status of your decree.