I've heard of a noncontested divorce in Ohio. How do I know if I qualify & how do I prepare?
Most divorces in the Miami Valley area are noncontested, that is, they are not opposed by your spouse. OK, my spouse & I both want a divorce; how do I plan for a noncontested divorce? First, your spouse & yourself should have some effective communication with each other, that is, you can discuss the major issues involved in a divorce, such as who shall have custody of the children, will one spouse need some form of financial support following the divorce, how do we separate our bills and assets between us, do either of us have a pension, 401k or similar accounts & how or should we divide them, what should we do with the house, etc. Try to resolve as many of these issues as you can between you. The result will demonstrate whether you are a good candidate for a noncontested divorce. One more thing, if one of you can't be present for the final hearing, a non-contested divorce is for you. The defending spouse need not appear at the hearing.
We now have a general idea of what we want to accomplish. How do we start?
A divorce action is commenced by one spouse filing a complaint in the proper court of common pleas against the other spouse. Procedurally this is a civil suit and many of the rules associated with civil suits apply, as well as a body of rules specific to domestic relations actions. The spouse receiving the served complaint may file a formal answer to the allegations in the complaint, and may counterclaim for a divorce of his/her own. When this occurs, a contested divorce action is commenced and is so scheduled upon the court's docket. A contested divorce usually involves legal counsel for each spouse, and may involve further legal pleadings associated with any legal dispute, which is commonly called litigation. If no answer is filed by the defendant spouse, the case is deemed a noncontested divorce and is scheduled upon the noncontested court docket. A noncontested divorce usually will get to be heard by the court sooner than a contested one, and is usually less expensive.
My spouse wants to have imput into the final decree. Can he/she do this and not hire an attorney too?
Many noncontested divorces employ legal counsel only for the spouse who initially files the complaint, called the Plaintiff. In a typical noncontested divorce, the spouses are still able to communicate with each other to effectively resolve most, if not all, of the divorce issues necessary to terminate their marriage and provide for the children. Plaintiff's counsel is thus able to assist both parties toward a mutually acceptable outcome through the inclusion of an agreed to separation agreement in the final divorce decree. However, plaintiff's counsel may only represent the plaintiff, and may not represent the Defendant spouse. Hence, the importance of effective communication between the spouses during the non-contested divorce process. The defendant spouse need not appear before the court at the final hearing. However, plaintiff must produce a witness at trial who is familiar with both spouses, to corroborate the plaintiff's allegations in the complaint before the court.
Preparation of the divorce documents for the final divorce decree.
Your attorney will assist you in preparing the necessary legal documents for your divorce. Your agreements reached with your spouse in steps 1-3 will be included in a separation agreement which is included in the decree. A modern divorce is complex and involves several documents, which when combined, form the final decree. Both you and your spouse may see and review these documents before final submission to the court. Sometimes the defendant spouse may wish to consult with another attorney to review these documents, but this is not required.
Occasionally, spouses agree on all but one or two issues. What then? If agreement cannot be reached on one or two issues, these may be tried before the court alone, the remainder of the separation agreement being approved by the court. The judge will decide the contested issues following submission of evidence on each contested issue. In this case, both spouses appear before the court.
What happens in court?
The Plaintiff appears in court at the final hearing and will be questioned by the attorney and perhaps the judge regarding the desire for a divorce and the contents of the submitted divorce decree. The corroborating witness mentioned in Step 3 then takes the witness stand and confirms the testimony of the Plaintiff, through questions asked by the attorney and perhaps the judge. The Defendant need not be present at the hearing. In this way, a well planned divorce may be accomplished with a minimum of difficulty and expense.