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Widespread Fallacies about Divorce

Widespread Fallacies about Divorce

1.Grounds for Divorce and Place of Divorce

a.Abandonment – Many people believe that if they physically separate from a spouse, they can be sued for abandonment. That is not so. While living separately for more than one year without cohabitation is a ground for divorce, the party who leaves home is not treated differently than the other because of that move. There is a criminal non-support statute, §2919.21, but is invoked for non-support of children rather than spouses. In many places in Ohio, the court will make one person vacate the home while the divorce is pending. In most circumstances (not domestic violence) t is usually best to plan a move, communicate with the spouse and make arrangements for payment of ongoing expenses while the parties are separated and still married.

b.Adultery – Many people believe that adultery causes the unfaithful spouse to lose parenting rights or property or the ability to receive alimony (spousal support), or that such causes the payment of spousal support, that belief is erroneous. Marital fidelity will not, in and of itself, make any difference in who gets what or who pays what or in arrangements with children. A parent who shares too much information with children will have that conduct scrutinized, however.

c.Place – Many people have the misperception that they have to go to the place where they got married to get a divorce, and that is not so. You seek a divorce where you reside at the time the divorce case is filed. The person seeking the divorce (Plaintiff) must live in Ohio for at least 6 months before filing the case, and must live in the county at least 90 days. The other person (Defendant) can be a resident of a different county or a different state, but must have some connection with Ohio to be sued for divorce here.

2.Property Division

a.Pension Benefits – Although a pension benefit under a “defined benefit" plan is not yet being paid when parties divorce, the interest in the plan acquired during the marriage still has a value, and like all other property interests, should be taken into consideration when all the property is equitably divided. At one time, pension plans were common in private-sector jobs but they are few and far between these days. All government workers have pension plans, however. A pension plan is really a promise to pay money in the future based on age and service rendered, and is commonly divided between spouses based on years in the plan while married as a percentage of total years in plan at the time of retirement. To share the risk that there will be no payment, or little payment, or great payments when age and service eligibility is achieved, couples often divide these assets by instruments called QDROs or DOPOs to order the plan administrator to set aside the non-employee’s share until the employee becomes eligible to claim the benefit.

b.401(k) Plans, 403(b) Plans – These “defined contribution" plans are paid into by the employee and/or the employer, and have account values, which usually are investments that rise and fall with the bond and stock markets. Most plans will send out quarterly statements, sometimes monthly statements, that show the investment holdings and the current values. These assets are also divided by QDRO, setting aside a percentage of the marital part of the account or a set dollar figure for the non-employee. The non-employee (alternate payee) then usually has options of transferring that share to a different “qualified" retirement fund, such as an IRA or a 401(k)/403(b), or sometimes leaving it in the plan. Investment gains and losses are then accumulated on the alternate payee’s share until distributions are required under the terms of the plan.

c.Debts - Some people believe that if the other spouse was ordered to pay certain joint debts, they don’t have to worry about them anymore, and that is not so. The creditor is not a party to the decree and cannot be bound to honor its terms, and joint debt remains on the joint credit reports until it is paid in full, and the creditor can seek payment from either party. Obtaining a copy of the credit report on an annual basis is a good idea, as well as closing any unused joint accounts or terminating the ability to acquire additional debt on joint credit accounts while full payment is being made under the terms of a decree.

d. Real Estate – Many people erroneously believe that once they sign a quit claim deed for the real estate over to the spouse keeping the real estate, that is all they have to do, and that is not so. While signing a deed gives the recipient of the deed your property interest in the property, it does not have any effect on a joint mortgage, and you are still liable on the note and mortgage against the real estate and the mortgage company can file a foreclosure action against both of you if the loan falls into default. Foe a mortgage to be transferred into the retaining person’s name, there must be a refinancing or an assumption process, with the accompanying documents.

3.Custody

a.Age of child – There is a widespread belief that a child can choose which parent he or she wishes to live with at age 14, but that is also a fallacy. Children of any age can express their wishes and concerns to the court, through a Guardian ad Litem, or by themselves, under some restrictions, but their wishes are just one of many factors the court must consider in making a parenting determination.

b.Parenting status – Many people believe that if they are not granted sole residential parent status, they have no rights regarding the children, and that is not so. The parenting rights of non-residential parents are not terminated, but remain intact, including the rights to access school and medical records, the right to have parenting time, and even the right to decide certain things, in accordance with the decree.

c.Parenting time – Many people believe that a non-residential parent can only have the children alternating weekends and one weekday in the evening. While that is the “standard order" and is designed for people who cannot agree on anything else as a minimum contact order, most divorced parents do have parenting time orders arranged around their work schedules and the children’s activity schedules so as to maximize the amount of time the children spend with parents instead of at child care or with other people.

4.Child Support

a.Shared Parenting – Many people believe that there is automatically no child support exchanged if they have shared parenting and this is not so. The time the children spend with the parents, the direct payment for the children’s needs and the parents’ individual ability to maintain the children in each household are important factors to be considered when determining an appropriate level of child support. The same worksheet is used for sole residential parent or shared parenting arrangements.

b.Modification – A common fallacy is that child support can only be modified every three years. Child support can be changed, by court action or by CSEA administrative action, if the parents’ financial circumstances change significantly at any time, for reasons such as a significant pay raise, hospitalization costs or childcare expenses change, a parent is laid off, a laid off parent gains employment, and so forth. CSEA will administratively review the case once every three years to determine if an adjustment should be made when the child is receiving public benefits or upon the request of a parent for significant reasons.

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