Widespread Fallacies About Family Law

Divorce and family law in Ohio are complicated subject areas and misconceptions about divorce, child support and child custody abound. Ohio family lawyer Melissa Graham-Hurd seeks to help erase some of those inaccuracies and fallacies by providing clear information, blending straight talk with compassion. Ohio’s laws are different from those of surrounding states – sometimes substantially different, leading to a great deal of confusion. In this article we hope to clarify some of the most common erroneous issues about divorce and family law and dispel the many myths that continue to circulate.

Grounds for Divorce and Place of Divorce

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 grounds for divorce in Ohio, 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) it is usually best to plan a move, communicate with the spouse and make arrangements for payment of ongoing expenses and child-related issues while the parties are separated and still married.

Adultery – You may have heard that adultery causes the unfaithful spouse to lose parenting rights or property or the ability to receive alimony (spousal support), or that it causes the payment of spousal support. That belief is erroneous for Ohio divorces.  Marital fidelity will not, in and of itself, make any difference in who gets what or who pays what or in arrangements made for the children.  A parent who shares too much information with children will have that conduct scrutinized, however.

Place – Another common misperception is that a person has to go to the place where he or she was 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.

Property Division

Pension Benefits – Although a pension benefit under a “defined benefit” plan is not yet being paid when spouses 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.  Almost all full-time 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. Pensions are commonly divided between spouses based on the number of years in the plan while married as a percentage of total years in the plan at the time of retirement, called a “coverture formula”.  To share the risk that there will be no payment, or little payment, or even great payments when age and service eligibility is achieved, couples often divide these assets by using an instrument called Qualified Domestic Relations Order (QDRO) to order the plan administrator to set aside the non-employee’s share until the employee becomes eligible to claim the benefit. A QDRO is also called a Division of Property Order (DOPO) for Ohio government pension plans or a court order acceptable for processing (COAP) for federal plans.  Melissa Graham-Hurd wrote a chapter in the most prominent Ohio treatise for Ohio lawyers concerning the division of pension benefits like these.

401(k) Plans, 403(b) Plans – A common misperception about 401(k) and 403(b) plans in division of property is that if a person does not have his or her name on a retirement asset, his or her spouse receives all of it.  These “defined contribution” plans are funded 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.

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. Joint debt remains on the joint credit reports and the liability remains joint until it is paid in full, therefore the creditor can seek full payment from either party.  Obtaining a copy of your credit report on an annual basis is a good idea. Another good strategy is to close 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.

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

Custody (Allocation of Parental Rights)

Age of Child – There is a widespread belief that a child can choose which parent he or she wishes to live with at age 12 or 14, but that is also a fallacy, at least in Ohio.  Children of any age can express their wishes and concerns to the court, through a Guardian ad Litem, or by themselves, upon motion to the court and under some restrictions, but their wishes are just one of the many factors the court must consider in making parenting determinations.

Parenting status – The misconception that if a parent is not granted sole residential parent status they have no rights regarding the children is very common. But this is not accurate.  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.

Parenting time – Many people believe that a non-residential parent can only have the children alternating weekends and one weekday in the evening.  While those are common provisions of many counties’ “standard parenting time order,” and is designed for people who cannot agree on anything else as a minimum contact order, most divorced parents have parenting time orders arranged around their work schedules and the children’s activity schedules.  The best plan is the one that maximizes the amount of time the children spend with parents instead of at child care or with other people, and maintains what the children are used to doing.  Many different models are available for parenting time allocations, whether it is a split week plan, alternating two-day plan, extended weekend plan (through Mondays, or beginning on Thursdays), or some of the other different options, the ideal plan is one tailored around your children and their parents.

Child Support

Shared Parenting – There is a belief that no child support will be exchanged if shared parenting is awarded, but this is not accurate. 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 used for determining child support in a case of sole residential parent is also used for shared parenting arrangements.  There can be changes made (“deviations”) from the worksheet amount, but any deviation must be in the children’s best interests.

Modification – A common fallacy states 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.

Have a question about divorce or family law?

If you have a question about divorce, division of property, spousal support, child support, allocation of parental rights (child custody), parenting time (visitation), or any other family law matter in Ohio, you’re invited to call the law office of Melissa Graham-Hurd and schedule a consultation. The answers to most questions depend on an individual’s circumstances. Ms. Graham-Hurd has the experience and expertise to answer your questions and determine how your case is likely to proceed. To discuss your family law and divorce questions with a compassionate and experienced divorce lawyer in Ohio, contact Ohio family attorney Melissa Graham-Hurd.