Ohio: Family Law

  1. Overview

    The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sexual photos and videos be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

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  2. Divorce

    1. Introduction

      Ohio law provides three ways for a husband and wife to end or alter a marital relationship: (1) legal separation; (2) divorce; and (3) dissolution of marriage. To obtain either a divorce or a dissolution, a party must live in Ohio for at least six months before filing. The law does not require persons seeking a legal separation to live in Ohio for any particular length of time prior to filing.

      A legal separation is a civil lawsuit that does not legally end a marriage, but still allows a court to issue orders regarding the division of property, spousal support, allocation of parental rights and responsibilities, child support, and parenting time allocation for minors. The parties remain married, but live separately.

      A divorce is a civil suit to end a marriage arising when one party files a complaint with the court; the plaintiff must claim, and eventually prove, the appropriate statutory grounds for divorce. Most divorce cases are eventually settled by agreement—a proposed agreed decree of divorce is prepared, signed by both parties, and submitted to the court for its approval. Where parties cannot resolve their disputed issues, the open questions are presented to the court. The court will review the parties’ evidence and decide based on Ohio law.

      A dissolution of marriage is an action in which the parties mutually agree to terminate their marriage. Neither party has to prove grounds to end the marriage via dissolution; an action is filed after the spouses sign a separation agreement regarding all property, spousal support, and any child-related issues. Following the signing of a Petition for Dissolution, the parties must wait at least 30 days before the court hears the case. At the hearing, the court reviews the separation agreement, asks about the assets and liabilities and parenting issues, and determines whether the parties understand and are satisfied with the agreed-upon settlement. Where the court is satisfied that the parties agree and desire to end the marriage, the court will grant a dissolution.

      When a couple divorces in Ohio, the court divides the marital property equitably. Ohio law requires that marital property be divided equally, unless such a division would be inequitable. Separate property is excluded from the analysis, and it consists of property such as inheritances, property acquired by one spouse before the marriage, passive income and appreciation earned from separate property, compensation to one spouse for a personal injury, and a gift of property given only to one spouse. In dividing the marital property, the court considers factors such as the length of the marriage, the assets and liabilities of the spouses, the desirability of awarding the family home, the liquidity of the property to be distributed, the economic desirability of retaining an asset or interest in an asset intact, rather than dividing it or its value, the tax consequences, the costs of sale, the division made in a separation agreement, the retirement benefits, and any other factor.

    2. Text of the Statute(s)

      1. Ohio Rev. Code § 3105.171 – Equitable division of marital and separate property – distributive award (link)

    3. Cases

      1. Felton v. Felton, 679 N.E.2d 672 (Ohio 1997)

        • Procedural Posture: Discretionary review of question whether trial court was prohibited from issuing a protection order even though there was injunctive language in the parties’ pre-existing divorce decree.

        • Law: Ohio domestic violence laws

        • Facts: The parties were ending their five-year marriage. During the dissolution proceeding, the wife petitioned for a protection order under Ohio’s domestic violence statute, R.C. 3113.31. She requested that the court grant a protection order restraining her ex-husband from assaulting, harassing, threatening, or otherwise intimidating her and her children. The court issued a temporary protection order enjoining the ex-husband from approaching his ex-wife, granted her exclusive temporary custody of the kids, and set a hearing date. At a full hearing on the protection order, during which the ex-wife testified that her ex-husband’s assaults had increased and had continued post-divorce, she also provided detailed testimony about her fear of her ex-husband. Moreover, she presented witnesses to support her story. However, the court held that the testimony was insufficient to meet the preponderance of the evidence standard, and determined that the divorce decree between the parties already gave the wife an injunction prohibiting the ex-husband’s violent behavior.

        • Outcome: The court reversed and remanded to the appellate court. The court found that the injunctive language already existing in the divorce decree between the parties did not prevent the trial court from issuing a protection order as well in relevant part because the protection order offered the ex-wife greater protection from her ex-husband. Moreover, the court determined that the ex-wife was only required to prove a preponderance of the evidence to obtain a protection order, and that she had met her burden of proof.

        • Special Notes: The court determined that the protection afforded by an order of protection is more comprehensive, and more effective than that available under a divorce decree. Moreover, the impact of a violation of an order of protection was greater than that at play for a violation of a divorce decree.

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  3. Child Custody

    1. Introduction

      Ohio courts used to grant child custody to one party or the other. However, Ohio courts now allocate parental rights and responsibilities between the parents based on the best interests of the minor children who are not yet age 18 or have not graduated from high school.

      Either parent may be awarded custody, and the court shall not give preference to a parent because of that parent’s financial status or condition. The court may allocate parental rights primarily to one of the parties, designate that parent as the residential parent, and divide between the parents the rights and responsibilities to care for the children. In considering a custody plan, the court looks at (among other things): the wishes of the child; the wishes of the parents; the child’s interaction with his or her parents and family; the child’s interaction with family; the child’s adjustment to his or her home, school and community; the parent more likely to facilitate court-approved parenting time rights; the mental and physical health of all persons; whether each parent moved into a residence outside of the state.1

    2. Text of the Statute(s)

      1. Allocating parental rights and responsibilities for care of children – shared parenting of children-shared parenting, Ohio Rev. Code § 3109.04 (link)2

    3. Cases

      Research is ongoing.

    1. Ohio Rev. Code § 3109.04(F)(1).
    2. Certain subsections of this statute with less relevance to a WMC victim were intentionally excluded.
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