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Family Law Myths and Misconceptions

  1. Legally, it matters if your spouse cheated.
Based on the Ohio Revised Code section 3105.01, a court may grant a divorce for any of 11 grounds. Most parties typically agree they are incompatible, which allows the court to grant the divorce. However, if the parties do not agree they are incompatible and they have not lived separate and apart for a year, the party seeking divorce will need to prove another ground for divorce exists – one of which is adultery.
Even if this is the case, because Ohio is a no-fault state, the finding of adultery for the purposes of divorce will probably not impact the division of property or child custody (absent clear financial misconduct or the background of the person the cheating spouse ends up with). Therefore, it is not cost effective or timely to try to prove your spouse cheated during the marriage since it will not change the division of assets or custody. The court will still divide the marital assets as it would if the parties agreed on incompatibility.
  1. Children choose which parent they want to have custody
The court may consider the child’s wishes in determining parenting time and custody of a child, if the court deems the child to be mature enough to express his or her wishes, but it is only one factor of many, and the court ultimately determines custody and parenting time based on the best interests of the child using the totality of the circumstances.

In many cases, when the parents cannot agree on shared parenting, a Guardian ad Litem is appointed to the case as a neutral third party to protect the child’s best interest. The court takes the Guardian’s findings into account in making an order for parenting time, but the court is the ultimate decision-maker.

  1. Women are never ordered to pay spousal or child support
Spousal support is determined by the relative earning abilities of the parties, duration of the marriage, ages and mental, physical, and emotional conditions of the parties, and several other factors including factors the court finds relevant and equitable. Gender is not a factor in spousal support.

Child support orders are based on calculations that include the incomes of both parents, custody arrangement, health insurance, and parenting time. The court does not consider which party is Mother vs. Father to make an order.

  1. Everything will be divided equally
Assets and debts of parties will not always be divided 50/50 when a marriage is terminated. In Ohio, the courts divide the marital assets and liabilities equitably instead, which means fairly. The court determines the “marital property”, in other words, things that are eligible to be divided. The court decides the “marital portion” of the asset, which includes any value or interest in property or other asset that was acquired during the marriage. Then, the division is based on the length of the marriage, tax consequences of retaining the property, liquidity of the property to be distributed, and other factors the court finds relevant and fair.
  1. You must get divorced in the state where you got married 

A common pleas court shall hear a divorce case, if the party bringing the action has been a resident of the state of Ohio for at least 6 months and resided in the county in which they filed for at least 90 days. The court shall hear and determine the case whether the marriage took place, or the cause of divorce occurred, within or without the state.

Contact our experienced family law team here at Lardiere McNair DiNicola & Stonebrook, Ltd., so we can assist you through these complicated moments and advise you on all available options.

Santina Graceffa is an Associate Attorney at Lardiere McNair DiNicola & Stonebrook, Ltd. To read more about our firm, please visit www.lmcounsel.com.

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.
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