Ohio Legal Separation Basics
Ohio requires the filing of a complaint with the court in order to initiate a legal separation. Legal separation is not as common as divorce but is also available as an option, and many couples obtain a separation instead of a divorce. Legally, a separation is the same thing as a divorce with the exception that at the conclusion of a separation, the parties will be separated and not divorced.
The basic premise of a legal separation in Ohio is that the couple obtains a court order that outlines how they will live after the separation . The court order may contain provisions covering alimony, division of property, child custody and child support, similar to a divorce decree. However, unlike a divorce decree, a separation agreement does not terminate the marriage. At the conclusion of the separation, the couple is separated but still married, hence they are not free to remarry.
Some of the primary legal reasons why people in Ohio opt for a divorce rather than a separation are that there are sometimes less costly and time-consuming to pursue a legal separation than a divorce. But this can depend on a number of factors.
Legal Separation Residency Requirements in Ohio
Ohio requires you to reside in Ohio for at least six months immediately prior to filing for a legal separation. The Ohio R.C. 3105.03(A)(6), states in relevant part the following regarding residency requirements: The courts of common pleas have jurisdiction of the subject matter in actions for divorce and for annulment of marriage and of the person and the res in actions for legal separation, if either of the following apply: If any of the conditions above are met, Ohio courts have jurisdiction regarding legal separation matters. If you do not meet the above residency requirements, an Ohio court will not have the authority to grant your legal separation and should dismiss your case based upon a challenge to personal or subject matter jurisdiction. NOTE: Ohio law regarding legal separation jurisdiction is subject to change.
How to Petition for Legal Separation in Ohio
A legal separation in Ohio requires property distribution and child custody orders to be requested based on the circumstances of a marriage that has broken down. However, flexible options with reuniting are available to spouses who address issues of marital discord through counseling, the development of a parenting plan or the elimination of financial burdens.
In order to file a Petition for Legal Separation in Ohio, a Plaintiff must file a Petition in the Common Pleas Court in the county in which he or she resides, or alternatively, in the county in which the other spouse resides. Both counties must be in the State of Ohio. Ohio law provides that the minimum residency period is eight months in Ohio, and that a Plaintiff must have resided in the county in which he or she is filing the Petition for at least ninety days prior to filing. A Defendant must be served with a copy of the Petition for Legal Separation according to the Rules of Civil Procedure. When the Defendant is unable to be served, a hearing can be scheduled after a Notice of Hearing is published.
A Decree of Legal Separation issued from the Trial Court terminates the Cohabitation of the parties. However, a Decree of Legal Separation does not terminate a marriage. A Decree of Legal Separation can be amended or revoked depending on whether the Court renders a Judgment Entry of Divorce in the future or whether the parties request a new Decree of Legal Separation.
Once the parties to a legal separation in Ohio obtain this confusing form of relief, they are still married but can move forward with their separate lives under the provisions of the Decree laid out by the Court.
Legal Separation in Ohio
Many people are surprised when they learn that in Ohio there is only one type of separation—legal separation. That is, there are no other options for separating aside from a legal separation if you want the benefits of Ohio Judge involvement.
In Ohio, a legal separation is actually a lawsuit just like a divorce (also known as dissolution). Your spouse has all the same rights as in a divorce and you will not be prejudiced in any way by filing for legal separation rather than divorce. The main difference is only in the labels: a separation is a lawsuit to separate; while a divorce is a lawsuit to dissolve. So, legally you really have no separation arrangements or no separation possibilities in Ohio.
The main problems with separation for a period of time are then central to the probate courts during equitable distribution of property, debts, and assets. Property may be "separate property" or "marital property." On divorce, the judge typically orders the husband and wife to equally divide all the "marital" property and debts. This is also the case with a legal separation.
Now suppose you both have debts of $100,000 and you separate for a year. You don’t live together. Each of you has jobs and earn income. Now suppose it comes time to divide the assets and debts and the judge asks what each of you earned during the past two years of separation. You say you earned nothing because you were separated. Unfortunately, this means that the judge views you both as having no debts but also no assets .
But I’m Not Separating to Get Divorced
We have several clients that come to us seeking a separation just to get "time" before deciding whether to go through with a divorce. But in the eyes of the law, you cannot do that without separation and immediate responsibilities. You have a legal requirement to disclose, obey, divide up the property and debts during a legal separation as you would on divorce.
An Unfair Prejudgment
Thus, separation in Ohio presents an unfair circumstance where an intentional abandonment of the marital relationship seems unintentionally rewarded. This will unfairly impact the amount of a judge’s award during property distribution. You will frequently see "date of separation" as the date used in legal documents to describe when the parties will be considered as being separated as to property distribution. Often, this date will be set sometime after the physical separation. If the date is not clearly established, this can leave the status of property, assets, debts, and income vague and unclear. This can have a significant impact on the fairness of the eventual divorce decree.
The Legal Perspective
So legally, Ohio judges are not interested in separation agreements unless you discuss child custody arrangements in writing prior to separation. They also view separation agreements that do not result in divorce within a relatively short period of time (e.g., one year) as attempts by couples to stay married "on paper" to avoid your neighbors’ disapproval (due to a divorce), so they can keep living in the same house, or for some other equally suspect reason.
Ohio Legal Separation FAQs
If you have already decided that your marriage is not going to continue as it is, you have probably researched the difference between a Divorce and a Legal Separation in Ohio. Both processes legally end the marriage but there are many situations where one may be preferable to the other. The most beneficial aspect of a Legal Separation is its ability to provide a legal avenue for ending the marriage while allowing the couple to address other matters in the future.
Below are some frequently asked questions regarding Legal Separation in Ohio:
1. How long do I need to remain separated before I can file for a divorce?
In Ohio, there is not a specified amount of separation time required to obtain a divorce. As long as you are separated you can file for a divorce at any time. Legal Separation is like a divorce and it will divide all of the marital assets. A legal separation is intended for couples who would like to elect not to dissolve their marriage, but want to live apart while making financial plans for the future. It does not offer a faster means of ending a marriage , but it does allow couples to attend to other aspects of their relationship later down the road.
2. Can I change my legal separation to a divorce if I decide to end my marriage?
Although Legal Separation is not intended to be permanent, sometimes circumstances can change and you feel you no longer wish to be separated from your spouse. While Legal Separation does not convert to divorce by law, you can file for conversion at your local county Clerk of Courts. Legal Separation agreements are only allowed to be altered by filing a motion with the Court. That is to say there is no "undo." Unfortunately, the parties cannot revoke or change the legal separation agreement without court approval. This is why working with an Ohio divorce attorney who is very experienced in Legal Separation Agreements is important.
3. Will legal separation affect my ability to be remarried?
No, your marriage is still intact when you are legally separated. Therefore, you will not be able to remarry until you go through the appropriate steps of obtaining a divorce.
