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Divorce, Custody and Family Law

Pictured: James R. Flaiz, Lisa J. Carey and James W. Reardon
 Lisa J. Carey and James W. Reardon
Information about preparing for your first meeting.

Spousal Support, Child Support, Division of Property, Post Decree

Our family law attorneys provide full divorce and custody representation to individuals throughout Northeast Ohio. Our clients include people with substantial assets, families with special needs children, and individuals with complex financial circumstances. We are able to help with all aspects of child custody and divorce, from initial separation agreements to modifications of orders after the final decrees. Carrabine & Reardon Co. LPA., has the depth of resources to handle complicated divorce and custody matters.

Contact us to schedule an appointment to discuss your situation.

Comprehensive Divorce Representation

Our lawyers represent people in matters such as:

  • Property division, including assets such as stock options and retirement plan accounts
  • Shared parenting plans (joint custody)
  • Dissolution of marriage
  • Permanent support orders
  • Temporary support orders
  • Sole custody
  • Shared custody
  • Qualified domestic relations orders (QDROs)
  • Spousal support / alimony
  • Visitation and parenting time
  • Contested divorce
  • Uncontested divorce

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Divorce

Overview | Grounds for Divorce | Divorce Procedure | During the Pendency of Divorce | Judgment Entry | Alimony/Spousal Support | Child Support | Visitation/Parenting Time | Property | Child Custody | Attorney Fees | Miscellaneous | Conclusion

 

Divorce Overview

The following material is intended to answer some of your questions about divorce proceedings, it is not intended to answer specific questions about your particular case, as each case is different.

The dissolution of a marriage may be a traumatic experience, and your attorney or attorneys, are well aware of the emotional involvement of the parties. Though we are not behavioral specialists, we attempt to relieve your anxiety by attempting to assist in solving the problems which confront you during these proceedings.

In order to properly represent you, it is absolutely necessary for you not only to provide us with the facts concerning your case, but we must know your wishes and we welcome your viewpoints. Withholding information from your lawyer may affect the outcome of your case, so we advise you to be completely candid with us. Remember that a fiduciary/confidential relationship exists between attorney and client.

Please be fully advised that although we will counsel and advise you throughout the entire proceedings, the final decision regarding your case must be made by you. Our experience has shown that most divorce cases are settled, which means in those matters the parties eventually, through their attorneys, reach an agreement, which is placed upon the court's record. Never agree to something you do not understand or something you feel you are forced to agree to. Your consent to an agreement must be voluntarily made, after consultation with your attorney. After an agreement is placed upon the record, it is extremely difficult to vacate.

Finally, as your representatives, we are here to advise and inform you, cite the options and alternatives available to you, process your divorce matter, assist you in decision-making, and cooperate with you in attempting to obtain the best possible results for you.

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Grounds for Divorce

Ohio is know as a "no-fault" divorce state; however, the words "no-fault" may be misleading. If the parties reach a final settlement on all issues, fault is not a factor. If there is a dispute as to alimony, property, support, visitation, or custody, fault may become an active ingredient in resolving these issues. That is the reason your attorney may go over with you a history of the indiscretions of the parties.

In Ohio, we have provided also for Legal Separation actions, which are generally seldom processed. The procedure is basically the same as in a divorce matter, except that neither party may remarry. Further, the law provides that if one party institutes a Legal Separation suit, and the other party files for divorce, the court will only consider the case as a divorce matter and cannot enter Judgment of Legal Separation.

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Divorce Procedure

The initial filing of a divorce case may include the following documents:

  1. Summons. This notifies the other spouse that a lawsuit has been filed and that he or she has 28 days to respond.
  2. Complaint. This document states the names of the parties, where, when, and by whom you are married, names and birthdays of children (if any), length of residence in county and state, date of separation, grounds for divorce, a statement as to property, and the relief requested (a party must reside in Ohio for 180 days and in the county where suit is filed for at least 90 days).
  3. Proof of Service is filed with the Court when service is made.
  4. Parenting Proceeding Affidavit concerning a child or children's residence during the past 5 years and that no custody action is pending regarding the child (only needed where there are minors).
  5. Restraining Orders. Only requested where needed to restrain spouse from committing certain acts. Your attorney will explain this procedure to you in detail and ask if you want an such an Order.
  6. Ex Parte Orders. This may be obtained for temporary custody, support, etc. An objection timely filed to the Ex Parte Order will usually result in a quick hearing on the matter.
  7. Affidavit of Ex Parte Order. A sworn statement that the facts stated in order to obtain the Ex Parte Order are true.

 

After the Complaint and Summons are served, the Defendant may file an Answer to the Complaint, which is, in effect, a paragraph by paragraph response to the Complaint. Once the Answer is filed, the case is contested (in some jurisdictions a Praecipe must be filed with the Answer). If no action is taken by the Defendant, an order of default is entered, indicating the Defendant's lack of response, and the matter becomes an uncontested divorce case. The Defendant may desire not only to answer the Complaint, but desire to file his or her own Complaint. This is known as a Counterclaim and this must be answered by the Plaintiff.

Temporary orders for custody, support, alimony, mortgage payments, medical payments, visitation, restraining orders and other relief may be requested at any time between the time you start your case and a Judgment of Divorce is entered. A temporary restraining order restrains a party from doing something. There is typically a restraining order restraining a party from selling, disposing or dissipation of assets.

Temporary orders of child support are usually based on a state formula. Generally, alimony is based on needs and ability to pay. The life-style of the parties is also taken into consideration. In regard to child custody disputes, there are many factors listed in the child custody act. The procedures and preparations of such a case are much too involved for this discussion and are left to further discussions with your attorney.

The Court may also award temporary fees to assist a party with their costs of obtaining counsel. This relief is usually obtained in the same way as any other motion and may be part of a motion requesting other relief, but the Court rarely grants these motions.

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During the Pendency of the Divorce

This period is usually spent in defining the issues and trying to resolve them. We also attempt to find the net worth of the parties and the general financial status of the family. Interrogatories may be sent out requiring answers under oath from the recipient, which may, in part, request complete financial data. Depositions may be taken (with consent of a client) to obtain further information from the other spouse or those that have the needed information. Appraisers, actuaries (if pensions are involved), accountants or psychologists may be used (with the client's prior consent).

If settlement is not reached, the Court may appoint a mediator to help resolve the matter or the parties may agree to a mediation. If no agreement is reached, the mediator files a report with the Court and the case goes back on the regular trial docket.

If settlement is reached, the parties will be asked to sign a property settlement form containing the provisions of the settlement, or they may be asked to approve the final Judgment. Further, the parties may be required to approve the settlement in Court, before the Judge, after it is placed on the record.

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Judgment Entry

The Judgment Entry of Divorce is the most important document you will receive. After a settlement is reached and/or the case is tried, the Judgment of Divorce will be entered by the Court, as your final decree, granting you a divorce. It will also contain clauses dealing with such matters as alimony, custody, child support, visitation, insurance, dower rights, property settlement and other miscellaneous clauses. If a settlement has been reached, you must carefully read and examine this Judgment, and have your attorney explain it to you before you approve it.

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Alimony/Spousal Support

Alimony (or spousal support) is a sum of money usually paid by one spouse to another spouse for the support and maintenance of that spouse. Some factors considered by the Court when awarding alimony may include:

  1. The past relations and conduct of the parties.
  2. The length of the marriage.
  3. The ability of the parties to work.
  4. The source and amount of property awarded to the parties.
  5. The age of the parties.
  6. The ability of the parties to pay alimony.
  7. The present living situation of the parties.
  8. The needs of the parties.
  9. The health of the parties.
  10. The prior standard of living of the parties and whether either party is responsible for the support of the other.

Generally, Judgments of Divorce in which alimony is not granted must either expressly reserve the question of alimony or rule that neither party is entitled to alimony, and that the Court will not reserve jurisdiction to ever grant alimony.

Regular or periodic alimony is usually taxable to the recipient, and is deductible by the payor. The phrase "payment until death" must be part of the alimony clause, if it is to be considered as taxable alimony. This type of alimony is not subject to a bankruptcy action. It may also have qualifying clauses such as "payable until remarriage or cohabitation."

There are many tax consequences and restrictions regarding alimony which should be explained to you by your attorney or your accountant. As tax laws and their interpretation continually change, as well as State laws and their interpretations, your attorney cannot guarantee any tax consequences resulting from your divorce proceedings.

Alimony is usually paid through the CSED. This enables a party to obtain an accurate record of these payments. Also, it makes it easier to request assistance from the State in the event that payments are not forthcoming, or if a spouse denies receiving said payments.

Enforcement of regular or periodic alimony payments is usually instituted by an Order to Show Cause. The procedure will be explained to you by your attorney, upon request.

Regarding health care provisions, your attorney will explain to you, upon request, your options including your right, if applicable, to elect COBRA Health Care.

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Child Support

The custodial parent is generally entitled to take the minor child or children as dependents for all tax purposes. The parties may agree that the non-custodial parent shall have this allowance and enter this agreement into the Judgment. If the non-custodial parent is entitled to the allowance by the Judgment, said parent may need to obtain each year from the custodial parent, a signed Form 8332, which must be filed with the non-custodial parent's other federal income tax forms.

Child support is always modifiable. Child support is usually ordered, until the minor child reaches the age of 18 years, or graduates from high school, so long as the minor child regularly attends high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full time basis with the payee of support or at an institution, but in no case after the child reaches nineteen (19) years of age, or until further order of the Court. Enforcement of payments in instituted by an Order to Show Cause.

It should be further noted that every child support order now provides for the immediate and automatic withholding of child support payments from any source of the payor's income.

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Visitation/Parenting Time

Visitation is generally granted to the non-custodial parent. The Judgment may state that general visitations are granted and leave it up to the parties to decide the dates, or specific visitation hours and dates may be written into the Judgment. If long distance must be traveled to exercise this visitation, some arrangements can be made concerning the cost of same. Enforcement of visitation rights is by an Order to Show Cause. Judgments of Divorce generally provide that the minor child may not be permanently removed from the jurisdiction of the Court without the Court's prior approval. To permanently move the child from the State, the custodial parent must petition the Court for an Order granting same. Visitation/Parenting Orders are modifiable upon a showing of a change in circumstances warranting same. There is also a provision in the law for the makeup of visitations that have been wrongfully denied, and contempt of court action against the offending parent that can lead to a fine or jail term.

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Property

The parties usually arrive at a settlement of all their property rights after negotiations or after mediation. If settlement is not reached, the matter will be decided by the court after a trial is concluded. Again, you are advised that you must be absolutely sure that you understand and accept the settlement as written, or placed on the record in open court, as property settlements are not modifiable, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial. If your property includes retirement or pension plans, then you may exercise your rights under the Qualified Domestic Relations Order procedures.

Property settlements are enforceable through provisions provided in the Judgment, by execution, show cause, garnishment, etc. These procedures may be further discussed with your attorney. In determining property issues, the court will usually consider the following:

  1. Duration of marriage;
  2. Contributions of the parties to the marital estate;
  3. Age of the parties;
  4. Health of the parties;
  5. Life status of the parties;
  6. Necessities and circumstances of the parties;
  7. Earning abilities of the parties;
  8. Past relations and conduct of the parties; and
  9. General principles of equity.

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Child Custody

This issue is the most emotional and traumatic part of most divorce cases. There is sole custody and shared parenting. The basis for determining child custody is "what is in the best interest of the child". Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion with your attorney.

A party involved in a child custody matter should become acquainted with, study and be prepared to discuss the following factors enumerated in the Child Custody Act:

a. The love, affection, and other emotional ties existing between the parties involved and the child.

b. The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

c. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other remedial care recognized and permitted under the laws of this State.

d. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home or homes.

f. The moral fitness of the parties involved.

g. The mental and physical health of the parties involved.

h. The home, school, and community record of the child.

i. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

j. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

k. Any other factor considered by the court to be relevant to a particular child custody dispute.

 

When there are custody disputes the parents must be advised as to Shared Parenting.

  1. At the request of either parent, the court shall consider an award of shared parenting. The court shall determine whether shared parenting is in the best interest of the child by considering the following factors:

    a. The factors enumerated above.
    b. Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.

  2. If the parents agree on shared parenting, the court shall award shared parenting.
  3. If the court awards shared parenting, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical possession be shared by the parents in a manner to assure the child continuing contact with both parents.
  4. During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.
  5. As used in this section, "shared parenting" means an order of the court in which of the following is specified:

    a. That the child shall reside alternatively for specific periods with each of the parents.
    b. That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
    c. One parent is designated the residential parent for school attendance purposes.

Child custody orders are always modifiable. The court will consider the time the child has lived in a stable environment and what is in the best interest of the child. It should be remembered that the child's wishes, though an important factor, is just one factor to be considered when determining custody.

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Attorney Fees

My fees are based on the Model Rules of Professional Conduct.

Since an attorney has no way of knowing how much time must be spent on your case, I cannot estimate with specificity what your ultimate fee will be at the conclusion of your case. My fees are based, pursuant to the aforementioned Rules, on a number of factors, which include: the amount and nature of the services rendered, the time, labor and difficulty involved, the character and importance of the litigation, the amount of assets and value of the estate affected, and the requisite professional skill and expertise exercised by your attorney as well as novelty and difficulty of the questions involved and the results obtained. An hourly rate will be quoted to you, which may be helpful in assessing the amount of fees due. You will also be responsible for filing fees, service of pleadings, appraisals, expert witness fees, etc. You will be charged for consultations, correspondence, phone calls, e-mails, office and research work, court time, filing, and hearings. In the event your spouse is ordered to contribute to your attorney fees, you will be given credit on the amount your spouse pays. A lawyer shall not enter into an arrangement for, charge or collect a contingent fees in a divorce case.

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Miscellaneous

Many matters may arise after the case is concluded for which counsel should be retained. These matters may be for enforcement of support, alimony, visitation, or property division.

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Conclusion

Many divorce cases end in a reconciliation of the parties. If there is viability in your marriage and a chance to save it, we will be pleased to recommend marriage counselors to you and assist you in every possible way to effect a reconciliation. If, on the other hand, you believe the marriage is over, we will do our utmost to obtain a Judgment of Divorce that is satisfactory to you.

As divorce proceedings today are difficult, and extensive work may be necessary, I may use a team effort, other attorneys or paralegals in the office who are available to assist me at the office or court. However, I will oversee and advise on all work performed.

This document, in effect, touches the basic elements of divorce and divorce procedure. It is not to be considered as the last work on the subject, but merely as a helpful guide.

As an attorney for over 15 years, I have had substantial experience in the field of family law, and I am aware of the pressures and the personal difficulties faced by a person involved in the divorce precess; I will attempt to ease and hopefully eliminate the cause of some of these problems. If you have any questions, please do not hesitate to call or arrange for an appointment.

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James W. Reardon, Esq.
Carrabine & Reardon Co., LPA
7445 Center Street
Mentor, Ohio 44060
Ph.: 440/974-9911 Fax: 440/974-9919
reardon@jcjrlaw.com


We are a full service law firm serving all counties in Northeast Ohio, including but not limited to, Lake County, Geauga County, Cuyahoga County, Ashtabula County, Portage County, Summit County, Trumbull County, Medina County, and all cities located in Northeast Ohio including but not limited to Cleveland, Mentor, Chardon, Painesville, Willoughby.

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