Reasons Not To Move Out
The first advice I give to a person seeking consultation about an Ohio divorce or dissolution with children is, “Do not move out.”
If a divorce is filed by either you or your spouse, it is likely that temporary orders have or will be requested. Temporary orders hearing determines how the parties are to act with and around one another, what their financial obligations are, and any child custody issues during the divorce.
If you have already moved out of the home before the divorce is filed, the court is likely to award temporary custody of the children to the parent that is still living in the marital residence. Why, you might ask? Ohio Courts want a divorce to affect the children of the marriage as little as possible. If the children are forced to move out of the home, they have grown accustomed to during their lives, this may negatively impact the children by creating instability and unnecessary change (i.e., moving a far distance from friends and family, having to change schools, a major change in environment, etc.).
Child custody is often one of the most highly contested and aggressively litigated issues in a divorce. If one spouse moves out of the marital home, the other spouse already has the upper hand when it comes to ultimately being awarded custody of the children. A divorce can last up to a year depending on the complexity of the issues, and, in some cases, longer. So, if you want to have custody of your children during that period, do not move out of the home.
When You Can’t Stand Living with the Person
This advice always leads to the next major concern: “I can’t stand living with this person anymore! What can I do?”
In most Ohio counties, the domestic relations court will automatically issue a mutual restraining order, which prevents the parties from annoying, harassing, or physically and mentally abusing one another during the divorce process.
Other Ohio counties, such as Stark County, require that the party requesting the restraining order file a motion, affidavit, and proposed order stating that, if not restrained, the other party will likely annoy, harass, or abuse the other. Just because a restraining order is in place does not mean you can’t talk to your spouse, but rather, it means that it must be done in a civilized manner, and if one person requests that the communications cease, then they must. If annoying or harassing continues to be an issue, a contempt action may be filed for violating the restraining order, and the accused could face penalties such as fines, jail time, and payment of the other party’s attorney fees for bringing said action.
Under The Roof Order
If neither you nor your spouse is willing to move out of the marital home, the court will likely issue what is commonly called an under-the-roof order. This usually requires that both parties deposit all of their income into a single joint checking account for payment of marital bills. One or both spouses will be in charge of writing checks from the account to pay these obligations.
Since you and your spouse will be living together during the divorce proceedings, no temporary order of custody or child support is necessary. You and your spouse will pay bills out of the joint account and will be allotted some amount of spending money per week. Any other expenditures above and beyond paying the martial bills and the allotted spending amount will need to be agreed upon by both parties and approved by the court. All of the previously mentioned restraining orders will remain in place and both of you are expected to follow these orders during the entire divorce process.
Should You Move When You Agree on Everything?
Next popular question: “My spouse and I have agreed on everything, including child custody, and are now ready to go forward with a dissolution. Can I move out of the home now?” My answer: NO.
I have seen the situation many times where parties are trying to work out a dissolution, and everything is going quite well. Then one party files a divorce and requests temporary orders for one reason or another. It is best to wait until there is a signed agreement by both of you and the dissolution is finalized to move out of the home. It is also important to remember that you are not without recourse if your spouse is threatening to be or is physically abusive to you and/or your children. These are serious accusations and should not be thrown about without merit, absent real threats of harm or physical abuse. If this is the case, your divorce lawyer may file for an ex-parte CPO, which would require your spouse to move out of the home and temporarily protect you and your children until a full hearing is held. A motion to vacate the marital home may also be filed if this kind of abuse occurs. The court may require the abusive spouse to vacate the marital home if this is done. If you feel you are in immediate, life-threatening danger, contact the local police immediately and obtain a copy of the police report for later use.
What If You Don’t Have Children
“Hey, I don’t have any children. Am I being disadvantaged by moving out of the home?” Generally, my answer to this question is no. When it comes to real estate, if the home was bought during the marriage, any equity in the marital home will be divided equally between the parties, whether both parties are living in the home or not at the time this decision is made. When it comes to household goods and furnishings, it is always a good idea to agree on who will get what. It is common for items to come up as “missing” after one party has moved out. Coming to a signed agreement in which both parties acknowledge the items in one another’s possession can help alleviate this problem and help to avoid a costly trial over a tackle box or a sewing machine. Also, if you request that your spouse pay you spousal support, moving in with another person with whom you are involved romantically will hurt your chances of receiving any kind of spousal support. Every case is factually different, which requires a different assessment of how the law should and will be applied. Therefore, contact one of our experienced family law attorneys to find out how your move will affect the other issues in your impending divorce or dissolution.
Residency Requirements for a Divorce
I believe it is important to know that most states, including Ohio, have some type of jurisdictional requirement before a court in that state will hear your divorce case. In Ohio, the person filing a divorce must be an Ohio resident for the past six months immediately preceding the filing of the complaint. The United States Supreme Court also has required that a state have personal jurisdiction over a defendant before a court can make decisions regarding spousal support and the division of property. In Ohio, this has been construed to mean that the parties (married couple) must have lived in a marital relationship together in the state of Ohio at some point. This is a very tricky aspect of the law and is not in the least bit clear-cut. Like so many other issues, personal jurisdiction in a divorce is largely based on the facts of the case.
If you intend to file for divorce but want to move out of state prior to doing so, make sure you consult one of our attorneys before making such a major decision to let you know the effects and repercussions of your move. The venue also must be proper before a court will entertain your divorce case. In Ohio, you must have been a resident of the county in which you filed the for at least 90 days immediately preceding the filing of your complaint. However, after you have taken advantage of one of our 30-minute consultations and you have been advised that it would not hurt you to move out of the home and to another Ohio county, you may also file in the county in which your spouse is a resident to satisfy the venue requirement.
In this country, you have an unequivocal right to move where and when you want. However, you may not feel so free to do so after reading this blog. You must take advantage of our team of Cleveland family law attorneys before you decide to move out of your marital home to learn how it will impact your life and your divorce case.
If you live in Summit, Stark, Cuyahoga, Carroll, Holmes, Columbiana, Tuscarawas, Wayne, Mahoning, Lake, Portage, Medina, Ashland, Lorain, Geauga, or Ashtabula County, please feel free to reach out to the law firm of Slater and Zurz for a private consultation.