Domestic Relations Resource Guide - Section I: Substantive Law

1. Concept of Marriage
   Marriage is a legal and personal relationship. R.C. 3101.01, et seq. set forth statutory provisions for the creation of marriage. Ohio recognizes marriages from other states and countries if valid in the jurisdiction where solemnized (comity, full faith and credit).

2. Validity of Marriage

   1. Capacity to Marry [R.C. 3101.01]

      • A person must be 18 years of age or older. If age 17, the minor(s) must obtain the consent of the juvenile court. [R.C. 3101.02]

      • A person cannot be currently married to another person.

      • A person must have the mental capacity to enter into a legal contract as marriage has been deemed to be a contractual relationship.

      • The persons to be married cannot be more closely related than second cousins.

   2. Same Sex Marriage
      Valid in all states [Obergefell v. Hodges, 135 S.Ct. 2584 (2015)]; however, R.C. 3101.01(B) states that marriage is between only one man and one woman and a same sex marriage has no legal force and is not recognized by this state.

3. Common Law Marriage
   After Oct. 10, 1991, common law marriage is prohibited to establish marriage in Ohio. [R.C. 3105.12] A common law marriage may be valid if it occurred prior to that date or the parties lived in a state which recognized common law marriage, provided the parties otherwise had the capacity to marry.

   See Nestor v. Nestor, 15 Ohio St.3d 143 (1984) for the necessary elements of common law marriage, which must be proved by clear and convincing evidence.

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   A standard that requires proof offered in a case to be highly likely or certain – more than apreponderance of evidence, but less than beyond areasonable doubt.

   • Parties agreed that they were married

   • Cohabitated as husband and wife

   • Reputation in community as husband and wife

   • Parties must have capacity to marry

4. Service
   Service must be perfected to invoke the jurisdiction of the court, otherwise the judgment is void. Lack of service may be raised at any time, at any stage of the proceedings, even on appeal. A party need not meet the requirements of Civ.R. 60(B) to attack a void judgment (common law motion to vacate). See Civ.R. 4.1 to Civ.R. 4.6.

   1. Special Service Cases

      • If the case involves an indigent party and the other party’s residence is unknown, service may be perfected by posting in the courthouse(s) in which the general and domestic relations divisions of the county common pleas court are located and two other locations as designated by local rule, or it may be posted in a designated section of the clerk of court’s website. The notice must be posted for six weeks. [Civ.R. 4.4]

      • If the defendant lives out-of-state: [Civ.R. 4.3]

        • At the time of service, the person to be served is a nonresident of the state or an absent resident of the state;

        • The person, as defined in Civ.R. 4.3(A), to be served caused the event out of which the claim arose as set forth in Civ.R. 4.3(A)(1-10).

        • Specific to termination of marriage [Civ.R. 4.3(A)(8)], living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising out for spousal support, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state.

      • If the defendant lives in a foreign country, Civ.R. 4.5 controls.

   2. Common Service Problems

      • Who has signed the receipt of service

      • Mail is returned unclaimed or refused

      • Acceptable proof of delivery

      • Covid-19 issues [CUC Props. VI v. Smartlink Ventures, Inc., 1st Dist. Hamilton No. C-210003, 2021-Ohio-3428 (2021)] – return receipts from service through certified mail marked with “C19” or “COVID-19” do not constitute valid service. The mail carrier is not permitted to substitute himself as an agent of the intended recipient.]

5. Divorce

   1. Jurisdiction, Venue, and Miscellaneous

      • The plaintiff must be a resident of Ohio for six months immediately preceding the filing of the complaint. [R.C. 3105.03; Barth v. Barth, 113 Ohio St.3d 27 (2007)] The plaintiff must be a resident of the county at least 90 days immediately preceding the filing of the complaint. [Civ.R. 3(C)]. This requirement may be waived if both parties consent.

      • The court may have only in rem jurisdiction if the defendant has no connection to the state. The court has authority to grant a divorce, but cannot issue any orders on the defendant.

      • A court may proceed with the divorce if the plaintiff dismisses the complaint but the counterclaim remains pending.

      • The judicial officer should examine the enabling statute of the court to verify the extent of the court’s jurisdiction generally.

      • The jurisdiction of the court to enter a final judgment may be affected by the death of one spouse while case is pending.

        • Suggestion of death to be filed

        • If death occurs prior to final hearing, case is dismissed

        • After final hearing, waiting for final judgment entry, court has discretion

      • Each party must be competent.

        • If a party is incompetent (e.g., dementia, developmental disability, mental illness, or a minor), the court may be required to appoint a guardian ad litem.

        • The domestic relations court has the ability to make competency determination after a hearing.

      • A case may be stayed by bankruptcy, mediation, or conciliation.

   2. Grounds for Divorce [R.C. 3105.01]

      • Fault Grounds

        • Either party had a spouse living at time of marriage

        • Willful absence of adverse party for one year

        • Adultery (may be only grounds recognized by parties, e.g., Jehovah’s Witnesses)

        • Extreme cruelty

        • Fraudulent contract

        • Gross neglect of duty

        • Habitual drunkenness

        • Imprisonment in state or federal institution when complaint is filed

        • Procurement of divorce outside state

      • No-Fault Grounds

        • Parties have lived separate and apart for one year

        • Incompatibility, unless denied by either party

      • Grounds are not a factor considered by the court in deciding property division, spousal support, or custody.

   3. Commencement of Divorce Case
      Either spouse may file a complaint for divorce. The non-filing spouse may file a counterclaim without being a resident. The case is commenced if service on the non-filing spouse is perfected within six months unless good cause is shown. [Civ.R. 4(E)]

   4. Temporary Orders [Civ.R. 75(N)]
      The court may issue temporary orders to provide for temporary spousal support, child support, parenting orders, and division of household expenses. When possible, it is a best practice to conduct a hearing before issuing temporary orders.

   5. Final Hearing

      • A final hearing on a divorce cannot be heard until expiration of 42 days after service (cannot be waived), 28 days after last publication, or 28 days after service of counterclaim (may be waived). [Civ.R. 75(K)]

      • Notice must be given at least seven days in advance of final hearing. [Civ.R. 75(L)]

      • Testimony of a party must be supported by other credible evidence.

        • Admission of grounds cannot be obtained by fraud, connivance, coercion, or other improper means.

        • Parties, notwithstanding marriage, are competent to testify.

6. Dissolution of Marriage

   1. Jurisdiction and Venue
      One party must be a resident of Ohio for six months immediately before filing the petition for dissolution. [R.C. 3105.62; Barth v. Barth, 113 Ohio St.3d 27 (2007)] Venue may be waived. [Civ.R. 3(C)]

   2. Service
      For purposes of service, both parties are considered defendants and must be served pursuant to the Rules of Civil Procedure. [R.C. 3105.62] Parties may sign a waiver of service or be served by the clerk of court. [Civ.R. 4.7]

   3. Commencement of Dissolution

      • Both parties must sign the petition for dissolution.

      • A separation agreement signed by both parties must be attached to the petition. The contents are outlined in R.C. 3105.63.

      • The separation agreement must provide for:

        • Division of all property, including retirement assets, and if agreed, authorization to modify the division of property.

        • Spousal support and if agreed, reservation of jurisdiction. Authorization to modify spousal support as determined by R.C. 3105.18(E) and R.C. 3105.65.

        • If there are minor children, allocation of parental rights and responsibilities must be made including designating residential parent, parenting time, and child support. The parties may file a separate shared parenting plan or parenting plan.

   4. Final Hearing Procedures [R.C. 3105.64]
      The final hearing must be scheduled not less than 30 nor more than 90 days after the filing of the petition. Both spouses must appear and acknowledge under oath that they:

      • Voluntarily entered into the separation agreement;

      • Are satisfied with its terms; and

      • Seek dissolution of marriage.

      • Both parties must sign the notice of dismissal, but effectively if one fails to appear the case should be dismissed.

1. 5. Court Powers [R.C. 3105.65]
      The court may dismiss the petition if either spouse is not satisfied with the separation agreement or does not want the dissolution. Determine if a motion to convert the action into a divorce has been filed.

      • If the court approves the separation agreement, the court shall grant the dissolution.

      • Any time before the dissolution is granted, either spouse may convert the action into a divorce action by filing a motion to convert to divorce. The motion to convert shall contain a complaint for divorce, including grounds for divorce. No fees may be charged to convert.

   6. Effect of Dissolution
      A decree of dissolution has the same effect on property rights, including dower and inheritance as a decree of divorce. The court has continuing jurisdiction over:

      • All issues regarding children;

      • Modification of spousal support, if the separation agreement contains such a provision, pursuant to R.C. 3105.18(E)(2); and

      • Modification of property division and retirement orders if both parties consent [R.C. 3105.65(B)].

7. Annulment
   An annulment is ordered when the court finds that the marriage was legally defective or invalid due to some impediment or defect that existed at the time of the marriage. An annulment decree declares that the marriage was terminated (voidable marriage) or the marriage never existed (marriage was void).

   1. Jurisdiction, Venue, and Service

      • The plaintiff must be a resident of Ohio for at least six months and a resident of the county for 90 days immediately preceding the filing of the complaint. [R.C. 3105.03; Civ.R. 3(C)]. This requirement may be waived if both parties consent.

      • R.C. 3105.32 sets forth the time periods for which a plaintiff must file a complaint based upon the cause for the annulment.

      • Service – See Civ.R. 4.1-4.6

   2. Causes for Annulment [R.C. 3105.31]

      • The plaintiff was under the established legal age for marriage (the complaint must be brought within two years of reaching legal age).

      • One party is legally married to another person (the complaint must be brought during the life of either the current spouse or former spouse).

      • One party has been adjudicated mentally incompetent (the complaint must be brought by aggrieved party or the incompetent party’s guardian before death of either party).

      • Consent to the marriage was obtained fraudulently or by force (the complaint must be brought within two years from the date of marriage). This could include mistake, lack of mutual consent, incest, physical health issues, or intoxication.

      • The marriage was never consummated (the complaint must be brought within two years from the date of marriage).

   3. Court Orders
      The court may award temporary orders for spousal support and allocation of parental rights and responsibilities. [Civ.R. 75(N)] If a court grants an annulment, it must issue an order for the disposition, care, and maintenance of any minor children. [R.C. 3105.21(A)]

8. Legal Separation

   1. Jurisdiction and Venue
      There is no statutory residency requirement other than to follow the venue requirements in the Civil Rules of Procedure. [R.C. 3105.03] Civ.R. 3(C)(9) requires that the plaintiff reside in the county for at least 90 days immediately preceding the filing of the complaint. The parties do not need to be living separate and apart at the time the complaint is filed.

   2. No-Fault Grounds for Legal Separation [R.C. 3105.17]

      • Living separate and apart without cohabitation and interruption for more than one year

      • Incompatibility (unless denied by either party)

      • These grounds are often stipulated by the parties.

   3. Fault Grounds for Legal Separation [R.C. 3105.17]

      • One party had a spouse living at the time of the marriage

      • Willful absence of the other party for one year

      • Adultery

      • Extreme cruelty

      • Fraudulent contract

      • Gross neglect of duty

      • Habitual drunkenness

      • Other party imprisoned in a state or federal correctional institution at the time of filing

      • An evidentiary hearing with a corroborating witness is required to demonstrate knowledge of the facts and the party.

   4. Final Hearing

      • The court must order the disposition, care, and maintenance of minor children. [R.C. 3105.21]

      • The court may resolve issues involving the division of property and debt; award spousal support; allocate parental rights and responsibilities; and award attorney’s fees. [R.C. 3105.171; R.C. 3105.18; R.C. 3105.73]

Additional Resources

• Supreme Court of Ohio’s Bench Card, Dissolution

• Supreme Court of Ohio’s Bench Card, Divorce

• Supreme Court of Ohio’s Bench Card, Legal Separation

• Supreme Court of Ohio’s Bench Card, Temporary Orders