What are “grounds for divorce”? Simply stated, grounds are legal reasons. Ohio recognizes several grounds for divorce, although by far the most commonly used one is incompatibility.
Incompatibility
When filing a petition for divorce in Ohio, you’ll need to state your grounds for requesting the divorce. Many divorcing couples state incompatibility as their grounds for divorce. By choosing incompatibility, there is no need to assign fault or blame to either party. You don’t have to prove that one spouse has done something wrong. It just means there are conflicts in the marriage that cannot be repaired, making it impossible to stay married. You may hear people refer to this as a “no-fault” divorce.
A no-fault divorce is not the same as an uncontested divorce. In an uncontested divorce, one spouse may file a petition for divorce, and the other spouse may not even acknowledge it. It’s not that they just aren’t fighting it, they may not even show up!
Other Grounds for Divorce in Ohio
In addition to incompatibility, Ohio law offers several other grounds under which it is appropriate to file for divorce. These include:
- Either spouse already had a husband or wife living at the time of the marriage from which the divorce is sought (bigamy);
- Willful absence of the adverse party for one year;
- Adultery;
- Extreme Cruelty;
- Fraudulent contract;
- Any gross neglect of duty;
- Habitual Drunkenness;
- Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;
- One spouse procured a divorce outside of Ohio, thereby releasing them from the obligations of marriage while those obligations remain binding on the other party; and
- When husband and wife have lived separate and apart, without cohabitation, for at least one year without interruption.
How Are Abandonment and Desertion Related to a Divorce?
Notice anything about the above list of grounds? It doesn’t include “abandonment” or “desertion”! Although you will hear people use those words when they talk about grounds for divorce, legally the grounds are “willful absence of the adverse party for one year”.
Are Abandonment, Desertion and Separation all the Same?
The short answer is no. Although abandonment and desertion are sometimes used interchangeably, they both differ from separation. A separation implies that that the decision to live separately was mutual. In order to claim abandonment or desertion, one spouse would have to prove that the other spouse left without consent, for no justifiable reason, and they do not know where the other spouse is living.
Defining Abandonment and Desertion
There are three basic parts to declaring willful absence as grounds for divorce:
- Time – In Ohio, you must wait a least one year since the spouse moved out of the marital residence;
- Justification – the deserter had no justifiable reason or excuse for moving out;
- Location – you don’t know where your spouse is living, or they are not communicating.
You cannot claim desertion if your spouse had a justifiable reason for leaving. For example, if they took a remote job posting, even if you didn’t want them to go, they had a justifiable reason for leaving. Of course, you can still file for divorce, but you can’t use abandonment as your grounds. Time apart must be continuous. If your spouse suddenly shows up and wants to reconcile, stays for the weekend and then leaves again, typically you’ll have to restart the clock on the one-year requirement.
What is Constructive Abandonment?
Sometimes, a court will accept a constructive abandonment argument without meeting the criteria above. Your spouse may be physically present in the home, but in all other ways they have abandoned the marriage and their marital obligations. They may be non-communicative, come and go without explanation or expectation of when they’ll return, and exhibit other behaviors that might be classified as constructive abandonment. This falls under the “gross neglect of duty” grounds for divorce, since one spouse is no longer fulfilling their duty in the marriage.
Will Abandonment Impact Child Custody?
In theory, no. In practice, almost certainly, especially if one spouse left without any kind of parenting arrangement in place. The impact is amplified if one parent has been absent for a long period of time. If one spouse has abandoned the marital residence and the children, it’s likely that will weigh into the court’s consideration of what is in the child’s best interests when ruling on child custody. In addition to child custody, the judge will also need to rule on parenting time. Both child custody and parenting time decisions will be decided in part on what the court believes to be in the best interest of the child, but it may be difficult for a parent who walked away from their children to prove that sharing child custody or parenting time would be best for the children. It’s also important to remember there is a difference between physical custody and legal custody of the children. Sharing legal custody means both parents have a say in how the child is raised, and one party cannot act unilaterally when making decisions regarding the children. Physical custody relates to where the children live, so it’s possible that a court may order physical custody to one parent (the custodial parent), but also order shared legal custody.
How are Spousal Support and Child Support Impacted by Abandonment?
Spousal support is decided on several factors, including the length of the marriage and the differences in income. The end result of monthly payments and length of support may not change if one party alleges abandonment, but there may be back support that is owed for the period of time when the spouse was absent from the marriage and wasn’t contributing. The more common impact on spousal support is when the parties have been separated for several years, in which case the court might use the date of separation for calculation of spousal support.
Child support is calculated using a formula provided by the state of Ohio. The grounds for divorce aren’t necessarily relevant in determining child support. However, just as is the case with spousal support, there may be back child support owed if the deserting party has neglected to support their children during their absence.
Abandonment and Marital Property
It’s a misconception that the party who leaves the marital residence first either forfeits or greatly reduces their chances of keeping the marital property. The home is considered a marital asset, and as with any other marital asset, the court will need to determine an equitable division. Again, this will vary depending on how long the parties have been separated. Each divorce proceeding is unique, and the division of marital assets and property will be decided by the court based on the merits of the case.
Do the grounds for divorce matter?
If your main goal is just to terminate the marriage, then the grounds don’t matter much, which is why so many couples choose incompatibility. Grounds won’t impact spousal support, child support, or division of property in Ohio either. The most common instance when grounds become an issue are when one or both parties have religious beliefs that prevent them from being able to consent to grounds of incompatibility.
Domestic Violence and Abandonment
If you are the victim of domestic violence, it is paramount that you protect yourself and your children first and foremost. Leaving the home and the marriage due to violence in the home does not constitute abandonment, as domestic violence is a justifiable reason for leaving. Your safety comes first! Extreme cruelty, gross neglect of duty and habitual drunkenness are all separate grounds for divorce, and they are all justifiable reasons for leaving without warning.
Proving Your Grounds
If you file a petition for divorcing alleging specific grounds and your spouse disagrees, you will need to be prepared to prove it. You will need evidence, documentation, and perhaps witnesses who can attest to the behavior you are alleging.
Seeking Legal Representation
A reputable family law firm with lawyers who specialize in divorce and dissolution of marriage will be able to advise you as to whether you have any grounds for divorce other than incompatibility. An experienced divorce and family lawyer in Mason, Ohio will be able to explain the type of evidence you may need to prepare so that you can begin collecting the appropriate records and documentation. Keep in mind that what you see as extreme cruelty or gross neglect of duty may not be viewed the same way in a court of law. A good divorce attorney will help you view the behavior in an objective manner and explain the legal definitions of the various grounds.
Schedule a Free Consultation
If you’re unsure whether your spouse’s behavior rises to the level of grounds for divorce, come in and ask the experts at Kirkland & Sommers. We only practice family law, so we are the experts when it comes to divorce and dissolution in the Mason, Ohio area. The trusted lawyers at Kirkland & Sommers have more than 100 years of combined experience, and several have obtained fellowship in the Ohio Academy of Matrimonial Lawyers, the highest recognition a divorce lawyer can attain. We’ll work with you to develop a relationship and determine the best path forward. Your justice is our priority! Call us at our Dayton or West Chester offices, or simply click the link below to get started.