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Are you seeking to end
your marriage? If so, then the first step you will need to
take is learning the difference between a Divorce,
Dissolution, Legal Separation, and Annulment. The family
law attorneys at Sheppard Law Offices can assist you to
better understand which type of action is right for you. We
will advise you, and aggressively advocate on your behalf on
such issues as:
- Property Division
- Child Custody
- Visitation
- Child Support
- Alimony (Spousal Support).
What is the
Difference between “Divorce”, “Dissolution”, “Legal
Separation” and “Annulment?”
A Divorce
is the legal separation and termination of the marital
relationship by the judgment of a court, which may be
granted only upon a finding by the court that certain
“grounds” for a Divorce exists. A divorce typically takes
place because the parties cannot agree on all terms of the
separation; therefore, a judge is needed to rule upon those
outstanding issues. Divorces can be costly, ranging
anywhere from $4,000 to over $10,000. In addition, it may
take several months or a couple of years to conclude a
divorce action.
When these heated battles take place at
temporary order hearings, preliminary hearings, pre-trials,
and the actual trial itself, you must have legal counsel who
is going to fight for your rights. We, the divorce
attorneys at Sheppard Law Offices, listen to our clients,
and we aggressively pursue our clients’ wishes within the
bounds of the law.
There are two types of Divorce:
contested and uncontested. A Contested Divorce
is what many people normally think of when they hear the
word “Divorce”. Issues of child support, child custody,
visitation, shared parenting, spousal support (alimony),
property division, allocation of assets and debts, and tax
can be litigated for months, even years. An
Uncontested Divorce occurs where one spouse (i.e.
the defendant) fails to appear in court during the early
stages of the case or fails to answer the divorce
complaint. The same issues that are raised in a divorce
action may arise; however, the court only receives testimony
by the Plaintiff and renders it decision accordingly.
Dissolution
is a form of no fault termination of the marriage
relationship where both parties have agreed upon
ALL of the terms of
the termination. The parties will have agreed to all (if
applicable) of the following terms: the division of marital
property, spousal support, parental rights and
responsibilities, child support, visitation, etc. The
parties are requesting that the court terminate the marriage
and approve the agreement between the parties. The
advantages of Dissolution are that it is not adversarial in
nature (i.e. the parties have already agreed upon every
aspect of the termination); there is no plaintiff or
defendant; and the court does not have to make any of the
decisions it would have to make in a contested divorce.
Additionally, it is less expensive and concluded in a
shorter period of time than a divorce action.
Our experienced Family Law Attorneys will
guide you through the dissolution process.
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Legal Separation
is very similar to a divorce action. This type of process
(which is not commonly used) is undertaken by the parties
who want
to live apart, but for some reason, do not want to
officially terminate their marriage.
An
Annulment is a
decree from a court determining that the marriage is legally
invalid (“null” and “void”) because of some defect that
existed at the time the marriage was entered into. An
Annulment Decree declares that a marital status never
existed, unlike a Divorce Decree or Dissolution of Marriage
Order that terminates a marriage. The grounds for an
annulment include: an underage marriage; bigamy (i.e. one of
the parties has another living spouse); mental incompetence
of one of the parties; fraud; duress; and non-consummation
of the marriage (which may include impotency).
QDRO
(Qualified Domestic Relations Orders)
A QDRO (Qualified Domestic Relations Order)
is an order that needs to be included in a
Divorce Agreement when dealing with retirement
and pension funds. The QDRO establishes a
soon-to-be-ex-spouse's (i.e. alternate payee) legal right to
receive a designated percentage of the other spouse’s (i.e.
plan participant) qualified plan account balance or benefit
payments. Income tax consequences occur at the time the
alternate payee becomes entitled (i.e. receives)
disbursement of the proceeds.
Also, the QDRO arrangement may permit an
alternate payee to withdraw his or her share and roll the
money over into his or her own IRA to the extent that
current withdrawals are permitted by the terms of the
qualified retirement plan. The IRA rollover procedure
allows the alternate payee to take over management of the
money while continuing to postpone tax implications until
funds are withdrawn from the IRA.
What happens when
your qualified retirement account money goes to your
ex-spouse without a QDRO?
It is treated as a taxable distribution to
you. This means that you owe the IRS for money that
actually winds up in your ex spouse’s pocket. Your
ex-spouse will love this because it's a tax-free windfall at
your expense. On top of the income tax bill, you may also
get stung with a 10% premature withdrawal penalty if you are
under age 59 ½.
Division of
Marital Assets
When dividing property during divorce a court
will first determine if the property is marital or
non-marital property. This can be a very complicated
process and is dealt with according to Ohio laws governing
the division of assets accumulated during a marriage.
Property acquired by either spouse BEFORE
marriage is considered Non–Marital Property. All property
acquired AFTER marriage is considered
“property of the marriage”, or Marital Property.
How Does the
Court Determine If Property is Marital or Non-Marital
Property?
The courts have no authority over non–marital
property. The first thing the court must do is determine
whether it has authority over the property. Next, if the
property is marital property, then the court must
“equitably” divide the property.
Property is
presumed to be marital property with the following
exceptions:
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- Property acquired by gift,
legacy or descent.
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- Property acquired in exchange
for property acquired before the marriage or in
exchange for property acquired by gift, legacy
or descent.
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- Property acquired by a spouse
after a Judgment of Legal Separation.
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- Property excluded by valid
agreement of the parties.
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- Any judgment or property
obtained by judgment awarded to a spouse from
the other spouse.
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- Property acquired before the
marriage.
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When marital and non–marital property has been combined the
process of determining marital property can be quite
complicated. For example, what happens when one spouse
uses non–marital property to buy a house with the other
spouse? What happens when one spouse inherits money and
that money is deposited into a joint bank account? If a
court decides that property is marital property, then the
court must determine how to “equitably” split the property.
Our family law firm can assist you in the
following areas:
Contact
our office today and schedule your free one-half (1/2) hour
initial consultation.
1-877-505-9455
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