What is the Difference between Divorce and Dissolution?
Contested Divorce: Contested Divorce is the process of terminating the marriage and begins like all lawsuits; one party files a complaint (the plaintiff) against their spouse (the defendant). When the complaint is filed, the case is assigned to a judge and generally a magistrate. The defendant files an answer and counterclaim against the plaintiff. Where there are issues that cannot be decided or agreed upon by the parties the Court will make the decisions. This process is the longest and usually costs more in attorney fees.
Uncontested Divorce: Uncontested Divorce is a termination of the marriage and the parties agree on all issues related to the ending of their marriage. This means all disputes are resolved outside of the courtroom. Like in a divorce action the plaintiff files a complaint, but because it is uncontested the defendant does not need to file an answer. The court sets a hearing date, approximately 28 days after the complaint is filed. An uncontested divorce is also used in the situation where the defendant has moved out of state and is uninterested in returning for the hearing. If the defendant chooses not to return to the hearing the plaintiff must bring a witness. The uncontested divorce usually takes less time and is less costly than the litigation in a contested divorce, but can be more time consuming and more costly than dissolution.
Dissolution: Dissolution is also a termination of the marriage in which the parties file their written separation agreement (and a shared parenting plan, if there are minor children) with the court along with a petition asking the court to dissolve the marriage. Unlike divorce, the parties are referred to as petitioners. The court then holds a final hearing acting on the parties’ petition no less than thirty days and no more than ninety days after it is filed. Both petitioners must be present at the final hearing. An advantage of dissolution is, the parties can be relatively certain of the outcome and it is usually less expensive and faster than either type of divorce.
At your first meeting, we will discuss your situation and what outcome you desire, try to determine which options are available to you, which options fit your needs and discuss the cost of those options.
What does it cost?
How much does it cost? This is perhaps the number one question clients have when contemplating divorce. Unfortunately, it is also one of the hardest to answer. Divorces are expensive. I think everyone can agree on that fact. A dissolution of marriage cost less, but is still not cheap by most people's standards. The cost of terminating a marriage generally runs from $1500 to $15,000; with the low end being simple, uncontested matters and the higher end being contested divorces. The average cost of a contested divorce in the United States is approximately $15,000. The long and bitter divorces you hear about can cost significantly more. The cost of your divorce will depend on a number of factors. The number one factor is your relationship with your spouse and the level of cooperation between you and your spouse. If you and your spouse can come to an agreement on the terms of your divorce, you will spend significantly less. Other factors include (but are not limited to), whether you have children, where you live, what you own, if you own real estate, business interests, retirement accounts, debts, child support issues, spousal support issues, etc. The more complicated the matter and the more fighting between the parties, the higher the cost. I will try to answer some of the questions related to the cost of divorce below.
Types of Fee Arrangements: The most common fee arrangement for divorce work is an hourly rate, as it is hard to predict just how much time and work will be involved in each case. Every divorce is different. Frequently the attorney will ask for a retainer (an upfront lump sum) to begin work. See "What is a Retainer?" below. There are some attorneys who charge a flat fee, but that is usually only for uncontested proceedings, such as dissolution of marriage and uncontested divorce. I prefer to charge an hourly rate in domestic cases, so my clients only pay for the actual work that is done on their case. It is rare to see an attorney charge a flat rate for a contested matter.
Initial Consultations: Most attorneys charge for the initial consultation. Many attorneys charge $100 to $150 for an hour long meeting to discuss your situation. Some charge their regular hourly rate whatever that might be. Thatcher Law, LLC currently only charges $25 for an initial consultation, as I feel it is very important that clients find the right attorney and if that requires meeting with several, than they should do just that.
What is a Retainer? Almost all divorce attorneys require a retainer upfront to begin work on your case and then their bill time at an hourly rate. The retainer is a upfront, lump sum that you pay the attorney before they begin working on your case. The amount will vary depending on the type of proceeding and the factors listed above. The retainer can be anywhere from $500 to $5000 and up. The attorney deposits your retainer into a special bank account called a Trust Account or IOLTA (Interest on Lawyer’s Trust Account). All lawyers who accept retainers in Ohio are required to maintain a trust account. These accounts are regulated by the Supreme Court of Ohio. The lawyer will take money out of your retainer as he or she earns it. The balance will remain in the trust account until depleted. Most attorneys will send you a periodic statement to show you how much the attorney has charged you and how must is left in your retainer account. Some attorneys will ask you replenish the retainer if your balance gets too low, others will just start sending you a monthly invoice if your retainer is depleted. If the attorney completes your case and there is still a balance in your retainer, however, you would be entitled to have the balance returned to you.
Court Costs: The initial court cost deposit, often called a filing fee, will depend on the county where you file for divorce or file your petition for dissolution (or other domestic matter). Most courts in Ohio require a deposit of $150 to $300 for domestic law matters. In Richland County, one county in which I practice, the cost to file for divorce or dissolution is $300. Like a retainer, the court will charge costs to your deposit until your court costs exceed the deposit. Then the parties will be required to pay the excess costs. Typically, divorces and dissolution of marriages with children exceed the initial deposit. The same holds true for other matters, such as custody disputes and so forth. A simple dissolution without children will frequently be less than the deposit and the person who paid the deposit may get a refund from the court. Do not expect a refund, however. It is best to assume you will owe than to expect a refund.
Attorney’s Fees: This is the part that is most difficult to estimate and the part most people want to know with precision. Unfortunately, precision is impossible. Divorce attorneys charge anywhere from $100 to $500 an hour, with $250 an hour being the nationwide average. In bigger cities, you are more likely to see higher rates, such as $400 to $500 an hour. In smaller cities, you will see more rates around the average and lower. Thatcher Law, LLC currently charges $180 an hour, which is competitive for the Richland County area. Hourly fees are charged in fractions of an hour; usually fifteen-minute increments or in tenths of an hour increments. Thatcher Law, LLC charges in tenths of an hour, so the client does not pay for more than actual time worked. Thus, I will not bill you for fifteen-minutes if I make a phone call that only lasted eight-minutes.
Expenses: In addition to attorney’s fees, you will likely be billed for costs and expenses such as printing, postage and, if your attorney is not located in your area, mileage or travel expenses. Every attorney treats costs expenses differently, so it is a good idea to inquire into how these are billed.
Retainer Amounts: As stated above, most attorneys will require a retainer. The amount of the retainer will vary depending on the type of proceeding and the factors listed above. Retainer amounts can range from $500 to $5000 or more, depending on the type of action, location, issues, etc. I generally require a retainer of $1000 to $3000 for domestic issues, plus court cost deposit. The exact amount required would be determined after talking to you and learning more about your situation. For a simple dissolution or other uncontested matter, the retainer may be all you pay. For more complex cases and cases that require more time, the retainer may need to be replenished or you might be invoiced after it is depleted. These are issues that will be discussed at your initial consultation.
Payment Plans and Credit Cards: Some attorneys also offer payment plans or accept credit cards. Frequently they will still require the initial retainer, but will work with you to pay any additional amounts owed over time. Thatcher Law, LLC always accepts credit cards as a way to help clients pay for representation. For many clients, this enables them to pay me what they owe, but still pay it off over time. If you cannot use a credit card, we can discuss working out a plan that works for you. I understand that this is expensive and that there are other expenses mounting due to the divorce.
More about Dissolution of Marriage and Uncontested Divorce
Uncontested divorce and dissolution are not the same thing. Some uncontested divorces can take a long time and can end up costing a lot of money. There is another, less expensive option that may be available to couples looking to end their marriage. When you and your spouse are able to agree on all of the issues involved, dissolution may be the option for you. Dissolution is often the quicker and more affordable option. Sometimes, however, uncontested divorce is the better option. Find out more below:
What is a dissolution? Dissolution of marriage is a termination of a marriage by agreement of the parties. The parties file a joint petition for dissolution with the court, requesting that the court review and approve their separation agreement. The separation agreement resolves all relevant issues such as division of property, allocation of marital debt, and allocation of parental rights and responsibilities. Both parties must appear in court. If there are issues the parties cannot agree on or one party cannot be present in court, than dissolution is not possible.
What are the requirements for filing a petition for dissolution? In order for a court to have jurisdiction in a dissolution, at least one party must have been an Ohio resident for at least 6 months prior to the filing and a resident of the county in which the case is being filed for at least 90 days immediately prior to the filing. Also, the parties must enter into a written separation agreement resolving all relevant issues. If the parties have children, then an agreement called a shared parenting plan must also be filed. It is recommended that both parties have legal representation, although some spouses prefer to represent themselves.
What is the procedure for dissolution of marriage? Prior to filing, the parties must make a full voluntary financial disclosure to one another and enter into a separation agreement that resolves all the relevant issues. These issues include the division of marital property, spousal support, if any, and if there are minor children involved, the allocation of parental rights and responsibilities, child support and visitation rights. Then both parties must sign the petition for dissolution. The separation agreement must be attached to the petition for dissolution and filed with the court. Typically, both parties will sign a waiver of service that is also attached to the petition. After the petition is filed, the court schedules a hearing at least 30 days, but not more than 90 days after the date of filing. Both parties must appear in court at the hearing. The court will hear statements of the parties that they have entered into the separation agreement voluntarily; that the parties are satisfied with the terms of the separation agreement; that the agreement is fair; and, that the parties desire to terminate the marriage. If the court is satisfied, it will enter judgment incorporating the terms of the separation agreement, and the marriage will be terminated. It can take between two and three months to complete the entire marriage dissolution process. The parties both must comply with the terms of the dissolution in the same manner as they would a divorce.
What is an Uncontested Divorce? An Uncontested Divorce is the legal termination of a marriage upon a finding by a court that certain grounds for divorce exist. Typically, the parties agree that grounds for the divorce exist, such as incompatibility or living separate and apart for more than one year. The difference between dissolution and an uncontested divorce is that only one party must appear in court. Typically, one of the parties is absent from the State and unable or unwilling to return for a court hearing, but willing to agree to a divorce.
What are the requirements for filing an uncontested divorce? In order for a court to have jurisdiction in a divorce, then at least one party must have been an Ohio resident for at least 6 months prior to the filing and a resident of the county in which the case is being filed for at least 90 days immediately prior to the filing. Also, the parties must enter into a written separation agreement resolving their issues. If the parties have children, then an agreement called a shared parenting plan must also be filed.
What is the procedure for the uncontested divorce? The procedure for an uncontested divorce is quite similar to the procedure for dissolution. Prior to filing a complaint for divorce the parties make a complete financial disclosure to one another. Then the parties must voluntarily enter into a separation agreement that resolves all issues, such as the division of property, spousal support, if any, and if there are minor children involved, the allocation of parental rights and responsibilities, child support and visitation rights. The complaint for divorce, which must state proper grounds such as incompatibility, will then be filed by the plaintiff, i.e. party residing in Ohio. The defendant will sign a waiver to the service of the complaint, agree to the Court's granting of divorce and approval of the separation agreement and, if applicable, the shared parenting agreement. After the complaint is filed, the court schedules a hearing at least 30 days after the filing date. At the hearing, the plaintiff must appear in court with a witness. The defendant does not have to be in court. The statements of the plaintiff and the witness must satisfy the court that there are sufficient grounds for the divorce and that the separation agreement and the shared parenting agreement, if any, are fair and equitable. If the court is satisfied, a divorce will be granted by an order incorporating the terms of the separation agreement and the marriage will be terminated.
Having problems agreeing on an issue? Should you wish to pursue dissolution, but are having difficulty agreeing on some issues, we can discuss hiring a mediator to help you work out the issues that are holding you back. There is an extra fee for mediation.
Annulment? Probably not an option.
Frequently people ask if they can just get their marriage annulled? The answer is usually "No." An annulment is a decree stating your marriage is legally invalid because of some recognized defect. An annulment terminates the marriage (if you are in fact legally married) and treats it as if it never existed.
To qualify for an annulment in Ohio, one of the following must be true:
You were under the age at the time of your marriage (males must be 18 and females must be 16, with parental consent), and you did not live with your spouse after you were married. This action must be brought within two years after you attain the legal age for marriage.
You or your spouse was already legally married to someone else who is living.
You or your spouse had been declared incompetent at time of marriage (unless competency was later restored and you continued to live together as a married couple).
Consent to marry was obtained by fraud, unless, after learning all of the facts, you lived together as a married couple. (For example, a woman lies to her significant other about being pregnant and that he is the father). This action based must be filed within two years after
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