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Dissolution of Marriage - The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals August 2015 Dissolution of Marriage - "Fresh Air in Family Court" John R. Milligan Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Family Law Commons Recommended Citation Milligan, John R. (1975) "Dissolution of Marriage - "Fresh Air in Family Court"," Akron Law Review: Vol. 8 : Iss. 3 , Article 1. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol8/iss3/1 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Milligan: Dissolution of Marriage DISSOLUTION OF MARRIAGE-'FRESH AIR IN FAMILY COURT" HON. JOHN R. MILLIGANt Breakdown of Marital Relations-Dissolution* GENERALLY 0 mo CONTINUEs to adhere to the historic tradition that marriage is to be fostered and preserved, and divorce is to be disfavored. Thus, statutes authorizing common pleas courts to grant divorces for certain grounds are to be strictly construed, and grounds must be strictly proved.1 The state has a vital interest in marriage and divorce as a matter of public policy. Divorce is not simply a private controversy between husband and wife. The family relationship is the basis of our society, and its preservation is a matter of state concern. 2 Publication or circulation of any article "with the intent to procure or aid in procuring divorces, either in this state or elsewhere" is made a crime punishable by a fine of $25 to $500 and/or six months' imprisonment.3 The "Winds of Change" The revolution in family law in Ohio is over, and not a shot was fired. In 1974, the 110th General Assembly adopted two sweeping reforms: (1) a living-apart statute 4 and (2) a comprehensive divorce reform bill.5 Ohio joined the trend across the country to modify grounds for divorce. t A.B., College of Wooster; J.D., University of Michigan School of Law; Senior Judge, Family Court, Stark County, Ohio; Chairman, Ohio Judicial Conference; President, Ohio Association of Juvenile Court Judges; Member, Ohio State Bar Association Family Law Committee. * Reproduced with permission from WEsT's Omo PAAcTicc, FAMEY LAW, by John R. Milligan, Volumes 13 and 14, Copyright 1975 by West Publishing Company. All footnote references to sections refer to sections of the above text, however, section numbers have been deleted from the sections reproduced. 1 Kennedy v. Kennedy, 111 Ohio App. 432, 165 N.E.2d 454, 12 O.O.2d 201 (1959). The court quotes with approval the following statement: The public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, and to prevent separation. This policy finds expression in probably every state in legislative enactments designed to prevent the sundering of the marriage ties for slight or trivial causes, or by the agree- ment of the husband and wife, or in any case except on full and satisfactory proof of such facts as the legislature has declared to be cause for divorce.... See 17 Am. Jur. 262; Accord, Nelson v. Nelson, 108 Ohio App. 365, 154 N.E.2d 653, 9 O.O.2d 318, 79 O.L.A. 602 (1959). 2Pashko v. Pashko, Coin. P1., 101 N.E.2d 804, 45 0.0. 498, 63 O.L.A. 82 (1951). s R.C. § 3105.02 and § 3105.99(A). It is yet to be determined whether "do-it-yourself" divorce kits fall into this class of prohibited activity. 4R.C. § 3105.01(K), effective May 7, 1974; Amended Sen. Bill No. 348, 110th General Assembly (1974). 5 Am. Sub. H.B. No. 233, effective September 23, 1974. Published by IdeaExchange@UAkron, 1975 1 Akron Law Review, Vol. 8 [1975], Iss. 3, Art. 1 AxRON LAw REvIEw [Vol. 8:3 The presagers of change were New York and California, where each went from very limited divorce to divorce on grounds of irreconcilable differ- ences. In the decade of the 1960's, Ohio considered numerous amendments to its divorce laws, and the 1974 legislation culminates these efforts. Living apart. Ohio follows some 34 states that have adopted living apart as a ground for divorce in one form or another. This was achieved by simply providing that "on the application of either party, when husband and wife have, without interruption for two years, lived separate and apart without cohabitation; and four years in the case in which one of the parties is continuously confined to a mental institution..." the court may grant a divorce. 6 The Legislature intends that the divorce may be granted, notwith- standing the fault of the party requesting the divorce on this ground. Dissolution of marriage. Am. Sub. H.B. 233, 110th General Assembly, is much more sweeping than simply establishing a new ground for divorce. Its features include: (1) Mandatory premarital counseling where juvenile court consent 7 is required; (2) Four-year living apart where a party is confined in a mental institution;8 (3) Reduction in the residency requirement for divorce from one year to six months and changes in the venue requirements; 9 (4) Dissolution of marriage by approved separation agreement;' 0 (5) Elimination of condonation and recrimination as defenses to divorce on any ground;" (6) Elimination of dower upon granting divorce or alimony-alone 12 relief; (7) Alimony may be granted, notwithstanding that the parties are 6 R.C. § 3105.01(K). In this sense, divorce on this ground is of the "no fault" variety. The critical issue is whether the parties have lived separate and apart without cohabitation for the required period of time. If they have done this, the legislature is satisfied that the marriage is finished "in fact" and should not be continued over the protestation of the adverse party. 7 R.C. § 3105.05 8 R.C. § 3105.01 (K). 9R.C. § 3105.03. 10 R.C. § 3105.61 et seq. For reasons not made clear, the legislature has determined to develop another label for a husband and wife who terminate their marriage. When done pursuant to this provision, the order of the court will not be a "divorce," but a "dissolution" of marriage. (Will this new "label" result in people being called "single," "divorced," or "dissolved," or "dissolutioned"?) 1. R.C. § 3105.10 (B). The court, by this section, is granted enormous discretion. Thus, where both parties are guilty of misconduct sufficient to constitute ground for divorce, the court may grant a divorce to both parties, or one of the parties, even though the other does not want a divorce. 12R.C. § 3105.10(D). If this section is interpreted to permit the elimination of the right of a spouse in real estate, upon the granting of an alimony-alone decree, it represents a significant departure from historical Ohio law. http://ideaexchange.uakron.edu/akronlawreview/vol8/iss3/1 2 Milligan: Dissolution of Marriage Spring, 19751 DISSOLUTION OF MARRIAGE living together at the time the complaint or counterclaim is filed;'3 (8) Granting alimony-alone upon simple "ill treatment by the 14 adverse party"; (9) Specific guidelines for determining and awarding alimony;'9 (10) Continuing jurisdiction in alimony-alone orders where periodic payments ordered;'8 (11) Grant authority to the court to make orders concerning the disposition, care, and maintenance of children of the marriage, notwithstanding denial of primary relief; 17 (12) Establish the "best interest" of children as the pole-star of custody awards;' 8 (13) Provision for conciliation in domestic relations cases;' 9 (14) Guidelines for modification of prior custody orders;20 (15) Specific guidelines for determining child support.n Courts and analysts of marriage and divorce have been calling for these kinds of changes in the recent past and in numerous ways.22 Ohio Legislation-Divorce, Alimony Alone, and Dissolution Distinguished Domestic relations statutes are grouped in Chapter 3105 of the Revised Code. Courts have no authority to grant divorce or alimony alone separate and apart from enabling legislation. 2 There is no common law right of divorce,24 and a divorce may not be granted as a result of agreement between the parties,2 5 nor because the parties are irreconcilable.2 6 Further, irreconcilable differences may 13R.C. § 3105.17. 14 R.C. § 3105.17. 15 R.C. § 3105.18(B). 16 R.C. § 3105.18(C). 17 R.C. § 3105.21 (B). 18 R-C. § 3109.04. 19 R.C. § 3105.091. 20 R.C. § 3109.04(B) and (C). 21 R.C. § 3109.05. 22 See Newell v. Newell, Com. P1., 21 Ohio Misc. 239, 257 N.E.2d 90, 50 0.0. 2d 461, reversed and remanded 23 Ohio App. 2d 149, 261 N.E.2d 278, 52 O.O.2d 178, where the court held that a plaintiff was entitled to divorce, notwithstanding birth of an adulterine bastard child. "No fault divorce in Ohio"-see C. W. Rose, Jr., 31 Ohio St. Law Journal 52. Civ. R. 75 is a further expression of this mood. 23 Thus enactment of statutory grounds does not apply retroactively. Scott v. Scott, 6 Ohio 534, where new ground of habitual drunkenness held not to apply to cases occurring before its passage. 2 4 Jelm v. Jelm, 155 Ohio St. 226, 98 N.E.2d 401, 44 0.0.
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