WHAT IS A DISSOLUTION?
For many, the word “divorce” has a built-in negative connotation. This is, in many ways, the product of how society has painted divorce over the years—specifically, as an inherently conflict-ridden and emotional process. To be sure, the divorce process can—and often is—understandably emotional for the participants and antagonistic by its nature. To this end, it is not uncommon for individuals to be ready to terminate their marriage, while also wanting to avoid a “divorce” at all costs.
Individuals that fall into this category often want to try to pursue a “dissolution” instead of a “divorce.” In Ohio, a dissolution and a divorce are two different legal processes with the same end result: the termination of a marriage.
THE BENEFITS OF A DISSOLUTION
Notably, there are many pros to pursuing a dissolution over a divorce, which, on paper, often make a dissolution a desirable option for many people. In particular, dissolutions have a tendency to be a more efficient and a more cost effective way to end the marriage when compared to a divorce proceeding. Further, unlike a divorce, a dissolution is not, by its nature, an adversarial process, nor does it involve a number of court hearings. Finally, parties to a dissolution have inherently more control over the outcome of the case when compared to those parties who are pursuing a divorce.
Sounds great, right? But, as a practical matter, what is a dissolution? And is it a viable way to terminate a marriage in every case?
IS A DISSOLUTION ALWAYS FEASIBLE?
Unfortunately, the answer is no: a dissolution is not always a feasible or appropriate way for a spouse to go about terminating a marriage. Instead, in some cases, pursing a divorce is the only available legal option to end the marriage. So, why is that the case?
Ultimately, this is due to the unique nature of a dissolution compared to a divorce, as well as the distinct process by which the end result is achieved in each legal proceeding.
Specifically, in order to pursue a dissolution—and (importantly) before the parties ever come to court—they must already have a full and complete signed agreement as to all issues relevant to the termination of the marriage. Those issues include the division of their property and debts, other financial issues, and where relevant, custody and parenting issues. Only once the parties finalize their agreement do they then jointly file it with the court, along with a Petition for Dissolution. The court then holds a brief administrative hearing, during which it reviews the parties’ agreement and usually adopts it as an order of the court, terminating the marriage.
In contrast, in order to pursue a divorce, it is not necessary for the parties to have a full and complete agreement as to all issues before the proceeding is initiated with the court. Instead, in order to initiate a divorce proceeding, all that is required is for one party to file a Complaint for Divorce (or, in other words, a legal document requesting a divorce) with the court.
UNDER WHAT CIRCUMSTANCES MAY A “DISSOLUTION” BE AVAILABLE TO PARTIES?
First, it is an essential prerequisite in order to pursue a dissolution that both parties are willing to voluntarily exchange information and negotiate a resolution to all issues outside the presence of the court. Of course, this can be accomplished by various means, including direct negotiations between the parties, negotiations between counsel, other cooperative or collaborative processes, or some combination of the same.
While this sounds straightforward on paper, pursuing a dissolution is not, as a practical matter, always as easy as first appearances may suggest, especially when one party does not desire to end the marriage or when a party otherwise refuses to cooperate. As a result, one party’s overwhelming desire to terminate the marriage via a dissolution can be quickly thwarted by the other party’s responsive conduct (or lack thereof).
This unfortunate—but common—reality is also revealing of some of the downsides or cons of the dissolution process. Specifically, as the parties must reach a full and complete agreement before ever having any involvement with the court, it is incumbent on both parties to voluntarily participate in the process in order to achieve the end result of the termination of the marriage. Indeed, it is a practical reality that you cannot force a party to participate in a dissolution to the extent they do not desire to do so.
Moreover, while a dissolution can offer an efficient avenue to terminate a marriage for those parties who are motivated to participate, it can also offer the exact opposite outcome when one party refuses to timely cooperate or participate. Indeed, as there are no court-imposed deadlines involved in the negotiation of a dissolution, some parties to a dissolution often become frustrated with the prolonged timeframe, as one side can, in many ways, dictate the pace of the entire process.
PARTIES MAY BE UNABLE TO REACH AN AGREEMENT
Finally, even parties with the best intentions can reach an impasse on a particular issue when negotiating a dissolution. Unfortunately, in such circumstances, the court is not able to get involved and offer guidance, thus leading to the opportunity for further conflict, as well as the potential that pursuing a divorce may become necessary anyway.
Additionally, in order to pursue a dissolution, it is essential, as a practical matter, that immediate temporary restraining orders are not necessary in the case at issue. Specifically, when a divorce lawsuit is initiated, most courts will contemporaneously issue temporary mutual restraining orders—as well as other temporary restraining orders, by request—which prevent the parties to the divorce proceeding from taking certain actions while the case remains pending. For example, temporary restraining orders often prevent the parties from taking various actions as it pertains to minor children of the case, and may also restrain the parties from taking various financial actions while the case is pending, including removing the other party from a health insurance policy, cashing out financial accounts, etc.
In some cases, there is a very real concern at the outset of the matter that a party is likely to take some anticipated action which would impact the marital estate or the parties’ minor children. In those cases, having temporary restraining orders in place as soon as possible is imperative in order to prevent a party from engaging in said conduct. When such circumstances are present, pursuing a dissolution may not be possible, as the temporary restraining orders will only issue once the court becomes involved in the matter upon the initiation of the divorce lawsuit.
As a result, in order for a dissolution to be an appropriate and available option to terminate a marriage, the circumstances of the case must be such that immediate temporary restraining orders are not necessary, and thus, the parties must, in effect, be comfortable with a voluntary cease-fire while they attempt to negotiate an out-of-court resolution to the matter. However, to the extent that this changes during the course of negotiations during a dissolution proceeding, then initiating a divorce matter may subsequently become necessary.
