First one filing not always the final say in divorce cases
Dear Lawyer Mark: My husband and me have been talking about getting a divorce. Really, I’m the one that wants it, he don’t.
He told me that if I ever tried to leave him, he would take my kids and get custody. Now, a friend told me that when she got her divorce, that the first one that files gets to keep the kids and the house.. Is that true. I don’t want to lose my kids. — TORN IN THE COUNTY
Dear Torn: Your friend was partially correct; it is possible to get custody of the children and the marital home by filing first.
Often when a divorce is filed, several motions, including those for temporary custody and those for getting possession of the house, are filed ex parte. That means the motions are filed without the Defendant getting a chance to respond before a court order is put on. However, certain requirements must be met in order to get the ex parte orders.
The person requesting the order must swear an affidavit saying that they have been the primary caretaker of the children, and that they currently are in possession of the children. That means that a truck driver who is always on the road probably couldn’t file and get the kids and the house, as he is most likely not the primary caretaker.
The main purpose of the ex parte orders is to keep things as close to normal as they were before the divorce was filed.
Therefore, if the person who files first and gets custody isn’t really the primary caretaker, or shouldn’t have temporary custody for some other reasons, the defendant can request a hearing to be scheduled as soon as possible. The court will use the hearing to get information from both sides, and can then leave the order as it is or change it.
Dear Lawyer Mark: I’m mad. My wife and me tried to get a divorce together without hiring an attorney. We got one of those kits from the store, filled it out and filed it.
Well now, when we went to court, the judge told us that there was some things missing and wrong with it, but that he couldn’t tell us what all he needed. He told us our best bet was to go hire an attorney.
Lawyer Mark, we know who gets custody and how we want everything split up. I thought we had a right to represent ourselves in court.
Why won’t the judge let us? I paid $20.00 for those forms, and they should be good enough. — MADDER THAN YOU KNOW WHAT
Dear Mad: Well, first of all, you do have the right to represent yourself, but that doesn’t mean you don’t have to follow the law. Ohio law requires some specific forms to be filed, as well as some specific language to be fled with it.
While the judges try to be as helpful as possible to those who represent themselves, the judges are not permitted do the legal work for them.
You may want to see an attorney about a dissolution if you have everything worked out–it will cost less than a contested divorce.
The attorney will be able to tell you at the initial conference how much it would cost. As for the $20 kit, well, my parents always told me when I was growing up that you get what you pay for.
Thought for the Week: When a closed mind re-opens, it’s usually under the same old management. Anonymous.
It’s The Law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, please forward it to Mark K. McCown, 311 Park Avenue, Ironton, Ohio 45638, or e-mail it to him at LawyerMark@yahoo.com. The right to condense and/or edit all questions is reserved.