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A mother of two children who was only married for three years had success in getting some spousal support.
She was trying to get on her feet by going back to school and working part-time. She knew she did not need it forever or for any significant time, and we obtained this spousal support in addition to the child support her ex-husband would have to pay.
When a divorce or juvenile court is considering setting a support amount, the court must try to determine the actual income of each parent.
In some cases, one of the parents is either unemployed or has a job where they are really making much less money than there experience or skills would otherwise dictate (otherwise referred to as "under-employment").
In these situations, the court can take evidence as to whether that parent is "voluntarily" unemployed or under-employed. The Court can hear evidence about that parent's past employment, why that past employment was terminated (or modified as to salary or wages), and can also have "vocational" experts testify as to the real employment possibilities of that parent.
Every so often one party in a support proceeding will actually quit their current job or deliberately pursue a lower paying opportunity - just so they can argue a lower ability to pay support. However, with the right evidence, this tactic can be rebutted.
Most divorce and juvenile courts are very experienced with this issue, so a party to one of these support actions should be aware that unemployment and under-employment tactics are sometimes very easy to spot.
Unlike computing child support, which involves using specific income guidelines, computing "spousal support" is often much more complicated. Ohio does not use spousal support guidelines. Instead, Ohio has a spousal support statute which lays out 14 specific factors that a divorce court must consider when awarding the monthly amount and duration of spousal support. These factors include:
- The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code;
- The relative earning abilities of the parties;
- The ages and the physical, mental, and emotional conditions of the parties;
- The retirement benefits of the parties;
- The duration of the marriage;
- The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
- The standard of living of the parties established during the marriage;
- The relative extent of education of the parties;
- The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
- The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party;
- The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
- The tax consequences, for each party, of an award of spousal support;
- The lost income production capacity of either party that resulted from that party's marital responsibilities;
- Any other factor that the court expressly finds to be relevant and equitable.
Don't you just love that 14th factor. If you think that all of the other 13 factors, along with the 14th, allow a divorce judge to come up with any reasonable or objectively based number, you're right. You can present the same facts to 10 different divorce judges and get 10 different awards of spousal support. Some judges are alleged to be "income equalizers" in that they will combine the net available income (i.e. after payment of monthly debt obligations) of both spouses, and then just divide by 2, and then just order one spouse to pay the monthly difference to the other spouse. When it comes to the duration of spousal support, some judges have a general rule that takes the duration of the marriage, and then divides that duration by a number (for instance 3 of 4) - resulting in the duration of the spousal support obligation. If the marriage is long enough, a judge may order a monthly amount of spousal support, and then "reserve jurisdiction" in the divorce decree to modify that amount later when the financial circumstances of the parties change.
Have a headache yet? Try doing this for a living. Call us with any other questions. 440-356-2700. We have previous blogs on spousal support, like this one.