Spousal Support Win

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.

Voluntary "unemployment" and "under-employment"

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.

How Does an Ohio Court Calculate "Spousal Support?"

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:

  1. 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;
  2. The relative earning abilities of the parties;
  3. The ages and the physical, mental, and emotional conditions of the parties;
  4. The retirement benefits of the parties;
  5. The duration of the marriage;
  6. 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;
  7. The standard of living of the parties established during the marriage;
  8. The relative extent of education of the parties;
  9. The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
  10. 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;
  11. 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;
  12. The tax consequences, for each party, of an award of spousal support;
  13. The lost income production capacity of either party that resulted from that party's marital responsibilities;
  14. 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.

Victory for good guy Dad

child and father
child and father

Last Friday we received  an opinion from the Cuyahoga County Court of Appeals which agreed with our argument that the father of a small girl should be named that girl's residential parent.   That father had to hire us when he came to the conclusion that the child's mother was much more interested in a party/social life than she was in becoming a stable parent.   While the child was in her custody, the mother had picked up her second DUI, picked up another alcohol-related charge, and had ongoing serious social drinking issues - and demonstrated a number of other immature parenting issues.  She also moved 6 times in a 2-year period.   The father (our client) had a long-standing stable job and owned his own home for many years - and no criminal history.   He had the child on his health insurance and always paid his child support.    The trial court magistrate  (who heard the case at trial) determined that the father (our client) essentially provided much more stability than the mother, and designated the father as the residential parent.  However, for reasons that were never completely clear, the trial judge(who did not hear the case at trial) overruled the magistrate - and left the mother as the residential parent. The Court of Appeals reversed the trial court judge and reinstated the magistrate's decision.    The child is now going to reside with Dad.  What a solid victory for good dads all over the area and a great victory for the child.

This one felt good.

Divorce: Non-Marital Property Can Change ("Transmute") into Marital Property

hand giving keysThese days there are many marriages where each spouse came into the marriage with their own individually-owned "non-marital" property (for example, a house) - and even some property acquired during the marriage can be considered "non-marital property."   Under Ohio divorce law, this non-marital property is called "separate property."  For the most part, "separate property" is not subject to division by the divorce court - so many parties assert that an item of property is or is not separate property.  A divorce statute specifically lists what is "separate property" - and that list is generally: (1) inherited property, (2) property owned by a spouse before a marriage, (3) personal injury monies recovered by a spouse (other than for loss of earnings), and (4) a "gift" given solely to one spouse. Even if a certain piece of property was, without much dispute, "separate property" at one time, that item of property can lose its classification as "separate property" if that item of property is "transmutted" (i.e. transformed) into "marital property" because (1)  the parties "commingled" the "separate property" with "marital property" and (2) it is difficult or impossible to "trace" the separate property out of the marital property.

So, as much as marital bliss can clog the mind, parties should be careful about commingling separate property with marital property unless they specifically choose to do so - knowing the consequences.