Sunday, July 24, 2011

Cohabitation and Spousal Support (“Alimony”)

It is prudent to add a provision to your final Decree of Divorce to include a “cohabitation” order regarding an award of spousal support (“alimony”). Such provisions may be worded:

IF HUSBAND ORDERED TO PAY SOUSAL SUPPORT:

IT IS FURTHER ORDERED that spousal support shall terminate upon Wife’s remarriage, death or cohabitation with an adult male in an economic sharing relationship. The court shall retain jurisdiction to modify the amount and duration of the spousal support award.

IF WIFE ORDERED TO PAY SOUSAL SUPPORT:

IT IS FURTHER ORDERED that spousal support shall terminate upon Husband’s remarriage, death or cohabitation with an adult female in an economic sharing relationship. The court shall retain jurisdiction to modify the amount and duration of the spousal support award.

The Ohio Supreme Court in State v. Williams (1997), 79 Ohio St. 3d 459; 1997 Ohio 79; 683 N.E.2d 1126; 1997 Ohio LEXIS 2423, set out what constitutes cohabitation:
The essential elements of "cohabitation" are (1) sharing of familial or financial responsibilities and (2) consortium.

The Court listed several factors that would tend to establish shared familial or financial responsibilities. They are: "provisions for shelter, food, clothing, utilities, and/or commingled assets." [Some examples include: bill sharing (utility, cable, internet, etc.); joint ownership of property (deeds, titles); persons named on common lease; co-debtors listed on loan document; joint savings; etc.] 

Additionally, the Court listed several factors that might establish consortium, which are: "mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations."

Just because persons are living together under the same roof does not constitute legal cohabitation under Ohio law. The above factors must be shown. Once demonstrated you may receive a post decree court order for termination of spousal support, as long as your final decree provided for the termination.

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.



Friday, July 8, 2011

Ohio Spousal Support Calculations; Ohio Child Support Calculations

The following information and links may assist you in understanding how Ohio spousal support and child support can be calculated. Ohio law is continually changing and revisions in the law and related calculations should be expected. It is always best to consult with an attorney about your specific circumstances and how support may be calculated under current law and guidelines. Opinions regarding Ohio spousal and child support calculations vary and attorneys work from a variety of models.

In the first section below, factors upon which spousal support can be calculated will be summarized.  Consider the following example before reviewing the factors.

Example:

A marriage between the parties is of short duration, around eighteen months. Wife is a healthy twenty-four year-old and continues to work in the same occupation, at the same earnings level she was at prior to the marriage. Wife requires no retraining. Husband earns $75,000.00 and Wife earns $20,000.00. Is Wife entitled to temporary spousal support?

Opinion: No. Although, the disparity in income is materially substantial, other factors (duration of marriage, Wife’s age, Wife's health, Wife’s employment status) outweigh the disparity in income. A magistrate or judge will weigh the factors presented by the parties either when ordering, or upon motion by a spouse, modifying temporary spousal support. A magistrate or judge will also weigh the factors presented by the parties when ordering permanent spousal support.

Sometimes a spouse's voluntary underemployment will be considered by a magistrate or judge when supported by the testimony of a vocational expert.

See:
How much and how long will spousal support be ordered?

Generally, the following factors can be considered by the magistrate or judge when calculating the amount and length of spousal support:

1. Amount of Spousal Support: Larger wage earner's income minus smaller wage earner's income, minus any child support, divided by three;

2. Length of Spousal Support: Length of marriage divided by three (a third of the length of a marriage, or until larger wage earner reaches retirement age, for marriages of long duration);

3. Adjustments to the amount and length of spousal support related to offsets or extraordinary factors (examples: credit for court ordered temporary spousal support paid; value of marital property kept by a spouse; disparity in value of parties' automobiles; court determined financial misconduct of a party during marriage, etc.).  Factor three is marriage specific and is best considered through consultation with your attorney.

Once a support order is issued by the court, a party may later want to seek modification of the order. See: http://ohiodivorceguide.blogspot.com/2013/07/court-reservation-of-jurisdiction.html
 
Spousal Support:      http://codes.ohio.gov/orc/3105.18

ORC Ann. 3105.18 (2011)

§ 3105.18. Award of spousal support; modification

(A) As used in this section, "spousal support" means any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is both for sustenance and for support of the spouse or former spouse. "Spousal support" does not include any payment made to a spouse or former spouse, or to a third party for the benefit of a spouse or former spouse, that is made as part of a division or distribution of property or a distributive award under section 3105.171 [3105.17.1] of the Revised Code.

(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 [3105.17.1] of the Revised Code, the court of common pleas may award reasonable spousal support to either party. During the pendency of any divorce, or legal separation proceeding, the court may award reasonable temporary spousal support to either party.

An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court considers equitable.

Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise.

(C) (1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:

(a) 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 [3105.17.1] of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) 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;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;

(j) 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;

(k) 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;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and equitable.

(2) In determining whether spousal support is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital income.

(D) In an action brought solely for an order for legal separation under section 3105.17 of the Revised Code, any continuing order for periodic payments of money entered pursuant to this section is subject to further order of the court upon changed circumstances of either party.

(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:

(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(2) In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(F) For purposes of divisions (D) and (E) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses.

(G) If any person required to pay alimony under an order made or modified by a court on or after December 1, 1986, and before January 1, 1991, or any person required to pay spousal support under an order made or modified by a court on or after January 1, 1991, is found in contempt of court for failure to make alimony or spousal support payments under the order, the court that makes the finding, in addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and shall require the person to pay any reasonable attorney's fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.

Child Support: http://childsupportsoftware.com/  At bottom of link click on "Click here" for spreadsheet calculator. [Ignore "Under Repair". Child support spreadsheet calculator is available through "Click here" link at bottom.]

Each marriage is unique and consultation with an attorney about your circumstances is advisable.