Frivolous Conduct

            Contested divorces, on rare occasions, can involve assertions of claims, the filing of pleadings, motions or a variety of other papers, appearing to merely serve to harass or injure the other party. When such activity can be shown to be grounded in an improper purpose, such as causing a needless delay, or needlessly driving up the cost of the litigation, the injured party can seek damages and sanctions.

            Ohio has a statute setting out what constitutes “Frivolous Conduct In Filing Civil Claims”. Attorneys rarely invoke the statute, and with good reason. Normally, there are other remedies available from more traditional civil filings (motion to compel, motion to strike, etc.).  A motion for damages and sanctions due to the frivolous conduct of a party may only be appropriate in a very narrow group of scenarios and may, ultimately, cost more in fees and emotional tolls than warranted by the offending activity.

            The statute is presented below, in its entirety (with some underlining added). Domestic relations judges, magistrates and attorneys rarely, if ever, litigate frivolous conduct motions. Reliance on the statute should involve the exercise of a cautious balancing of costs and benefits associated with this litigation. When a party asserts frivolous conduct of the other party, the grounds for the assertion must be sufficiently detailed and have evidentiary support.            

2323.51 Frivolous conduct in filing civil claims.

(A) As used in this section:

(1) “Conduct” means any of the following:

(a) The filing of a civil action, the assertion of a claim, defense, or other position in connection with a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes, or the taking of any other action in connection with a civil action;

(b) The filing by an inmate of a civil action or appeal against a government entity or employee, the assertion of a claim, defense or other position in connection with a civil action of that nature or the assertion of issues of law in an appeal of that nature, or the taking of any other action in connection with a civil action or appeal of that nature.

(2) “Frivolous conduct” means either of the following:

(a) Conduct of an inmate or other party to a civil action, of an inmate who has filed an appeal of the type described in division (A)(1)(b) of this section, or of the inmate’s or other party’s counsel of record that satisfies any of the following:

(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.

(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

 (iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.

(b) An inmate’s commencement of a civil action or appeal against a government entity or employee when any of the following applies:

(i) The claim that is the basis of the civil action fails to state a claim or the issues of law that are the basis of the appeal fail to state any issues of law.

(ii) It is clear that the inmate cannot prove material facts in support of the claim that is the basis of the civil action or in support of the issues of law that are the basis of the appeal.

(iii) The claim that is the basis of the civil action is substantially similar to a claim in a previous civil action commenced by the inmate or the issues of law that are the basis of the appeal are substantially similar to issues of law raised in a previous appeal commenced by the inmate, in that the claim that is the basis of the current civil action or the issues of law that are the basis of the current appeal involve the same parties or arise from the same operative facts as the claim or issues of law in the previous civil action or appeal.

(3) “Civil action or appeal against a government entity or employee,” “inmate,” “political subdivision,” and “employee” have the same meanings as in section 2969.21 of the Revised Code.

(4) “Reasonable attorney’s fees” or “attorney’s fees,” when used in relation to a civil action or appeal against a government entity or employee, includes both of the following, as applicable:

(a) The approximate amount of the compensation, and the fringe benefits, if any, of the attorney general, an assistant attorney general, or special counsel appointed by the attorney general that has been or will be paid by the state in connection with the legal services that were rendered by the attorney general, assistant attorney general, or special counsel in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate.

(b) The approximate amount of the compensation, and the fringe benefits, if any, of a prosecuting attorney or other chief legal officer of a political subdivision, or an assistant to a chief legal officer of those natures, who has been or will be paid by a political subdivision in connection with the legal services that were rendered by the chief legal officer or assistant in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate.

(5) “State” has the same meaning as in section 2743.01 of the Revised Code.

(6) “State correctional institution” has the same meaning as in section 2967.01 of the Revised Code.

(B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this section and except as otherwise provided in division (E)(2)(b) of section 101.15 or division (I)(2)(b) of section 121.22 of the Revised Code, at any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney’s fees, and other reasonable expenses incurred in connection with the civil action or appeal . The court may assess and make an award to any party to the civil action or appeal who was adversely affected by frivolous conduct, as provided in division (B)(4) of this section.

(2) An award may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action or an appeal of the type described in that division or on the court’s own initiative, but only after the court does all of the following:

(a) Sets a date for a hearing to be conducted in accordance with division (B)(2)(c) of this section, to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award;

(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party who allegedly was adversely affected by frivolous conduct;

(c) Conducts the hearing described in division (B)(2)(a) of this section in accordance with this division, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B)(5) of this section, determines that the conduct involved was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made. If any party or counsel of record who allegedly engaged in or allegedly was adversely affected by frivolous conduct is confined in a state correctional institution or in a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or workhouse, the court, if practicable, may hold the hearing by telephone or, in the alternative, at the institution, jail, or workhouse in which the party or counsel is confined.

(3) The amount of an award made pursuant to division (B)(1) of this section that represents reasonable attorney’s fees shall not exceed, and may be equal to or less than, whichever of the following is applicable:

(a) If the party is being represented on a contingent fee basis, an amount that corresponds to reasonable fees that would have been charged for legal services had the party been represented on an hourly fee basis or another basis other than a contingent fee basis;

(b) In all situations other than that described in division (B)(3)(a) of this section, the attorney’s fees that were reasonably incurred by a party.

(4) An award made pursuant to division (B)(1) of this section may be made against a party, the party’s counsel of record, or both.

(5)(a) In connection with the hearing described in division (B)(2)(a) of this section, each party who may be awarded reasonable attorney’s fees and the party’s counsel of record may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the reasonable attorney’s fees, an itemized list or other evidence of the legal services rendered, the time expended in rendering the services, and whichever of the following is applicable:

(i) If the party is being represented by that counsel on a contingent fee basis, the reasonable attorney’s fees that would have been associated with those services had the party been represented by that counsel on an hourly fee basis or another basis other than a contingent fee basis;

(ii) In all situations other than those described in division (B)(5)(a)(i) of this section, the attorney’s fees associated with those services.

(b) In connection with the hearing described in division (B)(2)(a) of this section, each party who may be awarded court costs and other reasonable expenses incurred in connection with the civil action or appeal may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the costs and expenses, an itemized list or other evidence of the costs and expenses that were incurred in connection with that action or appeal and that were necessitated by the frivolous conduct, including, but not limited to, expert witness fees and expenses associated with discovery.

(C) An award of reasonable attorney’s fees under this section does not affect or determine the amount of or the manner of computation of attorney’s fees as between an attorney and the attorney’s client.

(D) This section does not affect or limit the application of any provision of the Rules of Civil Procedure, the Rules of Appellate Procedure, or another court rule or section of the Revised Code to the extent that the provision prohibits an award of court costs, attorney’s fees, or other expenses incurred in connection with a particular civil action or appeal or authorizes an award of court costs, attorney’s fees, or other expenses incurred in connection with a particular civil action or appeal in a specified manner, generally, or subject to limitations.

Effective Date: 07-06-2001; 04-07-2005

This post is not offered as legal advice and presumes you are not represented by an attorney.

 

Can My Spouse Move Away With Our Child Or Children Or Interfere With My Relationship With Our Children?

Sometimes when a spouse talks about getting a divorce, the other spouse threatens to move away with the couple’s child(ren). Local law enforcement may not offer any relief, as biological or adoptive parents are not “kidnapping” the child(ren). Filing for a divorce in a county domestic relations court (when the couple is married) or filing for custody and/or visitation orders in a juvenile court (when the couple is unmarried) may offer some protection.

Sometimes a spouse alienates the affection shared between the couple's children and the other spouse. Spouses can be enjoined from committing such acts and contempt proceedings can be initiated when a parent involves the couple's children in a manner that would interfere with the relationship between the couple's children and the other parent.

The following two excerpts from the Warren County, Ohio Domestic Relations Court Local Rules and Forms illustrate potential protections during divorce proceedings. An attorney can assist you in asserting your parental rights.

Notice of intent to Relocate.

If you are a residential parent or participate in a shared parenting plan and intend to move, you must file a Notice of Intent to Relocate with the Clerk of Courts and mail a copy to the other party.

Notice must be sent within the following time frames.

1. If relocating within Warren County-at least thirty days in advance of the move.

2. If relocating outside Warren County-at least sixty days in advance of the move.

If either party seeks a change in parenting orders as a result of relocation, that party shall file a motion with the court and schedule a hearing. (See Warren County DR Form 8.)

Mutual Restraining Order

IT IS ORDERED PURSUANT TO LOCAL RULE, EFFECTIVE ON THE DATE A COMPLAINT IS FILED, THAT EACH SPOUSE IS ENJOINED FROM COMMITTING ANY OF THE FOLLOWING ACTS:

1.Threatening, abusing, stalking, annoying, or interfering with the other party or the parties’child(ren);

2. Incurring credit in the name of the other party or in the parties’ joint names, except for necessary food, housing, utilities, medical care and necessary transportation, or allowing a lien or loan to be placed against their real or personal property;

3. Selling, disposing of, or dissipating any of their real or personal property, including money (other than regular income), of either party, or removing household goods and furniture from the marital residence;

4. Changing or failing to renew the present health, life, home, automobile, or other insurance coverage; removing the other party as a beneficiary on any life insurance or retirement benefits without further order of this Court;

5. Removing the minor children of the parties from Ohio except for holidays or vacations (not to exceed ten days);

6. Claiming the children as dependents on any income tax return without prior Court order.

Nothing in the above restraining order prevents a spouse from using his or her property to pay necessary and reasonable attorney fees, litigation and court costs in this action. (See Warren County DR Form 7.)

When your spouse violates court rules or court orders you can have your attorney initiate proceedings to have your spouse held in contempt of court. The court can impose a variety of sanctions against a spouse who is held in contempt of court.

The Parental Kidnapping Protection Act (PKPA; (Pub.L. 96-611, 94 Stat. 3573, enacted December 28, 1980; 28 U.S.C. § 1738A).

Purpose: to establish national standards for the assertion of child custody jurisdiction within the United States. The home state where a child resided within the past six months is given preference in order to prevent forum shopping. Forum shopping occurs when one parent commences an action in another state for the purpose of obtaining a favorable court ruling.

In addition to its provisions for full faith and credit, the Act provides that a State cannot modify the child custody decree of another state without complying with the terms of the Act. When a State modifies a previous child custody order not in compliance with the Act, the modification shall not be entitled to full faith and credit in other states.

1999 Congressional amendment included “visitation” rights in the definition of “custody” rights covered by the Act.

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.

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.

Ohio Spousal 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:

http://ohiodivorceguide.blogspot.com/2011/03/property-division-and-spousal-support.html

http://ohiodivorceguide.blogspot.com/2013/05/using-experts-for-determination-of.html

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.

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

Property Division and Spousal Support (“Alimony”)

What is my spouse worth? Who gets the home? Is my spouse voluntarily under-employed? Can my spouse hide assets?

           Domestic relations courts resolve disputes over equitable division of marital assets and debts based on the evidence presented to the courts by the parties. When wives and husbands cannot reach a settlement detailed in a separation agreement, the court is left to equitably divide (allocate) marital assets and debts following a trial.

Business Valuation

In some cases, it may be dangerous to assume you know the value of the wealth or indebtedness your marriage is grounded in. If your spouse owns and operates a business (retail store, medical practice, dry cleaning company, landscaping business, etc.), at times it is prudent for your attorney to suggest you employ an expert to evaluate the equity of the business.

Such experts are expensive, but, proceeding with an unrealistic idea of what you think your share of your spouse’s business’s equity might be can be even more costly. The court needs credible testimony presented from someone qualified to evaluate the equity of the business. A spouse’s speculation does not serve that purpose.

A business started during a marriage is technically marital property. When such a business is clearly the enterprise of one spouse, and the business is laden with debt, the majority of the debt may be allocated to the spouse who is directly involved with the business. When the business has substantial equity, the court must determine a reasonable allocation of the equity between the spouses.

Some businesses produce substantial income for a spouse but have no equity. A dentist, for example, may earn a six figure income from the practice, but, the equipment, building and supplies may be so heavily financed that the practice itself has no equity.

Marital Home

            When the marital home is shown to have equity in the current market, then the equity will be allocated by the court between the spouses. One spouse may pay the other spouse the amount of equity allocated to her/him and the compensated spouse will be ordered to quit claim deed whatever interest the spouse has in the marital home. The spouse keeping the marital home will be ordered to remove the other spouse from any debt obligations regarding the home in exchange for the quit claim deed. The home may also be sold and the equity divided between the spouses according to court allocations.
            

Do not forget to inquire about credit for "Reduction of Principal". During divorce proceedings, when only one spouse has made monthly house payments from the date the parties separated, the spouse may receive credit ("offset") for the amount of reduction of the principal balance during that time. Each month your equity may be increased by the amount your principal balance is reduced.

            When the marital home is shown to have no equity in the current market, or negative equity (more loan balances than market value), one spouse may elect to keep the marital home. The other spouse would quit claim deed any interest in the home and be removed from the home’s debt obligations by the spouse electing to keep the home. Provided appropriate language is included, a certified copy of a final Decree of Divorce, Dissolution or Legal Separation may act as a transfer of such property.

Spousal Support (“Alimony”)

Spouses who expect to receive spousal support must consider how courts may calculate the amount of the support and the length of time the support will last. The following factors may be considered by the court: length of marriage; earnings history of spouses; earnings ability of spouses in current job market*; credit for child support; credit for length of time temporary spousal support was paid; and, offsets (credits) for other factors.

*At times it is prudent for your attorney to suggest you employ a vocational expert to evaluate your spouse’s earnings ability in the current job market. If your spouse has educational and/or professional background applicable to particular employment opportunities, a vocational expert can evaluate the current earnings ability of your spouse related to available jobs advertised in the local market. When a spouse has voluntarily left the job market, chosen to not work or voluntarily left one job for a lower paying job, the court will often be unable to impute (assign, give offsetting credit for, etc.) your spouse’s earnings ability in the current job market, beyond minimum wage. When your spouse has work related education or training you want to be able to present evidence that enables the court to appropriately impute your spouse’s earnings ability in the current local market.

Courts listen to vocational experts. If their testimony is credible, your spouse’s imputed income may be substantially greater than minimum wage and your current income will be offset by your spouse’s imputed earnings ability. An engineer who has voluntarily left the engineering field to follow the dream of being a massage therapist can, for example, be evaluated for current earnings and placement ability in the engineering job market versus the massage therapy market, without the requirement of any retraining. In some cases, the spouse’s imputed income can be double or triple their current earnings. Without the testimony of the vocational expert the judge may only be left to speculate. Speculation does not go far in court.

See:

http://ohiodivorceguide.blogspot.com/2011/07/ohio-spousal-support-calculations-ohio.html

http://ohiodivorceguide.blogspot.com/2013/05/using-experts-for-determination-of.html

Can my spouse hide assets?

            During a divorce your attorney may serve your spouse with a variety of discovery requests, including interrogatories and requests for production of documents. Interrogatories are questions regarding a variety of matters, including assets. The following are examples of financial matters that can be addressed in interrogatories:

1. Gross annual income as set forth on any and all W-2 forms and 1099 forms and any other income your spouse is required to report to the Internal Revenue Service for certain calendar years;
2. Income your spouse is presently receiving from various sources and the amount and duration of such income (rents, sales commissions, lotteries, interest and dividends, unemployment compensation, workers compensation, etc.);
3. Identification of all accounts maintained at banks, financial institutions, or any investment institutions in your spouse’s name alone or with any other person or entity, or any accounts to which your spouse has signatory privileges, during certain years;
4. Provision for each identified account of the location, account number, name(s) on account, the date opened, current balance and date closed;
5. A listing of any and all retirement benefits that your spouse may have from any source whatsoever including, but not limited to, retirement plans, profit sharing plans, 401K plans, deferred compensation plans, individual retirement accounts, Keogh plans, social security and any other such interest of any kind whatsoever, detailing accumulations during your marriage;
6. A listing of all vehicles in which your spouse has an interest or had an interest in the past year, stating the year, make, model, license number, name(s) of the registered owner, date of purchase and/or sale, purchase and/or sale price, amount of outstanding balance due and owing and from whom purchased and/or to whom sold;
7. A listing of any residential or commercial property that your spouse has purchased in your spouse’s name or your spouse’s name and the name of another person or entity, and the purchase price for said property;
8. Identification of anyone, other than you and your children, to whom your spouse has given any gift of the value of $500.00 or more, during a specified time period;
9. A listing of any and all securities, mutual funds, retirement benefits, or any assets regarded as marital assets that your spouse may have liquidated, transferred and/or rolled over, in whole or in part, during a specified time period;
10. Your spouse’s statement of the amount of money in your spouse’s possession or presently under your spouse’s control including: cash on hand; money on deposit in checking account(s), listing the account number(s), the bank(s), amount(s) on deposit and in whose name(s) the account(s) is held; money on deposit in savings account(s), listing the account number(s), the bank(s), amount(s) on deposit and in whose name(s) the account(s) is held; Certificate(s) of Deposit and Demand Note(s) listing the institution, account number(s), maturity date(s), and in whose name(s) the account(s) is held;
11. Your spouse’s listing of all securities held by your spouse alone (or in trust to your spouse) or jointly with another individual or entity, such as stocks, bonds, mutual funds, commercial papers, notes, government securities, mortgage securities, commodities, currency options; with your spouse listing institution name(s), account number(s), current value(s), and in whose name(s) the account(s) is held.
12. Your spouse’s listing of any and all records of life insurance policies on your spouse’s life with the following information for each policy: issuing company; policy number; face amount; type of policy; owner; present beneficiary and former beneficiary if policy has been changed in the past year and the name of the former beneficiary; present cash value including accumulated dividends and interest, amount of any loans against cash value and the specific dates and amount of loans.

Copies of financial statements related to the examples listed above, titles of vehicles, tax returns over a specified period, etc., can be requested in production of documents requests served on your spouse by your attorney.

Sometimes spouses do not comply in good faith with the above requests. An aggressive attorney may creatively acquire documents or other evidence regarding assets your spouse attempts to hide. One example involves an Ohio spouse whose employer or asset holder is headquartered in another state. In such cases, the issuing of county domestic relations court subpoenas will not have any legal power.

All business entities headquartered in other states but conducting business in Ohio are required to appoint and maintain a statutory agent with the Ohio Secretary of State. County domestic relations court subpoenas can be served on the statutory agents in order to acquire the documents you seek. This is just one example of how an attorney can creatively pierce an uncooperative spouse’s attempt to not comply in good faith with your above requests.

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.