Divorce & Family Law FAQ’s
WILL MY HUSBAND OR WIFE HAVE TO PAY MY ATTORNEY FEES AND COSTS?
The Court has the power to award attorney fees to a Husband or Wife if a certain number of statutory factors are met. Usually, this occurs when the incomes of the Husband and Wife are extremely different.
As of April 27, 2005 a new statute became effective in Ohio regarding attorney fees and litigation expenses. Basically that statute provides as follows:
In a divorce, dissolution, or annulment of marriage or an appeal of one of these actions, a court may award all or part of reasonable attorney’s fees and litigation expense to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.
In any post-decree motion or proceeding out of an action for divorce, dissolution, legal separation or annulment of marriage or an appeal of that motion or proceeding the court may award all or part of reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the income, the conduct of the parties, and any other relevant factors the court deems appropriate but it may not consider the parties’ assets.
The court may specify whether the award of attorney’s fees and litigation expenses . . . is payable in gross or by installments and . . . may make an award of attorney’s fees and litigation expenses under (section 3105.73) . . . in addition to making an award of attorney’s fees and litigation expenses under any other provision of the Revised Code or of the Rules of Civil Procedure.
Nothing (in section 3105.73) prevents an award of attorney’s fees and litigation expenses from being designated as spousal support . . .
HOW MUCH WILL THIS COST?
It is difficult to predict the cost of any action in advance. The total cost will depend on how many hours of work are performed by your attorney and any other experts or professionals who become involved in your case such as psychologists, appraisers, guardians, CPA’s, and physicians. In some cases, the total costs become very high due to the issues involved and the parties’ inability or unwillingness to settle.
WHAT IS A “RETAINER”?
A retainer fee is a deposit we accept to use for payment of our firm and for payment of costs as we work on the case. With our firm, any unused portion of the retainer is returned at the end of services. Some firms keep all or a portion of the retainer no matter what happens (even if you use them for only a few hours). We do not do this. We require that our clients keep their retainer at a certain amount at all times so that we always have a sufficient amount on hand to prepare for and conduct the necessary hearings or trial in the matter. Because of this, each month we pay ourselves and the expenses of the case from the retainer and then send our clients bills. The clients are expected to pay the retainer fund back the amount we have taken out so that the fund always has the same amount in it.
WHAT IS A FEE AGREEMENT?
A fee agreement sets forth the terms of your employment of a firm and should inform you of billing rates, the manner in which expenses are handled and the types of things for which you will be charged. Our fee agreement also refers to the retainer we will receive from our clients and discusses the manner in which the retainer amount should be maintained. All firms should use fee agreements with their clients.
WHAT IS A “FLAT FEE”?
Some attorneys or firms may charge a “flat fee” for family law work. We absolutely do not do this. We bill by the hour. We believe that each case is different and that each case must be handled and developed individually. Also, we know from experience, that it is difficult if not impossible to accurately predict the time and expenses which will be involved in a case. Each case is different and the ability to resolve or conclude a case depends upon many variables including the attorneys, the parties, the court, the experts and other events which are not controllable.
WHAT IS THE DIFFERENCE BETWEEN DIVORCE, DISSOLUTION, LEGAL SEPARATION AND ANNULMENT IN OHIO?
In Ohio, there are several ways to terminate a marriage. Those include divorce, dissolution and legal separation. “Annulment” does not, technically “terminate” a marriage but instead declares that the marriage essentially never happened. Divorce, involves “contested” issues or the lack of agreement. If the parties cannot agree on one or all of the issues involved in the termination of a marriage, they submit their issues to the court to decide. Contested issues could include any or all of the normal issues involved in a marital termination, ranging from the jurisdiction of the court, grounds for the divorce, property values and distribution, custody of children, valuation and division of marital retirement assets, allocation of responsibility for debts, and issues of spousal or child support.
In a dissolution, the parties agree with each other on all of the elements needed for the court to grant the dissolution and put their agreement into a separation agreement for the court to approve. The separation agreement deals with all of the issues of separation of property, custody, child support, spousal support, allocation of debts, and division of any marital retirement assets.
In a legal separation, the parties are still married at the end of the proceedings but the court makes orders ranging from the jurisdiction of the court, grounds for the divorce, retirement assets, allocation of responsibility for debts, and issues of spousal or child support. There are a number of reasons people may want to still be “married” but may also want or need a decree of legal separation.
WHAT IS AN “UNCONTESTED” DIVORCE IN OHIO?
It may be impossible to reach the other party or have them agree to a divorce decree. If the other party must be served with the pleadings by publication (since their location is unknown) the case may have to proceed as “uncontested” so far as the divorce is concerned.
WHAT ARE THE “GROUNDS” FOR DIVORCE IN OHIO?
3105.01 Divorce causes.
The court of common pleas may grant divorces for the following causes:
- (A) Either party had a husband or wife living at the time of the marriage from which the divorce is sought;
- (B) Willful absence of the adverse party for one year;
- (C) Adultery;
- (D) Extreme cruelty;
- (E) Fraudulent contract;
- (F) Any gross neglect of duty;
- (G) Habitual drunkenness;
- (H) Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;
- (I) Procurement of a divorce outside this state, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party;
- (J) On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation;
- (K) Incompatibility, unless denied by either party.
Note that there are no- fault grounds in divorces, —those being “living apart for more than one year without cohabitation” and also “incompatibility” – if it is pleaded and not denied by either party.
WHAT ARE THE GROUNDS FOR A DISSOLUTION IN OHIO?
Dissolutions are ‘no-fault” terminations of the marital relationship and require the consent of both parties. The ‘ground’ for dissolutions is “irreconcilable differences.” Note that there are no fault grounds in divorces, also—those being “living apart for more than one year without cohabitation” and also “incompatibility” – if it is pleaded and not denied by either party.
WHAT ARE THE GROUNDS FOR ANNULMENT OF A MARRIAGE IN OHIO?
3105.31 Causes for annulment.
A marriage may be annulled for any of the following causes existing at the time of the marriage:
- (A) That the party in whose behalf it is sought to have the marriage annulled was under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;
- (B) That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;
- (C) That either party has been adjudicated to be mentally incompetent, unless such party after being restored to competency cohabited with the other as husband or wife;
- (D) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, cohabited with the other as husband or wife;
- (E) That the consent to the marriage of either party was obtained by force, unless such party afterwards cohabited with the other as husband or wife;
- (F) That the marriage between the parties was never consummated although otherwise valid.
Effective Date: 09-24-1963
HOW IS CHILD SUPPORT DETERMINED IN OHIO?
Essentially the courts determine the total income of both parents and then look to the statutes to see how much the statutes presume should be used from those incomes to support the child or children of the parties. The parties’ responsibilities are allocated based upon their “share” of their total incomes. Usually one parent is paying the other child support and will pay his/her portion of the total support to the other parent. Besides gross incomes, the support calculations will consider whether other support is being paid or received for other children, whether a parent has other children of himself or herself, living with him or her, and what the costs are for health insurance and work or education daycare for the parties’ children.
The following contains excerpts from the Ohio statute regarding child support:
Chapter 3119: CALCULATION OF CHILD SUPPORT OBLIGATION – HEALTH INSURANCE COVERAGE
3119.01 Calculation of child support obligation definitions.
. . . .
(2) “Child support order” means either a court child support order or an administrative child support order.
(3) “Obligee” means the person who is entitled to receive the support payments under a support order.
(4) “Obligor” means the person who is required to pay support under a support order.
(1) “Combined gross income” means the combined gross income of both parents.
(4) “Extraordinary medical expenses” means any uninsured medical expenses incurred for a child during a calendar year that exceed one hundred dollars.
(5) “Income” means either of the following:
(a) For a parent who is employed to full capacity, the gross income of the parent;
(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent.
(7) “Gross income” means, except as excluded in division (C)(7) of this section, the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses to the extent described in division (D) of section 3119.05 of the Revised Code; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; benefits that are not means-tested and that are received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a program or law administered by the United States department of veterans’ affairs or veterans’ administration; spousal support actually received; and all other sources of income.
“Gross income” includes income of members of any branch of the United States armed services or national guard, including, amounts representing base pay, basic allowance for quarters, basic allowance for subsistence, supplemental subsistence allowance, cost of living adjustment, specialty pay, variable housing allowance, and pay for training or other types of required drills; self-generated income; and potential cash flow from any source.
“Gross income” does not include any of the following:
(a) Benefits received from means-tested government administered programs, including Ohio works first; prevention, retention, and contingency; means-tested veterans’ benefits; supplemental security income; supplemental nutrition assistance program; disability financial assistance; or other assistance for which eligibility is determined on the basis of income or assets;
(b) Benefits for any service-connected disability under a program or law administered by the United States department of veterans’ affairs or veterans’ administration that are not means-tested, that have not been distributed to the veteran who is the beneficiary of the benefits, and that are in the possession of the United States department of veterans’ affairs or veterans’ administration;
(c) Child support received for children who were not born or adopted during the marriage at issue;
(d) Amounts paid for mandatory deductions from wages such as union dues but not taxes, social security, or retirement in lieu of social security;
(e) Nonrecurring or unsustainable income or cash flow items;
(f) Adoption assistance and foster care maintenance payments made pursuant to Title IV-E of the “Social Security Act,” 94 Stat. 501, 42 U.S.C.A. 670(1980) , as amended.
(8) “Nonrecurring or unsustainable income or cash flow item” means an income or cash flow item the parent receives in any year or for any number of years not to exceed three years that the parent does not expect to continue to receive on a regular basis. “Nonrecurring or unsustainable income or cash flow item” does not include a lottery prize award that is not paid in a lump sum or any other item of income or cash flow that the parent receives or expects to receive for each year for a period of more than three years or that the parent receives and invests or otherwise uses to produce income or cash flow for a period of more than three years.
(a) “Ordinary and necessary expenses incurred in generating gross receipts” means actual cash items expended by the parent or the parent’s business and includes depreciation expenses of business equipment as shown on the books of a business entity.
(b) Except as specifically included in “ordinary and necessary expenses incurred in generating gross receipts” by division (C)(9)(a) of this section, “ordinary and necessary expenses incurred in generating gross receipts” does not include depreciation expenses and other noncash items that are allowed as deductions on any federal tax return of the parent or the parent’s business.
(10) “Personal earnings” means compensation paid or payable for personal services, however denominated, and includes wages, salary, commissions, bonuses, draws against commissions, profit sharing, vacation pay, or any other compensation.
(11) “Potential income” means both of the following for a parent who the court pursuant to a court support order, or a child support enforcement agency pursuant to an administrative child support order, determines is voluntarily unemployed or voluntarily underemployed:
(a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the following criteria:
(i) The parent’s prior employment experience;
(ii) The parent’s education;
(iii) The parent’s physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which the parent resides;
(v) The prevailing wage and salary levels in the geographic area in which the parent resides;
(vi) The parent’s special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn the imputed income;
(viii) The age and special needs of the child for whom child support is being calculated under this section;
(ix) The parent’s increased earning capacity because of experience;
(x) The parent’s decreased earning capacity because of a felony conviction;
(xi) Any other relevant factor.
(b) Imputed income from any nonincome-producing assets of a parent, as determined from the local passbook savings rate or another appropriate rate as determined by the court or agency, not to exceed the rate of interest specified in division (A) of section 1343.03 of the Revised Code, if the income is significant.
(12) “Schedule” means the basic child support schedule set forth in section 3119.021 of the Revised Code.
(13) “Self-generated income” means gross receipts received by a parent from self- employment, proprietorship of a business, joint ownership of a partnership or closely held corporation, and rents minus ordinary and necessary expenses incurred by the parent in generating the gross receipts. “Self-generated income” includes expense reimbursements or in-kind payments received by a parent from self-employment, the operation of a business, or rents, including company cars, free housing, reimbursed meals, and other benefits, if the reimbursements are significant and reduce personal living expenses.
(14) “Split parental rights and responsibilities” means a situation in which there is more than one child who is the subject of an allocation of parental rights and responsibilities and each parent is the residential parent and legal custodian of at least one of those children.
WHAT ABOUT CHILD SUPPORT DEVIATIONS IN OHIO?
In Ohio there is a statute specifically addressing potential deviations from the “guidelines” which set support. The parties can agree to deviation (either up or down from the guideline amount) but the court must find that the deviation is in the best interest of the child(ren) before the agreed to deviation is approved by the court. When the court is considering deviation it looks to the following statute:
3119.23 Factors to be considered in granting a deviation.
The court may consider any of the following factors in determining whether to grant a deviation pursuant to section 3119.22 of the Revised Code:
(A) Special and unusual needs of the children;
(B) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination;
(C) Other court-ordered payments;
(D) Extended parenting time or extraordinary costs associated with parenting time, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet, through the line establishing the actual annual obligation, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of parenting time granted by court order;
(E) The obligor obtaining additional employment after a child support order is issued in order to support a second family;
(F) The financial resources and the earning ability of the child;
(G) Disparity in income between parties or households;
(H) Benefits that either parent receives from remarriage or sharing living expenses with another person;
(I) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents;
(J) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing;
(K) The relative financial resources, other assets and resources, and needs of each parent;
(L) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married;
(M) The physical and emotional condition and needs of the child;
(N) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen;
(O) The responsibility of each parent for the support of others;
(P) Any other relevant factor. The court may accept an agreement of the parents that assigns a monetary value to any of the factors and criteria listed in this section that are applicable to their situation. If the court grants a deviation based on division (P) of this section, it shall specifically state in the order the facts that are the basis for the deviation.
Effective Date: 03-22-2001