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Family Law Basics

WHAT DOES A FAMILY LAW PRACTICE INVOLVE?

The involvement of our office in Family Law ranges from dealing with issues arising from divorce, dissolution, legal separation, child custody, child support and spousal support issues. Of course, cases involving the termination of a marriage often result in our having to deal with issues regarding valuation of marital assets (such as homes and businesses) and the allocation of certain marital debts. Occasionally we might also be involved in a step-parent adoption or grand parents’ rights case.

Unfortunately, just because an action for a Divorce, Dissolution or Legal Separation has ended, it does not mean that the parties will never have problems or disagreements in the future. Future issues arise often because of changes in circumstances. Many times it is necessary to come back to court to adjust support or to ask the Court to “force” a party to do what he or she has been ordered to do. When children are involved, a party’s relocation may also require new adjustments and orders.

WHAT IS A DIVORCE?

Divorce is, at least initially, an “adversarial” type of proceeding in which the parties are legally terminating their marital relationship. When a Court assists parties in the termination of their marital relationship the Court and parties will review and value all of the assets and debts of the parties, including separate, gifted, inherited, pre-marital and marital assets as well as debts. The Court will divide and assign marital assets and debts to the parties. Marital termination also will involve issues relating to any minor children of the parties issues such as the future residence(s) of the children, the parents’ involvement in decision making for the children, support for the children, medical insurance for the children, and the use of dependency exemptions. Marital termination may also involve issues concerning support of the former Husband or Wife.

At any time after the filing of a Divorce the parties may “settle” the pending issues and thus avoid the expense and time invested in having the Court “decide” or make orders regarding those issues. If the parties settle, they may design an “order” to which they both agree and they may have the Court approve of that order (whether it involves property issues, debt issues, child support issues, or other issues).

Before a Divorce can be granted, “grounds” must be proved to the Court or agreed to by the parties. One or both of the parties invoke(s) the jurisdiction of the Court, by filing of an action for Divorce or a Counter claim for a Divorce. In a Divorce action, the parties submit to the Court issues upon which they do not agree. These issues can range from “every” issue which could possibly be before them to the submission of just one issue such as “custody” or the valuation of marital interest in a retirement plan or business.

A divorce may be granted on the following grounds:

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 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

 WHAT IS A DISSOLUTION?

The difference between a Divorce and a Dissolution is that in a Divorce the parties are in a disagreement concerning at least one thing and in a Dissolution they have agreed upon all issues. In a Dissolution, the parties enter into an agreed Separation Agreement and then invoke the jurisdiction of the Court by filing together to ask the Court to approve of their Separation Agreement and make its terms an Order of the Court. The parties must have “grounds”, or a legally recognized reason, to file for a Dissolution. If the parties have children, they will also enter into other agreements or documents evidencing their agreements regarding (among other things) the support of their children and the time the children would spend with each of the parties.

In a Dissolution, the parties have a complete agreement before they file with the Court. When we file for a Dissolution we use the ground of “irreconcilable differences.”

WHAT IS A LEGAL SEPARATION?

In a Legal Separation of the parties the Court does not end the marriage, but the filing of an action for Legal Separation does invoke the jurisdiction of the Court to declare the parties to be “legally” separate. The law provides certain “grounds” which a party must have before filing for a Legal Separation. These “grounds” are much the same as those necessary for the granting of a divorce.

In a Legal Separation action, the Court will divide the parties’ property and debt as it would in an action for Divorce. Once the parties are granted a “Legal Separation” by the Court, their rights and obligations in relation to each other have been determined and their ownership of property and responsibility for debts is also determined. The parties are still married and each of them can still be considered the “spouse” of the other for insurance purposes. The filing of an action for Legal Separation by a party does not prevent the other party from filing a counter-claim for a Divorce. The granting of a Legal Separation to the parties also does not prevent them from later ending their marriage through a Divorce or Dissolution.

The Court must issue an Order that the parties are Legally Separated before the parties are considered to actually have a “Legal Separation.” Note: Writing and signing a “Separation Agreement” does not make the parties “Legally Separated.”

Grounds for the obtaining of a decree of Legal Separation are:

a. Either party had a husband or wife living at the time of the marriage from which the Legal Separation 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. On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation

j. Incompatibility, unless denied by either party

 WHAT IS INVOLVED IN A CHILD CUSTODY CASE?

In child custody cases the attorneys and Court will often times refer to the case as an “action for Allocation of Parental Rights and Responsibilities.” Allocation cases concern what is in the best interest of the children and allocation cases often times involve the use of psychological experts who have examined all of the members of the family. Allocation cases might also involve employment experts who are used for the purpose of stating how much one of the parents should be earning (so that child support can be fairly computed).

When parents begin an action involving the “allocation” of their rights concerning their children they may also be opening the door for others such as grandparents (or even non-relatives) to assert their desires to be with the children and to get court orders for time with the children.

Many times, in child custody cases, there will be the need to have teachers, physicians, pastors, neighbors, family members and others testify so that the Court can have an accurate and full “picture” of the children and their parents.

The Court may also (on its own, or upon motion of a party) appoint a Guardian ad litem for the interests of the children. Usually this Guardian is an attorney and is paid by both of the parties. The Court may, however, order that only one party pay all of the guardian’s fees.

WHAT ARE VISITATION RIGHTS?

“Visitation” is no longer an acceptable term since it implies that one is only “visiting” with a child. The Courts prefer to use the term “parenting” at this time. Parenting time can be restricted or supervised in some extreme cases. Generally, each court will have a local rule setting forth parenting time which is a “minimum” or “standard” parenting time. Parenting time can be agreed to by the parents or ordered by the court.

WHAT FACTORS DO COURTS CONSIDER IN ALLOCATING PARENTAL RIGHTS AND OBLIGATIONS?

Courts are guided by statutes and prior court decisions. The factors a court will consider when making decisions about parenting time and parenting obligations will include:

a. The wishes of the child’s parent regarding his care

b. If the court has interviewed the child in chambers pursuant to (the Ohio Revised Code’s applicable section) regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of this child, as expressed in court

c. The child’s interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child’s best interest

d. The child’s adjustment to the child’s home, school and community

e. The mental and physical health of all persons involved in the situation

f. The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights

g. Whether either parent has failed to make all child support payments pursuant to a child support order under which that parent is an obligor

h. Whether either parent previously has been convicted of or pleaded to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child

i. Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent his or her right to visitation in accordance with an order of the court

j. Whether either parent has established a residence, or is planning to establish a residence, outside this state

WHAT IS SHARED PARENTING?

Shared parenting is an arrangement which is much like the arrangement the parties may have had before the marital termination began. Shared parenting plans vary widely in their assignments of time and responsibilities each parent may have with the children. Shared parenting plans should provide that each parent will encourage the children to love and respect the other parent and shared parenting plans may provide that the parents shall share in the decision-making process in regard to the children.

One thing that should be stated is that when parties have a shared parenting situation this does NOT mean that no child support will be payable. Even when the parents spend equal amounts of time with the children this does not mean that there will be no support.

In Shared Parenting both parents should be designated as the “residential” parent of the children and as the “legal custodian” of the children. Because of schools being concerned with the “residence address” of the children attending schools, a shared parenting plan will designate one of the parents as the parent whose residence will be used for “school placement purposes”.

 HOW IS CHILD SUPPORT DETERMINED?

Essentially, Child Support is calculated using statutory guidelines set forth by law. The basic information going into calculations using the guidelines includes information about each party’s earnings, each party’s local taxes, and whether any other child support or spousal support (alimony) is being paid. The calculations also consider work related or education related child care as well as the costs of provision of health insurance for the children.

CAN CHILD SUPPORT BE MORE OR LESS THAN THE GUIDELINES?

The law provides that the parents or court can assign value to time the parents spend with the children and deviate, either up or down, from the guidelines. Other factors, like a child’s participation in private school or a child’s health may permit a court or the parents to deviate also. The Court may also deviate if it finds that it is in the best interest of the child. We have had cases where we have successfully petitioned the Court for support which is above guidelines in the case where the children are enrolled in private school. We have also received deviations to less than guideline support where the time spent with the children is more than that provided by local rule.

WHAT ARE TEMPORARY ORDERS?

The Court may make Temporary Orders or orders which are effective for a period of time after the filing of an action and possibly lasting up until the completion of a Divorce or Dissolution. These orders can range from orders concerning payment of bills, parents’ time with their children, payment of child support, provision of medical insurance, payment for schools, payment for uncovered medical bills, or the exclusive use of a home, to payment of Spousal Support (alimony).

CAN TEMPORARY ORDERS BE “APPEALED”?

The law provides that temporary orders can initially be granted by the Court, after the Court reviews affidavits (without any hearing where the parties appear). The law also provides that either party may request a “live” hearing for reconsideration of the temporary orders and that the Court shall schedule that hearing upon the request of a party.

 WHAT DOES THE COURT DO ABOUT PROPERTY DIVISION?

In the break-up of a marriage Property Division is always an issue which should be considered. Property Division is usually accomplished after considering the “fair market value” of the property less the debts owed.

“Separate” or “Premarital” or “Gifted” or “Inherited” property sometimes comes in to play when the parties are trying to accomplish Property Division and sometimes a piece of property may be composed of several different “kinds” of property. An example of this might occur if one of the parties used pre-marital money as a down payment on the home where the parties have resided during their marriage. Assuming that they have used marital funds to pay down the mortgage or have expended marital effort in improving the property, the “equity” in the property may be a “mix” of equity created by non-marital (pre-marital) and marital contributions.

 WHAT IS SPOUSAL SUPPORT (ALIMONY)?

Even though the IRS still refers to “alimony” the courts prefer the term “spousal support”. Spousal support may be temporary, short-term or long-term depending on a number of statutory factors which the Court must consider. Spousal support may be granted, for a few years, to aid someone in “getting back on their feet” or getting the education it takes to be self supporting. Spousal support may also be granted, in the proper case, on a permanent basis — lasting until the recipient dies or is remarried or cohabitates. Sometimes the amount or length of spousal support obligations is permanent and sometimes the court reserves jurisdiction to reconsider and amend the support amount upon a change of circumstances or retirement.

Some statutory factors reviewed when the court considers whether spousal support is appropriate are:

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 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 limited to any court-ordered payments be 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 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

Even “temporary” spousal support or alimony may be deductible to the payor and includable to the spouse if certain IRS requirements are met.

For additional information, refer to Tax Topic 452, Alimony Paid (this topic covers alimony under decrees or agreements after 1984) and Publication 504, Divorced or Separated Individuals.

 WHAT ARE POST DECREE MATTERS?

“Post Decree” means “after a decision has been made or a decree has been issued.” Many times, even after the Court has made a decision or the parties have agreed to a settlement or dissolution, something changes. Changes could be related to child support, child needs, spousal support (alimony) or to non-performance of an obligation. Often times it is necessary to go back to “adjust” support matters because of changes in income or status. Unfortunately, it is sometimes necessary to go back to the Court and ask for help in making the other party do what they have been ordered to do (such as paying debts or paying support or such as providing time to the other parent with the children).

HOW LONG DOES THE PROCESS TAKE TO OBTAIN A DIVORCE OR DISSOLUTION?

If the parties have an agreement and have the paperwork completed so that they can ask for a Dissolution, the hearing, which will take a very short time (possibly only 15 minutes) will take place in about 35 to 40 days after filing.

If the parties are in an “adversarial” proceeding (such as an action for divorce or legal separation) and cannot agree with each other, the process of getting to a settlement or final hearing could take one to two years and possibly even longer depending on the issues involved and the ability to get the matter tried to the Court. During the progress of a case, the parties might go through submission of affidavits and exhibits in support of requests for temporary orders, attendance at pre-trials, the taking of depositions, status conferences, and motion hearings as they attempt to set forth their positions and gather the evidence necessary to present or settle their cases.
CHILD SUPPORT DEVIATION

Section 3119.23 of the Ohio Revised Code states that the following can be considered when the issue is deviation from the guidelines concerning child support.
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 EXPENSE 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;
AND

P. ANY OTHER RELEVANT FACTOR.

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