How to Divorce in Ohio ohiodivorce411- Divorce 411 How to Divorce in Ohio

What is Cohabitation?

Posted on by

An award of spousal support will typically terminate on a specified date in the future, or
upon the death of either party, the remarriage of the spouse receiving spousal support,
or the cohabitation of the party receiving spousal support. While a date specific, death or
remarriage are pretty easy to determine, cohabitation is not.

Ohio Courts generally look to three (3) factors to determine cohabitation: (1) an actual
living together; (2) of a sustained duration; and (3) with shared day-to-day expenses.
Cohabitation is often described as an issue of lifestyle, not a housing arrangement.
Whether cohabitation exists is a question of fact to be determined by the court on a case-
by-case basis.

Frequently cohabitation is described as a relationship with an unrelated person of the
opposite sex in a relationship tantamount to marriage. In my experience as a domestic
relations attorney in the Cleveland/Akron area, cohabitation is extremely difficult to prove
and, most often, not worth the time and expense associated with trying to prove it.

When does Child Support Terminate?

Posted on by

Ohio Revised Code §3119.88 sets forth the circumstances under which a child support
obligation should terminate. These circumstances are as follows:

The child reaches the age of 18 and has graduated from or no longer attends high school on a full-time basis*;
The child’s death;
The child’s marriage;
The child’s emancipation pursuant to a court order;
The child’s enlistment in the armed services;
The child’s deportation; or
There is a change in legal custody of the child.

*The obligation for child support can continue once the child has reached the age of 18 so
long as the child continues to attend high school on a full-time basis. However, in this case,
the support cannot continue past the age of 19.

It is typically the obligation of the residential parent to notify the Child Support
Enforcement Agency of any reason why a child support obligation should terminate.
Although in my experience as a domestic relations attorney in the Cleveland/Akron area, it
is also a good idea for the non-residential parent to notify the Child Support Enforcement
Agency as well so that garnishment of the non-residential parent’s income can be stopped
before any overpayments are made. While the residential parent would be obligated to
return any overpayments, it is simply an unnecessary hassle (and possibly expense) which
can be avoided by a simple phone call.

How is Child Support Determined?

Posted on by

Child support is determined on a case-by-case basis using a calculation provided in the
Ohio Revised Code §3119.022 and §3119.023. In my experience as a domestic relations
attorney in the Cleveland/Akron area, the information needed to complete most child
support calculations is the following: (1) the number of children subject to the support
order; (2) the gross annual income of each parent from all sources; (3) the cost of providing
health insurance coverage for the child(ren) only; (4) the cost of any employment-related
child care; (5) the number of additional children born to either parent and another
individual; and (6) whether either parent pays or receives spousal support to or from
either their current or a former spouse or child support for any other children born
to either parent and another individual. While other information may be necessary to
complete the calculation in each individual case (ie. the cost of union dues, the percentage
of local taxes in that area), this is the basic information which should be presented to your
attorney at the start of your case.

How is spousal support determined?

Posted on by

Unlike child support, there is no specific calculation for spousal support. Ohio Revised Code §3105.18
sets forth fourteen (14) factors to be considered by the Court in determining whether spousal support
is appropriate and reasonable and in determining the amount and length of the support award. The
factors are the following:

The income of each party (from all sources);
The earning ability of each party;
The age and physical, mental and emotional condition of each party;
The retirement benefits of each party;
The length of the parties’ marriage;
The standard of living established during the marriage;
The education of each party;
The assets and liabilities of each party;
The contribution of each party to the education, training and/or earning ability of the other;
The time and expense necessary for the spouse who is seeking support to acquire education, training or job experience necessary to allow them to obtain employment;
The tax consequences for each party of an award of spousal support;
The lost income production capacity of either party that resulted from the parties’ marital responsibilities;
Any other factor the court deems relevant and equitable.

What is Spousal Support?

Posted on by

Pursuant to Ohio Revised Code §3105.18, spousal support (or what was formerly called alimony) is
a payment made directly to either a spouse or to a third party for the benefit of a spouse (ie. direct
payment of a mortgage). Ohio courts have the discretion to award spousal support in a divorce or a
legal separation when it is requested by one or both of the parties or after the court determines it to
be appropriate. The court has the authority to award both temporary and permanent spousal support.
Permanent spousal support means support for a period of time following the divorce or legal separation
proceedings.

Spousal support typically terminates at a specified time in the future, or upon the death of either
party, the remarriage of the spouse receiving spousal support, or cohabitation of the party receiving
spousal support. There are no “rules” for determining the term of a spousal support award, it varies
from county to county. Spousal support can be either non-modifiable or modifiable. If spousal support
is non-modifiable, the amount of support cannot be changed, it can only be terminated based upon
the above circumstances. If spousal support is modifiable, the amount of support can be increased or
decreased in accordance with the terms either agreed upon by the parties or ordered by the Court. For
example, spousal support may be modified in the event that one party loses his or her job.

Spousal support is taxable to the spouse who is receiving it and deductible to the spouse who is paying
it.

How can you enforce a Court Order?

Posted on by

During the pendency of litigation, the Court may issue numerous orders with which both
you and your spouse must comply. In addition, after a case has been resolved, either
by agreement or after a trial, the Court will issue a final Entry. If your spouse or former
spouse fails to comply with an Order of the Court, you can bring it to the Court’s attention
by filing a Motion to Show Cause (also called a Motion for Contempt) against your spouse
or former spouse. Generally speaking, this Motion must detail, with specificity, which
provisions of the Order your spouse or former spouse has failed to comply with.

After the Motion has been filed and your spouse or former spouse has been served with a
copy of the Motion, the issue will be set for review by the Court. Sometimes the filing of
the Motion is sufficient incentive for a spouse or former spouse to comply with an Order.
However, if that is not the case and the Court determines that your spouse or former
spouse is in contempt, the Court can order your spouse or former spouse to comply. In
addition, if your spouse or former spouse is found to be in contempt, the Court can order
them to pay your legal fees incurred in filing and pursuing the Motion.

If the issue is failure to pay child and/or spousal support, you can also contact the Child
Support Enforcement Agency for enforcement help.

What is the Child Support Enforcement Agency?

Posted on by

The Child Support Enforcement Agency (CSEA) is an administrative agency which is
offered by the Ohio Department of Job and Family Services (ODJFS). The Child Support
Enforcement Agency collects and distributes child support payments in the State of Ohio.

The CSEA also offers a variety of other services, including establishing paternity,
establishing support orders, modifying and/or terminating support orders, and enforcing
support orders. The CSEA is also responsible for collecting and distributing spousal
support payments if parties chose or the Court orders such payment to go through the
CSEA.

Although its’ headquarters are located in Columbus, each individual county in Ohio has
its’ own CSEA office. You can contact the CSEA at (800)686-1556 or go to their website at
https://jfs.ohio.gov/Ocs/index.stm for further information.

What is a Guardian ad Litem?

Posted on by

A Guardian ad Litem is an attorney, psychologist or social worker who has been appointed
by the Domestic Relations or Juvenile Court to represent a child in a legal proceeding and/
or to advise the Court as to what they believe is in the child’s best interests. Individuals
who serve as a Guardian ad Litem have completed training provided by the Ohio Supreme
Court. Further, each county has additional requirements which individuals must meet in
order to serve as a Guardian ad Litem in that county.

There are many reasons why a Guardian ad Litem may be appointed. In some cases, one or
both of the parties may feel that a Guardian is needed to fully represent the child’s wishes
and/or interests. In some cases, the Court may be concerned about a parent’s behavior and
feel further investigation is necessary. Sometimes a Guardian ad Litem is chosen simply
from the list of approved Guardians; other times, the parties and their counsel are allowed
to mutually agree upon a Guardian.

A Guardian ad Litem must conduct his or her investigation in accordance with
Superintendence Rule 48 which includes interviewing the parties and the child, observing
the child with each party, and obtaining school and medical records. The extent of the
Guardian ad Litem’s investigation depends upon the facts and issues in each particular
case.

A Guardian ad Litem is paid based upon an hourly rate (the same as most domestic
relations attorneys); however, the hourly rate for a Guardian ad Litem is typically less than
that of an attorney and varies by county. A determination as to the division of the Guardian
ad Litem’s fees is typically made by the Court or by agreement of the parties at the end of
the case.

What is the Difference Between a Judge and a Magistrate

Posted on by

A Judge is an attorney who is elected by the people of a county. A Magistrate is an attorney who has been appointed by the court. Judges have the discretion to refer cases to their Magistrates in order to allow the Judges to handle a larger caseload in a more efficient manner. In an Ohio divorce, whether your case is heard by a Judge or a Magistrate can depend on the specific type of case, the county that you are in, or luck of the draw. In some Ohio counties, all domestic relations cases are heard by a Magistrate and the Judge hears only Objections. In other counties, a Magistrate may be assigned to hear a specific aspect of a case (ie. temporary support, post-decree issues, or domestic violence issues).

If your case is heard by a Magistrate, the decision of the Magistrate (either called a Magistrate’s Decision or a Magistrate’s Order, depending on the issue) will include a recommendation to the Judge as to what the final order should be. If you do not agree with the decision of the Magistrate, you can file an objection to the decision. If no objections are made or, after considering any objections that are made, the Judge then issues a Judgment Entry in the matter. If you disagree with a Judgment Entry, you can file an appeal with the court of appeals for that county. There are procedural and time requirements for filing both objections and appeals which must be followed.

What are Temporary Restraining Orders

Posted on by

A Temporary Restraining Order (“TRO”) is a court order that prohibits one or both of the parties from doing certain things during the pendency of a case. A TRO is usually issued at the beginning of a case and stays in effect until it is either modified by the Court or the case ends. A TRO can be the result of a request by one of the parties or a mutual TRO can be issued by the court at the beginning of a case. A mutual TRO restrains both parties. A TRO can also restrain a third party defendant to a case, such as a financial institution, from allowing one or both of the parties to do something (ie. withdraw money from a retirement account). In an Ohio divorce, TRO’s typically prohibit dissipating assets, harassing the other party, incurring debt, changing or cancelling insurance coverage, and/or permanently removing minor children from the county in which the TRO is issued.

As a domestic relations attorney, I typically have clients tell me that they do not want to request a TRO against their spouse either because they do not believe that their spouse would do those types of things or because they do not want to anger their spouse. However, TRO’s are common in divorce cases. Most attorneys do not draft requests for TRO’s containing any information specific to the parties or accusing the other party of doing anything wrong. TRO’s are simply a form of protection against one party doing something inappropriate or detrimental during a highly emotional time in their life.