McCormack Family Law | Top Divorce Lawyer | Child Custody & Support

An unspoken principle runs through divorce law in Ohio: any economic misery created by a divorce should be shared equally, at least until the parties have an opportunity to fix its cause.

What does that mean? It means that courts generally will not permit a high earning spouse to live in relative luxury while a low earning spouse lives in relative poverty. The bottom line is this: courts often reduce a difference in income between the two households for a period of time by the sensible use of spousal support and child support.

But let’s back up a little. It’s not just current income. Ohio law outlines more than a dozen elements courts must consider to determine whether and how much spousal support should be paid. Some of them are:

• income each party has from any source, whether taxable or not;
• income each party is capable of earning if fully employed;
• ages of the parties, as well as their physical, mental, and emotional conditions;
• expected retirement benefits of the parties;
• duration of the marriage;
• standard of living established during the marriage.

Those are the basics. But courts often consider the whole life situation— for instance, whether one spouse has more limited employment opportunities because of education or because of past or present domestic responsibilities. They may look at what one spouse contributed to the education or earning ability of the other in the past. Or they may consider what a spouse might require in the near future in order to get the education or training needed for employment. Courts review the assets and liabilities of each party and the tax consequences of spousal support. And there are other factors a court may consider relevant.

Ohio law does not give a mandatory formula for calculating spousal support as it does for child support. But most county courts have developed consistent approaches over time. In some Ohio counties, the most variable factor in spousal support is the period of time it will cover. Many counties award spousal support for a period equal to one-quarter to one-third of the length of the marriage, and in an amount equal to one-third to one-half of the net difference between the parties’ incomes, that is, after consideration of differing tax consequences. For instance, a net income difference of $30,000 in a 20-year marriage could mean spousal support of $10-15,000 a year for seven to ten years.

Ohio statutes and case law propose equal division of property as a place to start. The statute says that ‘the division of marital property shall be equal’ unless equal division is unfair –as it may be for a very short marriage– or if it is established that one spouse has engaged in financial misconduct.

There are many individual situations, however, so a court may make adjustments. Some common examples:

Property. When one spouse can document that they acquired property before marriage and show that it remained separate during the marriage, it will be awarded to that spouse, including appreciation in value that did not come from the effort of the owner. It is deemed ‘separate property’.

Pensions. When one spouse has a pension, courts usually order that the amount of the pension earned during the marriage will be divided evenly between the parties at a value determined on the benefit commencement date. Courts are well aware that the value of benefits changes over time. They generally find that for any year during the marriage that a pension benefit was earned, that benefit should be divided based on its highest value.
Learn more about how courts treat pensions in divorce.

Gifts. Gifts given to one party alone remain the separate property of that party. Often there is a dispute over to whom a gift was given. For example, suppose a significant mortgage was forgiven by one spouse’s parents. It may not be clear that this was a gift to one spouse alone. Careful planning is sometimes appropriate so that the donor’s intent is clearly established.

Unique things. Some things simply can’t be divided– the family dog, for instance, or anything unique, such as the family residence. If you cannot agree, as a rule, the court determines which of you receives that item. If it has significant value, monetary or otherwise, the court will award other property to the other spouse to equalize the value. Sometimes, the court orders an item sold, with the proceeds to be divided.

Child support is not a favor to a former spouse. It is fulfilling a responsibility to children. To put it in a nutshell: in Ohio, each parent is responsible for paying his or her share of the total support each child needs. That’s pretty simple, but here are things to know:

Courts determine child support whenever a divorce or dissolution involves the allocation of parental rights and responsibilities. The court will decide whether and who will pay child support and set the amount.

Ohio law defines what each parent’s share is, based on her or his share of the total income generated by both parents. The law provides courts with guidelines and a table that calculates child support, based on the number of children and the combined income of the parents.

Courts use judgment to adjust the amount of child support parents will pay. They may take into account in-kind contributions by either parent, total household incomes, and other important factors. In general, courts will not create or permit situations where children move from relative affluence to relative poverty at the outset of a divorce or dissolution. They will try to approximate a similar standard of living in both households.

Courts consider medical insurance coverage as part of child support. Depending on each parent’s access to health insurance, the benefits and the costs, the court will decide how to allocate coverage and take it into account in the child support calculation. If neither parent has access to coverage, Ohio law says that the one paying child support will also pay cash medical support. Courts also decide about payment of extraordinary costs not covered by insurance.

Courts allocate dependency exemptions for each child. State law assumes that the custodial parent or the one a child spends the most time with is entitled to the exemption. But courts may allocate the exemption to the other parent if it is determined to be in the best interests of the child.

There is no law that forces you to end your marriage in a certain way. You can end as partners or as adversaries, fighting in court or agreeing in court, breaking the bank or limiting your emotional and financial damage. And at any time, you can change your mind.

Dissolution is cooperative. It is the legal way of agreeing on all issues and moving on. It is completely private and in your control, but for the final judgment which is part of the public court record. What’s involved? First, a written separation agreement that follows Ohio law and spells out your mutual understanding on property, support, and parenting responsibilities. Second, a petition for dissolution, which is your request that the court legally end the marriage in accordance with your separation agreement. As a rule, you go to court only for a formal, brief dissolution hearing about 30 to 90 days after you submit your petition.

Divorce is the alternative when you and your spouse are not on the same page, so to speak, or one of you does not want to end the marriage or participate in resolving issues. When you file for divorce in Ohio you must set forth grounds. There are two no-fault grounds and nine grounds that assign blame. If you file and your spouse does not respond within twenty-eight days of being served with formal legal notification, your divorce will generally be considered uncontested. A final hearing will be set any time after forty-two days have elapsed. In general, divorce means that the partners have issues they have so far been unable to resolve. It does not necessarily mean that you will be antagonists. There are many other possibilities:

Process options. You may choose a collaborative divorce, where both parties and their attorneys sit down to resolve issues together, privately and outside the courtroom. You and your former spouse decide on support, property division, and parenting choices in an atmosphere respectful of everyone’s interests. For problems that resist a collaborative solution, there are different forms of negotiation, professional mediation or arbitration to resolve difficult issues without going to court. For many matters, the least desirable choice is litigation, presenting arguments in court and leaving it up to the judge.

Legal separation is an action that results only in a formal decree of the rights and responsibilities of each spouse while they live apart. It does not dissolve the marriage. A separation agreement, adopted by order of the court, specifies division of debts, assets and parental rights and responsibilities– the same matters involved in a dissolution or divorce. Such a formal separation gives spouses time apart to consider their marriage while keeping in place various benefits that can end if the marriage ends. It also sets a pattern of agreements that are often followed for a divorce settlement, so it is wise to agree on terms that are acceptable in the long run. Some couples seek a planned separation as a more formalized way of working on marriage issues before they think seriously about divorce. (Read more about legal separation).

Annulment is a legal procedure for establishing that a marriage was never valid. The length of the marriage isn’t important. There are seven grounds for an annulment: 1) at least one party was underage; 2) the parties have a close blood relationship; 3) a party was still legally married at the time of the current marriage; 4) one party was unable to consummate the marriage; 5) one spouse lacked the mental capacity to enter into a marriage contract; 6) one person married under duress or by force; 7) one person entered into marriage fraudulently, concealing such things as criminal history, sexually transmitted diseases or impotence.

In some situations, people other than birth parents play important roles in a child’s life. It may be a step-parent and step-child who want to strengthen their relationship through adoption. It may be a relative who cares for a child when parents are unable to do so.

Companionship rights are legal recognition of a non-parent’s right to spend time with a child. Companionship rights can be negotiated for grandparents, step-parents and others when a court determines that it is in the best interests of the child. To be blunt, many believe that this flies in the face of parents’ constitutional right to make decisions regarding their children.

When and why are companionship rights granted despite what parents want? One example is where grandparents have had an extensive role in raising children. A total separation of the grandparents from the children could cause the children emotional harm. Courts may step in to prevent this harm, even over a parent’s objections. But this is an unsettled area of the law, still open to argument. Read more about companionship and visitation.

Custody is a specific bundle of rights to the possession and control of a minor child. By law, a single mother is the natural custodian of her minor child. Married parents are the natural custodians of their children. These relationships can be modified by courts under various circumstances; in some cases non-parents may be granted custody.

Adoption is how the law bestows the status of parent, with all its rights and responsibilities, on a person who is not the biological parent of a child.

When the State of Ohio says that decisions about everything from living arrangements to financial support must be structured to serve ‘the best interests of the child,’ what does that really mean? Here are some basic principles:

What a parent wants for a child is not synonymous with that child’s best interests. To put it bluntly: It’s about your child, not you. While many parents firmly believe that they are parenting experts, parenting during divorce is often an entirely different matter. It sometimes happens that parental desires, while well-meaning, are not the best measure. It is realistic to understand that experience, recommendations of child development experts, and a great deal of research on the impact of divorce all have a balancing influence on judges and magistrates.

An example: A child often becomes aware that his parents do not like each other. To deal with the stress and avoid taking sides, a child may begin to say what each parent wants to hear. A child who loves both may express dislike for one parent while with the other, and vice versa, even though she wants parenting time with both. Each parent may take her statements as gospel but courts seldom act on them without proper investigation and verification.

Best interests vary depending on such things as age and gender. In general, however, courts tend to be guided by traditional values that the statute sets forth. These include: the wishes of the child’s parents; the child’s wishes and concerns as determined by the court’s interview or an independent report; the child’s interaction with parents, siblings, extended family; the child’s current adjustment to his home, school and community; and the mental and physical health of all involved persons. The law also speaks to parenting values, such as the likelihood that each parent will facilitate parenting time with the other parent, including whether one parent has refused parenting time to the other in the past; whether either parent has failed in economic support; whether a parent plans to relocate outside of the State of Ohio.

Objectivity helps in figuring out what an individual child’s best interests may be, especially when parents display to the court an inability to remain objective or to reach agreement. Dislike of a soon-to-be ex-spouse as evidence of his or her inability to parent is not something courts generally accept as objective evidence. Where there is conflict or uncertainty about what serves children best, the court often appoints a Guardian ad Litem (GAL) to talk with parents, family members and the children to identify their interests.

Families matter. Parents divorce each other. Kids cannot divorce their parents or abandon their families. When you litigate your divorce, you give the court responsibility for allocating parental rights and responsibilities. When they have heard from parents, the GAL, and other interested parties, they will take one of two avenues:

Shared parenting so that both parents retain custodial rights to the children. In shared parenting, all aspects of parenting time and responsibilities are negotiated. A required, written shared parenting plan then governs the relationships of the family to a greater or lesser extent, depending on the wishes of the parents. Read more about shared parenting and how to create a parenting plan.

One legal custodian and residential parent, granting to the other parent a specific schedule of parenting time. This means that parental rights are terminated for the non-custodial parent. This is usually thought to be appropriate when there is high conflict and one parent is relatively inactive with the children. A parenting plan may be appropriate in these cases, too.

Sometimes, courts appoint parenting coordinators to help high-conflict families resolve issues so children are not caught in the middle. They also help parents in their efforts to implement a court-ordered parenting arrangement.

Cuyahoga County Domestic Relations Court
http://domestic.cuyahogacounty.us/

Geauga County Court of Common Pleas
http://www.co.geauga.oh.us/departments/common_pleas/Geauga-General.htm

Lake County Domestic Relations Court
http://www.lakecountyohio.gov/Default.aspx?alias=www.lakecountyohio.gov/dr

Medina County Domestic Relations Court
http://www.medinadomesticrelations.org/

Portage County Domestic Relations Court
http://www.co.portage.oh.us/domesticrelations.htm

Summit County Domestic Relations Court
http://www.drcourt.org/

Trumbull County Domestic Relations Court
http://clerk.co.trumbull.oh.us/domestic.htm

Some helpful websites

The Center of Principled Family Advocacy, an excellent local resource for divorcing partners and their families.
http://www.famad.com/

‘Our Family Wizard’ website for safe and sane family communication.
http://www.ourfamilywizard.com/

An online magazine with some useful articles:
http://www.divorcemag.com/

A site dedicated to helping you help the kids during divorce:
http://www.childrenanddivorce.com/

A place to get confidential help, service referrals and advocates when the problem is domestic violence:
http://ja.cuyahogacounty.us/en-US/wvsc-new.aspx