Ohio Updates Child Support Law for the First Time in Nearly 30 YearsOhio's child support law underwent a major overhaul representing the first update to child support law since 1992. Ohio's new child support law goes into effect on March 28, 2019. This means that only new child support orders after 3/28/19 will be affected or any child support orders where a modification is requested after this date.
A few of the biggest changes are outlined below:
- The child support calculation itself is updated. The old child support law was more likely to produce a child support order for low income parents that was in an amount in excess of their ability to actually pay.
- There is a newly created "self-sufficiency reserve." This is a reserve to where the obligor (paying) parent has a minimum necessary reserve from their income to at least maintain a certain self-sufficiency living standard.
- The minimum child support order was increased from $50/month to $80/month.
- The calculation of child support for obligor parents with multiple families has been updated. It used to be that if a father was subject to multiple child support orders, then whoever filed the first child support order usually got more in child support then other parents of other children that filed against the father for other children. This has been changed so that children of different families get the same amount.
- There is now an automatic 10% credit given to a parent who has parenting time at least 90 nights out of the year.
- The Court is also required to consider an additional deviation above the 10% credit for an obligor parent who has parenting time over 90 nights per year.
- There are new caps on the Child Care Credit. Under the old law, day care expenses were one of the biggest factors in determining how much the child support obligation was. Now this is capped.
Divorce Attorneys in Columbus OhioIf you are thinking about getting a divorce in Ohio, then there are some advantages to being the first to file. In Ohio, there are some special rules that apply to divorce actions that don't apply to normal civil lawsuits. For example, in a normal civil lawsuit you usually have to file the lawsuit where the Defendant lives or where the incidents took place. In Ohio, whoever files the divorce (the Plaintiff) gets to decide what court to file in. This can be a serious advantage in a divorce case if the spouses live in different counties. If the spouses live in different counties then the person who files for a divorce should normally do it in the county that they live in. That way the Plaintiff will not have to travel to a different county to attend court hearings and they wont have to pay their attorney to travel to different counties for the divorce case. That saves time and money. If both spouses live in the same county, then that county would be the county that the divorce would be filed in, but there are still some other advantages to being the first to file for divorce.
In order to be able to pick your county court in filing for a divorce, you simply need to have been a resident of Ohio for 6 months and a resident of the county you want to file in for 90 days.
What County Do You Have to File in if Your Children Live in a Different County than You?Technically, a divorce and a child custody determination can be divided into two separate actions. However, it usually makes the most sense to do it all together and get your divorce and child custody action all handled at once. The Uniform Child Custody Jurisdiction and Enforcement Act basically provides that only the Court in the county where the children have lived for the past 6 months has the power to decide child custody issues. The general rule is that if there ever was a pre-existing child custody order, then you always have to go back to that court to change custody (there are exceptions for if, for example, the children move, and some other nit-picky rules, so call an attorney if you have questions).
If your children live in a different county than you, and you want to file for divorce, then it usually makes the most sense to file in the county your children live in, although technically you could choose to just file in the county you live in (but that court couldn't make a custody determination if your children live in a different county).
What Are the Other Advantages to Being the First to File a Divorce?If you, your spouse, and/or your children all live in the same county, then the biggest other advantage to being the first to file for divorce is in getting restraining orders in place.
What Are Temporary Restraining Orders in a Divorce Case?In an Ohio divorce case, a temporary restraining order usually orders that both parties keep all of the financial and real estate holdings in place while things are being sorted out in the divorce. It basically makes it so one side can't start hiding or selling off their assets during a divorce case. It is "temporary" meaning that the Court order is just in place during the pendency of the divorce case and until the case is decided and final orders are issued on all the financial and real estate matters.
Determining the Timing and Money in Filing for a Divorce FirstIf you file for divorce first, then you can basically choose to do it at the time that is most convenient for you, rather than being in the other position of being caught off-guard by the divorce. You can also choose to file for divorce at a strategic time for yourself or your spouse when it comes to money matters. These are strategic aspects that you will want to discuss with your divorce attorney.
Attorneys for Divorces in Columbus and Central OhioThe law firm of Harris & Engler has attorneys who help clients obtain divorces in Columbus and Central Ohio. The law offices of Harris & Engler are located in Columbus Ohio and you can call a divorce attorney today by calling (614) 610-9988. Whether you need to ask some initial questions about preparing for a divorce or you are ready to set up an appointment, please feel free to call one of the divorce attorneys at Harris & Engler.
The Law in Ohio on Whether or Not You Have to Return an Engagement Ring in the Event of a BreakupGifts given "in contemplation of marriage" have their own special category in Ohio law. Ohio law varies quite a bit on the subject of whether the recipient of an engagement ring or other gift given in contemplation of marriage has to be returned if the engagement is broken off. The law may be different depending on what county in Ohio you live in, so there is a good bit of variability on the subject. If there is one general consensus across the various appellate districts in Ohio, it is, for the most part, that an engagement ring is a gift expressly conditioned on a subsequent marriage. The conditional nature of other gifts given in contemplation of marriage is different county to county across Ohio.
The approach in Franklin County was decided in the 1995 case of Sigrist v. Lyons, 100 Ohio App.3d 252, 653 N.E.2d 744, where the Court decided that "where a gift is given with a mutual understanding that the parties would be married and the gift would benefit the marriage, then if the parties do not marry, unjust enrichment requires the gift be returned." Accordingly, in Columbus and all throughout Franklin County, any gift given in contemplation of marriage must be returned under unjust enrichment principals if the engagement is broken off. The big caveat here is that the gift must benefit the marriage, which means that it must benefit the relationship in the future, not just right now or not just during the engagement period. This would tend to rule out smaller or more trivial gifts and include bigger, more permanent or longer lasting gifts, like furniture, appliances, vehicle, a new house, etc.
Another approach around Ohio is to treat all gifts exchanged during the engagement period as revocable gifts. See Cooper v. Smith, 155 Ohio App.3d 218, 800 N.E.2d 372 (Ohio App. 4th Dist., 2003).
A third approach treats only an engagement ring as a gift conditioned upon subsequent marriage, but all other gifts given during the engagement period are treated as irrevocable unless they were given only on the express condition of subsequent marriage.
The fourth and fifth approaches are similar. The fourth approach around Ohio says that the donor can recover a gift given during an engagement unless the donor unjustifiably broke off the engagement. This approach appeals to a sense of justice in a way to where a person can get the gifts back unless they "wronged" their fiance/ee. However, this approach poses a pretty big problem in having to prove whether breaking off the engagement was truly unjustifiable or if there were good reasons. Things can get a bit hairy having to prove those kinds of things, which is why the fifth approach is the "no fault" approach.
Under the fifth, no fault, approach in Ohio, gifts given in contemplation of marriage are returned to the donor if the marriage does not occur, regardless of who is at fault in ending the engagement. See Lyle v. Durham (1984), 16 Ohio App.3d 1, 473 N.E.2d 1216.
Franklin county most closely follows the fifth approach, that any gift given in contemplation of marriage is conditional, so long as the gift would benefit the marriage. Many other counties around Ohio follow the third approach, that only an engagement ring is returnable if the relationship fails, but not the other gifts. Many other counties around Ohio still have not made a final binding decision on the matter. In those counties, the courts would consider whatever approaches were proposed to them and make whatever decision made the most sense for that particular situation.
What Do You Have to Do to Get Ready for a Divorce in Ohio?It can be a bit daunting to decide to call a divorce attorney to talk about how to end your marriage. At first, you probably just want to know what you need to do to prepare for a divorce and a bit about what the divorce process is like. The first consultation with a divorce attorney is an opportunity to get all of your questions answered about the specific things that have to be done in order to get a divorce and about the process for what the court system is like for getting a divorce and how long it takes. The attorneys at Harris & Engler help individuals in Central Ohio end their marriage and have heard it all when it comes to divorce. Here are some general answers to some of the most common questions asked by people thinking about getting a divorce.
Answers to the Most Common Questions You Will Ask Your Divorce Attorney
1. Do we have to live separately before we can get a divorce?It depends. In Central Ohio, it depends on what county you live in The divorce attorneys at Harris & Engler only handle divorce cases in Central Ohio; and in Franklin County, a couple must have lived separate and apart (in different houses) at least 30 days prior to the final hearing of the divorce. (This requirement is listed in Franklin County Domestic Relations Local rule 5). However, if you have an attorney, then you may be able to get the 30 day requirement in Franklin County waived. In Delaware County, on the other hand, there is no specific requirement that you live separate and apart for at least 30 days before the final divorce hearing.
Additionally, there are different "grounds" or "causes of action" by which you can file for divorce from your spouse. One of those grounds in Ohio is that you have lived separate and apart for at least 1 year. If you use this cause of action of living separate and apart as the basis of your divorce then you obviously have to actually live separate and apart. However, you can simply list a different cause of action as the basis of your divorce if you are still living together, such as incompatibility.
Lastly, if you are wanting a divorce, then you are going to have to figure out how to live separately at some point (if you are not already living separately). If you are worried about the finances of living on your own then some of those questions may be answered by reading further below. If you can afford it, then it is usually a better idea to live separately while the divorce is ongoing for at least a few reasons: (1) you will have actual knowledge of your new monthly living expenses as a single person, which can be used to help with the financial aspects of your divorce; (2) you will not have to deal with your spouse on a daily basis and at home while you go through the difficult legal process of a divorce. Despite the preference by attorneys that you be living separately from your spouse while the divorce is ongoing, it is usually best to hold off on purchasing a separate home until after the divorce is final. Accordingly, if you are financially able, then the most ideal situation would be to be able to move into a rental while the divorce proceedings are ongoing.
The additional cost of living separately usually begs the next question asked to a divorce attorney, which is:
2. How will I be able to afford living on my own after a divorce?One of the first questions a person thinking about getting a divorce will ask a divorce attorney is whether or not they are eligible for spousal support (also known as alimony). Spousal Support is available in Ohio if it is "appropriate and reasonable" under the circumstances. Generally, if you had a short marriage (under 10 years) and you had roughly equal income as your spouse, then most of the time you would not be eligible for Spousal Support in Ohio. If your marriage was over 10 years and your income was much different than your spouse's income, then you might be eligible for Spousal Support. So you will want to talk to a divorce attorney about your relative chances of being able to get Spousal Support awarded as part of your divorce proceedings and about how long those Spousal Support payments might last. (you can read more about Spousal Support by clicking here).
As part of your divorce you might be dividing up retirement and savings accounts which might help you with expenses (you can read more about what kind of assets get divided up in a divorce by reading below). Otherwise, you will simply have to live within your means and plan appropriately in selecting a place to live in order to be able to live within your means after a divorce.
3. How will I pay for a divorce attorney?If you are worried about your ability to make do while the divorce is ongoing, then you can talk to a divorce attorney about the possibility of obtaining "temporary orders" that would award spousal support or other payments to begin taking place while the divorce is ongoing. However, even if you are ultimately successful in getting a monetary award from your spouse in the court issued temporary orders, you still have to be able to get the money together to pay for an attorney and the filing fees to start the divorce case. Some people are in the unfortunate situation where the other spouse is the breadwinner and that spouse has kept control of all of the finances. This essentially leaves one spouse "locked out" of the finances leading up to the divorce. In this situation, you should know that all assets acquired during the marriage (including income) are marital property; that is, property of both spouses. There are exceptions to this rule for things like gifts and inheritances. So even if a bank account is only in one spouse's name, the law would consider it to be both spouses property. With that said, if you are unable to afford an attorney, then you may be able to use a credit card and then have your divorce attorney gain access to your spouse's finances once the divorce complaint is filed by asking the court for "temporary orders" or financial payment to the dispossessed spouse while the divorce is ongoing. You can also request money for attorney fees in the temporary orders which are filed after the divorce lawsuit process is started. You may also choose to discuss how to manage the legal fees of a divorce with your spouse before proceeding with a divorce. Usually each person will need their own attorney. Otherwise, you may have to borrow money from friends or family. If neither you nor your spouse have the money to obtain a divorce and you are otherwise unable to borrow the money and you qualify within the poverty guidelines, then you may be able to get assistance in gaining a divorce by contacting the Legal Aid Society of Columbus by calling (614) 224-8374 or the Legal Aid Society of Delaware Ohio by calling (740) 369-3059.
4. How long will my divorce take?This depends on whether you are able to accomplish things as a dissolution or if you have to do it as a divorce and it also depends on what county in Ohio you file in. You are only eligible for a dissolution if you and your spouse can agree on every single aspect of the separation, including property division and child issues. If you can do this, then with a dissolution all the paperwork is signed and agreed to before filing things with the court. Then, once you file things with the court, a hearing is scheduled usually about 45 days after you file, and then depending on whether you file in Delaware County, Franklin County, or elsewhere, you could be done between 45 and 90 days after you file.
If you file for a divorce instead of a dissolution, then the timeline really depends on how contentious the divorce is. If you and your spouse cannot agree on anything relating to the divorce then it could ultimately end up taking a couple years in the court process before getting things resolved. If there are only a few relatively minor disagreements then the divorce could be completed anywhere in the ballpark of 3 months to 1 year after filing.
5. How much will my divorce cost?The filing fees are different in every county in Ohio and the filing fees are usually different depending on whether you file for a divorce or dissolution. In Franklin County, the filing fee for a divorce is $250 and $200 for a dissolution. In Delaware County, the filing fees range between $485 for a divorce with children down to $355 for a dissolution without children. In Union County, the filing fees range between $560 for a divorce with minor children to $400 for a dissolution without children In addition to court costs there will be expenses for attorney fees. There are possible other expenses depending on how complicated the divorce case is, such as deposition and other discovery related expenses.
6. What do I have to do to get a divorce?In order to file any divorce or dissolution action in Ohio, both you and your spouse will have to fill out affidavits that disclose your income, expenses, property holdings, and debts. If you have minor children, then you will have to fill out additional affidavits about your health insurance and a parenting proceedings affidavit. If you have minor children then you will both have to take a parenting class before you can obtain a divorce. If you are filing in Delaware County, then you will have to also prepare a supplemental affidavit disclosing your education history. Most people find the affidavits to be a complicated task. Other than the affidavits, your attorney will take care of most of the details. In order to get a divorce, there has to be a complaint that is filed against your spouse and then they usually file an answer. If your spouse does not participate in the divorce process, then you may be able to obtain an unconstested divorce. However, every divorce is different and it is not fair to compare your divorce to your friend's divorce, because each one is based on the unique circumstances presented by the two people actually involved in the divorce.
7. Will I have to give up half of everything I own?Generally, yes. Most people have a very hard time with this aspect of divorce. In Ohio, all assets acquired during the marriage are to be divided "equitably." "Equitably" does not necessarily mean equally or 50/50, but it means "fair." So if one person keeps one asset of value, then the other spouse will have to be allocated something else of roughly equivalent value. Assets of the marriage include anything that was acquired or gained value during the marriage. Assets acquired before marriage do not count. Assets acquired through inheritance or certain gifts do not count. Things like retirement accounts are usually divided 50/50 for the marital period (for example, if the retirement account already had $10,000 before the parties got married, then that portion (the pre-marital portion) is excluded from division)). Equity in a home is usually divided 50/50. This usually means that one spouse refinances the home in their sole name in an amount sufficient to buy out the others' equity stake, or the home is sold. Additionally, debts acquired during the marriage are usually divded 50/50, regardless of who incurred the debt.
8. Can I still get a divorce even if my spouse does not participate or if I don't know where they live?Yes. If you know where your spouse lives and you serve them with divorce papers, but they choose not to participate in the process, then you can obtain an uncontested divorce in Ohio. If you don't know where your spouse lives then it can get a bit more complicated. In that case, you have to basically put a notice in the local legal newspaper for a certain number of weeks before you can get a divorce.
Still have questions or want to talk further with a divorce attorney?You can call a divorce lawyer at Harris & Engler by calling (614) 610-9988. The divorce lawyers at Harris & Engler handle divorces in Columbus, Delaware, and greater Central Ohio.
2018 Tax Changes Effect on DivorceThe new Tax Reform and Job Act of 2018 contains a number of provisions that will affect those individuals getting a divorce or dissolution in 2018 and thereafter. In Ohio, if you've been in a marriage for 10 years or longer and there is a significant difference in the income of the spouses, then usually alimony will come into play (in Ohio alimony is called "spousal support").
Section 11051 of the Tax Reform and Jobs Act of 2018 eliminates the deduction for alimony payments and repeals the inclusion of alimony payments as gross income for the receiving ex-spouse (the payee spouse). This section takes effect on all divorce or separation instruments executed after December 31, 2018.
Until December 31, 2018, and as it has been prior to the new tax act, whenever one spouse was required to make spousal support payments pursuant to a separation agreement (the person making the payment is called the "payor" spouse), the payor spouse was able to deduct the amount of the payments from their gross income. The payee ex-spouse had to include the spousal support payments in their gross income. Now the payor ex-spouse will have to pay income tax on their full income even though they will be under a court order to pay over part of their income as spousal support. Additionally, the spouse receiving spousal support payments will essentially be getting tax free money.
New Tax Bill Creates Incentive to Get Divorced in 2018The new tax provisions on alimony do not take effect on divorce decrees and separation agreemetns until 2019. This creates an incentive for those couples desiring a divorce or dissolution to get everything finalized in 2018. This way the payor ex-spouse can have their income reduced by the amount of the spousal support payments, and the payee ex-spouse will pay tax on it.
Can You Negotiate Who Pays the Tax on Alimony Payments After 2019?This gets a little bit complicated. According to the 2018 tax act you can make the new tax provisions for alimony payments apply early, if the separation agreement specifically references the new tax provisions contained in Section 11051. It is theoretically possible to negotiate who pays the tax on spousal support payments for separation agreements finalized in 2019 and after, but by dictating who pays the tax it essentially creates additional income inbalances in the amount of what that tax payment would be.
After 2019, you may want your divorce attorney to include a provision in your separation agreement that whoever receives the spousal support payment has to pay income taxes on it. However, this creates an additional tax problem. First, no matter what you agree to contractually (and the separation agreement is a contract that once approved by the court becomes a court order), the IRS will require the payor spouse to pay income tax on all income received regardless of the provisions in the separation agreement.
For example, if the payor spouse earns $100,000 per year in income, and the separation agreement requires them to pay $20,000 per year in spousal support payments, you may want to include a provision in 2019 and later separation agreements that the payee ex-spouse pays the tax on the $20,000 in spousal support payments. Assuming that the tax rate is 25%, this would result in a $5,000 tax obligation on the $20,000 in spousal support payments. If the payee spouse paid the tax on spousal support, then they would essentially have to give back $5,000 to the payor spouse around tax time each year. This in turn would result in $5,000 in additional income for the payor spouse, income which the IRS will require the payment of income taxes on.
As a practical matter, one way around this may be to calculate what the tax would be on the spousal support payment, and then reduce the spousal support payment by the amount of that tax. Divorce attorneys can get creative, but the IRS will always require payment for income taxes when income taxes are due.