2017 Tax Reform: Changes to Spousal Support

2017 Tax Reform: Changes to Spousal Support

These videos are designed to educate viewers on 2017 Tax Reform. These videos are not to be construed as legal advice. Please seek the advice of a local attorney regarding your specific situation.
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Spousal Support in Ohio

Spousal Support in Ohio:
One of the least guiding “guidelines” in Ohio is the Ohio Spousal Support Guidelines.  This statute gives Ohioans “factors” that Ohio Courts consider when determining whether spousal support will be granted and if so, how much.  The factors the courts consider are the following:

Quoting Ohio Revised Code § 3105.18. – Award of spousal support; modification.

(A) As used in this section, “spousal support” means any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is both for sustenance and for support of the spouse or former spouse. “Spousal support” does not include any payment made to a spouse or former spouse, or to a third party for the benefit of a spouse or former spouse, that is made as part of a division or distribution of property or a distributive award under section 3105.171 [3105.17.1] of the Revised Code.

(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 [3105.17.1] of the Revised Code, the court of common pleas may award reasonable spousal support to either party. During the pendency of any divorce, or legal separation proceeding, the court may award reasonable temporary spousal support to either party.

An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court considers equitable.

Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise.

(C) (1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:

(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 [3105.17.1] 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 not limited to any court-ordered payments by 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, and employment 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.

(2) In determining whether spousal support is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital income.

(D) In an action brought solely for an order for legal separation under section 3105.17 of the Revised Code, any continuing order for periodic payments of money entered pursuant to this section is subject to further order of the court upon changed circumstances of either party.

(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:

(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(2) In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(F) For purposes of divisions (D) and (E) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses.

(G) If any person required to pay alimony under an order made or modified by a court on or after December 1, 1986, and before January 1, 1991, or any person required to pay spousal support under an order made or modified by a court on or after January 1, 1991, is found in contempt of court for failure to make alimony or spousal support payments under the order, the court that makes the finding, in addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and shall require the person to pay any reasonable attorney’s fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.

(H) In divorce or legal separation proceedings, the court may award reasonable attorney’s fees to either party at any stage of the proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney’s fees that the court awards. When the court determines whether to award reasonable attorney’s fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating that party’s rights and adequately protecting that party’s interests if it does not award reasonable attorney’s fees.

Determining whether spousal support will be granted is largely within the court’s discretion but is generally predictable to an Ohio licensed attorney.  Determining how much spousal support a court might grant in any given situation is much more difficult for the parties to predict.  Ohio has created a helpful child support computation worksheet to predict how much a party will pay or receive in child support; however, no such computation worksheet exists for spousal support (at least not one that is generally accepted or used by the courts).
Arguments can and have been made that the Ohio Child Support Computation worksheet produces results that are unfair to one or both of the parties, but at least it is a starting point for determining child support.  I for one would like to see Ohio create a spousal support computation worksheet to be used in all divorce/dissolution cases.  However, until this happens, the parties are left to their own devices.  I have prepared the following guidelines that I hope will help parties determine if spousal support is warranted, and if so, how much.
In reviewing these tips, please remember that spousal support was created to help compensate one party for their contributions to the household and to make sure, where there is enough income, the state would not be left to pick up the tab for the other party and the children.  Obviously things have changed, but try to remember the spirit in which these laws were created.
* As a general rule, spousal support may be considered an option if one of the parties has disposable income, which generally means that he/she makes over $55,000 per year or more.
*In addtion, spousal support may be granted if the other party makes approximately half ($27,000 per year) or less than the other party.
* Generally, if the court finds that one party should be granted spousal support, the court will likely grant it in the amount of $500.00 per month or more depending on the parties’ income.  Courts generally don’t grant spousal support in amounts less than $500.00 per month.  (This may be because the court may think that anything less than $500.00 per month is not really helping or is not a fair assessment of one spouse’s contributions…)
* Remember that contrary to child support, spousal support is considered income for the party receiving it and is tax deductible for the party paying it.  This means that if you are on the receiving end, if you have the option, you should negotiatiate to get more money in child support and less in spousal support.  If you are on the paying end and you have the option, you should negotiate to pay more in spousal support and less in child support.
Hopefully, these tips are helpful as you assess your own situtation and prepare for a divorce or dissolution.

Divorce vs. Dissolution

One of the most common questions I get from my family law clients is about the difference between a divorce and dissolution.  Although they accomplish the same thing, there are many differences between a divorce and dissolution and most of the differences relate to the total amount of money you will spend to terminate your marriage.

A dissolution is often considered the amicable way to terminate a marriage. With a dissolution, the parties come to an agreement on all terms of separation, including: property division, spousal support, child support and parenting time.  They put their agreement in writing and they present it to the court.  The court will make their agreement an order of the court as long as it finds that both parties voluntarily entered into the agreement, the parties fully disclosed their assets and debts, and it is a fair and equitable division of property.  Both parties must cooperate throughout the process and both parties are required to appear at the final hearing.  Dissolutions often cost less, especially when the parties have their agreement worked out before an attorney gets involved.  Parties can keep their costs low, not only by working out all details of their agreement before meeting with an attorney but also by finding an attorney that will do the work on a flat fee.  Although most family law attorneys will not work on a divorce for a flat fee, many do offer flat fees for dissolutions.  You will also find that the filing fee is less for a dissolution.  In the Cincinnati/Dayton area, you will find that the filing fee is between $250-$350.

Although divorces do not involve an agreement between the parties, not all divorces result in disagreements between the parties.  There are two types of divorces: uncontested and contested.  Once one of the parties files a complaint, it is considered a divorce.  If the responding party files an answer, it is then considered a contested divorce.  If no answer is filed, it is considered an uncontested divorce.  You may be asking yourself why anyone would file for a divorce if they are not having disagreements about the terms of separation.  The answer is that many times people choose to file for divorce because the other party will not cooperate with the dissolution process by signing the necessary forms and going to the final hearing.  In those situations, a divorce is a better option, and if the other party does not file an answer, the process will be similar to a dissolution in terms of time and money.  If you suspect or know that the other party will not respond to the complaint, you may ask your attorney if he/she will do an uncontested divorce for the same price as a dissolution.

The most expensive way to end your marriage is a contested divorce.  The court often sets several pretrial dates in the hopes that the parties will come to an agreement and in the end, most contested divorces do end in an agreement; however it may take a very long time to get to that point.  If you find yourself in a contested divorce, you may feel that there is nothing you can do to save money.  The filing fee is often between $300-$400 and attorneys often refuse to work on a flat fee.  Sometimes the other party is just being disagreeable or has unjustified expectations.  You can, however, save yourself some money by finding an attorney that approaches your case with your best interests in mind.

If you find that you are more upset at the other party when you leave your attorneys office than when you went in, it is possible that your attorney is intentionally winding you up to fight so that you spend more on attorney’s fees.  If you suspect that you may be in this situation (and believe me, I see it all the time), you should evaluate your expectations and determine if they are reasonable.  If your attorney has given you unrealistic expectations, you will be unhappy with the result no matter what happens and you will spend more.  You should find an attorney that gives you realistic expectations about your case.  An attorney that really has your best interests in mind will not be able to prevent the opposing attorney from using the same tactic to rack up attorney fees but will at least provide a starting point for getting your divorce settled with a fair result at a reasonable cost.

No matter how you decide to terminate your marriage, it is likely that your attorney will have you fill out a long questionnaire regarding every aspect of your marriage.  It is important to understand that every question is on that questionnaire for a reason.  Your attorney will have to report that information somewhere in the paperwork.  If you take the time to make sure that you have filled out each and every section of that questionnaire before returning it to your attorney, your attorney will spend less time following up on incomplete information; therefore saving you money.