In Ohio, Do Support Payments Have To Be Made Through The Support Enforcement Agency?

Do child support/spousal support payments have to be made through the Child Support Enforcement Agency (CSEA) or through the Ohio Child Support Payment Central (OCSPC)? This question is generally answered with a resounding “Yes”! There are many reasons for the involvement of the CSEA and the OCSPC.

What do the CSEA and OCSPC stand for? What role do they play in Support Payments?

Each county in the State of Ohio has its own Child Support Enforcement Agency (CSEA) charged with keeping accounts and payment histories for each child support/spousal support order involving children or ex-spouses residing in that particular county. The Ohio Child Support Payment Central is an agency located in Columbus, Ohio. It was created by the Ohio Department of Job and Family Services in response to Federal legislation mandating the implementation and operation by each state of a disbursement unit for collecting and disbursing child support and spousal support payments.

Why are these two agencies needed to provide oversight and collection of support payments?

Both agencies are vital and necessary as the State of Ohio has a vested interest in collecting maximal child support payments.

Otherwise, the State would be “on the hook” for each indigent child within the State wherein child support was not collected resulting in the indigent child receiving benefits from the State in the form of welfare, Aid to Dependent Children (ADC), Women, Infants, and Children (WIC), food stamps, health insurance (Care Source or Molina), subsidized housing, etc. Likewise, the State of Ohio has a vested interest in collecting maximal spousal support payments because if the recipient (Obligee) isn’t receiving spousal support payments as ordered, he or she may also seek assistance in the form of welfare, food stamps, and health insurance benefits from the County wherein the Obligee resides.

Both the CSEA and OCSPC provide many services for each child support/spousal support account Including:

• Agents monitor the accounts and keep a running record of support monies due pursuant to a Court’s Order versus support monies actually received. Thus, this record keeping provides the means to generate an audit and payment history for each support account.
• Agents monitor delinquent accounts and those accounts requiring enforcement for arrearages owed, which can be “flagged” with the goal of intercepting income tax refunds or any lump sum payments to be made to an Obligor (payor of support). And, if the support paid is less than half of what is owed, the CSEA has powers to revoke an Obligor’s driver’s license or professional license.
• Agents may also assist with the location of Obligors and in determining if an Obligor has found new sources of employment.

Many Obligors question why support payments must be made through the CSEA or OCSPC. The answer is because that is the law! Payment through these agencies is mandatory. Many Obligors complain about the 2% service fee charged by the CSEA. The 2% service fees are used to offset the costs of the agencies. If an Obligor has a support obligation of $3,000 per month, he or she will owe the CSEA the sum of $60 per month (2%) to administer his/her account. But, if an Obligor has a support obligation of just $500 per month, his or her service fee would be the sum of just $10.00 per month.

I have had clients argue that it is discriminatory for them to pay higher service fees than other Obligors based upon the amount of support ordered to be paid. I have been known to tell my clients that if they want to change the method of payment, and/or the amount of the 2% service fee, they will need to become politicians.  They need to run for office, go to Columbus, and convince a majority of legislators that the law should be changed! This would be a difficult task to accomplish!

What are the exceptions to eliminate having to pay support through the Agency?

Ohio Revised Code 3121.441 titled “Direct Payment of Spousal Support” creates the exception. If the Obligor has only a spousal support (alimony) obligation, with the consent of the Court, the Obligor may be able to set up an automatic transfer of support payments from his/her bank account to the Obligee’s bank account. The Obligor may also be able to pay to the Obligee the alimony obligation by check, money order, or in any form that establishes a clear method of payment.
With the foregoing methods of payment, the Obligor can escape the monthly 2% service fee! However, in the event the Obligee does not receive regular and consistent spousal support payments, he or she can request that the Court issue a Withholding Order to the Obligor’s employer so that payments can then be processed by the CSEA or OCSPC.

Summary:

The following options are available for the payment of child support/spousal support in the State of Ohio:

Option 1: An Obligor has a child support obligation only. The child support obligation must be paid through the CSEA or the OCSPC and a 2% service fee shall be paid by the Obligor.

Option 2: An Obligor has a child support obligation and a spousal support obligation. The total support obligation must be paid through the CSEA or OCSPC and a 2% service fee shall be paid by the Obligor.

Option 3: An Obligor has a spousal support obligation only. With the permission of the Court, the spousal support (alimony) obligation may be made by electronic transfer from Obligor’s bank account to Obligee’s bank account or the direct payment may be made by the Obligor to the Obligee by check, money order, or in any form that establishes a clear record of payment, thereby avoiding payment through the agency and the 2% service charge.

If you have questions about support payments, contact an experienced divorce or family law attorney to discuss your situation.  Please click on the link in the above sentence if you would like to contact the writer of this blog, R. Anne Shale.

My Spouse “Lied” on His/Her Financial Affidavit

Lies and Misrepresentations on the Financial Affidavit in Ohio Divorce Actions

In Ohio, when a divorce proceeding is initiated, the Plaintiff files his or her Complaint for Divorce along with his/her Financial Affidavit and other pleadings. The Financial Affidavit, a “sworn” statement made under oath disclosing the incomes, assets, liabilities of the parties and the monthly expenses of the Affiant. The Financial Affidavit, also called the Affidavit of Income and Expenses, is a very important pleading, as it provides the filing party the opportunity to request (1) temporary custody of the child or children, (2) temporary child support, and/or (3) temporary spousal support during the pendency of the proceeding. This Financial Affidavit is also the pleading that is relied upon by the Court in determining the amount of temporary support (child and/or spousal support). Accordingly, if the Plaintiff “lies” or “misrepresents” the incomes or earnings of either party, the resultant Temporary Order of Support may be improper and unduly burdensome to the Obligor (person ordered to pay support).

The first step to avoid a “bad” Temporary Order is to make sure that your Financial Affidavit is through and accurate. On October 9, 2010, I posted a blog article on the importance of submitting a correctly completed Financial Affidavit. Take a moment to read it by clicking here on Financial Affidavit. If you are the Defendant and see an inaccurately low income amount listed for your spouse’s income, it is a smart move be sure to make a notation on your financial affidavit and attach documentation such as his/her paystub or W-2. The Judge or Magistrate involved in determining the support in a divorce case usually only reviews BOTH parties’ Financial Affidavit (with attachments), but not other extraneous motions.

Examples of Financial Affidavit Issues:

Plaintiff/Wife is the party initiating the action in Dayton, Ohio. She indicates to the Court on the financial affidavit that she wants to be granted temporary custody of the parties’ two minor children and that she wants to be granted temporary child support and temporary spousal support to assist her with payment of her monthly expenses during the divorce process. But, if she indicates that the Defendant/Husband has earnings of $80,000 rather than his true earnings of $60,000, the Court’s Temporary Order of Support may be too high for Defendant to pay to Wife. In that event, the Husband’s Attorney would have to prepare and file a Motion for an Oral Hearing so that testimony and evidence could be provided to the Court in order to effect a change and reduction in the Temporary Order of Support.

While some “lies” or “misrepresentations” may be deliberate in nature, there are also instances wherein the Plaintiff does not know what his or her spouse’s income or earnings truly are. Even in this modern age and time, there remain couples wherein one has complete and total control over financial information and total control over the primary checking account. If a party is really unsure or uncertain of the other spouse’s income, that party can state that the income is an estimate or an approximate income.

Besides immediately filing a Motion for an Oral Hearing, are there are other actions that can be taken by the Attorney representing the Defendant who has been directed to pay an inordinately high support obligation. I have provided verification of my client’s earnings to opposing counsel in an attempt to negotiate a lower support obligation in order to avoid the filing of a Motion for Oral Hearing. The success or non-success of this course of action will depend upon the willingness of opposing counsel to “right” or “remedy” an obvious mistake in fact.

Another fairly common problem with the Financial Affidavit exists when the Plaintiff/Wife requests temporary support, provides the Court with her “anticipated” monthly expenses, but fails to advise the Court she is currently living with her parents and has no monthly expenses. In this example and in Montgomery County, Ohio, the Court will generally award the Wife the housing expenses that she says that she has for rent, utilities, water/sewer, and phone. As before, if the attorney representing Husband cannot negotiate a lower temporary award of support with opposing counsel, the attorney representing the Husband must file a Motion for an Oral Hearing to address the inequity of the Temporary Order.

While our clients may be truly incensed that their spouses would “lie” or “misrepresent” incomes or circumstances on his/her Financial Affidavit, it appears to happen so frequently that no one is truly surprised by it and it would be a rare circumstance that anyone would be sanctioned or punished for the “misrepresentation”.

Unfortunately, the occurrence of “misrepresentation” of incomes and/or monthly expenses appears to be a routine event in our Domestic Relations Courts. I have researched Ohio cases and have not found one reported decision where the Court awards attorney fees or requesting the prosecuting attorney to file a perjury charge against the dishonest party. Perhaps, if Courts were more vigilant in “punishing” parties who lied on these sworn financial affidavits, there would be less problems with initial Temporary Orders.

It is my belief that our responsibilities as practitioners in the field of Domestic Relations include the following:

• Encouraging our clients to be honest and accurate with the preparation of his/her Financial Affidavit.
• Encouraging our clients to provide to us verification of their incomes, their spouses’ incomes, and of their monthly expenses.
• Filing Motions for Oral Hearings in cases wherein there has been “lying” or “misrepresentation” of incomes and/or monthly expenses with a request for attorney fees.
• Providing to the Court accurate and current information regarding the incomes of our clients.

If you are in a divorce and a Temporary Order is issued that seems wrong, be sure to talk with your attorney to consider the options of how to hopefully rectify the situation.

To see a Financial Affidavit in Montgomery County, Ohio, please click here on Financial Affidavit. If you are not from the Dayton, Montgomery County, Ohio, area please check with your local Domestic Relations Court in Ohio for a copy of that court’s financial affidavit.

Tucked deep into the recently passed state budget is a new provision that will reduce driver’s license suspensions of alleged “deadbeat” parents.  Currently, a parent owing more than a month in child support faces the possibility of the loss of his or her driver’s license and professional licenses. Under current law, neither the courts nor the Child Support Enforcement Agency can grant limited driving privileges for occupational purposes on a child support license suspension.

The new law, codified in Ohio Revised Code Chapter 3123, which went into effect on September 28, 2011,  provides that parents who pay at least half of their court-ordered child support will no longer face suspension of their driver’s or professional licenses. Another provision will allow parents to have prior suspensions for failing to pay child support removed from their driving record. Benjamin Johnson, spokesman for the Ohio Department of Job and Family Services, said that under the new law, county child-support enforcement agencies must look back 90 days to see if a parent has paid less than 50 percent of his/her child support obligation. If so, a pre-suspension notice, giving the parent the opportunity to pay up will be sent. A parent who fails to act then faces suspension of his/her driver’s license. Then in order to get it reinstated, he/she must pay in full or report new employment. Click on the link if you are interested in reading the new Ohio Child Support statutes 3123.44 through 3123.63

These changes came as a result of the recommendations of a task force and are in conformity with a sentence-reform law that encourages judges to sentence non-payers to community service or probation instead of jail. There are 341 inmates in Ohio prisons for failure to pay child support according to the Ohio Department of Corrections.

Donald Hubin, chairman of Fathers and Families of Ohio, said that “the problem is not going to be solved by putting parents in prison or taking away their ability to pay child support… The vast majority of overdue child support is owed by parents who can’t pay it. Two-thirds of the money is owed by people who earn less than $10,000 a year.”

Renuka Mayadev, director of the Children’s Defense Fund of Ohio, had one question when she found out about the change: Will it be effective? She said, “if the potential loss of a license motivates deadbeat parents to pay up, then the law should stay in place. What percentages of families aren’t receiving support?” she said. And now with the new law, “Are more children then getting support? In that case, I support it.”

Over the past year more than 100,000 parents had their driver’s licenses suspended for failing to pay child support.  Not surprisingly, the collection of child support has dropped over the past few years. Kimberly C. Newsom, executive director of the Ohio Child Support Enforcement Agencies Directors’ Association, said the laws have been flexible and enforcement efforts have changed as the sinking economy made it harder for many parents to pay support. “As Ohio started going into an economic recession, counties weren’t suspending licenses as much. They were working with parents and trying to assist them with employment or getting them into work programs to try and get them employed.”  Newsom believes that the new law should help create enforcement consistency across the state. The ability to remove suspensions from a parent’s driving record will help them with future employment opportunities. But she is concerned that if a parent knows that they only have to pay only half of their court-ordered support to avoid sanctions that may be all they will pay.

Even with this change in the law a person who habitually pays only 50 percent after the law takes effect could face other sanctions, including a “black mark” on their credit report, having a bank account seized, or being held in contempt of court.

Most people don’t realize that if you have a child support arrearage of more than $2,500 that you are NOT eligible for either a renewal or the issuance of a U.S. passport.  Also, be aware that there is no guarantee that even if your arrearage balance is below $2,500 that you will be allowed to obtain a passport because you are still in arrears. Many people who had intended to travel abroad have learned about this restriction the hard way and ended up having their plans aborted by a passport denial. Think about the implications if, for example, you were planning on getting married overseas and the passport request is denied.

To learn more, click here to go to the U.S. State Department’s Travel Abroad website to read about the mandatory process that must be undertaken before any passport application will be processed. You need to make arrangements to pay the State Support Enforcement Agency where child support is owed BEFORE you submit your application for a U.S. passport.  Also, all questions about your child support arrears or the status of a payment should be directed to that appropriate State Support Enforcement Agency and not to the U.S. State Department or the U.S. Department of Health and Human Services as they will be unable to help you.

In Ohio, it would be best to first contact the Support Enforcement Agency in the County administering the account. For instance, the contact phone number in Montgomery County, Ohio, is 1-800-555-0430. If you find yourself in this situation, call them and discuss a payment plan.  Payment is generally the only solution to this problem.  For more information about making child support payments in Ohio click here.

However, if you dispute what you owe and feel that you have been wrongly accused of owing support in excess of $2,500, then action needs to be taken immediately. In many instances the arrearage figure may be in error and incorrect. If you are not able to resolve that issue directly yourself with the Support Enforcement Agency, it may be necessary to file a motion in Court to correct the arrearage amount. That entire Court process may take several months to accomplish. Then, even after the Court issues a decision, it may take time for the agency to correct its records and send the updated account information to the State Department. Also realize that after the new information is received by the passport office, they say it takes generally 2-3 weeks before Passport Services will start to process your application. Thereafter, if all goes smoothly, allow at least another 6 weeks to receive the passport.  So, a word to the wise is to plan as far ahead as possible so you don’t end up stateside and miss the big event!

In the days of my parents who were born in the 1920’s, persons typically lived in the small towns or cities in which they were born and remained there carrying on the family farms or businesses or following the trades or professions of their parents.  In today’s society, people are much more mobile.  Persons move to find employment, attend college, or due to military assignments.  Many individuals who have had their marriage terminated in another State may find themselves now living in the Miami Valley area.  Some of those persons are parents of minor children.  So, if Post-Decree problems occur, to which Court do they go for help or assistance?

I should explain that “Post-Decree” refers to situations which occur after the parties’ Final Judgment and Decree of Divorce or after the parties’ Decree of Dissolution of Marriage have been filed.  So, the parties’ marriage has ended but issues may continue regarding spousal support, child support, parenting time schedules, transportation, etc.   If the parties’ Final Decree of Divorce or Final Decree of Dissolution was filed in a state other than the State of Ohio, that Decree is referred to as a “foreign decree”.  It is “foreign” in the sense that it was not filed in this State.

Case Scenario:

I was involved in a case wherein Wife/Mother and Husband/Father terminated their marriage by a dissolution proceeding in the State of Georgia.  In mid-February, 2009, Mother relocated to this area in order to accept a teaching position at the School of Nursing at Sinclair College. Husband/Father resides in the State of Michigan.  There are Post-Decree problems related to child support, parenting time schedules, transportation for visitation, and Husband’s failure to pay those liabilities he was supposed to pay per the Decree.  His failure to pay the liabilities assigned to him has led to a very negative credit report for Wife/Mother.  She needed relief for her and the minor children associated with all of the foregoing issues or problems.  So where does she file? Which Court does she turn to for relief?

Answer:

Because Mother and the two minor children relocated from Georgia to the State of Ohio in February, 2009, Ohio became the “home state” of the children after they resided here for six (6) months.  Accordingly, Ohio became the “home state” of the minor children on or about mid-August, 2009, allowing us to file her multi-branch motion here in Ohio.  Subsequent to that date, I assisted my client in registering her “foreign decree” in this State.

Pleadings that had to be prepared to accomplish the foregoing included the following:

• Petition to Register a Foreign Support Order and to Register a Foreign Final Judgment of Dissolution of Marriage.
• Mother’s Affidavit in Support of her Petition.
• Mother’s Parenting Proceeding Affidavit.
• Mother’s Affidavit of Financial Disclosure.
• Mother’s Title IV-D Application for Child Support Services.
• Entry and Order to Register a Foreign Support Order and a Foreign Final Judgment of Dissolution of Marriage and Notice of Hearing.

An important point to be emphasized for clients and attorneys, the Petition to Register the Foreign Support Order and Foreign Decree must have a time-stamped and certified copy of the Foreign Order/Decree attached thereto.  Many times the client is reluctant to “give up” their certified copy…another one can always be obtained from the original Court.

In the last pleading enumerated, the Entry and Order to Register Foreign Support Order and Decree, the former Husband was advised that the Foreign Decree would be registered as an Order of the Montgomery County, Ohio, Domestic Relations Court unless the former Husband could establish one of several defenses:

• That the Order was obtained by fraud.
• That the Order has been vacated, suspended, or modified by a later Order.
• That the issuing tribunal has stayed the Order pending appeal.
• That there is a defense under law of this state to the remedy sought.
• That full or partial payment has been made.
• That the statute of limitations under ORC Section 3115.41 precludes enforcement of some or all of the arrearages.

Father was not able to establish any of the above defenses and Wife’s Petition to Register a Foreign Support Order and a Foreign Final Judgment of Dissolution of Marriage was granted.  This allowed us to have a hearing set so that we could proceed on Mother’s multi-branch Motion for Relief.

There are many technical issues involved with this process of Registering a Foreign Court Order.  If jurisdiction exists that the matter could still be litigated in two differing states, it makes sense to have a lawyer in the original state provide an opinion as to the anticipated outcome. Understand that support amounts can vary dramatically from state to state.  Probable results can then be compared.  So, considering the strategy of the jurisdictional issues can be very important! This is not something that should be attempted without the assistance of a family law attorney.

The Affidavit of Financial Disclosure (or a Financial Affidavit) is a very important document in domestic relations, especially in divorce matters.  If you are pursuing an agreed upon dissolution of marriage (instead of a divorce), the Financial Affidavits are required, but they are not nearly as important as in divorce actions.  In dissolutions, the Financial Affidavit establishes the required disclosure of all assets and liabilities which is the foundation for any dissolution. Also, in a dissolution, since the parties have everything settled between them, any issues regarding what Husband earns or what Wife earns are largely irrelevant because the parties have already determined which party will be paying child support and/or spousal support (alimony) and the amount thereof. The Court is not likely to interfere with those agreements.

In a divorce, which is an adversarial proceeding, one party may be requesting spousal support and/or child support.  In Montgomery County, Ohio, it is especially important to complete the Affidavit of Financial Disclosure because the Court relies upon that information when issuing its Temporary Order for Custody and Support.  Accordingly, if the Financial Affidavit reflects that both parties are still residing in the same home together, the Court will not typically issue an Order for Temporary Custody and/or Support; but generally directs the parties to continue to pay monthly expenses as they have done in the past.  If the parties are living separate and apart, the Court is likely to order spousal support to be paid by the financially-advantaged spouse as “monthly living expenses” to the other spouse.  Those expenses would include the following:

• Rent or Mortgage Gas and Electric
• Water and Sewage
• Basic Telephone (excluding long distance)
• Trash Collection
• Other (which may include internet services, cable, or cell phone, etc.)

Frequent Problems Encountered:

1. The party who is first to file for divorce provides an artificially high income figure for the other spouse.
2. The party who is first to file provides an artificially high number for monthly living expenses (which triggers a high amount for spousal support in the Temporary Order).

These “problems” are the ones most likely to occur and usually lead to increased legal fees for the potential Obligor (Payor) as he/she must seek the assistance of the Court for a remedy of the “faulty” Temporary Order.  For example, I recently had a case wherein both parties were registered nurses and I represented the Husband. When Wife filed her Complaint for Divorce, she indicated on her Financial Affidavit that Husband had a gross income of $90,000 per year.  This was an artificially high income for Husband because both parties actually had incomes approximating $50,000 per year. But, based upon Wife’s Financial Affidavit, Husband was ordered to pay a higher than usual spousal support and child support amount. We then had to file a Motion for Oral Hearing to inform the Court of his true income and address the fact that the Temporary Order was not fair or equitable to Husband. An appropriate amount of support was then ordered.

Another recurring problem with Financial Affidavits is that one spouse may decide to temporarily live with his/her parents during the pendency of the divorce, but indicates anticipated or estimated monthly living expenses on his/her Financial Affidavit.  The Court may then order temporary spousal support to cover those expenses while he/she is actually living free of rent/mortgage and other living expenses during the pendency of the divorce action.  Again, if this occurs, it takes time and money to file a Motion for an Oral Hearing to bring these facts to the attention of the Court.

Tips In Using The Financial Affidavit To Your Advantage:

1. If there have been incidents of domestic violence, there is a place to indicate that on the form. That fact can be VERY important, so do not neglect it!
2. Likewise, if there is a pending bankruptcy proceeding or Juvenile Court proceeding, indicate that on the form. A pending bankruptcy action usually will require a Motion be filed in the Bankruptcy Court to allow the divorce case to move forward! If there is an ongoing bankruptcy or one anticipated, bring that issue to your attorney’s attention as soon as possible so that impact can be considered.
3. Be sure that the correct addresses for the parties are listed, especially if they are no longer living together or if one of them intends to move from the home in the very near future.
4. Do not forget to check the box if you are requesting a Temporary Order of Custody or Support.  The Court must be aware that your party is seeking an Order from the Court.
5. Neglecting to ask for what your client wants/needs can be costly to your client.

Further Suggestions Which May Be In Your Best Interest:

1. Always be forthright and honest about your gross income and monthly expenses as well as any information you provide on the Affidavit.  It will ultimately be detrimental to your best interest if there is any “fudging” or exaggeration.
2. Always provide an estimated income amount for the other party so that the Court has at least an approximate amount for its determination of spousal support and/or child support for the Temporary Order. NEVER leave your spouse’s income line “blank” if he or she is working!

In conclusion, do not neglect the importance of properly completing the Affidavit of Financial Disclosure. It can be very important in any Domestic Relations matter (or in any Juvenile Court matter where child support is an issue). Be sure to discuss any issues or questions that you might have in properly completing this form with your lawyer. It is always prudent to submit a properly prepared Affidavit at the outset of the case; otherwise litigation to correct mistakes and/or omissions can be both unnecessary and costly.

Factual Scenario:  The Final Judgment and Decree of Divorce has finally been executed by the parties and has been filed with the Court.  But, alas, Husband finds that Wife is not willing to pay what he is supposed to receive from her; and Wife is not forthcoming in dividing the U.S. Savings Bonds that were acquired during the parties’ marriage; and she is refusing to convey to Husband certain household goods and furnishings as directed in the Final Judgment and Decree of Divorce.

What remedies does Husband have?

The Court does not have a “police force” or “private investigators” to monitor compliance with Final Decrees or Agreed Entries.  There simply is not enough money for the Court to examine whether or not former spouses are following the mandates of their Decrees.  In order for the Court to learn about a party’s non-compliance, the former Husband must file a Motion asking the Court to find his Ex-wife in Contempt of Court for her willful failure to comply with certain terms of the Final Decree or Agreed Entry.  Another name for the same action is for Husband to file a Motion to Show Cause why Wife should not be held in Contempt of Court.  The terms “Motion to Show Cause” and “Motion for Contempt” are used interchangeably.  This is a “civil” contempt action, not a “criminal” contempt action.  The Motion must also contain other information:

1. Notice of Hearing: The Court will have to conduct an evidentiary hearing to determine if Wife should be found in contempt of Court.  The Notice will set forth the date and time of the hearing and the name of the Judge or Magistrate who shall conduct the hearing.
2. In addition to the Motion for Contempt, there must be a notice advising the former Wife that if she is found in contempt of Court, she may be ordered to pay a fine and that she may be sent to jail.  Persons accused of contempt are entitled to constitutional protections, including having an attorney represent him/her.  In all the years that I have practiced Family Law, the only times that I have seen a party sent to jail were in relation to non-payment of child support, which is the most common type of contempt proceeding.

If Wife is the non-compliant party, must Husband incur more legal expenses to take her back to Court?

Unfortunately, the answer is “yes”.  Again, the system may not seem “fair” but there are no funds or monies available to assist the wronged party.  So, the attorney must advise the potential client that there will be a filing fee involved along with expenses to have the former spouse served with the Motion and Notice of Hearing, and attorney fees to take the matter back to Court.  In Montgomery County, Ohio, the filing fee for post-Decree contempt matters is $125.00 and service of process in a contempt matter must be accomplished by personal service.

If Wife is found to be in contempt of Court, can she be ordered to pay Husband’s reasonable attorney fees and court costs incurred by him?

The Court has the authority to direct the errant Wife to pay to the former Husband his reasonable attorney fees and court costs expended by him in bringing the matter before the Court.  In fact, the threat of having to pay Husband’s attorney fees and court costs may act as an incentive to encourage compliance with the Order.  In Montgomery County Domestic Relations Court, the Local Rule allows the court to assess only a nominal $350 in attorney fees against the contemnor unless another attorney is retained to testify about the necessity and propriety of a request for additional attorney fees. Even upon expending additional money to hire another attorney to appear in Court and testify about the actual attorney fees incurred in pursuing the Contempt matter, the Court has discretion whether to Order any additional attorney fees or not.

Is it “worth it” to bring a Contempt of Court or Show Cause Action?

The answer to that question must be made on an individual case-by-case basis. The attorney and client should carefully analyze the costs associated with filing the Motion in relation to the financial value of the monies or goods being sought.  In the scenario set forth at the beginning of this article, Husband decided it was worth the legal fees and court costs to take the matter back to Court.  In that post-Decree matter, he was seeking payment of several thousand dollars and saving bonds worth approximately $25,000.  There are instances, however, where it just does not make economic sense to spend additional monies going after a “deadbeat” ex-spouse.

Fans of football in general, but more particularly fans of the West Virginia University Mountaineers and the Cincinnati Bengals, mourn the untimely loss of Chris Henry on December 17, 2009.  He was just twenty-six (26) years of age.  Henry had a stellar career as a wide receiver at West Virginia University and was drafted by the Cincinnati Bengals in the third (3rd) round of the 2005 draft.  He had some notable off-the-field problems and at least five (5) legal-related incidents but was seemingly back on track with both his football career and life when he sustained an injury to his forearm in mid-season of 2009.  During the Cincinnati-Baltimore game, Chris sustained a fracture to his left forearm and was thereafter placed on the “injured reserve” list.

On the evening of Wednesday, December 16, 2009, there was an incident described as a “domestic dispute” involving Henry and his fiancé, Loleini Tonga. Reports say that Ms. Tonga was attempting to leave a residence in North Carolina when Henry jumped into the bed of the pick-up truck she was driving.  Henry was later thrown from the bed of the truck.  He sustained massive head injuries and died the next morning.

Many legal questions remain.  I shall address them in chronological order:

• It will be most important to determine if Chris Henry had a Last Will and Testament or any other estate planning documents to protect Loleini Tonga and their children. Most persons at the age of twenty-six (26) believe they are invincible and do not need to have estate planning documents in place.
• His fiancé, Loleini Tonga, has no legal rights to anything in his estate, absent a Will, as she was not married to Chris Henry at the time of his death.  As a fiancé of Chris Henry, she has no rights to inherit from his estate unless he provided for her in a Will or a Living Trust document.
• There are reported to be three (3) children that Chris Henry and his fiancé were raising; some news articles indicate that he was the father of only two of them.  If Chris Henry is the biological Father of the children, had paternity been established?  Loleini Tonga would not be eligible to receive Social Security benefits on behalf of the children until or unless paternity is established.  And, now that Chris Henry is deceased, his fiancé may have to try to establish paternity of the three (3) children through the appropriate Juvenile Court in order to seek Social Security benefits on their behalf.  If the children are not born as issue of Chris Henry and Ms. Tonga’s relationship, his estate would not be responsible for them unless Henry had estate planning documents in place to address that issue. More specifically, his will could have specified who he would designate to serve as guardian of the person and/or estate of any minor children he might leave at the time of his death.  His will or trust could also have named a trustee to manage assets on his children’s behalf until they attained an appropriate age to take control themselves over the funds.

Recommendations:

1. If children are born out of wedlock, take immediate steps to establish paternity.  Parents cannot expect to receive child support benefits or Social Security benefits unless paternity is established and the biological father of the child or children has been identified and verified by Court Order.  Just signing the Birth Certificate is not enough to establish paternity in the State of Ohio.
2. If you are a man living in Ohio and believe that you may have impregnated a woman to whom you are not married, then you should consider registering with the Ohio Putative Father Registry.  This is an important step toward establishing paternity and protecting your rights if the mother should decide to put the child up for adoption.  Be sure to register before the child is a month old. Click here to learn more about the Registry and to link to the form that would need to be completed.
3. Regardless of your age, have a Last Will and Testament prepared to establish who shall inherit from you and to establish who shall be responsible for your minor children in the event of your premature demise.  In Ohio, anyone who is mentally competent over the age of eighteen (18) years old can execute a Will.
4. These recommendations are especially important if the fiancé/father is wealthy.  Loleini Tonga and the three (3) children she and Chris Henry were raising may now be in legal “limbo” until it is determined whether or not Chris provided for them in a Last Will and Testament (or other Trust documents) and if the paternity of the children in question had been legally established.

As a graduate of West Virginia University and a Bengal fan, I was personally saddened by his death. Coach Bill Stewart said, “Once a Mountaineer, always a Mountaineer … Chris was a big part of our success during his time here.  For me, he was a real joy to be around on a daily basis.  He came to work and loved to play football.” Bengal teammate Chad Ochocinco said, “My grandma always says you never question the man upstairs on decisions he makes. Everyone makes mistakes, but I don’t see how Chris was supposed to go already, especially when he was on the right path.”

His family shared last week that Chris is helping save the lives of others through organ donation. Life Center, a group that encourages and facilitates organ donation, said that Henry was an organ and cornea donor and that his organs were donated to at least five people. "When it’s a high-profile person or high-profile case, this really brings awareness that, wow, lives were saved as a result of something so tragic," said Andi Johnson, a representative of Life Center. If you are interested in more information on tissue and organ donation in Ohio, click here and you will be directed to the Donate Life Ohio website.

Remember, that each of us needs to have a plan and properly drawn estate planning documents which include how our assets should be distributed and whom we would want to raise our minor children in the event we were not able to do so.  Regardless of our age or physical prowess, none of us are “bullet proof.” It is very important to take all the appropriate steps to protect our loved ones and family members!

It is newsworthy that the State of Ohio has taken major “hits” in the job loss category and that our unemployment rate approaches 10%.  Recently, General Motors, aka Delphi, has closed most plants in Dayton causing a massive loss of jobs in the manufacturing sector.  Then, National Cash Register (NCR) announced the company was moving its headquarters and nearly fifteen hundred (1500) jobs to a suburb of Atlanta, Georgia.  The Dayton Daily News has reported that eleven (11) policemen are slated to “lose their jobs” due to budgetary constraints.  Also, businesses associated with supplying the auto industry with parts and services are feeling a financial “crunch” as their major or primary customer was General Motors, aka Delphi.

So, what is a parent (Father or Mother) to do when facing or experiencing a loss of employment?

Scenario #1:   Father is the Obligor (parent paying child support to the Mother/Obligee). He was employed by National Cash Register (NCR).  He does not want to move to the suburb of Atlanta, Georgia, wherein the new company headquarters shall be located.  He does not want to leave the Dayton community as he wants to remain in contact with his children and he has an “upside down” home (which means that he owes more money on the home’s mortgage than the home is presently worth).  So, he decides to remain here and seek alternative employment.  He has three children and his present child support obligation is $300.00 per month per child for a monthly total of $900.00.

Upon learning of his loss of employment, Father needs to file for unemployment compensation and notify the Child Support Agency of his job loss.  Further, Father should seek assistance from counsel in filing an immediate Motion to Decrease Child Support based upon a substantial change in circumstances (his loss of employment).  If he chooses to do nothing, the Child Support Enforcement Agency (CSEA) can be likened to a “running” taxi cab meter.  His support obligation will continue to accrue at the rate of $900.00 per month until it is reduced by a Court Order.  The Court can not retroactively reduce an accrued arrearage without the consent of the Obligee.  The Court can start the new lower amount from the date the Motion for the support reduction is filed.  Bottom line – file the Motion as soon as the job is lost.

Scenario #2:  Father is the Obligor (parent paying child support to the Mother/Obligee). He receives notice that his position of employment is going to be terminated within three months or ninety (90) days.  He also has a child support obligation of $300.00 per month per child for three children for a total monthly obligation of $900.00.

With the knowledge that his position of employment is going to be terminated or eliminated in the near future, Father has some advance notice that financial circumstances are about to change abruptly.  The Obligor, with the information that his employment position is about to be eliminated, has the opportunity to file a Motion to Decrease Child Support and to obtain a hearing before the job loss has occurred.  This action provides notice to the Court and to the Obligee that financial circumstances are about to change and that child support obligations must be revised or amended accordingly.  Again, as in Scenario #1, the Obligor’s inaction will only create bigger problems such as having to pay an arrearage which has accumulated and a possible contempt action for failure to pay support and even the loss of driving privileges and/or jail time.

Scenario #3:   Father is the Obligor and he loses his job, and as a result, is behind on his support.  Mother says that he cannot have any parenting time with his children until he is current on his support.

Support and parenting time are not dependent obligations under Ohio Law.  What this means is that Mother can not deny parenting time based upon non-payment of child support.  If she does, she could be held in contempt for the improper denial of parenting time.

The loss of employment can be a depressing and demoralizing event for anyone.  The Court is generally sympathetic to the request for a reduction of the Obligor’s child support obligation due to the loss of employment UNLESS the Obligor engaged in some sort of conduct causing the loss of employment.  In those instances, the Court has the authority to “impute” income to the Obligor even if he or she has no income due to the actions or behaviors leading to the loss of employment.  The loss of a job, like other changes in circumstances of the parties, can have a dramatic effect on child support and/or spousal support.  Contact an experienced family law attorney as soon as possible to discuss the specific implications when such an event occurs.

I came across an interesting survey last month in the Gordon Poll Youth Survey published by the Wilmington Institute Network. Dr. Robert Gordon is the founder and director of the Wilmington Institute of Trial and Settlement Sciences. He is a past president of the Texas Psychological Association and is author of “On the Witness Stand.” He is both a clinical psychologist and a lawyer. The work of Dr. Gordon and the institute team has been featured on the MacNeil-Lehrer News Hour, ABC, Nightline, CNN, Fox News, Larry King Live, Good Morning America and USA Today.

The Gordon Poll Youth Survey focuses on family life issues. It is conducted for the benefit of parents, educators and members of the legal and mental health professions. The May 2009 survey was compiled from a sample size of 1,000 children between ages 14-18, and they are from a self-selected national sample that includes all 50 states.

Here are a few selected comments from participants who indicated that each parent should pay the same:

“Yes, one parent may earn more, or one may not have custody, but both parents are equally, biologically responsible for their child. Just because someone earns more doesn’t make it their job to pay more.”

Here are some selected comments from participants who indicated that the parent who earns more should pay more:

Here are selected comments from participants who indicated that the parent who doesn’t live with the kid should pay more:

And, these selected comments are from participants who indicated that the parent who wanted the divorce should pay more:

Click here to read more comments from the survey participants. I will be bringing you more USA Youth Survey results in the future!