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.

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.

Question Presented: Is it likely that one spouse would be granted an award of spousal support in a divorce for having been infected with a sexually transmitted disease (STD) by the other spouse?

Most states have spousal support/alimony statutes which list factors for the Court to consider when awarding spousal support.  Many of these statutes, such as Ohio’s statute, include in the list “any other factor that the court expressly finds to be relevant and equitable” or something similar to this. Using this factor, courts do have the authority to consider the contraction of an STD between spouses when awarding spousal support.  In many cases in which one party to a marriage contracts an STD, it is the result of an extramarital affair.  The other party is then infected with the STD through continued sexual relations between the spouses.  Obviously, there may be significant proof problems associated with establishing the origin of the STD.

Ohio, as well as most states, will also consider the health (physical, emotional, and psychological) of the parties when awarding spousal support. This is another factor which may lead to a party who contracted an STD from his/her spouse being awarded spousal support.  People with STDs may have them for the rest of their lives and may need medical treatment for a long period of time or indefinitely.  They may also go through emotional or psychological anguish.  Furthermore, some STDs may later result in serious medical issues.  For example, HPV is a chronic viral infection that can later develop into cancer.  Courts may retain jurisdiction to modify a spousal support award if there later is an increased need because of an STD.  Thus, medical needs because of an STD contracted from a spouse may be a factor in awarding spousal support.  The costs of treatments, especially when the STD was contracted from a spouse, may well be considered with the other factors when awarding spousal support.  However, it is important to realize these awards are not commonplace and are not typically based solely on infecting the spouse with an STD, but on the health effects and costs associated with the STD.

It is important to point out that many states permit a filing of a “domestic tort claim” seeking damages for the contraction of a sexually transmitted/venereal disease.  These types of tort actions may vary, but generally are based on negligence, battery, and deceit theories. Sometimes, a party infected by his/her spouse with an STD will file for divorce/dissolution and in addition will file such a separate civil action.  This may be the most effective way to seek compensation for the contraction of the STD.  However, proof problems often abound in these cases.  Unlike spousal support awards which are equity based, these claims seek financial compensation directly for the injury. This means the origin of the contraction of the disease must be clearly proven. Perhaps just the thought of the loss of privacy in filing this action may explain why there is so little litigation in this area of law. In addition, typically there is extensive discovery in these cases including depositions that could be very involved, costly and embarrassing.

Answer: So, the answer to the question posed above may be surprising: No, it is not likely or commonplace to see a divorce court increase the spousal support award under these circumstances even though the court would have the legal authority to do so!

In a few weeks I will be posting a follow-up article addressing this topic of “domestic tort” litigation in Ohio in more detail. Please stay tuned!

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.

Psychotherapist and Guest Contributor Donna F. Ferber sent me an email a month or so ago encouraging me to read Suzi Parker’s article about famous couples who chose, rather than going through a divorce, to simply live separate lives. Click here to read Ms. Parker’s article about a trend some people call an “un-divorce.”

We both agreed to attempt to fairly evaluate the “pros and cons” of this option: she from a psychological perspective and me from a legal perspective. Initially, Donna was much more open to the possible merits of this arrangement than I was. She made it clear that she was most interested in hopefully reaching and empowering people who are in unhappy marriages and who feel trapped by fear, ignorance, and the lack of financial and emotional resources. Donna and I continued to exchange numerous emails over the last six weeks about this “un-divorce” arrangement, discussing the relative merits of couples remaining married but living separate lives. By reading the title of this article, I suspect you can tell that I am not impressed with the overall wisdom of such a relationship.  While it is certainly possible to construct various hypothetical situations when an “un-divorce” arrangement might make both emotional and legal sense for a client, for the overwhelming majority of individuals such a choice would be legally imprudent for a multitude of reasons.  Those include:

• Postponing the divorce might well increase the legal issues and costs. A divorce would result in a disentanglement of the parties’ legal, financial and emotional obligations to one another, ultimately providing clarity and certainty.  An “un-divorce” may well muddle the legal, financial and emotional obligations of the parties and leave them in legal limbo.
• If your spouse changes his or her mind or later disagrees about the terms of your “un-divorce”, there may well be unanticipated problems in the future.
• In many states, including Ohio, written agreements after the marriage (post-nuptial agreements or “un-divorce” agreements) are not enforceable.
• Problems may arise in an “un-divorce” arrangement if one party becomes romantically involved with a new individual.
• Your credit score might suffer negatively because of your spouse’s financial actions during an “un-divorce.”
• Extending the length of the marriage may well increase your spouse’s interest in both your retirement accounts and investments should you become divorced at a later date.  In addition, this could also significantly increase the amount and term of a spousal support (alimony) obligation since the length of the marriage is a key factor in that determination.
• An “un-divorce” arrangement may create joint liability for both of you arising from legal claims or judgments against your spouse (such as from a car accident he or she may be involved in).
• One or both of the spouses could have a significant change in health. If they remained married, there would be responsibility for taking care of the person with illness, chronic condition, etc.
• College scholarships and grants for your college age children might be reduced or eliminated because of the combining of both the husband and wife incomes, even though in reality perhaps only one of the parents is the “de facto” custodian of the children.
• Since your marriage has not been terminated, your spouse would be able to claim a portion of your estate if you die unexpectedly as well as other legal rights granted to a surviving spouse by operation of law.
• In an “un-divorce” situation, there remains the potential for liability for the debts of your spouse, including his/her funeral expenses, medical expenses and other “necessities.”
• Current Medicaid rules might wipe out a significant portion of your savings. For example, if a husband and wife have a million dollars of combined liquid retirement assets and one spouse becomes institutionalized, the community spouse can only shelter about $110,000 and the rest would have to be used to pay for the care of the institutionalized spouse. If they were divorced, the community spouse could shelter $500,000.

Certainly, our economic times are challenging.  Many more individuals have lost jobs and have negative equity in their homes.  These pressures have, no doubt, created unhappiness and are the origin (or at least a contributor) of many divorces.  As a result, many people may need to obtain both a bankruptcy discharge of indebtedness and a divorce because of the debts that have been accumulated or perhaps because of a real estate foreclosure or deficiency.  If you are in this unfortunate situation, talk to both a bankruptcy attorney and a family law attorney.  Together they can coordinate the timing of those proceedings.  Additionally, the good news is that in most states, retirement accounts and pensions are exempt from bankruptcy attachment, meaning that hopefully all the bad debts can be eliminated often leaving just the retirement assets which can be preserved. Discharging financial burdens via a bankruptcy and getting a fresh start can be extremely important both financially and emotionally!

Some people remain married to maintain health care insurance.  In Ohio (and Connecticut, too), it may be possible to be granted a Decree of Legal Separation and finalize the financial terms but still maintain the health insurance coverage.  This is not true all the time. It is necessary to review the coverage terms under the policy and determine if the health insurance coverage ends when a Legal Separation occurs as it does when a marriage is ended in a divorce proceeding.

In addition, I  have appeared before many family law judges to discuss the date to be used to value assets and determine the alimony terms, and I’ve heard judges say, “Don’t tell me that the parties should be treated like the divorce occurred years ago when they separated.  If they wanted a divorce then, they would have obtained a divorce.”  I suspect if I tried to explain that there was an agreed upon “un-divorce”, I’d expect to hear the Judge laugh and tell me my argument was “un-persuasive.”

I frequently hear that a divorce is just simply too expensive. However, if you and your spouse are able to reach settlement of all issues in an “un-divorce”, you certainly should be able to resolve the issues amicably in a divorce or dissolution proceeding.  Therefore, Attorney fees for non-contested proceedings can be less than a few thousand dollars. While not inexpensive, obtaining a divorce or dissolution most likely is a wise investment considering all the possible consequences in an “un-finished” divorce.

At the conclusion of our lengthy dialog, Donna and I ended in the same place. At first blush there are some positives that might be associated with an “un-divorce” arrangement; however the potential legal risks significantly outweigh the possible benefits! Think about all the important formalities that were required before you became married.  If your “union” and marriage contract are over, then it makes legal sense to do what is necessary to formally end it and avoid future legal limbo.  As Donna cleverly put it, the un-divorce is only an “un-choice”. Just like years ago, when there was a big campaign for people to switch to the “uncola”, we say it is still time to stick with “the real thing, baby” and that is obtaining a “divorce” not an “un-divorce!”

Donna’s Concluding Thoughts:

Thanks to Atty. Mues for giving this subject so much thought and for laying out such a concise, cogent argument. I admit to bombarding him with e-mails extolling the (perceived) merits of “Un-divorce”. Perhaps, it was a viable alternative? How great it would be ( I thought) to offer a rational option for all those people who are struggling with a deteriorating marriage and the absolute terror that accompanies anyone about to engage in a lengthy legal process! However, copious e-mails and his thoughtful dissection of the situation resulted in my reconsidering and ultimately changing my position. In a divorce, often there is a space of time between the decision to divorce and the action of initiating the legal dissolution. The truth is the “un-divorce” is not a realistic alternative to divorce. It is merely the prolonging of the very uncomfortable limbo between when a couple decides they no longer want to be married but haven’t yet gotten the energy to pursue the action.

“Un-divorce” may be like being “a little bit pregnant”. You either are or you aren’t.

This article would not have come about without the inspiration and perseverance from my collaborator Donna Ferber, LPC, LADC. She is a licensed psychotherapist in Connecticut. Her first book, From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, won an Honorable Mention Award by the Independent Publishers Association and is available at bookstores everywhere or at www.Amazon.com. Please visit her website at www.donnaferber.com.

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.

In a recent analysis of census data, the Pew Research Center found that the institution of marriage has undergone significant changes in recent decades as women have outpaced men in education and earnings growth. The study examined American’s 30 to 44 years old, a stage of life when typical adults have completed their education, have gone to work and gotten married. “Men now are increasingly likely to marry wives with more education and income than they have, and the reverse is true for women,” said Paul Fucito, spokesman for the Pew Center. “In recent decades, with the rise of well-paid working wives, the economic gains of marriage have been a greater benefit for men.” Clearly, these unequal gains have been accompanied by gender role reversals in both the spousal characteristics and the economic benefits of marriage.

I personally enjoy reviewing statistics. For those that don’t, be sure at least to read my conclusion at the end of this piece, especially if you are a woman contemplating entering into a marriage.
Here are some of the significant findings in the study, clearly demonstrating the new economics of today’s marriage:

• In 1970, 28% of wives had husbands who were better educated than they were, outnumbering the 20% whose husbands had less education. By 2007, these patterns had reversed: 19% of wives had husbands with more education, versus 28% whose husbands had less education.
• Only 4% of husbands had wives who brought home more income than they did in 1970, a figure that rose to 22% in 2007.
• The national economic downturn has hurt employment of men more than that of women. The income gap has grown even more in the latest recession, when men held about three in four of the jobs that were lost. Women are moving toward a new milestone in which they constitute half of all the employed. Their share increased from 46.5% in December 2007 to 47.4% in December 2009.
• Women now are the majority of college graduates. Their earnings grew 44% from 1970 to 2007, compared with 6% growth for men. That sharper growth has enabled women to narrow, but not close, the earnings gap with men. Median earnings of full-year female workers in 2007 were 71% of earnings of comparable men, compared with 52% in 1970.
• Unmarried men’s household incomes fared worse than those of women. Unmarried women in 2007 had higher household incomes than their 1970 counterparts at each level of education. But unmarried men without any post-secondary education lost ground because their real earnings decreased, and they did not have a wife’s wages to buffer that decline. Unmarried men who did not complete high school or who had only a high school diploma had lower household incomes in 2007 than their 1970 counterparts did.
• There is an important exception to the rule that married adults have fared better than unmarried adults from 1970 to 2007. Married women without a high school diploma did not make the same gains as more educated women: Their household incomes slipped 2% from 1970 to 2007, while those of their unmarried counterparts grew 9%. The stagnant incomes of married women without high school diplomas reflect the poor job prospects of less educated men in their pool of marriage partners. These less-educated married women now are far less likely, than in the past, to have a spouse who works — 77% did in 2007, compared with 92% in 1970.
• Among college-educated adults, married men are markedly more likely to have a wife who is college educated — only 37% did in 1970, compared with 71% in 2007. College-educated married women, though, are somewhat less likely to have a college-educated husband — 70% did in 1970 and 64% did in 2007.
• Americans are more likely than in the past to cohabit, divorce, marry late in life or not marry at all. There has been a marked decline in the share of Americans who are currently married. Among U.S.-born 30- to 44-year-olds, 60% were married in 2007, compared with 84% in 1970.

To read the full study, which includes many more findings along with excellent graphs and charts, click here.

CONCLUSION:

In my practice, I am seeing these “gender reversal” situations almost every day. It is not at all uncommon for divorced women to be ordered to pay spousal support to their ex-husbands. Also, men’s previous reluctance years ago to “accept” spousal support has seemed to have changed as well. I don’t hear, “I am a man and I don’t need any woman to support me”, like I once did. Yes, perhaps it is a good time for a reprise of Bob Dylan’s “The Times They are a-Changin”!

Another trend is that more women contemplating marriage are recognizing the benefits and importance of obtaining a well-written prenuptial agreement before they “tie-the-knot”. As many men had been doing for decades, we now see these successful women trying to protect themselves and their assets in the event of a subsequent divorce.

To learn more about Prenuptial Agreements, click here. I had the pleasure of being interviewed by “Big George” on BBC London radio in July 2009, to discuss the use of Prenuptial Agreements in America. It was lots of fun! Click here if you want to check that out!

I am also in the process of writing a follow-up article indicating how the local statistics in the Dayton area support the results of this Pew Research Center study. Keep an eye out for it!

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.

Attorney Anne Shale adds 10 more factors to consider in Part 2 of “Factors The Court Considers In Determining Whether Or Not To Award Spousal Support”.

[e]:

The duration of the marriage. The longer the duration of the marriage, the longer the potential spousal support obligation is likely to be. For example, if the marriage of the parties exceeds thirty (30) years in duration, the Court is likely to attempt to “equalize” the earnings or incomes of the parties. And, if the parties have been married just one to two years in duration, the Court is likely not to award any amount of spousal support. While I have represented Husbands who say they have tried to keep the “marriage together” for the sake of the children, this goal often comes back to haunt them when their Wives are awarded a lengthy duration of spousal support. In Montgomery County, Ohio, there is a very “general” and “unwritten” rule that spousal support may be awarded for up to one-third (1/3) of the duration of the marriage. Given a marriage of eighteen (18) years, it would not be unusual for the Court to order a term certain of spousal support for six (6) years.

[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. If a couple has two to three children who are younger than school age, it may cost more money to pay for work-related day care than for Mother to remain at home to be with the children. If you are the Wife/Mother with very young children, it would be beneficial for Mother and her counsel to obtain estimates for the costs of work-related day care. It is especially expensive for infants and toddlers who are not “potty trained”. It may make little sense for a young Mother to enter the work force if her earnings are going to be less than the cost of work-related day care.

[g]:

The standard of living of the parties established during the marriage. While this factor may be important to the Court in examining a marriage wherein the parties lived on an extraordinarily high level of income, it is not a relevant factor to be considered in the majority of divorcing couples within the Domestic Relations Court of Montgomery County and the surrounding counties of Ohio. In the State of California, Britney Spears’ ex-Husband was awarded an extravagant amount of spousal support based upon the income Ms. Spears generates and based upon the standard of living Kevin Federline experienced during the brief marriage of the parties. Likewise, in England, former Beatle Paul McCartney is paying dearly for the standard of living his former Wife (Heather Mills) enjoyed during their rather brief marriage.

[h]:

The relative extent of education of the parties. With this factor, the Court is determining if either of the parties has graduated from high school, from college, from post-baccalaureate programs, from trade schools, from any apprentice or on-the-job training programs. Also of importance, has the party graduated from a program wherein jobs are available. For example, Wife may have a degree in fine arts or European history, but will that education translate into a meaningful position of employment with a modest or substantial income. If either party married before attaining a high school education, the attorney for either party may represent to the Court that Husband and/or Wife must have spousal support in order to attain a GED (high school equivalent) and a trade school or community college associate’s degree.

[i]:

The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties. The Court must be advised if either party has been ordered to pay spousal support or child support to any prior spouses or to any minor children of previous marriages as those support obligations can not be ignored by the Court. And, the Court must know if there are any pending Chapter 13 Bankruptcy proceedings wherein one or both parties may be obligated to pay a monthly bankruptcy payment until the discharge or payment of the indebtedness. Further, do either or both parties have any indebtedness to the Internal Revenue Service as those income tax obligations must be paid. Also, are there any pending foreclosure proceedings and are the parties trying to bring their mortgage current in order to retain possession and ownership of the marital residence. In short, there may be cases wherein spousal support would be appropriate and reasonable but there simply are no funds available for the obligation to be paid.

[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. This factor may be entirely appropriate for the Court to consider wherein Husband is assisted by Wife while she works to put him through medical school. The couple struggles financially on Wife’s income while Husband studies and learns and has horrendous hours as an intern and resident. Finally, Husband has the coveted Medical Degree and the marriage falters and fails. Should Wife receive spousal support for the hard years of work she endured while assisting Husband in obtaining his medical degree? He now has the potential of earning $100,000 + income while she may remain at the income level of $20,000 to $40,000 per year. Certainly, Wife and Wife’s counsel would want to argue that this factor should be considered by the Court in awarding a fair and reasonable amount of spousal support to Wife.

[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. If Wife has been a “stay at home” Mom with few or limited job skills, Wife and her counsel may want to obtain information from local colleges/technical schools/community college to ascertain the length of time it would take to obtain a meaningful degree or certificate and the cost/expenses of doing so. Or, if a Wife has a degree which has not been utilized in many years, what programs would be available to get her back into the employment field and at what cost? It may be necessary to hire a vocational expert to testify as to the programs and training necessary for Wife to become re-employed outside the home.

[l]:

The tax consequences, for each party, of an award of spousal support. It is most important that each party understand that spousal support is tax deductible to Husband but that it is taxable income to Wife. Accordingly, Wife must make plans to make periodic payments of income taxes during the year so that she is not left with a huge income tax liability at the end of the taxable year. Counsel for either party may hire an accountant to assist with the determination of the appropriate amount of spousal support taking into consideration the income tax consequences for each party.

[m]:

The lost income production capacity of either party that resulted from that party’s marital responsibilities. I can provide an example of this factor from my own life experience. During the time that I was married to my Husband, an active duty USAF pilot, we traveled from base to base and from state to state. Although I always had employment as a nurse, I was never in a hospital or clinic setting long enough to make promotions from staff nurse to head nurse for example. Arguably, at the time of my divorce, my counsel could have asserted that I should have been compensated with spousal support for the fact that I was never able to progress in my nursing career due to having to relocate every few years.

[n]:

Any other factor that the court expressly finds to be relevant and equitable. This provision is a “catch all” so that either party can present to the Court any other relevant information not previously set forth so that the Court has complete information to be able to make an informed decision on the spousal support issues. The factors may be related to the state of one party’s health or the cost of providing health insurance for a given condition or the inability to do so. This factor could be relied upon in unusual circumstances that must be brought to the attention of the Court.

In my experience with the issue of spousal support, I find Factors [a] and [e] to be the most relevant. Certainly, one of the parties must have adequate or more than adequate income in order to be able to pay spousal support, and the duration of the marriage appears to be the most relevant factor in determining the duration of the spousal support obligation. The result in each divorce case may vary greatly, depending on the Judge’s philosophy towards spousal support and the application of these factors to the facts.

When discussing whether or not a Court will award spousal support, formerly known as alimony, to one of the parties in a divorce proceeding, we must first define what spousal support is. Section 3105.18 of the Ohio Revised Code defines “spousal support” as being “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 former spouse, that is both for sustenance (maintenance or means of livelihood) and for support of the spouse or former spouse.”

Webster’s New World Dictionary does not define “spousal support” but defines “alimony” as “money a court orders paid to a person by that person’s legally separated or divorced spouse”. While the Ohio Revised Code utilizes the term “spousal support” in Chapter 31 relative to Divorce, Annulment, and Dissolution of Marriage, the Internal Revenue Code governing the payment of federal income taxes continues to use the term “alimony” in lieu of the term “spousal support”.

Further, Ohio Revised Code Section 3105.18(C)(1) reflects the following language: 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 of the Ohio Revised Code. Practically speaking, the Court must know what each party earns at the time of the divorce proceeding. Generally, there is a “financially advantaged” spouse and a “financially disadvantaged” spouse. It is the spouse with the greater income who might be ordered to pay spousal support to the spouse having the lesser income. The Court also wants to be advised if either or both parties receive any of the following benefits:

-retirement benefits from any and all sources;

-disability benefits from any and all sources;

-trust or annuity income from any and all sources;

-workers’ compensation benefits;

-unemployment benefits;

-any other source of benefits from lottery winnings to benefits from a personal injury

or medical malpractice settlement.

[b]:

The relative earning ability of the parties. With this factor, the Court examines the educations and workplace training/job skills of the parties and looks for the earning history of the parties. For example, if Husband is a neurosurgeon or orthopedic surgeon, he can be expected to have above-average earnings; and if Wife has been a “stay at home” Mom with a nursing education, it can be expected that Wife will need time and money to regain the skills necessary to re-enter the job force.

[c]:

The ages and the physical, mental, and emotional conditions of the parties. With this group of factors, the Court is trying to determine if this person is too old to even enter the work force or does the party have physical, mental, or emotional conditions that would preclude the possibility of finding meaningful employment. Persons with chronic health problems may find it difficult to find employment as employers are looking for healthy employees, and although employers are NOT to discriminate on the basis of disability, it may still be difficult for a party with an obvious disability to find a position of employment.

[d]:

The retirement benefits of the parties. The Court will want to know if either party has worked for an employer having pension or retirement benefits available upon retirement. If the party does have retirement benefits available, what amount of income can the worker expect to receive upon retirement. If either party has served in the military, the Court will want to know if either party has served the requisite number of years to have earned military retirement benefits. Some parties faced with divorce will only have Social Security benefits available to them upon reaching retirement age. It is important to note that if the parties have been married for at least ten or more years, the Wife, usually the party with lower history of total earnings, has the ability to receive Social Security based upon the earnings history of her Husband, usually the party with the higher history of total earnings.

Wife would have to take responsibility for going to a local Social Security Office with her certified copy of her Final Judgment and Decree of Divorce to determine if she would receive greater Social Security benefits based upon her own earnings record or if she would receive greater benefits by receiving one-half of her Husband’s Social Security benefits. If Wife elects to receive Social Security benefits based upon her former Husband’s earnings history, Husband still receives his full Social Security entitlement.

To be continued.