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.

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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!

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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.

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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.

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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.

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