Divorce and Family Law

The prospect of a divorce or dissolution of marriage presents a client with very significant, and sometimes, overwhelming, legal and emotional problems.  Our firm is committed to handling family law issues with skill and sensitivity.  We are well prepared to guide you through the processes of divorce or dissolution and to provide solid legal advice regarding legal separation, equitable property division, child custody, child support, shared parenting, parenting time, parental alienation, high-conflict divorce, spousal support, unmarried couples, adoption, post-decree actions, relocation, and pre-nuptial agreements.  Our goal is to work diligently in helping you to move through this difficult life event as quickly as possible, so that you may once again enjoy peace of mind and the ability to concentrate on being the best parent you can to your children.

 

Divorce Legal Services

 

Unmarried Parenting

In Ohio, an unmarried mother is by law the sole residential parent and legal custodian of her child until a court designates another person as a residential parent and legal custodian. Ohio Revised Code §3109.042.  Therefore, an unmarried mother does not need to file anything to legally establish her sole custody of her child.  The father of the child has no legally enforceable right regarding the child until a court designates or recognizes the unmarried father as the child’s father. Since the unmarried father has no legal rights to the child, the unmarried mother will not be able to seek any type of child support until a court order recognizes him as a residential parent and legal custodian.

 

Paternity can be established in two ways: acknowledged by affidavit or through genetic testing. The unmarried father can sign an “Acknowledgement of Paternity Affidavit” at the hospital at the time of the child’s birth, which is how unmarried fathers have their names on the child’s birth certificate.  The “Acknowledgment of Paternity Affidavit” can also be completed at the local health department or county child support enforcement agency (CSEA). By signing the affidavit, both parents agree they are the biological parents of the child and choose to be named as the child’s legal parents. Paternity can also be established through genetic testing with the appropriate child support enforcement agency, or, in some cases, a court may order paternity testing to establish the child’s paternity.

Once the unmarried father is recognized by the court as the child’s father, the court will treat the mother and father as standing upon an equal ground when making decisions regarding parenting, based upon what is in the best interest of the child.  Ohio Revised Code §3109.04.  Many times, one or both parents will pursue shared parenting, which used to be known as joint custody.  This requires that a shared parenting agreement be submitted to the Court.   If the parents cannot agree regarding parenting decisions, a father may pursue parenting rights in the juvenile court, where a court will decide the matter in a trial, based upon what is in the best interest of the child.

Shared Parenting vs. Sole Custody

With shared parenting, both parents share the title of “residential parent and legal custodian” of the child and must jointly make all decisions concerning the child. This is often referred to as co-parenting.  A shared parenting agreement maps out all facets of co-parenting, including each parent’s parenting time schedule, the sharing of medical, school, extracurricular and even college expenses, child support, school district selection, and health insurance for the child.  Shared parenting arrangements typically involve 50/50 time with each parent, but shared parenting can also accommodate other schedules where one parent has more parenting time than the other.

 

Sole custody is where only one parent or guardian has custody over the child and is the only legal decision maker concerning the care of the child.  The other parent is then routinely granted parenting time, formerly known as visitation.  Most counties have recommended schedules for parenting time, or the court or the parties can create a parenting time schedule that is deemed to be in the child’s best interest.  The parenting time rights of non-residential or non-custodial parents varies, but often they have overnight parenting every other weekend starting at 6:00 PM on Friday and ending on 6:00 PM on Sunday night. The decision on parenting time is made by the court unless the parents can agree on a parenting time schedule that is different from the recommended county schedule. 

Child Support

The court will consider several factors when determining how much child support is paid, using a mandated mathematical worksheet in its calculation. The annual gross income of each parent is a key factor in the calculation.  Usually the non-custodial parent will pay child support, but in a shared parenting arrangement, it could be either parent. 

Many clients often wonder whether certain types of income are to be included for child support. For instance, are Social Security disability benefits included? We get these questions very frequently. 

 

Ohio child support calculations are governed by the Ohio Revised Code at Section 

3119.01. Under that law, gross income includes all of the following sources:

  • salaries, wages, overtime pay, and most bonuses

  • commissions

  • royalties

  • tips

  • rents

  • dividends 

  • severance pay

  • pensions

  • interest

  • certain trust income

  • annuities

  • certain social security benefits, including retirement, disability, and survivor 

  • benefits that are not means-tested

  • workers' compensation benefits

  • unemployment insurance benefits

  • disability insurance benefits

  • benefits that are not means-tested and that are received by and in the 

  • possession of the veteran who is the beneficiary for any service-connected 

  • disability under a program or law administered by the United States 

  • Department of Veterans' Affairs or Veterans' Administration

  • spousal support actually received

  • income of members of any branch of the United States armed services or 

  • National Guard, including, amounts representing base pay, basic allowance 

  • for quarters, basic allowance for subsistence, supplemental subsistence 

  • allowance, cost of living adjustment, specialty pay, variable housing allowance, and pay for training or other types of required drills; self-generated income; and potential cash flow from any source;

  • all other sources of income

 

As you can see, this is an extensive list. Ohio law also provides that some types of income are not included in the calculation.  The attorneys at Gertz Law Firm are skilled and prepared to assist you with evaluating child support issues.

Dividing Assets and Debts in Divorce

Ohio follows the equitable distribution model of dividing marital assets. This means that all marital property will be divided as equally as possible. It’s important to understand that marital property is any property that was acquired by either spouse after the date of the marriage, regardless of whether the asset is titled in both parties’ names, or in the name of one spouse or the other.  However, it’s essential to understand that if one party is found to have committed financial misconduct in the divorce, the court may decide not to divide the assets equally.  One example of financial misconduct is hiding assets from the other spouse.

Some property is classified as separate property.  This means that separate property belongs to one spouse or the other and is not subject to division in a divorce.  Separate property can include inheritances, gifts made to one spouse or the other, property owned prior to the marriage, or personal injury proceeds paid to one spouse.  Moreover, if the parties executed a prenuptial agreement prior to the marriage, then any property listed in that agreement is also not subject to division in a divorce case. 

Though assets must be equitably divided, Ohio does not require that debts always be divided equally between the parties.  Debts acquired by both parties or by one party or the other after the marriage date are considered to be marital debts subject to division.  A court can address how to divide marital debt on a case by case basis.  Sometimes, the facts of a particular case demand that one spouse assume more of the marital debt than the other.

Spousal Support

“Spousal support” has replaced “alimony” in the state of Ohio. Spousal support refers to the monthly payments made from one spouse to another during or after a divorce. The purpose of spousal support is to allow a spouse who is financially unable to support him/herself after a separation or divorce to receive money from the other spouse, who is in better shape financially. Since spousal support is based on income and resources, not gender, either spouse can be ordered by the court to pay spousal support, if the right set of circumstances exist.

 

While there is no specific formula for determining how much money a spouse may be ordered to pay as “spousal support,” Ohio provides some examples of things a judge can consider in order to come up with a specific amount. These factors include, but are not limited to, income, earning ability, age, education, contribution to education, mental/physical capacity, retirement benefits, duration of the marriage, standard of living during the marriage, assets and liabilities, tax consequences, and any other fact that the court thinks will make a difference. Based on recent trends, a court is unlikely to order spousal support to be paid where the spouses earn similar amounts of money or have only been married a short amount of time. However, if the marriage has lasted many years, one spouse earns all or most of the money, one of the spouses is mentally/physically disabled, and/or one of the spouses worked to help put the other spouse through school, the court is much more likely to order spousal support to be paid.

 

It is important to remember that spousal support affects the taxes of both the spouse who is paying the spousal support as well as the spouse who is receiving the payments during or after a divorce. Generally speaking, the spouse who is paying the support can deduct the payments from his or her income for tax purposes. On the other hand, the spouse who is receiving the support must add the amount he or she receives in spousal support to his or her income for tax purposes.

Temporary Orders (Spousal Support, Child Support, Expenses, Custody)

Temporary orders can be issued by a court at the start of a divorce lawsuit in order to help provide assistance to a spouse during the divorce process.  These temporary orders can involve paying a spouse who has no income, paying for children’s or household expenses, the custody of the children, and child support.

 

Ohio Rules of Civil Procedure 75(N) allows for the court to grant spousal support to either party for good cause, during the process of the divorce suit.  An affidavit giving satisfactory proof of need is required, but the court can order the opposing party to pay for the living expenses of their spouse and any minor children.  In addition, when the custody of the children is in dispute, the court can allocate parental rights and responsibilities to one party or another during the course of the litigation.

Post-Divorce Matters

Post-divorce decree matters include any proceeding after the final decree of dissolution of marriage or after the filing of the final judgment and decree of divorce. These matters include spousal support modifications, parenting/custody modifications, and child support reviews. There are several reasons to request a modification for spousal support or parenting/custody. In Ohio, courts look for a substantial change in the circumstances of one or both parents in determining whether to approve a modification to the court’s prior decision. These circumstances may be a change in income, relocation, illness, or the welfare of the child. 

Spousal Support Modifications

Spousal support is any payment to be made to a former spouse for sustenance and for support of the former spouse. Ohio Revised Code §3105.18. In determining whether spousal support is reasonable the court will consider: the income of the parties; the relative earning abilities of the parties; the ages and physical, mental, and emotional conditions of the parties; the retirement benefits of the parties; the duration of the marriage; and other factors that are relevant and equitable. A modification to spousal support will be approved by the court if there is a substantial change in circumstance. A change in the circumstances of a party includes any increase or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses, or other changes in circumstances that is substantial and makes the existing award no longer reasonable and appropriate.

If the circumstances change, the court may choose to alter the amount or duration of the original spousal support award. After the court makes a decree, a change in spousal support is only made at the request of one of the parties. In determining whether to modify an existing order for spousal support, the court will consider any purpose expressed in the initial decree and will enforce any voluntary agreement of the parties. Modifications for spousal support are often heard by the same court that made the initial decree.

Parenting/Custody Modifications

When determining whether to allow a modification in a decree for parenting/custody of a child, the court must determine whether the modification is in the child’s best interest. Ohio Revised Code § 3109.04. In determining the best interest of the child, the court will consider all relevant factors. These factors include the wishes of the child’s parents regarding the child’s care; the child’s interaction with their parents; the child’s adjustment to the home, school, and community; the mental and physical health of all persons involved in the situation; and any other factor that may be relevant. The court will not modify a prior decree allocating parental rights and custody, unless it finds that a change has occurred in the circumstances of the child or the child’s parent, and that the modification is necessary to serve the best interest of the child. The court will retain the residential parent from the prior decree, unless a modification is in the best interest of the child and one of the following applies:

  1. The residential parent agrees to the change, or both parents under a shared parenting decree agree to a change in the designation of residential parent;

  2. The child, with the consent of the residential parent, has been integrated into the family of the person seeking to become the residential parent; or

  3. The potential harm from a change of environment is outweighed by the advantages of the change in environment to the child.

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501 West Loveland Ave, Loveland OH 45140

401 Pike St. Reading OH, 45215

513-554-1868