Ohio Father Law Perspectives

Ohio Laws Affecting Married, Divorced & Unmarried Fathers

Archive for the tag “child support payments”


shutterstock fear_175790252 [Converted]BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

Fear can devour divorce clients. Sometimes fear is so sharp that a person delays the inevitable. Unfortunately, fear during a divorce is normal and unavoidable.  In a few circumstances, what clients perceive as huge barriers in their cases actually turn out far smaller than they imagined going in.

Long-Term Marriages

Many clients first meet with me concerned that their case will be complicated just because it has lasted upwards of thirty years.  In reality, long-term marriages, where the partners start out together with clothing, wedding gifts, and starter cars, are easier to end than shorter marriages where the parties are more likely to be on their second (or third) divorce and they started off with property and debts. Usually a longer marriage means that the parties’ children are emancipated by reason of age, so there are no issues of custody or child support.  A longer marriage also means that, unless there are inheritances, personal injury settlements, or gifts, then the property and debts are probably going to be considered “marital.”  Under Ohio law, an equal division of marital property and debts is presumed to be fair.  If all the property and debts are marital, it is merely a matter of itemizing and valuing the property for an equal division. Long-term marriages tend to bring a host of emotional issues.  When a person has been married longer than they were ever single, the transition to a divorce can be very traumatic.  Most people in this situation, however, have an innate toughness and recover quickly.  Again, when the common children are emancipated, it is easier to live separate lives without the constant challenge of co-parenting while divorced. So, terminating a long-term marriage usually causes more emotional issues than legal issues.

My Spouse is in Prisonshutterstock fear_175790252 [Converted]

Not surprisingly, imprisonment often leads to divorce.  Ohio law specifically provides that “imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint” is grounds for divorce.   The fact of imprisonment is usually easy to corroborate and service of process can be done to the party in care of the warden of the institution.

The complexities of “prison divorce” revolve around child issues.  The mere fact of imprisonment does not mean a party will never again see their children.  The fact of imprisonment greatly diminishes a party’s ability to pay child support.  In fact, Ohio law now provides that income will not be imputed to a parent who is:

“incarcerated or institutionalized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order when the obligee or a child who is the subject of the support order is a victim of the offense.”

In the usual circumstance, the child support obligation will be set at close to nothing during the time of imprisonment.  And, the other parent is usually not surprised and is happy simply to attend a short hearing without the presence of their imprisoned spouse.

Boilerplate Language

Most divorce documents contain language such as “gross neglect of duty,” “extreme cruelty,” and my spouse will “molest and annoy” me unless restrained by order of this court.  We field many calls of panic over this language when people are served with divorce.

In reality, the language is boilerplate and taken directly from the statute for grounds and the requirements for a temporary restraining order.  I routinely reassure clients that the language is on every lawyer’s computer in town and that we will file the “mirror image” of what their spouse filed.

Incompatibility is the basis for almost all Ohio divorces.  The only purpose of a restraining order is to keep the parties in the same position as they were in before the filing.  In this instance, “molest” in this contest is an outdated legal term that has nothing to do with sexual abuse.

shutterstock fear_175790252 [Converted]Conclusion

Divorce is rough, but usually for reasons other than what clients expect in the beginning.  At least in the circumstances outlined above, I usually can relieve the immediate terror of what is taking place.

Copyright 2014.  All rights reserved.  Anne Catherine Harvey LLC

Gifts Don’t Count as Child Support in Ohio

      This week, the Ohio Supreme Court considered whether a Father who had failed to make monthly court ordered child support payments for the past year could avoid the legal provision removing the requirement that he consent to an adoption of the child by characterizing his $125 Christmas gift card and $60 birthday gift as maintenance and support.                                                

       Section 3107.07(A) of the O.R.C. states that consent to an adoption is not required of “[a] parent of a minor…[who] has failed without justifiable cause…to provide at least one year immediately preceding either the filing for the maintenance and support of the minor as required b law or judicial decree for a period of at the adoption petition or the placement of the minor in the home of the petitioner.” In plain English, this means that failure to pay support and maintenance for the year preceding an adoption attempt removes the need for the non-paying parent (usually the Father) to consent to the adoption (often a step-parent adoption).

         Justice O’Donnell, writing for a unanimous Court, found that a voluntary gift is not in the nature of support and maintenance and did not amount to a hills of beans when compared to the annual child support obligation.  ($12,000).  Further, the gifts were not pursuant to court order.  Because the Father could not show by clear and convincing evidence that his nonsupport for the past year was supported by some justifiable cause, the adoption proceeded without his consent.

         The moral here is pretty simple:  Pay your child support!  If this particular Father had made a $185.00 payment through the child support enforcement agency, and could present evidence of job loss, disability or other legitimate misfortune, the outcome would have likely been different.  In any event, this particular case clarifies what Ohio requires from Fathers and resolves a split of authority among Ohio’s appellate districts.  


       The case can be viewed at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-236.pdf.  The case name is In Re Adoption of M.B., Slip Opinion No. 2012-Ohio-236.

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