In
this article, Attorney Daniel Gigiano reviews Ohio spousal support laws. There are numerous factors courts use to
determine spousal support, some having more authority than others.
How Does A Court
Decide Spousal Support?
Ohio law considers a
number of factors in deciding spousal support.
These factors include more than just the income of the parties, but
considers the ages of the parties, tax consequences of support ,and the time
necessary for a party to acquire the appropriate training for employment. The complete list of factors is as follows:
1.
The
income of the parties, from all sources, including but not limited to, income
from property divided, disbursed, or distributed under Ohio Revised Code
3015.171;
2.
The
relative earning abilities of the parties;
3.
The
ages and the physical, mental, and emotional conditions of the parties;
4.
The
retirement benefits of the parties;
5.
The
duration of the marriage;
6.
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;
7.
The
standard of living of the parties established during the marriage;
8.
The
relative extent of education of the parties;
9.
The
relative assets and liabilities of the parties, including but not limited to
any court-ordered payments by the parties;
10.
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;
11.
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;
12.
The
tax consequences for each party, of an award of spousal support;
13.
The
lost income production capacity of either party that resulted from that party’s
marital responsibilities;
14.
Any
other factor that the court expressly finds to be relevant and equitable.
Ohio
law assumes that marriage is an equal partnership: “In determining whether
spousal support is reasonable and in determining the amount and terms of
payment of spousal support, each party shall be considered to have contributed
equally to the production of marital income.”
This means that, while one spouse may have earned the income outside the
home, the other spouse will be presumed to be an equal partner in that effort
by caring for the children, cleaning the home, and preparing meals. Certainly, the income-earning spouse was able
to concentrate more on earning money with such responsibilities taken on by the
other spouse.
Courts Impute
Income For Spousal Support
Courts
impute income for spousal support, which means the court will determine that
you should make a certain amount of income even if you do not. The court does this by considering employment
history, education, physical and mental disabilities, availability of
employment in the area, typical wages in the area, skills and training, whether
the person has the ability to earn the imputed income, the age and special
needs of the child, and experience in the field. If a party voluntarily reduces income or loses
a job, that party’s higher income level will still likely be used. If the income loss or reduction was
involuntary and the person cannot easily obtain another job at the same income
level, then the court may accept the person’s current income level for child
support purposes.
The
concept of imputed income is designed to discourage parties from quitting their
jobs for the sole purpose of reducing their spousal support payments. It also discourages parties from sabotaging
their jobs, or, in other words, engaging in activity that would get them
fired. If the court determines that a
party has engaged in these types of actions, the court may, under Ohio law,
impute the party’s wages from that former job.
Is The IRS
Definition Of Alimony The Same As Ohio Spousal Support?
Is
the IRS definition of alimony the same as Ohio spousal support? Depending on the state, a divorce
decree
labels payments as spousal support, maintenance, or alimony.
Does that mean that the payments are
considered to be alimony by the IRS?
Not
necessarily.
Why does this matter?
It matters because qualifying spousal alimony
payments are deductible by the payer and included in the recipient’s income.
In
Ohio, alimony is called spousal support.
For purposes of this article, we will use the Ohio term. In order for a payment to qualify as spousal
support by the IRS, all of the following requirements must be met:
1.
The
payment must in cash, and not property;
2.
The
written instrument does not designate the payment as not spousal
support;
3.
If
the parties are separated under a decree of divorce or separate maintenance,
they are not members of the same household when the payment is made;
4.
There
is no liability to make payment after the death of the recipient spouse; and
5.
The
payment is not treated as child support.
Cash
payments to a third party can be considered spousal support if they otherwise
qualify. Such qualified cash payments
can include: rent, mortgage payments, medical and dental costs, utility bills,
education and income taxes. The payments
are treated as though they were received by the spouse and then to the third
party.
The
types of payments excluded as spousal support by the IRS include: noncash
property settlements, child support, payments for use of the property, and
payments to maintain the payer’s property.
Another method of excluding payments from spousal support treatment is
for the separation agreement to simply characterize the spousal support
payments as nondeductible by the payer spouse and nontaxable by the
recipient.
When Does Spousal
Support End?
When
does spousal support end? Even when
spousal support is determined as lifetime spousal support, it is not
necessarily forever.
There
are four ways in which an order for spousal support may terminate:
1.
Spousal
support may terminate on a specified date;
2.
Spousal
support may terminate upon the occurrence of a specified event;
3.
The
domestic relations court may terminate spousal support pursuant to its
continuance jurisdiction if a change of circumstances has occurred that supports
termination of spousal support;
4.
Spousal
support may terminate as a matter of law upon remarriage of the recipient
spouse or the death of either party.
Spousal
support does not necessarily end when the recipient spouse cohabitates with a
member of the opposite sex. However,
termination of spousal support upon cohabitation can occur if this condition is
written in the separation agreement and divorce decree.
Spousal
support does not necessarily end when the recipient finds a better job. If the court does not reserve jurisdiction to
modify spousal support, then it does not matter if the recipient gets a better
job or if the payer loses a job. The
parties locked in the child support figure.
If the parties want to allow the court to consider such changes in the
future, then the court must reserve jurisdiction to do so. Otherwise, spousal support will not increase
or decrease, but will only be subject to termination.
About The Author –
Daniel Gigiano, Esq.
Attorney
Daniel Gigiano is located in downtown Wadsworth, Medina County, Ohio. Daniel Gigiano, Esq. regularly represents
individuals in spousal support matters in the courts in Medina County, Wayne
County and Summit County. Daniel Gigiano,
attorney at law, has fought hard to ensure that the spousal support
calculations were fair for his clients.
