Alimony FAQs

1.   What is “spousal support?

” Ohio no longer uses the term “alimony.” Instead, Ohio uses the term “spousal support” when referring to an allowance of money or property that is not intended as a division of marital property. Ohio’s current law defines spousal support as “the payment or payments to be made to a spouse or former spouse…that is both for sustenance and for support of the spouse or former spouse.”

colorbar1.gif (2432 bytes)

2.   When may spousal support be ordered?

The court may order spousal support in a divorce action (including temporary spousal support during the time the divorce action is pending), or in an action for support only (i.e. a spouse may request only that the court order spousal support while not requesting that the court terminate the marriage, sometimes referred to as a “legal separation”).

Ohio law requires that a married person support his or her spouse. Spousal support is an allowance for nourishment or sustenance which the court may compel one spouse to pay to the other when they are living apart or have been divorced. While spousal support, whether temporary support during the pendency of the divorce action (“spousal support pendente lite,” also commonly referred to as “temporary alimony”) or permanent (regardless of the actual length of time) is ordinarily granted to the wife, Ohio law provides that in appropriate cases, spousal support may be granted to the husband.

An award of spousal support pendente lite is discretionary with the court. The court may include in a temporary spousal support award expenses for such items as housing (i.e. rent or mortgage payment), food, medical expenses, transportation and attorney fees. A temporary spousal support award automatically terminates after a divorce, annulment or legal separation decree has been entered.

colorbar1.gif (2432 bytes)

3.   How is the amount of temporary spousal support determined?

With regard to a temporary spousal support award, there is no precise formula for determining the amount that will be awarded. The court must use its judicial discretion and take into consideration the ability to pay of the party who is to be paying the temporary spousal support and the present needs of the party to whom the temporary spousal support is to be paid. The court is required to take into consideration the standard of living of the parties immediately prior to the time of separation of the parties or the beginning of the marital discord.

colorbar1.gif (2432 bytes)

4.   How is the issue of whether permanent spousal support is to be ordered determined and if it is to be awarded how is the amount determined?

When determining whether to grant permanent spousal support and if it is granted, the nature, amount and duration of the payments, the trial court is required to consider fourteen factors. These factors are:

    1.    The income of the parties, from all sources, including, but not limited to, income derived from property awarded as part of the property division in the divorce proceeding;

    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 he/she will be custodian of a minor child or children 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; and

   14.    Any other fact that the court expressly finds to be relevant and equitable.

If the court determines that permanent spousal support is warranted, when determining the amount of the award, the court must consider the ability to pay of the party who is to be paying the spousal support and the needs of the party to whom the spousal support is to be paid.

colorbar1.gif (2432 bytes)

5.   How long does spousal support last?

Spousal support can be for a specified length of time (i.e. 24 months, 48 months, etc.), may be ordered, in the appropriate case, to continue indefinitely, or may be ordered to terminate upon the occurrence of a specified event (i.e. remarriage of the payee-spouse or death of either party). The preference is for the termination of support “at a date certain,” but the court has discretion in making the determination. The court may order spousal support for a specified length of time and maintain jurisdiction of the support issue so that it can be reviewed again to see if it should continue as is, be modified or terminated.

colorbar1.gif (2432 bytes)

6.   Can permanent spousal support be modified or terminated?

If the decree that orders permanent spousal support makes a specific provision that permits the court to modify the spousal support award, the court retains jurisdiction to hear any motion requesting a modification of the existing award. The court can expressly reserve jurisdiction in its order in a contested divorce matter or the parties can agree, in a separation agreement that is subsequently incorporated into a divorce decree, to make spousal support modifiable. If there is no provision contained in the divorce decree (or a separation agreement incorporated into a divorce decree) that reserves the jurisdiction of the court to modify the spousal support award, the award in not modifiable.

Because of a change in the law, divorce decrees filed before May 2, l986, and not arising out of a separation agreement incorporated into a decree, do not have to have a specific reservation of jurisdiction in order for the court to consider a modification or termination of spousal support.

Divorce decrees which incorporate separation agreements and which were entered on or before June 23, l976 are not modifiable unless there has been a mistake, misrepresentation, fraud, or an express reservation of jurisdiction to modify. Divorce decrees which incorporate separation agreements and which were entered after June 23, l976 but before May 2, l986 are modifiable and such modification is not limited only to situations of mistake, misrepresentation, fraud, and the separation agreement or decree does not have to have an express reservation of jurisdiction to modify.

If the court has retained jurisdiction to modify spousal support (or under the other situations described above where the court may modify), it may only do so where the court determines that there has been a material or substantial change in the circumstances of either party that could not reasonably have been anticipated at the time of the original decree. A change in circumstance includes:

         Altered economic conditions (i.e. an involuntary decrease in income);

         Remarriage of the recipient;

         Death;

         Entering into a relationship in another state that would constitute a valid marriage in Ohio;

         Post-decree cohabitation in certain situations;

         Payor’s increased ability to pay;

         Retirement; and

         Other circumstances.

Divorce FAQs

How may a marriage be terminated or ended in Ohio?

In Ohio, the only way a marriage can be terminated is through court actions of divorce, dissolution, annulment, the death of one of the parties or a presumption of death (a common law presumption of death requires an unexplained continuous absence from the home for a full seven years).

What is Divorce, Dissolution, and Annulment?

Divorce is the legal separation and termination of the marital relationship by the judgment of a court which may be granted only upon a finding by the court that certain “grounds” for divorce exist. A divorce puts an end to the marital relationship.

Dissolution of marriage is a form of no fault termination of the marriage relationship where both parties have agreed upon all of the terms of the termination (such as division of marital property, spousal support, parental rights and responsibilities, child support, etc.) and are requesting that the court terminate the marriage and approve the agreement between the parties. The basic advantages of a dissolution are that it is not adversarial in nature (i.e. the parties have already agreed upon every aspect of termination); there is no plaintiff or defendant; it is not a “divorce” (although it does terminate the marriage like a divorce); and the court does not have to make any of the decisions it would have to make in a contested divorce. Additionally, it is usually concluded faster than a divorce action.

Annulment is a decree from a court determining that the marriage is legally invalid because of some defect that existed at the time the marriage was entered into. An annulment decree declares that a marital status never existed, unlike a divorce decree that terminates a marriage. The grounds for an annulment include: an underage marriage; bigamy (i.e. one of the parties has another living spouse); mental incompetence of one of the parties; fraud; duress and non-consummation of the marriage (which may include impotency).

How do I obtain a divorce in Ohio?

In Ohio, in order to grant a divorce, the trial court must find that the plaintiff (the person filing the divorce complaint) has been a resident of the State of Ohio for at least 6 months immediately prior to the filing of the complaint and a resident of the county in which the divorce has been filed for at least 90 days or that the plaintiff for at least 6 months immediately prior to the filing of the complaint and that the defendant spouse has been a resident of the county in which the divorce has been filed for at least 90 days; and that “grounds” (legal reasons) for divorce exist for the granting of the divorce.

What are legal reasons for divorce in Ohio?

Ohio law permits the granting of a divorce only upon a finding by the court that there are statutory grounds to terminate the marriage. There must be testimony by the plaintiff and a corroborating witness (or an admission by the other spouse) as to these specific grounds.  Ohio has both “no-fault” and “fault” grounds for divorce. The “no-fault” grounds include “incompatibility” and “living separate and apart without cohabitation for one year.”

There are nine “fault” grounds in Ohio. These “fault” grounds include:

  • another spouse living at the time of marriage (bigamy);
  • willful absence of a party from the marital home for one year;
  • adultery;
  • extreme cruelty (defined as “acts conduct calculated to destroy the peace of mind and happiness of one of the parties to the marriage”);
  • fraudulent contract (i.e. a party was induced to enter the marriage as a result of a fraudulent representation that materially affects the essential elements of the marriage;
  • gross neglect of duty (i.e. acts that constitute an omission to perform a legal duty, such as a failure to support the family);
  • habitual drunkenness;
  • imprisonment of the adverse party in a state or federal institution at the time of the filing of the complaint; and
  • an out-of-state divorce.
     

How is a divorce case started in Ohio?

A divorce case is commenced by the filing of a “complaint.” The spouse who files the complaint is called the “plaintiff.” The other spouse is called the “defendant.” The complaint must allege that the plaintiff has resided in the State of Ohio for the statutorily required period of time (6 months) immediately prior to the filing of the complaint; must indicate the date and place of marriage along with the name and birth dates of any minor children; there must be an allegation of at least one of the statutory grounds for divorce, and; it must contain a demand for the relief being requested from the court.

“Service” of the complaint must be made on the defendant in order to bring him or her within the jurisdiction of the court. There are several methods of service available, even if the defendant spouse lives in a state other than Ohio.

The defendant spouse should then file an “answer” to the complaint, admitting or denying the allegations in the complaint. If the defendant denies the allegations he/she may also raise any defenses he/she has. Additionally, the defendant spouse may also file a “counterclaim” asserting any claim he/she has against the plaintiff spouse for divorce or for a “legal separation.”

If the defendant spouse files a counterclaim, the plaintiff must file a “reply,” either admitting or denying the allegations contained in the counterclaim and raising any defenses that the plaintiff may have.

Explain service of the complaint

Where the current residence of the defendant is unknown, “constructive” service may be had on him/her by publication. Service by publication permits the court to commence the case and rule on the status of the marriage and the marital property located within the state. Unless the defendant has been personally served or has voluntarily entered an appearance in the case, however, the court cannot rule on property outside the state and cannot make a ruling on spousal support.

What if the defendant does not file an answer?

The court rules in Ohio preclude the granting of a default judgment in a divorce case. Instead, where the defendant has been personally served but has failed to file an answer or otherwise appear, the plaintiff must merely present sufficient evidence to establish a prima facie case to allow the court to grant the divorce and rule on the division of property, parental rights and responsibilities regarding the children and any support orders.

After filing the complaint and answer/counterclaim

During the pendency of the divorce case, either party can request temporary orders for child support, spousal support (alimony), parental rights and responsibilities (commonly referred to as temporary custody or visitation rights), and any other temporary order that may be called for in a particular case such as a temporary restraining order restraining one or both spouses from removing the children from the jurisdiction of the court or restraining one or both spouses from harassing, threatening or physically abusing the other.

Additionally, during this time the parties can request that the court order psychological or psychiatric evaluations of the parties and/or the children to aid the court in making determinations with regard to the parental rights and responsibilities concerning the children. Home studies can be requested to help the court in determining the living conditions of the parties and how those conditions may affect the children. Discovery procedures, such as interrogatories and depositions, can be engaged in that would aid the parties in determining what assets are involved in the case, what plans the parties have for the children and any other matters that are relevant to the divorce action. Experts may be retained to appraise property and businesses.

The court will probably hold one or more pre-trials during this time in an attempt to determine whether a mutually agreeable resolution of the case can be had and, if not, what the issues are that will have to be determined at trial. If the case cannot be resolved, the court will set dates for the conclusion of the discovery procedures, for the production of expert reports and evaluations and for the date of the final hearing (trial).

Can the children’s interests be protected?

A “guardian ad litem” (GAL) can be appointed by the court at the request of either party or upon the court’s own motion to represent the interests of the minor children of the parties. The GAL is usually an attorney familiar with domestic relations law and his/her job is to act in the best interests of the children. The parties will generally be required to pay the fees of the GAL based upon their ability to pay. The GAL will be asked to make recommendations to the court and will have considerable influence when it comes time for the court to make determinations relating to the children.

Is there a right to a jury trial in a divorce case?

No. Ohio does not permit jury trials in divorce cases. If the case goes to trial, the judge will make the final determinations.

The major legal issues in a divorce case

Generally, the major issues in divorce cases are, the issue of the grounds for the divorce itself, parental rights and responsibilities (commonly known as custody, child support, visitation), spousal support (commonly called alimony), and the division of the marital property and debts of the parties.

How does the judge make a final decision?

Both parties will provide the judge with information and documentation regarding all of the issues relevant to the case. The court will have any of the various expert reports that may have been ordered during the time that the case has been pending. The court will hold hearings and a trial where the parties present witnesses, including expert witnesses, testimony and any other evidence that is properly admitted at the time of trial. The judge will consider the recommendations of the guardian ad litem, if one has been appointed. The judge may interview the children if requested or if he/she feels it would be beneficial to do so. The judge is then required to make a decision based on the evidence presented and the law. While the judge has some discretion, he/she must comply with the law.

Appeal the final decision of the judge

A party who is not satisfied with the final decision of the trial judge has a right to appeal the decision to the Court of Appeals. Appeals are relatively expensive ($10,000.00 – $15,000.00 is not unusual) and there is no guaranty that an appeal will be successful. Generally, the only matters that can be appealed are claims that the judge has abused his/her discretion or that the judge has misapplied the law in making the final determination. An appeal is not a new trial. It is a wholly different type of procedure and is strictly a legal proceeding. No witnesses or evidence are presented. An appeal is based solely on the proceedings had in the trial court and whether or not substantial justice was done.