Gay and lesbian couples are often concerned that their “non-traditional family” will be a disadvantage in custody decisions. While technically this issue is never to be determinative of custody disputes, lest the Court violate the Equal Protection Clause, many gay and lesbian couples feel that their sexual orientation played a role in the ultimate disposition of the Court.   Putting aside potential biases of certain judges, there is at least one case that seems to lend credence to those concerns.  In 2008, the Second Appellant District in Clark County decided a case by the name of Page v. Page in which the Court specifically stated that a homosexual relationship of a mother caused adverse affects to the minor children and warranted a change of custody from that mother to the father.  The facts of that case can be summarized as follows:

Four years after the mother was designated the residential parent of both children, the father filed a motion to modify the allocation of parental rights and responsibilities.  The common pleas trial Court granted the father’s motion and awarded him custody.  The appellate court held that the common pleas court did not err in finding that a change of circumstances occurred as there was evidence that, as a collateral result of the mother’s relationship with her same-sex partner, both children had experienced personality disorders, and therefore, modification of custody was in the children’s best interest. The court determined that the adverse collateral effects of the mother’s relationship with her partner and the partner’s role in the children’s lives showed little room for improvement in the future.

While the Court was careful to say that it was not basing its decision on the simple fact that the mother was a lesbian, but rather the collateral affects that her relationship had on the children, it should give pause to the gay and lesbian couples fighting for custody.  This is something to keep an eye on in the future as more and more gay and lesbian couples fight for custody of one of the partner’s minor children.

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In the first installment of what is planned to be a series on dividing retirement / pension benefits during a divorce settlement, we look briefly at the common questions of dividing retirement and pension plans between spouses.  The parties’ retirement benefits is an important consideration when equitably dividing marital property, because, like the marital residence, retirement benefits are often the largest asset or assets of the parties. Therefore, dividing these plans or funds becomes enormously important.  So, let’s now address some common questions.

Is my retirement / pension considered marital property?

As the intro gave away: yes.  Just as with any other asset of value that is acquired during the marriage, generally, retirement benefits accrued during the marriage are considered to be  “marital assets” and must be divided equally between the parties.  If a spouse is working during the marriage and this results in the accrual of retirement benefits, the law sees it as if the non-working spouse contributed equally to the creation of those benefits.

This frequently makes it difficult for a court to carry out its statutory mandate of dividing all marital property equally.  Technically, the non-working spouse is entitled to at least a portion of the employed-spouse’s pension fund (as marital property), but the money may not be easily accessible at the time of divorce.  Because courts like to maximize the value of all retirement and pension funds, it is normally preferable to avoid causing the withdrawal of the accrued monies, and leave the fund growing in the name of the working spouse.   Fees, penalties and taxes can often destroy a pension that is withdrawn when it is not fully matured.  But, the problem is that sometimes there simply isn’t other marital property to award to the other (non-earning) spouse at the time of the divorce that will adequately compensate that spouse for his or her rightful portion of a retirement fund.  For this reason, valuing and dividing retirement benefits should be one of the first issues contemplated by a divorcing party.

Is it true that my spouse is entitled to half of my pension?

No. Not always.  Only the portion of the retirement fund that was contributed to or earned during the marriage is considered “marital property” and subject to division between the parties.  The portion of the retirement fund that was earned by the working spouse while unmarried is considered that party’s separate property and the other spouse has no interest in that money. Therefore, the first step is to determine what portion of the retirement fund is marital and what portion is separate property.

How do you value the portion of the retirement fund that is considered “marital”?

In determining the portion of a pension or retirement plan that is considered a “marital asset” and subject to division between the parties, the court should calculate the ratio of the number of years the employed-spouse worked during the marriage to the total number of years he or she worked at the qualifying employment to earn the pension.  Only the portion of the pension that was earned during the marriage is a marital asset, and the spouse of the employee is only entitled to a proportionate share of the marital asset.

Example – Employed spouse works 25 years to earn a vested pension of $100,000.  10 of these years were worked during the marriage. This equates to a 40% ratio, and only $40,000 of the pension is a martial asset. Because the division of marital property always begins with an equal division, the non-employed spouse would typically be entitled to $20,000 in this scenario.

Now, assuming the court doesn’t want to destroy the fund if it would be better for the employed spouse to contribute for 30 years, you see where it could be difficult to off-set this amount with other marital property? How many couples have $20,000 (in liquid form, moreover) lying around to award the other spouse his or her fair share of this fund at the point of divorce?

Are Social Security Benefits Divided?

No.  Not directly, anyway. Social security retirement benefits are not considered marital assets to be divided when a couple divorces.  A court cannot distribute a portion of one spouse’s SS benefits to the other spouse directly.  However, the court does consider the SS benefits when making an equitable division of retirement benefits overall – See Smith v. Smith (1993, Franklin Co) 632 N.E.2d 555 (“while not divisible as a marital asset, SS benefits must be considered when equitably dividing pension benefits”).

Are State and federal retirement plans treated differently?

Yes. The law related to state and federal retirement plans will be the subject of a later post.  There are specific rules that govern certain public-forms of pensions, such as military pensions, State pension plans (e.g., PERS) and deferred compensation plans.  Those forms of retirement benefits are impacted by specific federal and state statutes that must be consulted where applicable.

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Divorce is purely a matter of statute and each of the acceptable grounds for divorce in Ohio are fixed by statute. This means that you and your spouse cannot simply list whatever reasons you personally have for wanting the divorce in your Pro Se complaint and have the Court accept them. Rather, your complaint for divorce must list one or more legally sufficient grounds, enumerated under the applicable statute, and put on evidence of that ground at the hearing.

So, what are legally sufficient grounds in Ohio? Generally, any of the following will suffice:

1. Either party entering into a bigamous marriage

2. Willful absence of the adverse party for one year

3. Adultery (obviously!)

4. Extreme cruelty (carefully defined under statute)

5. Fraudulent contract (marriage is a contract, after all)

6. Any gross neglect of marital duty

7. Habitual drunkenness

8. Imprisonment of the adverse party in a state or federal prison when the petition is filed with the Court

9. Procurement of a divorce outside Ohio, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while such obligations remain binding upon the other party

10. On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation

So there you go, now you know that “he is a jerk” will not suffice as legally sufficient grounds to state in your complaint. You must plead and prove one of statutorily enumerated grounds established by the Ohio Legislature to obtain a divorce.

Under current Ohio law, grandparents are permitted to petition the court for visitation rights with respect to their grandchildren.  One would think that such a petition would not be necessary, but, unfortunately, more than we would like to think grandparents are prevented from seeing thier grandchildren.  Quite frequently, grandparents turn to the courts in order to have the opportunity to spend time with their grandchildren. This often comes up as a problem when a couple divorces and whomever is chosen as the residential parent does not want his or her former in-laws to visit the children.  Therefore, grandparents need to be aware that if the Court finds that it is in the child’s best interest to have visitation with his or her grandparents, they do have legal recourse. However, it must be noted that the Court is required to give some special weight to the wishes of the parents as to whether the grandparents are granted the right to certain visitation with the children.

This does not mean that the parents wishes control the Court’s decision, but that if the parents feel strongly against visitation, the court must consider that fact.  But even if the residential parent does not want to allow the visitation, the Court can , and often does, grant the visitation if it is in the best interest of the child.  There are specific stautory provisions that cover the visitation rights of grandparents in Ohio, so you should seek the advice of counsel to determine if your case is worth pursuing.

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It is often the case that a couple that is going through a divorce has one of the spouses move out of the home, leaving the other spouse with primary custody of the children.  The vacating spouse is often the breadwinner of the home, however (after all, he or she has the funds to rent an apartment during the course of the divorce action).  This can leave the remaining spouse in the home with the children and no source of (or not enough) income to continue to run the household and properly care for the children.  So, what is that spouse to do?  One answer is to file a motion with the court requesting that the other spouse be required to pay monthly child support until the final divorce decree is filed with the court.

This temporary child support is but one example of “interim orders” that the court is empowered to issue while the divorce case is proceeding through litigation and until there is a final resolution to the case.  Other interim orders that the court may grant include: (1) Temporary spousal support; (2) award one spouse sole occupancy of the marital residence; (3) award interim attorney fees for one of the spouse to be paid by the other spouse, among others.  Therefore, when you speak with your attorney, be sure to bring up all financial concerns that you may have with filing for divorce and there may be a remedy available.

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Often, married couples that are divorcing want to make the process as quick and painless (and inexpensive) as possible. They have come to some sort of agreement as to division of real and personal property, alimony amounts (if any), who they want to be the residential parent, and so on. But, just as frequently, divorcing couples cannot come to an agreement as to one or more of the above issues. In the latter case, this would be a contested divorce. When the divorce is contested, attorneys first work to resolve these issues by way of settlement in order to avoid a trial.

However, many times couples are so at odds with one another that nothing is negotiable and a trial is the only way that a resolution to one of the common issues can be reached. The trial is not unlike a criminal trial in that witnesses will be called to present testimonial evidence and documents will entered as exhibits to prove whatever the party introducing the evidence wants to prove (e.g., that a retirement account or home should not be considered maritial property).

Because a contested divorce can go to trial, one must be cognizant of how many courts differ in the trial process. In short, trial processes are very county-specific and it is important to be familiar with the Court’s local rules and customary practices. Some counties require several “pre-trials” beforehand and ask for several formal statements to be submitted to the court and filed with the Clerk of Courts ahead of the pre-trial or trial date. Some courts require the parties to submit to mediation before a trial is finally conducted, while other counties do not provide a mediation program for Domestic Relations matters at all. In other words, A divorce action in Greene County, Ohio can differ dramatically from a divorce action in Montgomery County, Miami County, Warren County or Butler County, Ohio. Familiarity with the judges and the court-specific rules can really help divorcing couples avoid a long and protracted divorce action and help make the entire process easier to meander through and more cost-effective for all involved.

The Courts of Ohio have jurisdiction to terminate the marriage of any Ohio resident that has lived in the state for at least six months.  This is the case even if the marriage took place in another state.   The termination can be by way of Divorce, Dissolution or annulment (in rare circumstances).  Often, couples that have separated and are living apart want to terminate the marriage and have already come to an agreement on all relevant issues (property division, child custody, spousal support, etc).  In other words, the parties agree to go their separate ways and really do not want (or have anything) to fight over.

Frequently, when the parties agree on all material issues, the best mechanism for terminating the marriage is a dissolution.  When parties petition the Court for a dissolution, they submit a separation agreement to the Court along with the petition.  Both parties later appear in court for a brief hearing where they affirm their desire to dissolve the marriage and to declare their agreement on all material issues, as is evidence by the signed separation agreement.  This seems easy enough, right?  Well, maybe not.

A dissolution will not work when one of the parties to the marriage is unable to appear in Court here in Ohio.   At the heart of the dissolution is the idea of agreement by the parties, and if one of the parties does not appear in court to formally declare their agreement, the Court cannot terminate the marriage. In this scenario, the parties should look into an “uncontested divorce.”

Generally speaking, an uncontested divorce is where one party files a complaint for divorce and the other spouse fails to file any responsive pleading or otherwise appear and defend the action.  The Court can terminate the marriage by simply having the plaintiff-spouse testify (along with one other witness to corroborate the testimony) and the defendant-spouse need not appear at all.  Although this seems rather intuitive, the real benefit of an uncontested divorce is that the parties can still enter into a separation agreement, just as in a dissolution, and submit it to the court for incorporation into the final divorce decree.

So, whenever two spouses reside far apart, they should consider an uncontested divorce action to save the absent spouse travel expenses.  But, remember that this will only work when both spouses are in agreement on the division of property, child custody, spousal support, etc.

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Child Support in Ohio is established by statute and is based upon a standard formula. Only in rare cases does the Court deviate from the amount that the formula prescribes for the divorcing couples’ situation (if the divorcing couple makes a lot of money or very little money combined, the Court has the power to ignore the prescribed formula and establish an amount itself). This formula is useful and may be fair at the time of the divorce decree, but many clients want to know what happens if circumstances change such that the amount of child support is too much or too little a few years down the road. For example, maybe the father has lost his job and can no longer pay the amount originally set-down in the divorce decree. Or, say the wife wins the lottery and now has a better financial position than she did when the couple divorced. Well, a child support obligor can ask for an Administrative review of the child support amount (through the Child Support Enforcement Agency) and ask that it be reduced based upon a change of circumstances. Or, the obligor can file a motion with the Court (as a post-decree motion) and ask that the Court modify the amount based upon the change in circumstances. If the Child Support Agency (CSEA) declines the obligor’s request for a modification downward, he can appeal that ruling to the Court afterward. So, in short, if you are a current child support obligor and you feel that based upon a change in circumstances, the amount you are paying is no longer appropriate, there are avenues to pursue where you might have it reduced.  Speak with an attorney or contact our firm for a free consultation to determine whether you can have your child support reduced (or increased) and how best to go about it.