The tax law related to the consequences concerning spousal support…
The tax law related to the consequences concerning spousal support is about to change so that spousal is no longer deductible for the payor and a tax liability to the payee. Most people are talking about how this change will only apply to those divorces that end once the law has taken effect, but what about those cases where the tax write off was a part of the reason why the payor agreed to pay what he or she did? Personally, I think an argument could be made that this change in the law wasn’t something the parties contemplated at the time of the divorce. In which case, if the Court was authorized to retain jurisdiction, there might be a basis for a post decree motion to modify the existing spousal support order.
The League of Women Voters of Ohio, in their Voter's Guide 2017, listed the following Pros and Cons for Issue One, Marsy's Law
- The law will increase the legal rights and privileges of victims.
- It would replace the 1984 Ohio Victim's Rights Amendment, which victim's rights advocates said has been unenforceable.
- It would ensure that victims are informed when the accused offender is released from custody.
- It will inform crime victims of their rights.
- The Amendment would override state law, eliminating the Judge's ability to weigh the rights of victims and defendants.
- Victims are already protected by the 1994 Ohio Victims' Rights Amendment in the Constitution.
- The Amendment would allow crime victims to directly file an appeal, overstepping the decisions of prosecutors.
- Victims could refuse to be interviewed or to turn over pertinent evidence or testimony.
An Important decision related to Child Support
On December 23, 2016 the Ohio Supreme Court in the case of The State of Ohio v. Pittman, 2016 Ohio 8314 ruled that a person is not subject to prosecution under statute (i.e criminal prosecution for felony non-support) for the non-payment of a court's order to pay a child support arrearage when the person does not have a current obligation of support because the child has become emancipated.
What that means is that if the child has turned 18 so that there isn't a current support obligation the person who is behind in his or her support obligation can't be prosecuted criminally for what he or she owed, in back support, before the child became emancipated.
In light of this decision I'd pay close attention to my child support case if my former spouse owed me and our children any money.
What is a Guardian ad Litem?
A guardian ad litem or a GAL, as they're often called, is an individual appointed to represent the interests of a child whenever there's a visitation or custody dispute involving that child. In some jurisdiction the GAL is always another attorney, but in other jurisdictions that isn't always the case.
Initially the GAL is both the child's representative and the child's attorney, but when the wishes of the child conflict with the recommendations of the GAL the GAL has to withdraw as the attorney and the court appoints a separate attorney for the child. Considering that both parents usually have their own attorneys this division of responsibilities can make the courtroom very crowded if there's more than one child and they both have a GAL and an attorney.
A GAL, as the eyes and ears of the court, has a lot of power. A GAL, if he or she thinks it is appropriate, can file whatever motions the GAL thinks are in the best interests of the child. These motions can range from returning a pet to the child to requiring both parents to submit to psychological testing. Additionally as the eyes and ears of the court the GAL's recommendation carries a lot of weight and influence. Consequently, it is always a good idea to cooperate with the GAL.
How spousal support is determined.
In determining whether or not spousal support is appropriate and reasonable, and in determining the nature, amount and terms of payment, and the duration of the spousal support, which is payable in gross (one large sum) or in installments, the court Shall consider all of the following factors:
the income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed or distributed under section 3105.171 of the Ohio Revised Code. (This is the distributive award provision in the law that I briefly touched on in my last blog.)
the relative earning abilities of the parties; the ages and the physical, mental and emotional conditions of the parties; the retirement benefits of the parties; the duration of the marriage; 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 of the home; the standard of living of the parties established during the marriage; the relative extent of the education of the parties; the relative assets and liabilities of the parties, but not limited to any court ordered payments by the parties; 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 decree of the other party; ( What if you were a stay at home wife who helped your husband advance his career by being available to attend and host business parties and other related functions?) the time and expense necessary for the spouse who is seeking spousal support to acquire education so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is in fact sought; the tax consequences, for each party, of an award of spousal support; the lost income production capacity of either party that resulted from that party's marital obligation; (In other words did one spouse give up potentially good earning years to stay at home and care for the children?)
any other factors the court expressly finds to be relevant and equitable.
In determining whether or not 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 in come. (In other words it isn't all his because he was the one that had a job and worked outside of the home)
Just a few more points you should be aware of and think about if you are involved in a divorce.
Modifying Spousal Support
To modify spousal support the court has to determine that there has been a change of circumstances and the court has to have been specifically authorized to modify the term or amount of the spousal support. That means that in the case of a divorce there has to be a provision in either the divorce decree or the separation agreement that specifically provides the court with the authority to modify the spousal support. Absent this specific provision modification of spousal support is not possible. The same applies in a dissolution. Absent specific authorization in the separation agreement providing the court with the authority to modify spousal support it can't be modified.
A change of circumstances includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as the change in circumstances is substantial and makes the existing award no longer reasonable and appropriate AND the change in circumstances was not taken into account by the parties or the court as the basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.
In determining whether or not to modify an existing order for spousal support, the court shall consider any purpose expressed in the initial order or award and enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court shall not modify the continuing jurisdiction of the court as contained in the original decree.
If a person ordered to pay spousal support is found in contempt of court for failing to do so the court, making the contempt finding, in addition to imposing any penalty or remedy shall assess all court costs arising out of the proceeding and, as determined by the court, any reasonable attorney fees that arose in relation to the act of contempt
When things go awry in encounters with the police.
What To Do When You Are Confronted By the Police
Contrary to what you may have been told growing up the police are not your friends nor however are they your enemy. Just like anyone else they appreciate not always having to work hard. When you confess you make it easy for them.
Years ago I had a case where the police officer in reading my client her Miranda rights told her "anything you say can and will be used for or against you." She heard the "for you" part and she gave a 2 1/2 hour recorded statement. In my suppression motion I cited a case from Pennsylvania that dealt with that exact issue and found the Miranda warnings to be defective. I cited that case in my brief and as it wasn't from Ohio and therefore would be considered "persuasive authority" at best the court denied my motion to suppress. The Judge told me that he liked my argument but he wasn't "persuaded" by my Pennsylvania case. My client spent a year in prison.
So, don't confess. The police are trained in and take courses on how to obtain confessions. They know the psychological tools to put you at ease and get you to start talking so unless you've taken the same courses or have gone to the same seminars you are definitely at a disadvantage.
Instead tell them in clear and unequivocal terms that you want an attorney and wait for him to arrive.
Grounds For Divorce
At one time divorces were based upon grounds. A party seeking a divorce had to allege grounds to get a divorce e.g. adultery, habitual drunkenness, gross neglect of duty, extreme cruelty etc. and once the grounds were proven the aggrieved part was compensated for the transgressions perpetrated against the marriage.
But times have changed and today grounds are just the "keys to the door". Once the jurisdiction and venue of the court has been established the court will focus on resolving the issues of property division, the allocation of parental rights and responsibilities (previously know as custody), child support and if appropriate spousal support. The Court will listen to your allegations but it won't factor them into its deliberations. Naturally, if your concerns are about child abuse or child neglect the court will definitely listen but as this blog is not about those type of concerns I will not address them at this time.
So although the the innocent party is rightfully angry, hurt and disappointed the sooner the innocent party can accept the fact that the court's focus will be on resolution and not retribution, revenge or vindication the sooner the healing process can occur.
If you find yourself in a situation where a divorce is likely you will need an attorney who can help you pick up the debris from the broken promises of the marriage and use them to help you build a new and positive future. At the Law Offices of David V. Gedrock we can help you with that process.
The Law Offices Of David V. Gedrock
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Medina, OH 44256
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