What to consider when dealing with spousal support aka “Alimony”
- By dgedrock
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- 26 Jun, 2018
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Alimony, now known as Spousal Support because it is payable to either spouse whereas as “alimony” was too closely identified as being payments made to a wife by a husband, is any payment or payments made to a spouse or a former spouse, or to a third party for the benefit of the spouse or former spouse, that is both for sustenance and support of the spouse or former spouse.
The important point in that paragraph that is often overlooked is the part that deals with payments being made to a third part for the benefit of a spouse or a former spouse. What that means is that if you pay your former spouse’s bill those payments can be considered spousal support. If you pay your former spouse enough to cover all expenses and the bills or you pay him/her enough money to sustain and support him/her minus the amount of the bills, which you are paying separately to the third parties e.g the creditors, isn’t it the same thing? The funds the former spouse has to support and sustain him or herself is the same after the bills have been paid the only difference is who paid the bills. This is something you should think about when the issue of spousal support and the paying of the marital debt becomes an issue.
Spousal support does not include any payments made to a spouse or a former spouse, or to a third party for the benefit of a spouse or a former spouse, that is made as part of a division or distribution of property or a distributive award. I will talk about distributive awards in a subsequent blog but suffice it to say for now that it deals with dividing, under certain circumstances, pre-marital property.
In a divorce or a legal separation proceedings (the parties aren’t ready to get divorced but they want/need to live separate and apart), upon the request of either party and after determining the division or disbursement of property, the court may award reasonable spousal support to either party. During the pendency of a divorce or legal separation proceeding the court may award reasonable temporary spousal support to either party. The theory behind temporary spousal support is to help the parties survive separate from each other so often times this temporary support obligation is not as fine tuned as the ultimate support order.
An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or installments, from future income or otherwise, as the court considers equitable. I once had a case where the husband moved to China and because we didn’t believe that he would be diligent or consistent in making spousal support payments we had the court award us the marital residence as spousal support. My client had a place to live and as long as she made her mortgage payments she was creating equity that she could use in the future should she have to take a loan or sell the house. Accepting payments could have put her in the position where she might have had to take her husband to court to enforce the payment obligation while at the same time potentially jeopardizing her interests in the marital residence if he got behind in his support payments. Rather than risk that we took the house as spousal support.
Spousal support shall terminate upon the death of either party, unless the court order containing the order expressly provides otherwise.
The case must be filed in the Juvenile Court if the respondent (perpetrator) is under 18. An ex parte order may be signed by a Magistrate. If an ex parte Order is issued a hearing on that order must be held within ten days. The court in which this case must be filed is the Juvenile Court where the party seeking relief resides. The standard of proof is preponderance of the evidence unless electronic monitoring is being requested in which case the burden of proof is clear and convincing evidence.
The protective order will remain in effect for a specified period of time but not exceed the respondent’s 19 th Birthday.
Objections may be filed after the issuance of a final appealable order.
breath, urine and saliva.
In Ohio you are considered impaired if you test .08 which is 8/10 of a drop of alcohol for every 1000
drops of blood. If you are under 21 and you test at .02, or if you are a commercial driver and you test at
.04, you are considered to be impaired.
Several factors affect a person’s absorption of alcohol. They include: weight, gender, amount of food
you’ve eaten and the time spent drinking ( how much and how often for how long).
Driving skills are impaired, especially judgment, in most people before they exhibit visible signs of being
intoxicated. For example at .03 your divided attention, choice reaction time, visual function, tracking and
steering, standing and steadiness will be affected. At .05 your information processing, judgment and
coordination will be impaired and at .08 your concentration and speed control will be impaired. These
impairments are cumulative meaning that the impairments you exhibited at .03 and
.05 will also be exhibited at .08. This is what the field sobriety test will be looking for.
So, if you’re going to drink spread it over the evening, limit the amount you drink and if you’re not sure
you should drive you probably shouldn’t.
Any parent or adult household member may seek relief on behalf of any other family or household member.
If the respondent (the accused) is 18 or older the Court of Common Pleas is where you go to seek the order. An Ex Parte Order (meaning only the complaining party was present at the time) may be signed(granted) by a Magistrate. If an Ex Parte Order is granted there will be a hearing within ten court days of the order being granted. If an Ex Parte Order is not granted the case will follow the normal civil action proceedings
The Common Pleas Court that you should go to get this Order is the Common Pleas Court where you, the petitioner, resides.
The Order will be in effect for a specified period up to five years and it may be renewed. Objections to the Order may be filed after the Court has issued a final appeal able order. Violation of the Order can result in either a criminal charge being filed or a contempt of court being filed.
You cannot knowing allow a person under 21 who isn’t your child to remain in your home or property while they are consuming or possessing alcohol.
If you get caught you could face a maximum sentence of six months in jail and a $1000 fine.
You could be sued if you gave alcohol to anyone under 21 and they hurt someone, hurt themselves or damaged property.
The police can take any alcohol, money or property they find that was used in committing the offense.
Play it safe, refuse to supply alcohol to anyone under 21; be home when your teen has a party; make sure alcohol isn’t brought into your home or onto your property by your teen’s friends and if it is occurring despite your best efforts either bring it immediately to an end or report it.
In Ohio you resist arrest when you recklessly or forcibly resist or interfere with your arrest or the arrest of another. The arrest has to be lawful, if not you may be able to use that as a defense in your case.
Other possible defense could be self defense, police misconduct, that the officers did not identify him or herself, that the person making the arrest was not a law enforcement officer. Inasmuch as resisting arrest can be either a misdemeanor or a felony.
The Municipal Court, the County Court or the General Division of the Court of Common Pleas has jurisdiction over the case.
The Order will remain in effect for the duration of the criminal case or until a DV CPO is issued that arose out of the same activity.
In general restitution is discretionary with the trial court it must be considered but the court doesn’t have to order it. The amount ordered must be a part of the sentencing order. The order must be made with the defendant present and on the record.
The Court cannot modify the amount of the restitution after the sentence is imposed. The Court can modify the payment terms. The amount ordered must be reasonably related to the offense. The amount must be based upon the amount of loss incurred by the victim. Restitution cannot be ordered on charges on which the defendant was found not guilty.
Restitution can be ordered for pretrial diversion programs, intervention in lieu of conviction and post release control.
A restitution order is mandatory in:
- Human Trafficking Specification
- Kidnapping
- Abduction
- Compelling Prostitution
- Promoting Prostitution
- Illegal Use of a Minor in Nudity
- Oriented Material or Performance
- Endangering Children Engaging in Pattern of Corrupt
- Activity
- Theft in Office
In my next blog I’ll talk about the amount, the hearing and who can be the recipient.
The Court that has jurisdiction over the case be it a municipal court or a common pleas case can hear the case.
The order once it is granted will remain in effect for the duration of the criminal case or until a Criminal Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order is issued arising out of the same activities.