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Getting divorced for the Second time...from the same person

Getting divorced for the second time...from the same person

Several months ago, I was contacted by a potential client to handle his second divorce from the same person.  This particular client had children that were born (technically, of the first marriage) and this couple had already litigated custody, property, and support issues during the first divorce.

Now I have been contacted to handle a couple's second dissolution, but never a second divorce where issues were actually litigated.  I began doing a little research and I quickly realized that there is practically no information on this topic.  So I decided to provide the information myself.

Someone in this situation is going to have several questions, here are the (Ohio) answers to the questions I had:
1) Are the children, which were born during the first marriage, considered children of the second marriage?  Generally, yes.  Another example of this in a similar situation is where a couple is unmarried, has a child, then gets married, then gets divorced.  Even though the child was born before the marriage, the child is still considered "issue of the marriage."

2) Will issues of child support and custody be re-litigated?  Generally, yes.  At the conclusion of the first divorce, the court issued an order implementing custody and support.  When the parties remarried, that support (and custody) entry ceased to be effective either because the court terminated the original order (the obligor does not have to continue to pay child support if the parties remarry) or because the court issued a new order after the remarriage.  In the second divorce, the court will issue a new child support order that will be based on the current status of the parties' employment.  The court will also issue a new custody order that is likely to be the same as the order issued in the first divorce but may be different.

3) Will the parties relitigate the division of property?  Generally, no.  Any division of property that took place in the original divorce will still stand.  For example, if the court granted the martial residence to one of the parties, that party still gets to keep the home and that decision will not be revisited by the court.  The court will, however, divide any newly acquired property, if the parties have any.

Hopefully, this answers many of the questions you have about this topic.  If you have others, please feel free to comment.

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Spousal Support in Ohio

Spousal Support in Ohio:
One of the least guiding "guidelines" in Ohio is the Ohio Spousal Support Guidelines.  This statute gives Ohioans "factors" that Ohio Courts consider when determining whether spousal support will be granted and if so, how much.  The factors the courts consider are the following:

Quoting Ohio Revised Code § 3105.18. - Award of spousal support; modification.

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(A) As used in this section, "spousal support" means any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is both for sustenance and for support of the spouse or former spouse. "Spousal support" does not include any payment made to a spouse or former spouse, or to a third party for the benefit of a spouse or former spouse, that is made as part of a division or distribution of property or a distributive award under section 3105.171 [3105.17.1] of the Revised Code.

(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 [3105.17.1] of the Revised Code, the court of common pleas may award reasonable spousal support to either party. During the pendency of any divorce, or legal separation proceeding, the court may award reasonable temporary spousal support to either party.

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 by installments, from future income or otherwise, as the court considers equitable.

Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise.

(C) (1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:

(a) 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 [3105.17.1] of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) 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;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;

(j) 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;

(k) 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;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and equitable.

(2) 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.

(D) In an action brought solely for an order for legal separation under section 3105.17 of the Revised Code, any continuing order for periodic payments of money entered pursuant to this section is subject to further order of the court upon changed circumstances of either party.

(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:

(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(2) In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(F) For purposes of divisions (D) and (E) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses.

(G) If any person required to pay alimony under an order made or modified by a court on or after December 1, 1986, and before January 1, 1991, or any person required to pay spousal support under an order made or modified by a court on or after January 1, 1991, is found in contempt of court for failure to make alimony or spousal support payments under the order, the court that makes the finding, in addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and shall require the person to pay any reasonable attorney's fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.

(H) In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating that party's rights and adequately protecting that party's interests if it does not award reasonable attorney's fees.

 

Determining whether spousal support will be granted is largely within the court's discretion but is generally predictable to an Ohio licensed attorney.  Determining how much spousal support a court might grant in any given situation is much more difficult for the parties to predict.  Ohio has created a helpful child support computation worksheet to predict how much a party will pay or receive in child support; however, no such computation worksheet exists for spousal support (at least not one that is generally accepted or used by the courts).

 

Arguments can and have been made that the Ohio Child Support Computation worksheet produces results that are unfair to one or both of the parties, but at least it is a starting point for determining child support.  I for one would like to see Ohio create a spousal support computation worksheet to be used in all divorce/dissolution cases.  However, until this happens, the parties are left to their own devices.  I have prepared the following guidelines that I hope will help parties determine if spousal support is warranted, and if so, how much.

 

In reviewing these tips, please remember that spousal support was created to help compensate women for their contributions to the household and to make sure, where there is enough income, the state would not be left to pick up the tab for the wife and children.  Obviously things have changed, but try to remember the spirit in which these laws were created.

 

* As a general rule, spousal support may be considered an option if one of the parties has disposable income, which generally means that he/she makes over $55,000 per year or more.

*In addtion, spousal support may be granted if the other party makes approximately half ($27,000 per year) or less than the other party.

* Generally, if the court finds that one party should be granted spousal support, the court will likely grant it in the amount of $500.00 per month or more depending on the parties' income.  Courts generally don't grant spousal support in amounts less than $500.00 per month.  (This may be because the court may think that anything less than $500.00 per month is not really helping or is not a fair assessment of the wife's contributions...)

* remember that contrary to child support, spousal support is considered income for the party receiving it and is tax deductible for the party paying it.  This means that if you are on the receiving end, if you have the option, you should negotiatiate to get more money in child support and less in spousal support.  If you are on the paying end and you have the option, you should negotiate to pay more in spousal support and less in child support.

 

Hopefully, these tips are helpful as you assess your own situtation and prepare for a divorce or dissolution.

Risks and Benefits of Separating before filing for Divorce

I don't know if I have said this before (in written form, of course) but if I have, I am going to say it again: Americans are ready to start spending money again.  I know that the stock market says otherwise, but I can tell the economy is recovering because people are finally pursuing divorce again.  For several months at the end of last year, and for several months at the beginning of this year, couples were separating, but not pursuing divorce.  The domestic relations courts were deserted.

Getting divorced is expensive, not only because both parties have to pay attorney fees but also because prior to the divorce, they had two incomes and only one household.  Once the parties separate, each only has one income available but each has an entire household to support.  

Being separated prior to pursuing a divorce usually makes the divorce/dissolution process easier and less expensive because the separation allows the parties to divide up property and debts that can easily be divided, and by the time the parties are dealing with more difficult decisions, they are no longer angry, they have already moved on and they just want the paperwork to reflect the divisions they have already made.  Separating before pursuing a divorce makes sense for a lot of reasons but I wouldn't recommend it under all circumstances. 

I do not recommend leaving the marital home if the parties have children.  Both parties should seek the advice of an attorney before leaving the martial home when there are children of the marriage.  A parent's right to custody or shared parenting could be affected by leaving the home and this may be avoided by seeking the advice of an attorney before leaving the home.

If the parties don't have children, there isn't much risk in leaving the home; however, seeking the advice of an attorney to discuss your rights in regards to marital property is recommended. 

If you do not have children and your financial situation is improving and you are ready to separate and begin the divorce process, being separated for approximately 6 months should provide an adequate amount of time to cool off from the marriage and allow the parties to negotiate with a calm head.  Often, parties that have separated first are able to pursue a dissolution, which is much more friendly and cost-effective than a divorce.

    

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