POST DECREE MOTIONS

A post decree action is one which is brought after a Decree of Divorce or Dissolution has been issued by the Domestic Relations Court.  There are many kinds of actions which may be brought, including modifications of certain provisions of the Decree such as child support, spousal support, alterations of the parental rights and responsibilities, and visitation being the most common.  Because they are legal actions, that is an issue brought before the court for resolution or approval, actions may be either agreed or contested by the parties.  These are legal and factual issues which require legal pleadings to the court, hearings, witnesses, etc., depending upon the circumstances.  Your Attorney will advise you regarding whatever actions may be available to you regarding your circumstances following an initial consultation.  Remember, any action taken outside of the legal framework of the decree and subsequent orders may have a negative impact upon your interests.  Do not ignore or treat these documents lightly.  Your rights and financial interests may be adversely affected when the court does not see things as you do.

Spousal Support:

Support orders involve the legal obligation to provide support to either a former spouse [either party] or the children resulting from the marriage.  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 may be ordered either in real or personal property or both or by decreeing that a sum of money be payable either in gross or by installments.

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 in the original Decree, 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 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.

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.

Spousal support is only modifiable if the original decree contained a provision authorizing future modifications.  The domestic relations court must first determine whether there has been a change in circumstances of either party. If it finds a change of circumstances, it must then determine whether spousal support is still necessary and, if so, in what amount.  An inquiry into the existence of a change in circumstances must commence from the time of the existing order.

Child Support:

The State of Ohio requires parents of a minor child to provide for the basic necessities of the child.  Upon divorce, this obligation continues.  The parents, now two separate individuals legally, share this obligation as during the marriage, only now the obligation is split between them as a percentage of their combined incomes, and formally stated in the Decree.  The process by which this amount for child support is determined is defined by statute.  Deviations from the statutory determination are permitted when justified by the overall circumstances of the case.  Support is paid through the Ohio Child Support Central [O.C.S.P.C.]  Direct payments made from the obligor spouse to the oblige spouse will be deemed a ?gift.?  The payor will receive no credit for such ?voluntary gifts? made outside the O.C.S.P.C.  The usual method of payment is by wage withholding or bank account withholding, which insures smooth payment and also prevents those ?gifts? from occurring accidentally.

How is child support determined?

Child support in Ohio is established by statute.  While the process of determining the amount of support is complex, the basic principle is this; the combined incomes of the parents, now separated legally, is plugged into an income schedule created by the State which then provides the amount of child support for each child which is the result of the prior union of the parents.  That result is then multiplied by the number of children involved to reveal a total amount due for annual child support.  Then, looking to the total combined income of the parents used earlier, the ratio each contributed to that total income amount is determined for each parent, i.e. the percentage each parent contributes to the total combined income amount.  An example would be father contributes 60% to the total amount compared to 40% for the mother, equaling 100% of the total combined parental income amount.  The resulting percentage is then divided into the total combined parental income amount to determine the amount each parent must contribute to the support of the children.  The process may be pursued further if particular circumstances of the case warrant a deviation from the statutory amount determined above, and may then be applied to the child which is the focus of the deviation.  Deviations are also regulated by statute, are based upon financial considerations of the parties and child and the needs of the child.  These justifications must be submitted to the court for approval.

You will be required to complete an affidavit of financial disclosure detailing your financial situation for the court.  An affidavit of child custody and several other forms need to be completed and filed with the court.  These will be used to assist in determining the amount of child support, spousal support if requested, and division of marital property if you are filing for an original divorce.

Child support may be modified as the circumstances of the parties change over time.  When this occurs, either party may petition the court for a modification of an existing support order to reflect the change of circumstances.  A change of circumstances may be submitted to the court when the recalculated actual support obligation varies 10% or more from the existing support obligation.  Generally, the modification is effective from the date of filing the petition.

Failure to pay child support in violation of a court order may have adverse consequences, including involvement by the county child support enforcement agency, interception of tax refunds, contempt of court, interest on the arrearage and the costs of post decree litigation.  In extreme cases you may lose your freedom.

Child Custody:

Child custody is now described as parental rights and responsibilities.

Still the most used model is where one parent becomes the ?residential parent and legal custodian,? of the minor children and the other parent receives ?parenting time.?  This model may be modified by agreement of the parties as to the amount of parenting time and parental responsibilities of the parties, but one parent remains designated the ?residential parent.?  Certain tax consequences attach to the residential parent, such as the designation of the school the children attend.  The State allocates school funds based upon the residence of the residential parent.  The non-custodial parent has a continuing right and duty to be involved in the children?s lives.  This involvement is called ?parenting time? or visitation, is enforced by court order, and as are all matters relating to the children, subject to the continuing order of the court.

The second model is called ?shared parenting.?  Shared parenting is a form of joint custody.  One or both parents may move the court for a shared parenting order, and submits a shared parenting plan, which is a detailed road map for the children and includes the physical living arrangements, health care, child support, school placement and allocation of parenting time.  The plan is agreed to by the parties.  Legally, both parents are residential parents and legal custodians under the law.  For such a plan to succeed, both parents must be able to communicate and cooperate with the other, for the best interests of the children.  Regardless of which model is pursued, each parent is entitled to access the vital records of the child, such as medical and school records.

Change of parental rights and responsibilities orders are common.  As years pass and circumstances change with the parents and children, a change may become necessary.  If the parents are communicating and have the best interests of the children as their goal, change may be simple.  A consensual change of custody may be done quite inexpensively.  Too often there is controversy, and the process is contested.  These are among the more expensive to prosecute and require both counsel and client time.  Most often, compromise can be achieved, but occasionally a full evidentiary hearing is necessary.  It is recommended that legal counsel be obtained in all custody matters, as several issues must be addressed in any court order.

Parenting Time or Visitation:

What is visitation?

Parenting Time or Visitation with the children may be modified as circumstances change over time.  Visitation is highly customizable between the spouses.  They may agree to terms or submit a contested visitation issue to the court for resolution.  When this occurs, the Court shall consider certain statutory factors in determining the resulting visitation order.  However, most Domestic Relations Courts have standardized orders of visitation which usually provide a good basis for parental involvement with the children, and is usually the default order.

Non residential parents are entitled to equal access to medical and student records of the children.  This right may be curtailed upon certain statutory grounds and motion by the residential parent.

Who may obtain visitation rights?

In addition, the court may grant reasonable companionship or visitation rights to any grandparent, any person related to the child by consanguinity or affinity, or any other person other than a parent, if all of the following apply:

(a) The grandparent, relative, or other person files a motion with the court seeking companionship or visitation rights.

(b) The court determines that the grandparent, relative, or other person has an interest in the welfare of the child.

(c) The court determines that the granting of the companionship or visitation rights is in the best interest of the child.