In these hard economic times, people who are required to pay spousal support, child support or both may have difficulty making these monthly payments due to a decrease in income or loss of employment. On the other hand, people who are receiving spousal support or child support may be looking to increase their support payments each month.
A. CHILD SUPPORT
An obligation to pay child support is always modifiable. However, a modification of child support is not automatic. Whether seeking a decrease or increase in child support, a motion must be filed with the Court to get the process started. It is important to understand that the Court only has the power to modify the child support AS OF THE DATE THE MOTION IS FILED. The Court is not able to modify the child support amount PRIOR to the filing date of the Motion. Therefore, time is of the essence and the motion must be filed as soon as it becomes apparent that it is necessary.
The Court will consider the same factors as when the child support amount was originally calculated and use the same worksheet. The calculation of child support is covered under Chapter 3119 of the Ohio Revised Code. The factors to be considered are the incomes of the parties, day care expenses and health insurance premiums.
In addition, the allocation of the tax dependency exemption for a child is also modifiable if there is a change in circumstances (such as a change in income or loss of employment).
B. SPOUSAL SUPPORT
Pursuant to Section 3105.18(E) of the Ohio Revised Code “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 “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.”
The first question that needs to be answered is whether there is language in your divorce decree that allows the Court to retain jurisdiction to modify the amount and/or term of spousal support. If the divorce decree allows for modification of the spousal support award, then the threshold question is whether there hasbeen a change in circumstances for either party. Under Section 3105.18(F) of the Ohio Revised Code, “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.” Any relevant factor can qualify as a change in circumstances, including a decrease in salary or loss of employment.
Once the Court finds that there has been a change in circumstances, the next issue is to determine the appropriate amount and/or term of spousal support. Pursuant to Section 3105.18 (C) (1) of the Ohio Revised Code “ 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:
(1) 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;
(2) The relative earning abilities of the parties;
(3) The ages and the physical, mental, and emotional conditions of the parties;
(4) The retirement benefits of the parties;
(5) The duration of the marriage;
(6) 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;
(7) The standard of living of the parties established during the marriage;
(8) The relative extent of education of the parties;
(9) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
(10) 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;
(11) 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;
(12) The tax consequences, for each party, of an award of spousal support;
(13) The lost income production capacity of either party that resulted from that party’s marital responsibilities; and
(14) Any other factor that the court expressly finds to be relevant and equitable.”
Whether seeking a decrease or increase in spousal support or a change to the term of the spousal support, a motion must be filed with the Court to get the process started. It is important to understand that the Court only has the power to modify the spousal support AS OF THE DATE THE MOTION IS FILED. The Court is not able to modify the spousal support amount PRIOR to the filing date of the Motion. Therefore, time is of the essence and the motion must be filed as soon as it becomes apparent that it is necessary.