FAQs - Frequently Asked Questions

◊	Child's Best Interest	Dividing Assets:   ◊  Retirement   ◊  Marital Home   ◊  Investments   ◊  Businesses
◊	Child Support Calculation
◊	Child Support Modification
◊	Discovery
◊	Divorce Litigation Process
◊	Divorce v. Dissolution
◊	Marital Assets / Debts
◊	Modification of Spousal Support
◊	Parenting Time
◊	Post Decree Matters
◊	Temporary Orders

In determining the best interest of a child the court shall consider all relevant factors, including, but not limited to:

In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors listed above, but also all of the following factors:

In Ohio it is the responsibility of both parents to financially support their child until the child is emancipated (deemed a legal adult). Usually, a child is deemed an adult if they are 18 years of age and have graduated from high school; however, there are exceptions to this definition. The party ordered to pay child support is the called the “obligor” and the party receiving child support is called the “oblige”.

Ohio uses a statutory guideline to calculate child support based on the parties' combined gross income. "Gross income" is broadly defined; however, it is generally defined as income received from "all sources". There are exceptions to what constitutes "income" for child support purposes, such as income a party receives from "need based assistance". Each case is different and it is important to understand and quantify one's income for purposes of determining child support obligations, along with other factors, such as child custody, the amount of parenting time the obligor parent has with the child, the income of each parent and the costs of group health insurance, daycare expenses, and before and after care arrangements for school age children.

The court may vary (decrease or increase child support) from the guideline calculation based on any special needs or educational history of the child, or an exceptional disparity in the parties’ incomes. Child support is always open to child support modification if there is a significant change in circumstances resulting in more than a 10% change, increase or decrease, in the child support obligation.

Under Ohio state law, child custody and child support orders can be modified.

Child Custody: When one party has sole legal custody there must be a substantial change in circumstance with the legal custodian’s living situation or conduct before the court would consider modifying the existing child custody arrangement in the best interest of the child. Whereas, in a shared parenting situation, the Court must only find that a change in the shared parenting arrangement would be in the child’s best interest.

The following scenarios are often deemed a change in circumstances:

All of the above scenarios can be considered by the court in conjunction with the specific provisions set-forth in divorce or child custody or support order.

Temporary Orders

Once the divorce complaint is filed the matter is before the court and the litigation process has started. During a divorce matter either party may request the court to issue "Temporary Orders".

Temporary Orders are interim orders where the court orders the parties to do certain things in an effort to stabilize the marital situation until such time as the matter is fully resolved. Temporary Orders address, among other things, temporary child custody, temporary child support, payment of marital debts, payment of support to a spouse and use of the marital home. Temporary Orders are just that, "temporary" and will terminate once the divorce matter is finally resolved.

Discovery: what are the facts?

During the litigation of a contested divorce the parties often make requests of one another to exchange pertinent information relevant to the case. This phase of the litigation process is called “discovery”. Information is exchanged on everything relevant to the case, including checking account statements, pay stubs, tax returns, documentation of any disability affecting a spouse's earning potential, competency or needs, any abuse and other relevant information.

When evaluating the marital assets and liabilities, professional experts such as accountants and business valuators may be consulted to determine the value of certain property including the marital home, retirement assets (including loans or distributions), stocks, privately held business interests, and other significant assets and debts. Often times, financial records such as bank account statements and financial statements, may indicate abnormal deposit or withdrawal histories.

As with most legal matters, obtaining relevant information is crucial. Throughout the entire legal proceeding I work closely with my clients to ensure that we are gathering the right information.

Divorce Trial

In the rare instance when a divorce matter cannot be resolved by negotiation, the parties will participate in a divorce trial. At the trial both parties will provide evidence and information to the court in order to address their respective positions on the case.

Depending on whether children are involved, a divorce trial will usually occur anywhere from 12 to 24 months from the date the divorce complaint was filed. A divorce trial can be expensive and time consuming. Often times, parties may “stipulate” to certain underlying facts and only go to trial on the remaining unresolved issues.

Whether to proceed with a divorce trial must be weighed carefully. When parties are unable to negotiate a settlement agreement, thereby opting for a trial, the parties are in effect deferring the outcome of their matter to the court. As a result, the final say on the terms and conditions of ending the marriage will be decided by the court and not jointly by the parties. Therefore, a trial is a last resort when the parties are unable to work-out a solution on their own terms.

Sometimes though, a trial is the only means of addressing entrenched or untenable positions. To that end, I represent my clients to the fullest extent of the law, and always with my client's objectives in mind.

If you are heading towards a divorce, you should be concerned about protecting the value of investment property during the division of marital assets. This applies to any investment property such as stocks, bonds, mutual funds, savings accounts, vacation properties and other real estate.

As with most investments, valuation depends first on determining the basis of the investment, and then the valuation of the property. The value of an investment is determined, in large part, on the timing of the valuation (i.e. the date of the valuation). Timing of the investment is important because the markets for most investments ebbs and flows over time and there are no guarantees when predicting market volatility.

In addition to market volatility, there are other issues that need to be considered, such as marketability of the asset, restrictions on liquidating the asset, and potential tax liabilities.
In order to determine the appropriate valuation and division of the asset, it may be necessary to involve the services of an expert such as a CPA or certified financial consultant.

The Tax Implications of Division of Investment Properties

As your divorce lawyer, I will recommend actions based on your overall financial circumstances as compared with Ohio's matrimonial laws.

It is essential to understand penalties for liquidating or withdrawing assets prematurely. Additionally, as with many financial issues affecting a divorce, tax planning and coordinating asset division along with child support and spousal support can assist in maximizing your savings in the long run.

Whether you are the asset owner or the spouse of an asset owner, the above considerations should be in the forefront.

In Ohio a valid marriage can be terminated in two ways; by divorce (an adversarial proceeding) or by a dissolution where the parties agree. As you can imagine, a dissolution is the most cost effective and least stressful way of ending a marriage. Also, a dissolution has less of an impact upon children and extended family members. A dissolution is negotiated and the agreement is written and signed by the before the parties actually file anything at court. Once the dissolution is paperwork is filed, the parties are required to attend the final hearing.

A primary issue in resolving a marital relationship is determining the assets of the marriage, marital property or non-marital property. Generally, marital property is property or assets acquired by the parties "during" the marriage; whereas, non-marital property is property that was either brought into the marriage by one of the parties or was acquired with funds or assets in existence before the marriage and are traceable to those funds or assets. The preceding is simply an overview; Ohio law has many exceptions to what is deemed marital v. non-marital.

Once the marital property has been identified, it must then undergo the process of property valuation to determine its present worth. If either you or your spouse have substantial interests in retirement accounts, investment vehicles such as stocks, bonds and mutual funds, or business interests, it is extremely important to properly value these in dealing with the division of these complex marital estates. Even when a premarital agreement is in place, there are risks involved.

Usually, the marital home is one of the largest assets parties acquire during a marriage. Generally, if a home is purchased by both of the parties during the marriage each spouse will have an equal share in its ownership. However, the down payment, or other financial contributions from one of the spouse’s premarital assets may have been have been used to help purchase the home. As such, it is important to properly identify what portion of the marital home is marital (joint property) and what is not (separate property). So long as the separate property is “traceable” (i.e. easily traceable as a premarital asset) Ohio law allows it to be deemed separate property.

Additional considerations when dealing with a marital home include, whether it is more feasible to sell the home and split the net proceeds, or for one of the parties to retain the home and take on the mortgage and other expenses. It is not uncommon for both parties to be liable on the mortgage note. As a result, if one of the parties will retain the home it is necessary to address when and how the other spouse’s name will be removed from the underlying mortgage note, and therefore, releasing them from continued liability on the mortgage note. These are some of the practical considerations you will need to address in dividing a marital home when a marriage is ending.

Also, any arrearages on the mortgage, property taxes or liens against the marital home need to be addressed before the marriage is terminated. Although, the court can order the parties to pay for certain financial obligations or to reimburse the other spouse for certain costs, neither the court or the parties have the authority remove or relinquish one’s obligations to the mortgagor (bank or mortgage company) under a mortgage note. Therefore, it is very important to address these considerations so as to give you the best opportunity to move forward in your life.

Under Ohio state law, child custody and child support issues can be modified in any case where there has been a substantial change in circumstances and the court needs to modify its prior order in the best interests of the child. The following scenarios are often deemed substantial changes in circumstances:

The court usually favors equal parenting time with the children so long as it is practical under the circumstances. However, when there are extenuating circumstances deemed not in the child's best interests, i.e. a parent has a drug or alcohol abuse problem, sexual abuse, domestic violence, or some other issue, the court will usually limit parenting time.

When the parents do not live in relatively close proximity with one another, the noncustodial parent is usually provided reasonable parenting time (less than equal time with the child) based on the belief that it is in the child's best interests to maintain a close relationship with both parents. Also, the child's age and education status at the time also affects long distance parenting determinations.

Shared parenting only pertains to the parties' "legal rights" to make decisions affecting the children, and does not pertain to the amount of parenting time the parties have with the children. Parenting time is a separate but related issue that also needs to be addressed. In shared parenting arrangements, one parent is designated the "residential and school placement parent" for the children.

Although, Ohio law does not consider the economic status of a parent in determining custody, if a parent is living in unsafe housing or is unable to provide the child with basic necessities such as food, warmth, cleanliness, etc., such factors will likely be considered in determining the best interests of the children. It is important to meet with an experienced divorce lawyer early on in the proceedings so that you can best protect your relationship with your children. You will then be able to prepare the best way to demonstrate that you are able to care for your children.

Modifications of Child Support or Child Custody

Under Ohio state law, child custody and child support issues can be modified in any case where there has been a substantial change in circumstances and the court needs to modify its prior order in the best interests of the child. The following scenarios are often deemed substantial changes in circumstances:

As is often the case, one spouse owns or has an interest in a business or professional practice. In such cases it is very important to determine the true value of the business ownership and to rely on the expertise of a qualified financial expert in the particular industry. As with other financial concerns, whether the business was in existence prior to the marriage will affect a spouse's marital ownership portion.

If you would like to speak with me about asset division during a high-asset or complex divorce, please call (614) 461-5708 or e-mail my Columbus, Ohio, office for a free consultation. I accept credit cards, and can meet with clients at out-of-office locations on evenings and on weekends. As your attorney, I will see that you have all of the information you need to make good decisions and proceed with confidence.

For general information, visit our Divorce and Community Property Information Center.

It is not uncommon in this day and age that retirement savings is the single largest asset(s) in many marriages. While dealing with a divorce I advise my clients to consider their eventual retirement, even if it is ten to twenty years away. My previous experience as a retirement benefits attorney provides me the background to ensure that my clients have all of the necessary information and consider all available options.

The issues that arise during division of retirement assets include the location of the assets, valuation, tax issues and accurate calculation of the marital share. The type of retirement asset, a defined benefit asset (pension) versus a defined contribution asset (401(k), 403(b), 457, etc.), will determine whether any spousal portion can be immediately withdrawn or transferred to a separate account.

Regardless of the type of retirement asset, each has specific documents that must be issued by the court or the parties in order to properly apportion division of the asset. Federal law and pension plan administrators (those that hold the retirement assets on behalf of a plan participant) often require qualified domestic relations order (QDRO) or specific documentation to be completed. As your attorney, I will see that asset is properly divided in accordance with the court's order and federal and state law.

Division of retirement assets as part of a comprehensive divorce settlement.

Division of pension benefits, qualified/sheltered retirement accounts, such as 401Ks or 403bs, military pensions and other retirement vehicles is a complicated process during any divorce.

Often, a portion of a retirement account was earned before the worker married, and has increased in value during the marriage. In other cases, the value of any unvested retirement accounts need to be assigned as compared to the time when the working spouse will be fully vested and eligible for pay-out.

I work with CPA's and other financial consultants to see that my clients' rights to their marital portion is protected.

During any negotiations, it is important that the issue of any division of retirement assets be addressed contemporaneous with the division of marital property, and if necessary, any agreement on spousal support. It may be to your benefit to forego your share of an investment account or your interest in a business in order to retain full ownership of a retirement asset.

If you are involved in a divorce, I will work with you and your financial consultant to ensure that you have the necessary information and consider all available options.

Qualified retirement assets

Stocks, bonds and mutual funds

The ownership history of an investment or asset, such as the funds used and the "basis" are very important in determining the value, if any, of any marital portion to be divided.

Additionally, as with most investments, the tax implications resulting from any division or distribution must be examined. For instance, one spouse may have owned shares in a mutual fund before the marriage - identification of those shares and their current value must be determined, along with the identification and the current value of any additional shares purchased during the marriage.

Once the divorce complaint is filed the matter is before the court and the litigation process has started. During the divorce proceeding either party may request the court to issue "Temporary Orders".

Temporary Orders is where the court orders the parties to do certain things in an effort to stabilize the marital situation until such time as the matter is fully resolved. Temporary Orders address, among other things, temporary child custody, temporary child support, payment of marital debts, payment of support to a spouse and use of the marital home. Temporary Orders are just that, "temporary" and will terminate once the divorce matter is finally resolved.

If you would like to speak with me regarding divorce, dissolution, child custody, child support, establishing parental rights, legal separation, spousal support, grandparent / companionship rights, stepparent adoptions and annulment of marriages, please e-mail or call (614) 461-5708 for a FREE telephone consultation.

Columbus, Ohio, Family Law Attorney Dirken D. Winkler