Domestic Relations Resource Guide - Section I: Substantive Law

Overview of Spousal Support
Spousal support is born out of the contract of marriage. Married persons have an obligation to support themselves and their spouse out of property and labor. However, if a married person is unable to do so, the spouse must provide support as that person is able. [R.C. 3103.03]

Courts may award spousal support to either spouse upon the request of either party in an action for divorce or legal separation. R.C. 3105.18 outlines the factors which a court considers to determine the appropriateness, amount, and length of time an award is made. It can be ordered for a period of time or as a permanent, lifetime award.

Spousal support includes payments both for sustenance and for support of the spouse or former spouse. It does not include any payment made as part of a division or distribution of property or a distributive award. [R.C. 3105.18]

"Spousal support" replaces the terminology of “alimony” that was previously used and refers to payments from one spouse to another during or after an action for termination of a marriage. Either spouse can be ordered to pay support to the other; the court considers the parties’ income and resources, not gender.

Temporary Spousal Support (Pendente Lite)
Civ.R. 75 allows a party to request a temporary spousal support order while the divorce or legal separation is pending. If the court makes a temporary order, it ends when the divorce or legal separation is over. The court may make a final spousal support order.

There is no specific formula in Ohio for calculating temporary support awards. The court must use its discretion, taking into account each spouse’s earning capacity and other resources while the divorce is pending. The court should strive to maintain the financial status quo despite title or ownership.

1. Determining the Award

   • No formula or requirement to consider R.C. 3105.18(C)(1) factors

   • Address immediate needs, balance payor’s ability to pay without creating undue hardship to either spouse

   • Preserve status quo [Kahn v. Kahn, 42 Ohio App. 3d 61 (2nd Dist. 1987)]

   • Prioritize debts/expenses

   • Provide sustenance to economically disadvantaged spouse

   • Courts have the discretion to award spousal support payments be made in cash installments, in the form of health insurance coverage [R.C. 3105.71], or payment of bills (e.g. mortgage, utilities, credit cards, car).

2. Procedure for Establishing Temporary Spousal Support
   Temporary spousal support can be ordered expeditiously in order to meet and address immediate needs through the use of affidavits or through evidence. Civ.R. 75(N)(1) requires that it be requested in the complaint, answer, counterclaim, or by motion served with the pleading. [See Supreme Court of Ohio’s Uniform Domestic Relations and Juvenile Standardized Forms 5, 6, 7, 8, 9, 10 or other local required forms.] Counter-affidavits may be submitted within 14 days after service of request. [Civ.R. 75(N)(2)]

   It is within the court’s discretion whether to conduct an oral hearing. A hearing provides the opportunity to obtain more accurate information or to encourage parties to engage in settlement negotiations. However, the court may award temporary spousal support based upon satisfactory proof demonstrated through affidavits. [Civ.R. 75(N)(2)]

3. Modification of Temporary Spousal Support [Civ.R. 75(N)(2)]
   A party may request an oral hearing to modify a temporary order. The oral hearing must be scheduled within 28 days after the request to modify. The request for an oral hearing does not suspend or delay commencement of support. The hearing may be an oral or evidentiary hearing. A party may request a modification of temporary spousal support at any time during the pendency of the divorce proceeding. [Chattree v. Chattree, 8th Dist. Cuyahoga No. 99337, 2014-Ohio-489]

4. Termination of Temporary Spousal Support
   Temporary spousal support automatically terminates upon granting of the decree. Any arrears that have accrued during pendency of the case are considered merged into the decree and become uncollectible unless the decree specifies that arrears are preserved and due. [Colom v. Colom, 58 Ohio St. 2d 245 (1979)]

Establishment
The standard for determining spousal support is “appropriate and reasonable.” This is broader than whether it is “necessary.” Thus, it must be appropriate and reasonable for one party to receive and also for the other party to pay. There is a statutory presumption that parties are considered to have contributed equally to the production of marital income.

Factors for determining whether spousal support is “appropriate and reasonable” and for determining the nature, amount, and duration of spousal support: [R.C. 3105.18(C)(1)]

• Income of the parties, from all sources, including, but not limited to, income derived from property awarded as part of the property division in the divorce proceeding;

• Relative earning abilities of the parties;

• Ages and the physical, mental and emotional conditions of the parties;

• Retirement benefits of the parties;

• Duration of the marriage;

• Extent to which it would be inappropriate for a party, because that party will be custodian of a minor child or children of the marriage, to seek employment outside the home;

• Standard of living of the parties established during the marriage;

• Relative extent of education of the parties;

• Relative assets and liabilities of the parties, including, but not limited to any court-ordered payments by the parties;

• 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;

• 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;

• Tax consequences, for each party, of an award of spousal support;

• Lost income production capacity of either party that resulted from that party's marital responsibilities; and

• Any other fact that the court expressly finds to be relevant and equitable.

These factors are the same regardless of whether the marriage is being terminated. A case can be remanded or reversed based on the discussion of the factors.

1. Amount of the Award
   Spousal support is income-driven; however, there is no mathematical formula like with child support. The purpose of support is to allow the receiving spouse to maintain the standard of living established during the marriage and also to compensate for damage to future earning potential caused by the marriage.

   Generally, courts rely heavily on the statutory language and consider the length of the marriage. Support may be an award of property, lump sum payment, or periodic payments. [R.C. 3105.18(B)] Attorney’s fees may also be awarded as spousal support. [R.C. 3105.73]

   Ohio law requires that if child support is ordered along with spousal support, the orders are paid through the Child Support Enforcement Agency (CSEA). If there are no minor children or no child support order, a direct payment between the parties can be negotiated.

   Federal tax law reformed spousal support removing the tax deduction for the obligor. This provision expires in 2025 and may be subject to further revisions. The income of the obligee may or may not be reported.

2. Length of the Award and Continuing Jurisdiction
   Courts have flexibility in determining the length of a spousal support award. It can end on a specific date, can continue indefinitely, or can terminate upon the occurrence of a specified event (e.g., the recipient’s remarriage, cohabitation). R.C. 3105.18(B) requires termination upon the death of either party unless the order requires otherwise. However, it is recommended that the spousal support order include a specific ending date where possible.

   The court may retain jurisdiction over the amount and/or duration of spousal support. If the court chooses to retain jurisdiction, the order must contain explicit language to this effect. [R.C. 3105.18(E)] Additionally, R.C. 3105.18(D) provides that in actions for legal separation, the court automatically retains jurisdiction to modify the order upon a change in circumstances of either spouse.

3. Writing an Effective Order
   The order should:

   • Set a commencement date as a specific date or date of an event (e.g., sale of house, emancipation of child, journalization of decision)

   • Specify limitations and if court will reserve jurisdiction to modify

   • State rationale and purpose of award

   • Decide whether payment of temporary support will be credited to the term of the obligation

   • Choose whether to set termination date or make an indefinite order with no end date (If the order has no set termination date, the court must retain jurisdiction.)

   • Address temporary support arrears

   • Specify the method of payment; either directly if the parties have no minor children or through the CSEA if there are minor children [R.C. 3121.441]. Include the appropriate processing fee for any CSEA orders.

Modification and Enforcement

1. Modification
   Awards for spousal support can be modified. Spouses can agree to make the order modifiable; however, if the divorce decree does not expressly state that the court retains jurisdiction, then the order cannot be modified. The party seeking the change has the burden of showing that the modification is warranted.

   If the court’s jurisdiction has been retained, the court can only order a modification where the party requesting the change can demonstrate there has been a material or substantial change in the circumstances of either party that makes the existing award no longer reasonable and appropriate; and the change was not taken into the account by the parties or the court as a basis for the award when it was established or last modified, whether or not the change in circumstances was foreseeable at the time of the original decree. [R.C. 3105.18(F)] Appellate districts may treat the foreseeability issue differently.

   A change in circumstance includes:

   • Altered economic conditions, which could include an involuntary decrease in the payor’s income, or an increase in either spouse’s income or assets (e.g., salary, living expenses, medical expenses);

   • Remarriage of the recipient;

   • Death;

   • Entering into a relationship in another state that would constitute a valid marriage in Ohio;

   • Cohabitation in certain situations;

   • Retirement; and

   • Other circumstances within the court’s discretion.

2. Enforcement Actions
   The court has the authority to enforce its orders upon a filing and properly served motion to show cause.

   • Withholding order from assets

   • Action for contempt

     • Indirect civil contempt for non-payment [R.C. 2705.02]

     • Procedural requirements [R.C. 2705.031- 2705.10]

     • Standard of proof is clear and convincing evidence.

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       A standard that requires proof offered in a case to be highly likely or certain – more than a preponderance of evidence, but less than beyond a reasonable doubt.

     • Appointment of counsel for indigent alleged contemnor [Turner v. Rogers, 564 U.S. 431 (2011)]

   • Criminal non-support statute [R.C. 2919.21, rarely used]

   • Withholding order paid through CSEA [R.C. 3121.441(C)]

3. Antenuptial Agreements
   Courts may modify the provisions set forth in an antenuptial agreement if, at the time of the divorce, such provisions are unconscionable. [Gross v. Gross, 11 Ohio St.3d 99 (1984)] The party claiming the unconscionability of the spousal support provision, by way of motion for modification, has the burden of showing its unconscionable effect at the time of divorce, and the court shall use the factors set forth in R.C. 3105.18 to determine the issue of unconscionability and the reasonableness of the spousal support provisions.

4. Bankruptcy
   Spousal support is a non-dischargeable debt under 11 U.S.C. 523(a)(5). See the definition of domestic support obligation in 11 U.S.C. 101(14A). Courts should look to case law in addressing whether the debt is in the nature of support. Bankruptcy and domestic relations courts have concurrent jurisdiction to determine dischargeability.