What to consider when dealing with spousal support aka “Alimony”

By dgedrock
•
26 Jun, 2018
•

Alimony, now known as Spousal Support because it is payable to either spouse whereas as “alimony” was too closely identified as being payments made to a wife by a husband, is any payment or payments made to a spouse or a former spouse, or to a third party for the benefit of the spouse or former spouse, that is both for sustenance and support of the spouse or former spouse.

The important point in that paragraph that is often overlooked is the part that deals with payments being made to a third part for the benefit of a spouse or a former spouse. What that means is that if you pay your former spouse’s bill those payments can be considered spousal support. If you pay your former spouse enough to cover all expenses and the bills or you pay him/her enough money to sustain and support him/her minus the amount of the bills, which you are paying separately to the third parties e.g the creditors, isn’t it the same thing? The funds the former spouse has to support and sustain him or herself is the same after the bills have been paid the only difference is who paid the bills. This is something you should think about when the issue of spousal support and the paying of the marital debt becomes an issue.

Spousal support does not include any payments made to a spouse or a former spouse, or to a third party for the benefit of a spouse or a former spouse, that is made as part of a division or distribution of property or a distributive award. I will talk about distributive awards in a subsequent blog but suffice it to say for now that it deals with dividing, under certain circumstances, pre-marital property.

In a divorce or a legal separation proceedings (the parties aren’t ready to get divorced but they want/need to live separate and apart), upon the request of either party and after determining the division or disbursement of property, the court may award reasonable spousal support to either party. During the pendency of a divorce or legal separation proceeding the court may award reasonable temporary spousal support to either party. The theory behind temporary spousal support is to help the parties survive separate from each other so often times this temporary support obligation is not as fine tuned as the ultimate support order.

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 installments, from future income or otherwise, as the court considers equitable. I once had a case where the husband moved to China and because we didn’t believe that he would be diligent or consistent in making spousal support payments we had the court award us the marital residence as spousal support. My client had a place to live and as long as she made her mortgage payments she was creating equity that she could use in the future should she have to take a loan or sell the house. Accepting payments could have put her in the position where she might have had to take her husband to court to enforce the payment obligation while at the same time potentially jeopardizing her interests in the marital residence if he got behind in his support payments. Rather than risk that we took the house as spousal support.

Spousal support shall terminate upon the death of either party, unless the court order containing the order expressly provides otherwise.

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Self-Defense

By Admin • September 7, 2020

Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self-defense, defense of another, or defense of the accused rebels residence as described in a following paragraph, is on the accused.

A person is allowed to act in self-defense, defense of another, or defense of that person’s residence.

A person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

The presumption of having acted in self-defense or defense of another does not apply if : the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle or the person who uses the defensive force uses it while in a residence or vehicle and that person is unlawfully, and without privilege to be, in that residence or vehicle.

Residence means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.

Vehicle means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.

Something to keep in mind in today’s social environment. If you have any questions or you want further clarification consult an attorney.

Juvenile Civil Protection Order

By Admin • April 20, 2020

If a juvenile commits a felonious assault, aggravated assault, aggravated menacing by stalking, menacing by stalking, aggravated trespass, or a sexually oriented offense any person on behalf of the victim, any parent or adult family member or household member may seek relief on behalf of any other family or household member. Additionally, any person who the Court deems to be an appropriate person may seek relief on behalf of a child.

The case must be filed in the Juvenile Court if the respondent (perpetrator) is under 18. An ex parte order may be signed by a Magistrate. If an ex parte Order is issued a hearing on that order must be held within ten days. The court in which this case must be filed is the Juvenile Court where the party seeking relief resides. The standard of proof is preponderance of the evidence unless electronic monitoring is being requested in which case the burden of proof is clear and convincing evidence.

The protective order will remain in effect for a specified period of time but not exceed the respondent’s 19 th Birthday.

Objections may be filed after the issuance of a final appealable order.

General Information About Marsy’s Law

By Admin • December 23, 2019

People often talk about Marsy’s Law. Here’s somethings you should know: If you are a victim of crime you have the right: To fair and respectful treatment which includes your safety, dignity and privacy Upon request to notice of and the right to be present at all proceedings that involve the alleged accused in your case The right to be heard In any public proceeding in which your rights are implicated. To reasonable protection from the alleged accused or people acting on his/her behalf(family and or friends) Upon request to reasonable notice of any release or escape of the alleged accused To refuse discovery requests made by the alleged accused except as authorized by law (the Ohio Constitution) To full and timely restitution To proceedings without unreasonable delay Upon request to confer with the government’s attorney. This is not meant to be an exhaustive list but rather an attempt to give you enough information so that you have a better idea where you stand if you ever become the victim of a crime. For specific answers to specific question talk to the prosecutor who is handling your case.

BAC or Blood Alcohol Concentration

By Admin • September 26, 2019

BAC or Blood Alcohol Concentration is a measure of alcohol in the body. It is measured by testing the
breath, urine and saliva.

In Ohio you are considered impaired if you test .08 which is 8/10 of a drop of alcohol for every 1000
drops of blood. If you are under 21 and you test at .02, or if you are a commercial driver and you test at
.04, you are considered to be impaired.

Several factors affect a person’s absorption of alcohol. They include: weight, gender, amount of food
you’ve eaten and the time spent drinking ( how much and how often for how long).

Driving skills are impaired, especially judgment, in most people before they exhibit visible signs of being
intoxicated. For example at .03 your divided attention, choice reaction time, visual function, tracking and
steering, standing and steadiness will be affected. At .05 your information processing, judgment and
coordination will be impaired and at .08 your concentration and speed control will be impaired. These
impairments are cumulative meaning that the impairments you exhibited at .03 and
.05 will also be exhibited at .08. This is what the field sobriety test will be looking for.

So, if you’re going to drink spread it over the evening, limit the amount you drink and if you’re not sure
you should drive you probably shouldn’t.

A Civil Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order

By Admin • September 2, 2019

A Civil Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order can be brought by someone who is being menaced by stalking or victims of a sexually oriented offense. Filing criminal charges is not required. The person being stalked or menaced can seek relief on their own behalf.

Any parent or adult household member may seek relief on behalf of any other family or household member.

If the respondent (the accused) is 18 or older the Court of Common Pleas is where you go to seek the order. An Ex Parte Order (meaning only the complaining party was present at the time) may be signed(granted) by a Magistrate. If an Ex Parte Order is granted there will be a hearing within ten court days of the order being granted. If an Ex Parte Order is not granted the case will follow the normal civil action proceedings

The Common Pleas Court that you should go to get this Order is the Common Pleas Court where you, the petitioner, resides.

The Order will be in effect for a specified period up to five years and it may be renewed. Objections to the Order may be filed after the Court has issued a final appeal able order. Violation of the Order can result in either a criminal charge being filed or a contempt of court being filed.

Here’s some information Parents Who Are Thinking of Hosting a Teenage Drinking Party Should Know.

By Admin • August 26, 2019

As a parent, you cannot give alcohol to your teen’s friends under 21. Not even in your own home even with the permission of the friend’s parents.

You cannot knowing allow a person under 21 who isn’t your child to remain in your home or property while they are consuming or possessing alcohol.

If you get caught you could face a maximum sentence of six months in jail and a $1000 fine.

You could be sued if you gave alcohol to anyone under 21 and they hurt someone, hurt themselves or damaged property.

The police can take any alcohol, money or property they find that was used in committing the offense.

Play it safe, refuse to supply alcohol to anyone under 21; be home when your teen has a party; make sure alcohol isn’t brought into your home or onto your property by your teen’s friends and if it is occurring despite your best efforts either bring it immediately to an end or report it.

No one wants to be arrested

By Admin • July 8, 2019

No one wants to be arrested, but an unpleasant experience can become worse if you take any action to worsen the situation. Therefore, it’s generally advisable to follow the officer’s requests.

In Ohio you resist arrest when you recklessly or forcibly resist or interfere with your arrest or the arrest of another. The arrest has to be lawful, if not you may be able to use that as a defense in your case.

Other possible defense could be self defense, police misconduct, that the officers did not identify him or herself, that the person making the arrest was not a law enforcement officer. Inasmuch as resisting arrest can be either a misdemeanor or a felony.

The Second in a Series about Protection Orders.

By David Gedrock • June 17, 2019

A Domestic Violence Temporary Order (DV TPO) can be sought when a criminal charge of domestic violence, stalking, criminal damaging, criminal endangering, criminal mischief, burglary, aggravated trespass, a sexually oriented offense or any offense of violence has been perpetrated against a family or household member. The criminal charge can be either a misdemeanor or a felony.

The Municipal Court, the County Court or the General Division of the Court of Common Pleas has jurisdiction over the case.

The Order will remain in effect for the duration of the criminal case or until a DV CPO is issued that arose out of the same activity.

Occasionally you may hear about a person having to make restitution.

By David Gedrock • June 17, 2019

Occasionally you may hear about a person having to make restitution in other words pay someone for something they lost e.g. a gun taken during a burglary.

In general restitution is discretionary with the trial court it must be considered but the court doesn’t have to order it. The amount ordered must be a part of the sentencing order. The order must be made with the defendant present and on the record.

The Court cannot modify the amount of the restitution after the sentence is imposed. The Court can modify the payment terms. The amount ordered must be reasonably related to the offense. The amount must be based upon the amount of loss incurred by the victim. Restitution cannot be ordered on charges on which the defendant was found not guilty.

Restitution can be ordered for pretrial diversion programs, intervention in lieu of conviction and post release control.

A restitution order is mandatory in:

Human Trafficking Specification
Kidnapping
Abduction
Compelling Prostitution
Promoting Prostitution
Illegal Use of a Minor in Nudity
Oriented Material or Performance
Endangering Children Engaging in Pattern of Corrupt
Activity
Theft in Office

In my next blog I’ll talk about the amount, the hearing and who can be the recipient.

This is the first of a series of blogs about Protective Orders.

By David Gedrock • May 5, 2019

A criminal protective order can be sought when the criminal charges of felonious assault; aggravated assault; assault; aggravated menacing; menacing by stalking; aggravated trespass; menacing or a sexually oriented offense is committed against someone who is NOT a family or household member. The offense can be either a misdemeanor or a felony.

The Court that has jurisdiction over the case be it a municipal court or a common pleas case can hear the case.
The order once it is granted will remain in effect for the duration of the criminal case or until a Criminal Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order is issued arising out of the same activities.

What to consider when dealing with spousal support aka “Alimony”

Self-Defense

Juvenile Civil Protection Order

General Information About Marsy’s Law

BAC or Blood Alcohol Concentration

A Civil Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order

Here’s some information Parents Who Are Thinking of Hosting a Teenage Drinking Party Should Know.

No one wants to be arrested

The Second in a Series about Protection Orders.

Occasionally you may hear about a person having to make restitution.

This is the first of a series of blogs about Protective Orders.

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