Statutes

BAPCPA
Bankruptcy Abuse Prevention and Consumer Protection Act
Effective October 20, 2007

The Federal Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCA) became effective October 20, 2007.  This new bankruptcy law introduced important changes in the area of family law and bankruptcy.  Under BAPCPA, spousal support, child support, and property settlement obligations are considered to be “Domestic Support Obligations” (DSO’s) and are generally non-dischargeable in a Chapter 7 case.  The new bankruptcy law also changes the order of priority that unsecured claims are paid by the bankruptcy trustee, with DSO’s to be paid before all other unsecured claims, including taxes.  Rule regarding the automatic stay have also been changed, with exceptions to the automatic stay being added for custody, visitation, domestic violence and divorce cases as long as there is no attempt to divide the marital property.  Property settlement obligations remain dischargeable in Chapter 13 proceedings.  However, if a Chapter 13 case is filed all support payments must be paid or the Chapter 13 case can be dismissed.  These are just a few of the significant changes which may affect domestic relations cases under BAPCPA.


Civil Rule 53
Modification to Rules Governing Magistrates
Effective July 1, 2006

Rule 53 of the Ohio Rules of Civil Procedure was modified by the Ohio Supreme Court effective July 1, 2006.  Significant changes to Rule 53 include: 10-day time period for filing a Motion to Set Aside a Magistrate’s Order runs from when the order is “filed” with the Clerk of Courts rather then “entered”; a transcript must be filed within 30 days after filing Objections to a Magistrate’s Decision unless the court, in writing, extends the time; if Objections are filed, factual findings and legal conclusions must be specifically objected to or movant has waived the right of appeal.  It is suggested that anyone who is not familiar with the changes to Rule 53 should read the new rule in its entirety.

H.B. 130
Granparent Power of Attorney & Caretaker Affidavit
Effective July 20, 2004
This bill created two ways for grandparents to obtain "care, physical custody, and control" over grandchildren without changing legal custody. The two methods are the execution of a Power of Attorney (POA) complted by parent(s), a custodian, or a guardian of a child or a Child Caretaker Authorization Affidavit (CAA), created by the grandparent when the child's parent(s), guardian, or custodian cannot be located. The documents must be properly signed and notarized under R.C. 3109.54 and 3019.67 and are valid for one year unless terminated earlier. They may be renewed after one year. The documents may not be used if theire are certain pending court proceedings. If there is a prior divorce, the documents may be filed with the Domestic Relations Court. Otherwise, they must be filed in the Juvenile Court.
H.B. 208
Direct Payment of Spousal Support
Effective January 25, 2002
This bill gives courts authority to permit an obligor to pay spousal support directly to the obligee instead of payment through the Office of Child Support in the Department of Job and Family Services. The authority only applies in cases where there are no minor children born as a result of the marriage and in cases in which the obligee has not already assigned the support amounts to the Department of Job and Family Services. Payments must be made in a form that establishes a clear record of payment. A court may rescind this option if the obligor is in default of any payments.


H.B. 519
Division of Public Pensions
Effective January1,2002
This bill modifies Ohio domestic relations and public retirement law to provide an additional method for parties involved in divorce, dissolution, annulment, or legal separation to divide their marital property when one of the parties is a Public Employee Retirement System (PERS) member. The new Ohio law permits a court to issue a "Division of Property Order," (DPO) as specified by Sections 3105.80 through 3105.90 of the Ohio Revised Code, that allows PERS to make direct payments to a former spouse ("alternate payee") from either a monthly benefit or lump sum payment being paid to a PERS recipient ("participant").


S.B. 180
Child Support Reorganization Act
Effective March 22, 2001
This comprehensive bill re-codified major sections of the Ohio Revised Code into new Chapter 3119. Child Support Worksheets were modified so as to: include spousal support received from the present or prior spouse to be included in gross income; also includes spousal support payments as an adjustment to the paying spouse's income; delineates the gross income of self-employed individuals; clarifies health insurance payment allocations; and specifically provides credits for Social Security benefits received derivatively by a child as a result of the paying parent's disability. The bill further requires that whenever child support is being established or reviewed, the Court must allocate the dependency exemption. Numerous other changes were made to the Administrative Process utilized by Child Support Enforcement Agencies and to the establishment of paternity.


Case Law

Supreme Court of Ohio

Wilson v. Wilson
2007-Ohio-6056
DIVORCE DECREE IS FINAL APPEALABLE ORDER DESPITE PENDING QDRO:
The Supreme Court of Ohio has held that a divorce decree which provides for the issuance of Qualified Domestic Relations Order (QDRO) is a final order subject to immediate review by a court of appeals, even before the QDRO is issued.  This case reversed a ruling of the 9th District Court of Appeals.  The Supreme Court emphasized that a QDRO merely implements the divorce decree and that the court of appeals erred in dismissing the case for lack of a final, appealable order.Harold v.
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Fisher v. Hasenjager
2007-Ohio-5589
CHANGE OF CIRCUMSTANCES AND SHARED PARENTING :The Supreme Court of Ohio has ruled that a change in circumstances, as defined by R.C.3109.04(E)(1)(a), must be shown to terminate shared parenting and designate one parent as the residential parent.  There had been a split of authority among the Courts of Appeals on this issue, due to various interpretations of R.C. 3109.04(E).  Several Courts of Appeals, including the Seventh District Court of Appeals, had previously ruled that pursuant to R.C. 3109.04(E)(2), a change of circumstances need not be shown to terminate a shared parenting plan, and that a trial court was only required to find that it was in the best interest of the child to terminate shared parenting and designate one of the parents as the residential parent.  A change in circumstances of the child or either parent  since the previous order allocating parental rights must now be shown before a shared parenting plan can be terminated.
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In re Estate of Holycross
2007-Ohio-1
DIVORCE REVOKES LIFE INSURANCE BENEFICIARY: The Ohio Supreme Court has held that R.C. 1339.63, which became effective on May 31, 1990 and automatically revokes a former spouse as beneficiary of a life insurance policy, does not apply to insurance contracts entered into prior to May 31, 1990.  For this reason it is very important for all divorce parties who own life insurance to make sure they change the designation of their beneficiaries immediately after the divorce is granted to avoid life insurance benefits being paid to their former spouse, especially if they owned the policy or were became entitled to insurance benefits prior to May 31, 1990.
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Barth v. Barth
(2007), 113 Ohio St.3d 27
6 MONTH RESIDENCY REQUIREMENT: The Ohio Supreme held tht R.C. 3105.03 creates a strict test of residency, and to file a complaint for divorce in OHio, a plaintiff must have been a resident of Ohio for six months immediately prior to the filing of the complaint. In determining residency for purposes of R.C. 3105.03, a court shall not consider the motives of either spouse with regard to his or her establishment of residency outside of Ohio.
State ex rel. Lloyd v. Lovelady
2006-Ohio-161
RELIEF FROM PATERNITY JUDGMENTS: R.C. 3119.961, which provides relief from a child support order where a court is provided with genetic test results indicating a zero per cent probability that a person is the father of the child, with certain exceptions, has been found by the Ohio Supreme Court to not violate the separation-of-powers doctrine, and therefore to be a constitutional exercise of legislative power.
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Harold v. Collier
(2004), 107 Ohio St.3d 44
GRANDPARENT VISITATION: A unanimous Ohio Supreme ruled that Ohio's nonparental-visitation statutes, R.C. 3109.11 and 3109.12 do not unconstitutionally infringe on a parent's funadamental rigth to make decisions concerning the care, custody, and control of his or her child. Said provisions properly afford special weight to the wishes of parents and therefore do not violate the standards set forth in Troxel v. Granville (2000) 530 U.S. 57.
Neville v. Neville
(2003), 99 Ohio St.3d 275
Social Security Benefits

In making an equitable division of marital property in a divorce proceeding, a trial Court may consider the parties Social Security benefits in relation to all marital assets.

Hubin v. Hubin
(2001), 92 Ohio St.3d 240
SHARED PARENTING DEVIATIONS IN CHILD SUPPORT: The Ohio Supreme reaffirmed its prior decision in Pauly v. Pauly (1997), 80 Ohio St.3d 386 that held that the Ohio statute governing child support calculations under a shared parenting plan does not provide for an automatic credit in a parent's child support obligation for the time that a child resides with his or her parent. However, a trial court may deviate from the amount of child support calculated under the statute if a court finds that the amount of child support would be unjust or inappropriate to the child or either parent and would not be in best interest of child.


Kelm v. Kelm
(2001), 92 Ohio St.3d 223
ARBITRATION NOT APPLICABLE TO CUSTODY AND VISITATION

In a domestic relations case, issues concerning child custody and parental visitation are not subject to arbitration.



Braatz v. Braatz
(1999), 85 Ohio St.3d 40
CHANGE IN CIRCUMSTANCES NOT REQUIRED TO MODIFY VISITATION

A party requesting a change in visitation rights does not need to make a showing that there has been a change in circumstances in order for the court to modify those rights. Pursuant to R.C. 3109.051(D), the trial court shall consider the fifteen (15) factors enumerated therein, and in its sound discretion, shall determine visitation that is in the best interest of the child.



Seventh District Court of Appeals

Goodman v. Goodman
(2001) 144 Ohio App.3d 367
TEMPORARY SUPPORT ARREARAGES MAY BE REDUCED TO JUDGMENT

If an arrearage exists from a temporary child support order, upon request a court must reduce the arrearage to judgment or refer to the arrearage within the final divorce decree; otherwise, the right to the arrearage is lost, as temporary orders merge within the final order. Upon reducing a child support arrearage to a lump-sum judgment, a court may satisfy the judgement out of the contemporaneous property division.



Rohrbaugh v. Rohrbaugh
(2000), 136 Ohio App.3d 599
GEOGRAPHIC RELOCATION AND CHANGE OF CUSTODY

In a case of shared parenting where one parent has primary custody, that parent's proposed geographic relocation from Youngstown to Columbus constitutes a change of circumstances sufficient to justify a modification of the original shared parenting order.



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Mahoning County Domestic Relations Court
120 Market St.
Youngstown, OH
44503

Phone: 330-740-2208
Fax: 330-740-2503