Monday, July 20, 2009

Family Law Reform Necessity Recognized by Ohio

The fact that "lifetime" alimony does not work and is an injustice wreaked upon spouses and families to the detriment of society has also been recognized and reported by the State of Ohio.

In October of 1997, a thesis was submitted in partial fulfillment of the requirements for the degree of Master of Judicial Studies in Trial Court Judge Major by Judge Leslie Herndon Spillane titled "Spousal Support: The Other Ohio Lottery."

Then in January of 1999, an Ohio Task Force on Family Law and Children consisting of twenty-four individuals from nine different disciplines were selected by the Chief Justice of the Supreme Court of the State of Ohio, Governors Voinovich and Taft, the Ohio Association of Domestic Relations Judges, the Ohio Association of Juvenile and Family Judges, the Ohio State Bar Association, the Speaker of the House of Representatives and the President of the Senate to research the state of family law in Ohio and make recommendations for enhancements to processes that will put children first, ensure that families have choices during the divorce and dissolution process, minimize conflict, and emphasize problem solving.

Of particular significance are the comments at the end of the study:

"We have relinquished to the Child Support Advisory Council all matters relating to financial child support, but several of these issues deserve our attention. For example, as noted by Ohio Appellate Court Judge Gwinn (1999), at the upper levels of income, child support awards clearly represent thinly disguised alimony in that amounts awarded are far in excess of what is required for reasonable child support, and no accountability for the expenditure of funds is required. Issues of exorbitant or extended spousal support and unreasonably high child support payments are predicated on the assumption that a spouse (almost always the wife) or a child is entitled to be kept in the style to which they have become accustomed. This deep pockets orientation provides a windfall for the recipient with no obligation to provide anything in return.

Child support obligations are determined according to tables that are seriously flawed in their underlying loose-estimate assumptions, and based on averages that obscure different costs of child rearing according to age of the child or location of residence. Moreover, it is difficult for recipients of court-ordered awards to respond to the donor with gratitude, or respect on the part of children, when they have accepted the notion that these monies are their entitlement. The frequently found alienation of children from their non-resident fathers is exacerbated by this condition, in that this support continues regardless of behavioral compliance with parental rules, child's work ethic, or reciprocity of caring in the father-child relationship. From a child development point of view, more money is not correlated with better child adjustment.

In the case of spousal support, there is a prevailing assumption that a due bill is owed by the breadwinner at the culmination of marriage, regardless of who initiated the divorce, the cause of the divorce, or the degree to which the parties provided benefits to each other during the marriage. Only good providers are penalized in these cases, since those without the means to pay have little or no continuing financial obligation to ex-spouses, and only minimal and often insufficient support payments to children. Our group has also avoided discussion of spousal support even though the Ohio Bar Association is currently addressing that issue in committee. At the very least, I believe we should have examined the existing problems independently and offered our perspectives to the legislature. The major purpose underlying our appointments to this Task Force was to broaden the legislative advisory group. There are profound problems in spousal support and it is debatable whether the only voices heard by the legislature should be those of Ohio attorneys.

We had neither the time nor the collective willingness to resolve most of these problems, but I had hoped we could give guidance to the legislature on some of the more blatant injustices that have gone on for so long that they are perceived as legitimate. From an optimistic posture, if we could have agreed on some of the financial issues that impede cooperative parenting, our proposed legislation might have incorporated language that had the potential to remedy longstanding grievances at the root of bitter post-divorce relationships.

My third conclusion is that we gave no attention to the issue of prenuptial contracts. Yet, judicial respect for the decision-making authority of marital aspirants would seem to be a core requirement for resolution of financial and child rearing matters in the event of divorce. Rather than basing decisions on the adversarial and often irrational conditions prevailing at the time of divorce, fairer adjudication of both financial and child rearing matters could be accomplished by honoring agreements made at the onset of the marriage when commitments are defined cooperatively and with due regard for the rights of the other party. Attempts to undermine prior contractual agreements through legal manipulations should be deterred by judicial policy that protects the integrity of these agreements and implements them as intended. It is likely to believe that couples may increase their propensity to marry if they were provided assurances at the outset that their contractual obligations, mutually agreed upon, would be the foundation for problem resolution if needed in the future."

[Read the full report...]