Determining High Income Child Support

Why is the answer to, “What will I have to pay in child support when my income and my spouses’ income is more than $150,000 combined?” not so easy?

One of the first questions I get from potential clients and clients alike is, “How much will I have to pay in child support?” and “How much will I get in child support?”    Ordinarily, the answer is easily obtainable by a calculation using the Ohio Child Support Guidelines Worksheet which applies statutory guidelines set forth by the Ohio Revised Code Section 3109.021.  The basic information used for child support calculations includes each parties’ income, the parent’s work-related child care expenses, health insurance premiums incurred for the minor children, the local income taxes paid by each parent, and whether any other child support or spousal support is being paid or received by either party.  “Running the child support is not rocket science” is the phrase I usually use, until the combined gross income of the parties is $150,000 or more.  When calculating high income child support the trial court must determine the income of both parties.  Once the income is determined, the incomes are them combined for the purpose of applying the child support guidelines.  If the calculation yields an amount more than $150,000, then the income qualifies for the “high income” child support.  The trial court must then determine in each individual case what child support amount is in the best interests of the minor children.  The court must look at the life style of the children, if there are any special needs and the incomes of the parents.  The “extrapolation method” is then used.  What is the “extrapolation method” you ask?  In Cummin v Cummin the Fourth Appellate Court in Ohio (12-21-2015) upheld the trail court’s ruling in extrapolating the child support income and imputing income to a doctor.  The Court of Appeals exhaustively analyzed how to calculate child support where the parent’s combined income was more than $150,000.  The trial court made an initial determination and attached to the original divorce decree a child support guideline worksheet basing the support on the parties’ actual income, rather than capping the income to $150,000 for purposes of calculating the support.  At the time the parties’ income was over $300,000. The court used the extrapolation method.  Three years later the trial court modified its previous award of child support again using the extrapolation method.  Since the Appellant did not originally object to the trial court’s method, the court deemed it was improper for him to raise the objection for the first time. Too late, buddy, but I am not sure the objection would have made a difference.  The Appellate court further stated that even if the argument is not waived, the trail court was within its’ discretion (both statutorily and case law wise) to either cap the income at $150,000 or use the parties’ actual income when crafting a child support order.  Case by case.  Since there is no statutory calculation for child support on “high income” parties the broad discretion has resulted in a wide variety of child support orders, even when the facts of the case seem very similar.  Like I said, not such an easy question to answer.

Considering a Prenuptual Agreement?

Have you ever heard about the bride who is given a prenuptial agreement moments before walking down the aisle to get married?  Many people believe that the agreement given to her moments before she takes her vows of marriage would hold up in Court.  Me, not so much.

A prenuptial agreement which is also referred to as an antenuptial agreement is an agreement between two parties contemplating marriage that alters or confirms the legal rights and obligations they would otherwise have under the laws that govern marriage that end in either divorce or even in death.  These agreements are charged with controversy as to their enforceability.  This area of law is complex area and encompasses family law and estate planning.  All fifty states recognize prenuptial agreements in one way or another.  There are technical requirements of the agreement.  They must be in writing and they must be signed by both parties.  Generally, parties to a prenuptial agreement must have had the opportunity to consult with legal counsel.  I believe this is super important and one of the pillars of enforceability.  The more time the parties negotiate the terms with their counsel the greater likelihood the agreement will hold up.  There must be full financial disclosure and the agreement must be signed before the marriage.  The closer the agreement is signed before the marriage the more likely it is to be challenged. Personally, I will not take on a matter unless the parties are at least four months from marriage as I recognize there will be time spent to negotiate, draft and review a prenuptial agreement and signing one on the eve of marriage makes it a pretty weak agreement.  Obviously, there must be a marriage subsequent to the execution of the agreement.  There are some public policy limits, such as attempting to limit the number of children born in the marriage.  Also, provisions in the agreement regarding child custody are not usually enforceable.  There are also fairness standards. What constitutes fairness depends on the circumstances of the agreement and are called Button standards, after the case Button v. Button.  The standards are as follows: objectives of the parties, economic circumstances of the parties, the property owned by each party before the marriage, the existence of other family relationships and obligations, each party’s income and earning capacity, anticipated contributions of each party to the marriage, the health of the parties, education and professional goals of the parties, including expectations that one party will contribute as homemaker and parent.

Many times the questions I ask before I take on a prenuptial matter are and if the answer is not “yes” I am unlikely to take on the case.

  • Is there enough time to negotiate, draft, review and sign the agreement so that no one is unduly pressured?
  • I require both parties to hire attorneys, so has the other party hired an attorney?
  • Are the parties willing to bring in their accountant to review their taxes and finances?
  • Are the parties willing to use a valuation expert to value real estate and businesses?

Many times the agreement covers not only divorce but death.  Usually, this is where family law and estate planning attorneys must work together.

Ohio Private Judge Statute

Private Judge Statute.  I am a fan.

A recent Continuing Legal Education class taught me about the benefits of using a private judge.  A private judge is a retired judge who has registered with the Ohio Supreme Court. The registration states that the judge is willing to serve as a judge according to an agreement entered into by the parties under R.C. 2701.10.  The parties must file an agreement in their case in order to be heard by the private judge.  The agreement must be signed by all interested parties and by the retired judge who will be hearing the matter. 

R.C. 2701.10 allows parties to hire a retired judge to serve as the judge in their lawsuit.  The judge must first register with the Ohio Supreme Court and give his or her intent to hear cases under the statute.  Then, the judge registers with the Clerk in that county in which he or she wants to hear cases.

The advantage of having a private judge hear your matter is that the parties do no have to go to a court house, but can be heard in the offices of their lawyers.

Interestingly, seven states allow for private judges. Luckily, Ohio is one of them!