Often, the law resolves legal questions a certain way simply for the sake of resolution. Yet, people could make good faith arguments as to the fairness of the underlying issues. A perfect example of this is how Ohio courts divide marital property. The law presumes that property acquired during the marriage was accumulated due to the joint efforts of both parties. The result is that property is almost always divided 50% to the wife and 50% to the husband. This is true even in situations where only one side did all of the work to accumulate the assets, or where a 50/50 division seems “unfair” because one party walks away with half of everything plus his or her significant pre-marital assets. But this is how our law works, and the law does work.

People and litigants usually know as a matter of common sense how the courts will divide property. And lawyers know from the outset a general bandwidth of the eventual property division. Knowing how the law will operate reduces expensive fighting (after all, no one wants to pay attorney’s fees unnecessarily!) This knowledge and predictability reduces the time it will take and the money it will cost for people to get divorced. Imagine for a moment if the law did not work this way. In that case people would fight over who did what during the marriage, how much each party’s contribution was worth and the fairness of giving someone 50% (or more, or less) in a given case. This extreme and unworkable example is actually quite similar to the situation that exists now with regard to the determination of spousal support awards.

Imagine this scenario:

You are going through a divorce. You’ve hired the same attorney that helped your best friend’s cousin get a spousal support award of $15,000 per month for the rest of her life. With your attorney at your side, you confidently head in to court to have your own alimony award (whether temporary or permanent) determined. After all, your attorney will be able to get you a similarly generous award, right???

Not necessarily… The courts have wide discretion when awarding spousal support. And this discretion often results in widely disparate support awards that depend on more than just the specific facts of your case. They also depend on something neither you nor or attorney has any control over at all: they depend on what judge has been randomly assigned to decide your case. For example, one judge might rule to “maintain the status quo.” Another judge may rule that your spouse must pay only necessary “living” expenses, including the mortgage, taxes, insurance, and utilities. Still another judge might find that the payment of all living expenses plus an amount of extra cash is more appropriate. Each scenario may be just as likely as the next. That’s right – the same set of facts, tried in the same courthouse, in front of three different judges, following the exact same set of laws, can result in three wildly different support awards.
This disparity and unpredictability is exactly why a movement has started picking up steam. Across the country practitioners, their clients, commentators, court personnel, and legislators alike, are pushing for states to adopt a formula for determining alimony awards.

The New York Times recently published a related op-ed piece entitled “Ending the Alimony Guessing Game.” New York has become one of the few states to adopt a set formula, at least for determining temporary awards during litigation. According to the article and the IRS, former spouses pay around $9 billion in alimony each year. Is it any wonder many are pushing for more certainty in the process?

In Ohio the term “spousal support” has replaced “alimony,” and there are 14 factors in place that Ohio’s trial courts are supposed to consider when setting such support. Yet the amount of spousal support granted can be – and often is – all over the place. By Ohio statute, spousal support must account for all of the following:

a) The income of the parties, from all sources;
b) The relative earning abilities of the parties;
c) The ages and the physical, mental, and emotional conditions of the parties;
d) The retirement benefits of the parties;
e) The duration of the marriage;
f) The extent to which it would be inappropriate for a party, due to child care needs, to seek employment outside the home;
g) The standard of living of the parties established during the marriage;
h) The relative extent of education of the parties;
i) The relative assets and liabilities of the parties;
j) The contribution of each party to the education, training, or earning ability of the other party;
k) The time and expense necessary for the financially independent spouse to acquire education, training, or job experience needed to obtain appropriate employment;
l) The tax consequences, for each party, of an award of spousal support;
m) The lost income production capacity of either party that resulted from that party’s marital responsibilities; and
n) “Any other factor that the court expressly finds to be relevant and equitable.”

While this list of guidelines is pretty comprehensive, the law doesn’t state how much weight to give each of the factors, nor does it give any instruction on how to apply each factor. And, factor n) allows the consideration of anything at all! One almost wonders whether factors a) through m) are even necessary when the final factor almost makes a joke of them! For this specific reason, different judges may place different values on different factors, and reach awards that differ by several thousands of dollars per month.

As an example, say a husband makes an annual income of $500,000, while the wife, who is trained as a registered nurse, quit her job to raise their children and has not worked outside of the home in more than twenty years. In this case, it is pretty clear that the wife will be entitled to some level of spousal support. But how much is appropriate? She almost certainly will not be able to pick up her career right where she left off and may, in fact, be unable to find employment in the nursing field at all without substantial retraining. Many would argue that she could at least secure a job at the Ohio minimum wage of $15,392 annually, but even that may not be practicable in today’s economy and, regardless, the difference in the spouses’ incomes is quite substantial. So what is a fair split? Should the after-tax income be divided equally, giving her something like $200,000 per year plus child support? Should it be divided 60/40 or 70/30? Should it depend primarily on the minimum amount of money on which the wife could survive? There are no easy answers to these questions. And, just as each client has a differing opinion, each judge has a differing opinion as to the relative importance of each factor. This results in an analysis that, no matter how relentlessly the court strives toward impartiality, is very, very subjective and unpredictable.

And we haven’t even started talking about duration of the support yet… Similarly, there are no guidelines under the law as to how many years the financially disadvantaged spouse should be paid. The general rule of thumb in Ohio is one year of spousal support for every three years of marriage. However, it is important to note that this is only a generally accepted practice, not a rule of law. Thus, the courts again have wide discretion to find that far less or far more support is equitable.

The end result of this is an analysis that is unreliable, unpredictable, and unclear. Those qualities lead to more fighting, more courts, more time, more expense, and more grief for everyone involved in the process. Appellate district courts regularly hear the appeals of clients who are unhappy with the support awarded in their case. But so long as the court can show that it considered the required factors and had some reasonable basis for its decision, the $1,000 per month award is just as likely to stand up on appeal as the $15,000 per month award. One of the more recent cases, captioned Janosek v. Janosek (8th Dist.), 2009 Ohio 3882, was granted certiorari by the Supreme Court of Ohio, giving Ohio practitioners hope that a clearer formula would be established. Unfortunately the Supreme Court subsequently dismissed the appeal as having been improvidently accepted. Unless another case arises that can make it further in the appeal process, it will be necessary for the Ohio General Assembly to take the initiative.

It is vital to empower judges with the discretion to account for extraordinary circumstances when fashioning support awards, but the vast majority of cases would benefit from a formulaic approach. With better predictability, attorneys can better counsel their clients as to what they are likely to be awarded in spousal support were the case to be tried. And where the clients can be more reliably counseled, they will be more willing to settle, saving time, expense, and valuable court resources. After all, if someone has no idea if their award or obligation will be $1,000 per month or $15,000 per month, they may decide it is more financially economical to try the case than to settle on a figure they believe to be too low or too high. The benefits are very clear, and it is time for lawmakers in Ohio and other states to take notice and follow in the footsteps of Maryland, New York, Pennsylvania, and Colorado to add more clarity and predictability to the process of divorce.