The Ohio Revised Code sets out the factors that the courts consider when awarding alimony in a divorce case. These considerations include income, earning ability, age, length of marriage, standard of living and the parties’ education. This list gives a person an idea of what the court is going to look at, in general, to determine what is a reasonable amount of alimony. Unfortunately, the Code is not so clear on what happens when a person’s circumstances change after the award is entered.
A brief history of alimony modification
The Ohio Code states that the amount of alimony paid and received may be modified where there is a change of circumstances of either party. The Code goes on to state that such a change includes, but is not limited to, any increase or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses. This is a significantly shorter list than what goes into calculating an award to start. Further, the Code is silent on how serious a change it must be to qualify the alimony award for modification.
In the 2009 case Mandelbaum v. Mandelbaum, the Supreme Court of Ohio reviewed Ohio’s long series of cases and ruled that the change in circumstances must be a substantial and one that was not contemplated at the time of the divorce, even though these requirements were not included in the written Code. Since that decision, Ohio courts have refused to modify alimony awards based on inheritance, retirement, loss of business income and cost-of-living increases since these circumstances were all foreseeable and contemplated at the time of the divorce. This made it very difficult for a party to obtain a modification. If the changed circumstance was discussed during negotiations, even if it wasn’t mentioned in the final award decree, it would not support a modification.
This was also true for circumstances that may not have been directly addressed in negotiations, but were “foreseeable.” In another 2009 case, a husband was ordered to pay alimony to his wife in the amount of $50,000 a year for 10 years. Shortly after the divorce was final and the alimony decree was entered, the wife’s parents, both over the age of 80 and in poor health, died and she inherited over $1 million. The husband petitioned the court to terminate the alimony award. The court found that because the husband was aware of his in-law’s poor health, and the extent of their estate, the wife’s inheritance was foreseeable and contemplated at the time of the decree. Therefore, the court refused to modify the alimony award.
The Revised Code, amended
The Ohio Code was recently amended, effective March 2013, to require that a change in circumstance be substantial and one that was not contemplated at the time the original award was entered. However, it specifically states that the change does not have to be unforeseeable. This difference between past Ohio case law and the Code as amended makes it slightly easier for a party to get a modification based on a change in circumstances. In fact, the Legislative specifically noted that it intended to overturn the result in Mandelbaum v. Mandelbaum. Time will tell if the change in the statutory language will have the intended result.
If you are subject to an alimony decree, either paying or receiving and have recently experienced a change in your circumstances, talk to a family lawyer in the area. It’s possible that you may qualify for a modification of your award amount.