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Sub. H. B. No. 36 As Passed by the SenateAs Passed by the Senate
125th General Assembly | Regular Session | 2003-2004 |
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Representatives Willamowski, Core, Latta, Book, Harwood, Schlichter, Seitz, Chandler, Cirelli, C. Evans, Flowers, Hagan, Hughes, Otterman, Reidelbach, Schmidt, J. Stewart
Senators Blessing, Dann
A BILL
To amend section 3105.18 and to enact section 3105.73
of the Revised Code relative to the award of
attorney's fees and litigation expenses in certain
domestic
relations cases.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 3105.18 be amended and section
3105.73 of the Revised Code be enacted to read as follows: Sec. 3105.18. (A) As used in this section, "spousal
support" means any payment or payments to be made to a spouse or
former spouse, or to a third party for the benefit of a spouse or
a former spouse, that is both for sustenance and for support of
the spouse or former spouse. "Spousal support" does not include
any payment made to a spouse or former spouse, or to a third
party
for the benefit of a spouse or former spouse, that is made
as part
of a division or distribution of property or a
distributive award
under section 3105.171 of the Revised Code. (B) In divorce and legal separation proceedings, upon the
request of either party and after the court determines the
division or disbursement of property under section 3105.171 of
the
Revised Code, the court of common pleas may award reasonable
spousal support to either party. During the pendency of any
divorce, or legal separation proceeding, the court may award
reasonable temporary spousal support to either party. An award of spousal support may be allowed in real or
personal property, or both, or by decreeing a sum of money,
payable either in gross or by installments, from future income or
otherwise, as the court considers equitable. Any award of spousal support made under this section shall
terminate upon the death of either party, unless the order
containing the award expressly provides otherwise. (C)(1) In determining whether spousal support is
appropriate
and reasonable, and in determining the nature,
amount, and terms
of payment, and duration of spousal support,
which is payable
either in gross or in installments, the court
shall consider all
of the following factors: (a) The income of the parties, from all sources,
including,
but not limited to, income derived from property
divided,
disbursed, or distributed under section 3105.171 of the
Revised
Code; (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, because that party will be custodian of a minor child
of
the
marriage, 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,
including but not limited to any court-ordered payments by the
parties; (j) The contribution of each party to the education,
training, or earning ability of the other party, including, but
not limited to, any party's contribution to the acquisition of a
professional degree of the other party; (k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or job
experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought; (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; (n) Any other factor that the court expressly finds to be
relevant and equitable. (2) In determining whether spousal support is reasonable
and
in determining the amount and terms of payment of spousal
support,
each party shall be considered to have contributed
equally to the
production of marital income. (D) In an action brought solely for an order for legal
separation under section 3105.17 of the Revised Code, any
continuing order for periodic payments of money entered pursuant
to this section is subject to further order of the court upon
changed circumstances of either party. (E) If a continuing order for periodic payments of money
as
alimony is entered in a divorce or dissolution of marriage
action
that is determined on or after May 2, 1986, and before
January 1,
1991, or if a continuing order for periodic payments
of money as
spousal support is entered in a divorce or
dissolution of marriage
action that is determined on or after
January 1, 1991, the court
that enters the decree of divorce or
dissolution of marriage does
not have jurisdiction to modify the
amount or terms of the alimony
or spousal support unless the
court determines that the
circumstances of either party have
changed and unless one of the
following applies: (1) In the case of a divorce, the decree or a separation
agreement of the parties to the divorce that is incorporated into
the decree contains a provision specifically authorizing the
court
to modify the amount or terms of alimony or spousal
support. (2) In the case of a dissolution of marriage, the
separation
agreement that is approved by the court and
incorporated into the
decree contains a provision specifically
authorizing the court to
modify the amount or terms of alimony or
spousal support. (F) For purposes of divisions (D) and (E) of this section,
a
change in the circumstances of a party includes, but is not
limited to, any increase or involuntary decrease in the party's
wages, salary, bonuses, living expenses, or medical expenses. (G) If any person required to pay alimony under an order made
or modified by a court on or after December 1, 1986, and before
January 1, 1991, or any person required to pay spousal support
under an order made or modified by a court on or after January 1,
1991, is found in contempt of court for failure to make alimony
or
spousal support payments under the order, the court that makes
the
finding, in addition to any other penalty or remedy imposed,
shall
assess all court costs arising out of the contempt
proceeding
against the person and shall require the person to pay
any
reasonable attorney's fees of any adverse party, as
determined by
the court, that arose in relation to the act of
contempt. (H) In divorce or legal separation proceedings, the court
may award reasonable attorney's fees to either party at any stage
of the proceedings, including, but not limited to, any appeal,
any
proceeding arising from a motion to modify a prior order or
decree, and any proceeding to enforce a prior order or decree, if
it determines that the other party has the ability to pay the
attorney's fees that the court awards. When the court determines
whether to award reasonable attorney's fees to any party pursuant
to this division, it shall determine whether either party will be
prevented from fully litigating that party's rights and
adequately
protecting that party's interests if it does not
award reasonable
attorney's fees.
Sec. 3105.73. (A) In an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that action, a court may award all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties' marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.
(B) In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that motion or proceeding, the court may award all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties' income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties' assets.
(C) The court may specify whether the award of attorney's
fees and litigation expenses under this section is payable in
gross or by installments. The court may make an award of
attorney's fees and
litigation expenses under this section in
addition to making an
award of attorney's fees and litigation
expenses under any other
provision of the Revised Code or of the
Rules of Civil Procedure. (D) Nothing in this section prevents an award of attorney's fees and litigation expenses from being designated as spousal support, as defined in section 3105.18 of the Revised Code.
Section 2. That existing section 3105.18 of the Revised Code
is hereby repealed.
Section 3. Section 3105.18 of the Revised Code, as amended by
this act, and section 3105.73 of the Revised Code, as enacted by
this act, apply to any action for divorce, legal separation, or
annulment of marriage or any post-decree action or proceeding arising from a divorce, legal separation, annulment, or dissolution of marriage if any of the
following apply:
(A) The action or proceeding is brought, or a notice of appeal in the
action or proceeding is filed, on or after the effective date of this act.
(B) The action or proceeding is brought, or a notice of appeal in the
action or proceeding is filed, prior to the effective date of this act, and the
action or proceeding is pending in a trial or appellate court on the effective
date of this act.
(C) Any proceeding arising from a motion to modify a prior
order or decree in the action or proceeding is pending in a trial or appellate
court on the effective date of this act.
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