tecinizhca1987.netlify.com

The divorce rate among families in the grip of compulsive gambling is high. The tension between spouses is palpable. As the gambler loses more and more, feelings of fear and shame increase. He becomes angry to cover up his fear and shame.

• Effects Of Gambling On Society
• Effects Of Gambling On Marriage Pros And Cons
• Negative Effects Of Gambling

Overview on Ohio Divorce Law: Gambling as the Basis for Financial Misconduct and Unequal Division of Marital Assets Upon Divorce

• MH: Gambling is somewhat similar to drinking alcohol or sex in that in many or most cases, it is not to a level or frequency that is out of control or dangerous. However, when recreational.
• Compulsive gambling may have destructive and long-lasting financial effects. Moreover, the harm caused to. Marriage and family relationships from a gambling problem can be as stressful and serious as the financial consequences. This brief FAQ answers some common questions about gambling and its impact on marriages, using findings.

Gambling exists in every state (even in Utah and Hawaii where it is illegal), but not everyone gambles the same. If gambling gets out of control, it becomes a real medical condition. A “Gambling Disorder”, as the affliction is known, affects slightly more than 2 percent of all U.S. adults. According to the Mayo Clinic, “Gambling can stimulate the brain’s reward system much like drugs such as alcohol can, leading to addiction”. Individually, male gambling addicts typically accumulate an average debt between $55,000 and $90,000. Female gambling addicts average a $15,000 debt, by one estimate. But as one might expect, most gamblers do not have sufficient resources to pay back what they owe. As a result, gambling addicts develop a high tendency to, suffer from other health issues, lose their jobs, commit crimes, and strain their relationships and marriages. Research indicates that Ohio is tied for 4th of states with the highest percentage of adults with gambling disorders., not surprisingly, as a divorce lawyer, I have seen a significant rise of gambling problems/debts as a primary factor leading to divorces. Click here to read more statewide gambling statistics.

With that background, here is a primer about divorce and gambling and how it MAY impact a Court in a property division award:

• Generally speaking, pursuant to R.C. 3105.171(C)(1), in Ohio the division of martial assets shall be equal – however if an equal division is inequitable, then the court shall divide it in a manner it deems equitable.
• R.C. 3105.171(E)(4)– states that:
• “if a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment, or fraudulent disposition of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property”.
• Note – several of the cases found refer to section E(3) as being the applicable section, however it has changed and is now E(4).

Burden of Proof:

Burden of proving financial misconduct is on the complaining party.

Smith v. Emery-Smith, 11thDist., 2010-Ohio-5302

Relevant Case Law:

Courts have found that gambling does constitute financial misconduct in some (but not all cases). As a result, the court usually fashions an equitable award rather than an equal one as demanded by 3105.171(C)(1).

See for example:

Putman v. Putman, 12th Dist., 2009-Ohio-97

There Husband argued that Wife had engaged in financial misconduct by gambling away approximately $240,000.

Lower Court agreed and ordered equitable division of the assets so Wife appealed claiming trial court abused its discretion and requested an equal division instead.

Specifically, Wife argued that because the gambling occurred before the couple separated and because Husband was aware and even supported her gambling habit, there was no misconduct (Husband had gone with her to casinos during the marriage).

Nevertheless, the Appeals Court upheld the equitable division and the finding of financial misconduct because the evidence showed that she had withdrawn $225,000 from casino ATMs in 4 years and she tried to hide that she used it for gambling. She also withdrew money from her 401(k) to gamble.

Court found that even though Husband was somewhat aware, Wife consistently tried to conceal it from him and he only became aware of the withdrawals once the couple was audited.

Downey v. Downey, 9th Dist., 2007-Ohio-6294

There, Appeals Court upheld a finding of financial misconduct and a distributive award to Wife.

Evidence showed that Husband used money acquired from taking out a second mortgage on the house to pay gambling debts.

Trial Court found financial misconduct and ordered Wife was entitled to distributive award.

Husband argued there was no financial misconduct because Wife was aware of what he was doing and even signed the loan documents. The Appeals Court upheld Trial Court’s findings/award.

Osborn v. Osborn, 11th Dist. 2004-Ohio-6476

Court found there to be financial misconduct where Husband used marital funds to support his gambling habit and, therefore, upheld a distributive award granted to Wife.

There, the Court found that Wife was completely unaware of Husband’s gambling problem or the money he was spending to fund it.

However, Ohio courts have noted that certain factors should be taken into consideration before determining if a spouse did actually engage in financial misconduct.

See for example:

Lindsay v. Lindsay,6th Dist., 2013-Ohio-3290

There the Court stated that the time frame in which the alleged conduct occurred may demonstrate “wrongful scienter”.

For example, the use of martial assets during the pendency of the marriage or immediately prior to filing for divorce can show financial misconduct.

Grow v. Grow, 12th Dist., 2012-Ohio-1680

There the Court stated that the AWARENESS OF THE SPOUSE’S WRONGDOING CAN NEGATE FINANCIAL MISCONDUCT.

Here, the Court failed to issue a finding of financial misconduct on Husband’s part because Wife was aware of his gambling and had participated in many of his gambling trips.

Courts generally require a finding of financial misconduct by one of the parties in order to justify a distributive award:

R.C. 3105.171(A)(1) says a distributive award is any payment/payments, in real or personal property . . . that are made from separate property or income and that are not made from marital property.

However, it seems that even if the court does not specifically state that a spouse’s gambling away of marital assets constitutes financial misconduct, a court can still order an unequal division of martial property based in equity rather than a distributive award.

See for example, Oliver v. Oliver,12th Dist., 2011-Ohio-6345

There, Husband appealed a division of assets wherein the court held him accountable for a $35,000 gambling debt.

Evidence showed that Husband withdrew $35,000 out of the couple’s joint account and gambled it all away 1 week before Wife filed for divorce.

Husband claimed that because it occurred during the marriage, the debt shouldn’t be his alone.

The Trial Court ordered an equitable division of the assets with each party receiving approximately $60,000 in marital assets, however, it credited the $35,000 that Husband withdrew to his award and ultimately found that he owed Wife $17,400.

Husband appealed saying the money he was ordered to pay constituted a “distributive award” under 3105.171(E)(4).

The Appeals Court ultimately held that it was not a distributive award because there was no mention of financial misconduct in the Trial Court’s decision. In addition, it said that Husband was ordered to pay the money out of funds from the sale of marital property and not separate.

Also noted that Husband admitted to withdrawing and gambling the $35,000 alone.

So because he solely benefited from the use of a marital asset, it was not an abuse of discretion for the Trial Court to credit the entire $35,000 to his share of the assets.

Hire An Experienced Divorce Attorney In Complicated Financial Misconduct Gambling Cases

As you can see, divorcing a gambling addict can be very tricky and the outcome can be factually dependent! If you find yourself in this situation, seek out a divorce lawyer experienced in litigating these complicated gambling cases. A more “generalist” lawyer may incorrectly assume that despite the financial gambling misconduct, that the assets will be divided equally by the Court.

© 2017 – 2018, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

About The Author: Robert L. Mues
Attorney Robert 'Chip' Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm's website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.

Email • Facebook • Twitter • Linkedin • Google • Gambling: The Consequences Of Financial Misconduct In A Divorce

Share this:

Like this:

LikeLoading...Tagged on: financial misconductgamblingOhio divorce law

By Judge Cheryl Moss

What does one expect when they land themselves in family court because of a gambling addiction issue? This article describes how a family court judge navigates through court cases involving problem gambling. Your questions are welcomed at the end.

Evaluating the impact of gambling on the family

Effects Of Gambling On Society

How does a family court judge address the issue of gambling addiction when it is brought up in the courtroom? First, one must understand that gambling addiction can exist within a marriage or family and it is never brought up in court until and unless one party makes the allegation. If it is an issue, then the judge must figure out what impact the addiction has on the family or marital community.
What is marital waste?

As between spouses, the claim can be relevant to the division of assets and debts. In simple terms, the term “marital waste” involves the spending or dissipation of assets or monies for personal use that did not benefit the marriage and/or caused adverse economic consequences. The most obvious fallout is substantial debts being incurred through ATM withdrawals, credit card charges, payday loans, and cashing out of retirement accounts, among other things.

Child custody cases

In the context of child custody cases, the judge must always consider the best interest of the children, including their safety and well-being. There have been instances where the gambling parent forgets and leaves the children in their car while inside the casino. A parent will likely claim that the other parent spends too much time away from home and has not been caring for the children due to gambling.

Gambling assessments for parents

Some courts, including Nevada, have referred spouses or parents for gambling assessments to determine if there is a problem with gambling. Certified problem gambling counselors do the assessments and report back to the judge. The outcome can be:

1. No finding of a gambling problem
2. Some signs of gambling but not severe enough
3. At the extreme end, problem gambling requiring inpatient treatment and aftercare

Effects Of Gambling On Marriage Pros And Cons

If the gambling problem is not severe, the judge may order the gambler to attend education classes on the effects of problem gambling on the marriage and the family.

The debate about the distribution of assets

There is debate in the legal community if a gambling addiction means that the gambler’s conduct was intentional or deliberate. Some lawyers would argue that the gambler acted with deliberation and knew what he or she was doing when they gambled away marital funds. Other lawyers would argue that gambling addiction is a disease and therefore the gambler is unable to control his gambling until he or she gets help. This is relevant to the extent that the judge must decide whether there should be an equal or unequal distribution of the parties’ assets.

Posing a danger to self or children

In the custody context, the judge would monitor the gambler-parent as it relates to his or her care, custody, and control of the minor children. The judge must ensure the gambler-parent does not pose a risk or danger to himself or herself and to the children.

Judges need to recognize and understand the problem

It is important for judges to recognize gambling addiction issues that come before them. Understanding the problem will be helpful when they issue court orders ensuring the preservation of marital assets and promoting the best interest of children.

—–

About the Author: Judge Cheryl Moss is a family court judge in Las Vegas, Clark County, Nevada. She has served on the bench for over 15 years and presided over domestic relations cases involving gambling addiction. Judge Moss is the first judge in Nevada to utilize problem gambling assessments in divorce and child custody cases. Judge Moss serves on the Subcommittee on Legal Issues of the Advisory Commission on Problem Gambling. She was a national presenter on problem gambling and the courts at NCPG and NCRG conferences. Judge Moss is the 2009 recipient of the Nevada Council on Problem Gambling’s Shannon L. Bybee Award.

Negative Effects Of Gambling