Beth Silverman & Associates

Post Nuptial Agreements in Ohio: What the New 2023 Law Means for Married Couples

Thu, 05 Mar 2026 13:15:10 GMT

Until very recently, Ohio was one of a very few states that did not permit married couples to enter into a Post‑Nuptial Agreement, meaning a contract created between spouses after the marriage. However, in 2023 , Ohio passed Ohio Revised Code § 3103.06 , which authorizes spouses to enter into a post‑nuptial agreement, modify or terminate an existing pre-nuptial or post‑nuptial agreement, or agree to an immediate separation with defined property and support terms.

In enacting this law, the legislature sought to provide married couples with flexibility while ensuring that no spouse is pressured, coerced, or misled into signing an agreement that affects their legal rights in a divorce or at the death of a spouse. Ohio law requires that these agreements be entered into voluntarily, with full disclosure or full understanding of each spouse’s property, and without fraud, duress, coercion, or overreaching.

There are many circumstances that may lead a couple to consider a post‑nuptial agreement. One common situation arises when spouses previously entered into a prenuptial agreement and later decide they want to change its terms. For example, a prenuptial agreement may have classified all property acquired during the marriage as the separate property of the acquiring spouse. After years of marriage, the couple may decide they now want assets acquired during the marriage to be treated as marital property. A post‑nuptial agreement allows them to make that change under the new law.

Another circumstance involves couples experiencing difficulty in their marriage. A couple may decide to separate temporarily while still hoping to preserve the marriage. During this period, one or both spouses may be concerned about the accumulation of new earnings or assets after the separation date. The new Ohio law allows spouses to agree to an immediate separation and to define property and support rights during that time, giving them clarity if they later decide to divorce.

A post‑nuptial agreement may also be appropriate when one spouse intends to pursue a new business venture or investment that carries financial risk. The other spouse may not want to assume responsibility for potential debts or losses arising from the venture. By creating a post‑nuptial agreement, the spouses can agree that the financial consequences—positive or negative—will be allocated solely to the spouse undertaking the investment. This can protect marital assets while supporting entrepreneurial efforts.

Because the statute authorizing post‑nuptial agreements is relatively new in Ohio, there are currently few court decisions addressing challenges to the validity or enforceability of such agreements. As with prenuptial agreements, courts will eventually be asked to review cases where a spouse seeks to set aside a post‑nuptial agreement, and the developing case law will further define the standards governing these contracts.

It is strongly advised that both spouses seek independent legal counsel if they are considering entering into a post‑nuptial agreement. Each party should fully understand the legal and financial implications, and careful drafting is essential to ensure the agreement is fair, enforceable, and tailored to the couple’s circumstances.

Parenting Time & Monitoring Alcohol Use

Wed, 19 Nov 2025 17:34:36 GMT

Co-parenting when one parent is or has previously struggled with alcohol abuse is a serious matter. Determining whether parenting time is in the best interest of the child in this situation involves analysis of safety concerns. Alcohol presents a legal problem for parenting time when it influences behavior and presents concerns of safety to children or others. Parents may feel torn between maintaining parenting time and complying with court orders, despite natural fears of what could happen. Different alcohol monitoring options for use before or during transportation of the children or while exercising parenting time can help support parents navigating these concerns.

Parties can agree or the court can order that a parent submit a breathalyzer test within a certain time period prior to the exercise of parenting time. An example could be that a parent must submit a breathalyzer test result within thirty minutes before the commencement of parenting time. Parties can also agree, or the court can order that a parent submit additional tests during the parenting time. For example, a parent could be required to submit a breathalyzer result every three hours. Breathalyzer test results can be required before transportation, at pick up, or during the visits.

The three main options for monitoring alcohol use before or during parenting time are (1) Soberlink, (2) Keepr, and (3) BACtrack. Each option comes with varying device costs and monitoring services. Because cost is always an important consideration, you might consider the cost of the device and service as compared to the amount of desired testing for parenting time, the anticipated duration of testing and the overall amount of parenting time.

Below I will analyze the amount of testing you would receive with each product, price, the manner, use, and duration of the tests and how results are communicated to you.

Soberlink: Soberlink offers a three-tiered monthly monitoring subscription cost based upon the features offered. The device is $549 to own or $29 per month to rent for a 120-day commitment or $19 to rent for a 365-day commitment. The Soberlink Basic Plan is $135 per month with 20 testing days ($15 per additional testing day) and differs from more expensive plans, primarily with only one person able to receive results and download data and does not have real-time test results. Results are instead emailed a day later. The Soberlink Plus Plan is $185 per month and includes an unlimited number of people able to receive results and download testing data with real time emailed results. The Soberlink Premium Plan is $235 per month adds both texted and emailed real time results, and 50% off expert testimony, if needed.

Keepr: Keepr offers a fee range based upon the subscription length. The device is $149 to own with no rental option. The monthly fee ranges from $79-$129 depending upon the length of subscription, with $79/month for annual subscription, $99

month for the six-month subscription, and $129 for month to month. Keepr includes unlimited testing, unlimited reports, and changes to monitoring agreements are not an additional cost.

BACtrack: BACtrack offers a three-tiered monthly monitoring cost approach based upon the features offered. BACtrack has no device fee with the cost included in the monthly monitoring fee and the user owns the device after three months of service. The BACtrack Basic Plan is $79/month and offers 30 tests per month with no PDF monthly download report, does not have real time notification, and does not have video or image evidence of the tester. The BACtrack Plus Plan is $99/month and offers 3 total connections per subscription as compared to 1 with basic, has unlimited tests allowed per month, 1 downloadable report per month, and text notification of a non-compliant tester, but no emailed result and no image of the tester. The BACtrack Pro Plan is $129/ month and offers text and email notifications about a tester’s compliance with the test

and an image of the tester.

Cost Comparison

In considering the options available for the three main alcohol monitoring device providers, we would recommend selecting options with real-time notification and image or video confirmation of the tester. Selecting these options shifts the cost comparison analysis depending upon (1) use or sharing of the information with other legal professionals involved, and (2) how long you estimate that you would use the alcohol monitoring plan.

With features allowing for real time notification of a failed alcohol test and image/video confirmation of who took the test, with Soberlink you would have to use the Soberlink Plus Plan which is a heavier price tag of $185 plus the additional $19-$29 device rental fee or $549 (averages $45/month for a year). Soberlink is by far the more expensive option, compared to the other two options.

In deciding between BACtrack and Keepr, you would want to consider the ultimate use for the data. Legal professionals and court-involved therapists use the general phone, email, and webform channels for Keepr whereas BACtrack does not.

The requirement of video or image confirmation of the tester would require the $129 BACtrack Pro Plan, which is the same as the maximum plan with Keepr. However, Keepr has an additional device fee whereas BACtrack does not.

In deciding between Keepr and BACtrack, in addition to the additional factors we discussed, you would want to think about the anticipated duration or time period of testing. The $129 Keepr device fee would add $12/month over a year of payments. (For calculation purposes I am spreading out the device fee for Keepr, however, Keepr requires that the device fee is paid upfront.) For an annual subscription of Keepr ($79) with the device fee ($12) spread out the price would be $91. A six-month subscription of Keepr ($99) with a device fee of $24.80 (149/6months) would be $123.80. If your anticipated testing time period is less than 6 months BACtrack may offer the best value, provided you plan to use it for 3 months at least to cover the device fee for BACtrack.

The assignment of cost for testing is subject to agreement or court order. It may be a shared cost, exclusively covered by the party requesting it, or the party using it.

As you can see, evaluating which device is the best fit for your situation offers many considerations. Other more advanced technology features not discussed here are available for each provider on their respective websites and may offer important considerations for your family.

Understanding Grandparent and Relative Companionship Time Rights in Ohio

Wed, 19 Nov 2025 17:24:31 GMT

For many Ohio families, grandparents and extended relatives play an important role in a child’s life. When family dynamics change because of divorce, separation, or other circumstances, it can be confusing to know whether you still have a legal right to see the child. Ohio law allows certain non-parents to request companionship time under specific

circumstances.

When Can a Relative Ask the Court for Companionship Time?

A motion for companionship time must be filed in the juvenile or domestic relations court located in the county where the child lives. Under Ohio law, a court will consider grandparent or relative companionship requests only in the following situations:

In a case involving a divorce, dissolution, legal separation, annulment, or custody action, either before or after a decree is issued;
When one or both parents of the child has passed away;
When the child is born to unmarried parents.
When a child is born to unmarried parents, additional requirements apply. Specifically, paternal relatives must show that paternity rights have been established to the father through paternity proceedings or voluntary acknowledgment. If paternity has not yet been established, it may not be possible to pursue companionship without cooperation from the parent(s).

What Will the Court Consider?

If you are a party seeking companionship time, the court’s focus is always on the child’s best interests and welfare. Ohio law lists several factors the court may consider, but no one factor is determinative. These include:

Prior relationship between the child and the relative – The court will want to see a longstanding, consistent relationship between the petitioner and the child. Keeping notes of past contact and involvement in their life can be helpful.
The child's age and adjustment to home, school, and community
The geographical location of the child and relative's residences
The child’s and parents’ available time, including schedules – The court will ensure that companionship does not interfere with existing parenting time or the child’s activities.
The wishes of the child
The health and safety of the child
The mental and physical health of all parties
Whether the person seeking companionship time has been convicted of or pleaded guilty to any criminal offense involving an act that resulted in a child being abused or neglected
The wishes of the parent(s) - Courts presume that a fit parent acts in the child’s best interests. That means it will be the petitioner’s burden to show why companionship time is still appropriate, even if the parent objects. The court will also expect that the petitioner respect the parent’s right to make decisions and avoid interfering with parenting time or decision-making.
The court may also consider whether the parent related to the petitioner currently has custody or parenting time. In some cases, it may be more effective to support that parent in seeking additional time and then request contact during their parenting time.

Possible Outcomes and What to Expect

If you are considering seeking companionship, you should first choose to have a respectful conversation with the parent(s) before going to court. Filing a court action without any discussion may damage already fragile relationships and make a resolution more difficult.

Ultimately, a motion may need to be filed. If a motion is filed, you may ask the court to issue a temporary order granting contact while the case is pending – particularly if the child is being withheld.

Outcomes in these cases can vary widely. The court might award day visits, overnight visits, extended time, holiday time, or limited “buildup” time depending on the circumstances. The Court may also impose certain rules to be followed during companionship time if necessary.

If the court issues any orders, flexibility and cooperation are key. If a parent or relative does not follow an order, you may ask the court to enforce it, typically through a contempt motion or a request for makeup time.

Special Circumstances & Considerations

In some situations, the ability of a petitioner to seek companionship time may be restricted by factors outside of their control.

Adoption

For a child whose parents are divorced or separated or a child born to an unmarried woman, the Ohio Supreme Court has held that an Ohio law providing that a final decree of adoption terminates all legal relationships between the adopted person and the adopted person’s relatives has the effect of terminating third-party visitation rights for the relatives whose

status has changed as a result of the adoption. This applies regardless of whether the child is adopted by strangers, relatives, or a stepparent.

There are certain nuances and exceptions to be aware of.

Adoption after death of parent(s) - In Ohio, your companionship rights cannot be curtailed or restricted by a subsequent stepparent adoption if the parent(s) has/have died.
Adoption where parental rights are retained - If the parent related to you retains their parental rights after a stepparent adoption, you may still request companionship time.

Protective Custody or Termination of Parental Rights

Ohio law does not specifically provide companionship rights for grandparents or relatives when the child is in the temporary custody of a public agency, or when the parents’ rights have been terminated. Visitation in these cases is typically at the discretion of the agency and limited to what is determined to be in the child’s best interests.

Conclusion

Every family is different, and Ohio courts evaluate these cases carefully and on a case by case basis. If you are a relative seeking visitation or companionship time, or a parent who would like to understand how these laws apply to your situation, our office is here to help.

Considerations in Entering into a Prenuptial Agreement

Mon, 21 Jul 2025 16:30:23 GMT

People planning for marriage often wonder if a prenuptial agreement is needed. One of the most common reasons for entering into such an agreement is the preservation in the event of a divorce of premarital assets or assets received during the marriage by gift or inheritance. While a prenuptial agreement can serve this purpose, it is often not necessary if certain protections are made. Ohio law provides that assets owned prior to the marriage, or received by gift or inheritance, will be deemed “separate property” in a divorce, and thus not shared with a spouse, as long as that separate property can be traced. For example, if someone holds 100 shares of GE stock at the time of the marriage and still holds those GE shares at the time of divorce, that asset is clearly traceable as a premarital asset. The same would be true of an investment account if that account was maintained without any additional contributions made during the marriage. Let's say the account was at Fifth Third Bank at the time of marriage and sometime after the marriage, the funds were moved to a second bank and then a third. As long as there were';t any contributions made to that account during the marriage, it is still considered

separate property.

What is critical is that complete records are maintained that can demonstrate that the assets that exist now had existed at the time of the marriage or were received by gift or inheritance. However, if contributions are made during marriage to the same investment or account, and funds go in and out, it may be impossible to determine if the money remaining in the account at the time of a divorce is separate or marital.

If a couple seeks a marriage where each keeps not only anything they own at the time of the marriage, but also anything they earn during the marriage, this can only be accomplished by entering into a prenuptial agreement. Without this agreement, the law considers everything earned during the marriage to be “marital property” that will be equitably divided in a divorce. The same would be true for debts incurred during the marriage. A prenuptial agreement can specify that neither party will be responsible for the debts of the other in a divorce.

Prenuptial agreements are quite common when one family has an ownership interest in a family business or expects to inherit or receive a family business by a gift. Families often want to make sure that their family business will not be diluted if a family member gets a divorce. A prenuptial agreement can specify that even if a spouse works in a family business during the marriage, or even becomes the president of that business, that the business itself will not be a marital asset subject to division.

Prenuptial agreements are entered into not only to determine what will happen in a divorce, but also to determine rights if a marriage ends by death. By law in Ohio, a spouse is entitled to a certain portion of the other's estate at death, preventing a spouse from being disinherited. However, often when people marry later in life, and have children, it is only with a prenuptial agreement that their children can inherit their entire estate, and their spouse will waive his or her rights to inherit. An agreement of this kind allows people to remarry without the fear that instead of their assets going to their children, it will

go to a spouse who may not need financial support and end up with their spouse's children or to a later spouse.

One of the biggest mistakes people make when considering a prenuptial agreement is that it can be quick and easy. Often, we are called a few weeks before a wedding. It is recommended that you contact a lawyer to discuss this option at least six months before the wedding date. This type of matter must be handled with sensitivity and without pressure. Arguments can be made about the validity of an agreement if it is made shortly before a wedding, and arguably under duress. The last thing people should be dealing with in the weeks before their wedding is a legal document with their soon-to-be

spouse, so it is recommended that you allow ample time. It is highly recommended that both parties are represented by counsel.

What Happens When My Co-Parent and I Disagree on School Placement for our Children?

Mon, 21 Jul 2025 16:18:23 GMT

Generally, parents who have shared parenting or shared custody of their child(ren) must jointly make decisions for their child(ren), including determining the appropriate school placement for their child(ren). When parents disagree upon school placement, many parents choose (or the Court may require) parents to attend mediation to attempt to resolve the matter. In mediation, the mediator, who is acting in a neutral capacity, would help to facilitate a productive conversation regarding what options for school placement exist and assist the parents in coming to a resolution regarding which

option is in their child(ren)’s best interest. Parents know their child(ren) best, and we strongly believe that, whenever possible, parents are in the best position, not the Court, to determine what is best for their family.

When, even after attending mediation, parents cannot reach an agreement regarding school placement, the Court must become involved. In determining the appropriate school placement for a child, the Court weighs various factors to discern

what school is in a child’s best interest to attend, including all relevant factors contained in Ohio Revised Code 3109.04. Some common things the Court will consider when determining school placement are where a child is presently attending (or has historically attended) school, whether a child is well-adjusted to the school he/she is currently attending, where a child’s siblings attend school, each parent’s geographic proximity to the school placement options being considered, any financial implications regarding a parent’s preferred school choice (i.e., if school tuition will be owed and, if so, how tuition will be paid). The Court will also often consider any special needs of a child and whether each parent’s preferred school is able to meet those needs as well as the relative strengths of each school (academic, extracurricular, etc.) as it relates to the child.

If you anticipate that you and your co-parent may disagree upon school placement for middle school, high school, or the upcoming school year, it is best to begin the conversation early. Generally, we recommend that you and your co-parent

confirm whether you are on the same page regarding school placement at least six months prior to when a child would begin attending a particular school. If there is not an agreement regarding school placement, this should give you time to attend mediation to try to resolve the matter and, if unsuccessful, still leave you with enough time to ask the Court to intervene and set a school placement hearing prior to when the child(ren) would start school. Because Ohio courts manage a high volume of cases, it is not always possible for courts to set a hearing quickly. Furthermore, most parents would agree that it is not a good situation for a child if the child spends the summer leading up to starting school not knowing where he/she will be attending or if a school placement hearing cannot be set until after a child’s first day of school. For these reasons, it is crucial that, if court intervention is necessary, you contact an attorney and/or notify the

Court several months in advance of when a child would start school.

Child Support for Children with Disabilities in Ohio: What Families Need to Know

Mon, 21 Jul 2025 16:15:11 GMT

Any legal matter involving families and children is never easy. For parents of children with disabilities- whether those children are minors or adults- the emotional and legal challenges are even more complex. Fortunately, Ohio law provides tools to help families ensure continued support for a child with special needs. If you're navigating a legal matter involving a child who cannot live independently due to a mental or physical disability, it’s important to understand your rights and the authority courts have to ensure that support continues into adulthood.

In most cases, child support in Ohio ends when a child turns eighteen or graduates from high school, whichever is later. When a child has a significant mental or physical disability that began during childhood that prevents them from being self-supporting, child support can continue. These individuals are known as Castle children, based on a legal standard that defines them as dependents unable to care for or financially support themselves due to a qualifying metal or physical disability. The name comes from a case decided by the Ohio Supreme Court, Castle v Castle, 15 Ohio St.3d.279, 473 N.E.2d 803 (Ohio 1984). It is up to the parties, or a court, to decide if the child meets the standards where continued child support is appropriate.

Recent updates to Ohio law have clarified and strengthened the ability of courts to issue or modify support orders for Castle children, even when those individuals are already adults at the time the legal action is filed. This is a crucial shift, as courts were previously divided on whether they could intervene in these situations when a child had already turned eighteen at the time his parents divorced. The law now makes clear that families do not lose access to support options simply because of timing. Support can be continued indefinitely so long as the child remains unable to support himself. On the other hand, a support obligation may be terminated if there is clear evidence that the adult child’s condition has improved and they are capable of financial independence.

During or after a divorce or custody case, parents should think carefully about how they will make joint decisions regarding their child’s medical care, education, and daily needs. Legal guardianship may be necessary once the child turns eighteen,

especially if they are unable to manage their own affairs. Clear court orders or agreements that allocate medical and therapy costs can help avoid future conflict. Financial planning is equally important. Life insurance and special needs trusts may be appropriate tools to provide for your child in the long run without jeopardizing their eligibility for government benefits. These steps can be discussed during the legal process or with the help of a trusted financial or estate planning advisor.

Explaining the Dissolution Process

Tue, 20 May 2025 15:10:34 GMT

In Ohio, one way spouses can end their marriage is through a dissolution. A dissolution is a non-adversarial process where both parties reach an agreement on all issues related to ending the marriage before anything is filed with the court. These issues typically include dividing property and debts, allocating parental rights and responsibilities when children are involved, determining child support, and in some situations, the payment of spousal support.

Once agreements are reached, spouses will jointly file a Petition for Dissolution, along with a Separation Agreement and, and, if applicable, a Shared Parenting Plan, which outlines the agreed-upon arrangements for the physical care of the children, and outlining their financial commitments.

The court’s involvement is minimal and usually limited to one final hearing where a magistrate confirms the parties entered into the agreement voluntarily and with a full understanding. The hearing can normally be held by Zoom and may take less than ten minutes. The court then issues a Decree of Dissolution, officially ending the marriage.

What Are the Benefits of a Dissolution?

One of the main advantages of a dissolution is that you and your spouse remain in control. Rather than leaving critical decisions to a judge with limited insight into your family’s dynamics, you and your spouse collaborate to develop personalized solutions that reflect your unique needs and circumstances.

The dissolution process also tends to be more cooperative and less confrontational than traditional divorce. Because it emphasizes agreement and compromise, it often reduces emotional strain and promotes a more respectful resolution, which is especially important when children are involved. Without the stress of court appearances and ongoing litigation, couples are more likely to preserve a functional relationship post-separation.

Dissolutions are also typically resolved more quickly and cost-effectively. With fewer documents to exchange, reduced court involvement, and a streamlined process, legal fees are often lower. Parties also set their own timeline, moving at a pace that works for them, rather than being subject to the court’s calendar or delays.

How Do Spouses Reach Agreements?

Before filing for a dissolution, spouses must resolve all key issues relating to property division, debts, parental responsibilities, child support, and spousal support if applicable. These agreements are formalized in a Separation Agreement and, if applicable, a Shared Parenting Plan. While these agreements are not enforceable court orders until a Decree of Dissolution is issued, they function as binding contracts between the parties in the interim.

Some couples can sit down together, exchange ideas, and agree on terms without professional assistance. This approach can save time and cost, especially if the relationship is amicable and the issues are straightforward. In these cases, couples can obtain court forms online and fill them in. The risk is that these agreements can become problematic if issues arise in the future that are not addressed or are improperly addressed in their agreement. As lawyers, we would discourage people with children, real estate, retirement plans or spousal support from proceeding with a dissolution without consulting an attorney at least for basic advice. Mistakes can be made that are costly or irreversible.

More commonly, however, one or both spouses prefer the support of an attorney. Legal counsel can provide advice, review proposed terms, draft or revise documents, and represent their client’s interest in negotiations. A lawyer cannot represent both parties in a dissolution. This would be a violation of our professional disciplinary rules. It is most common that both parties are represented by different attorneys, but sometimes one party chooses to be unrepresented.

One resource that parties can utilize to help them come to agreements is mediation. Mediation involves a neutral third party, often a trained attorney or mental health professional, who facilitates discussion and helps the spouses reach consensus. Mediation is facilitative, and fosters cooperation and communication, and is especially useful when parties disagree on key matters, such as parenting time or support. It can also reduce conflict and legal expenses by resolving disputes outside of court.

Another resource available to parties is collaborative law, where counsel represents both parties, but they enter into a signed agreement that they have hired their lawyers to stay out of court , whereby if one party feels that court involvement is needed, neither lawyer can represent their client in litigation.

When Might a Dissolution Be Inappropriate?

A dissolution requires transparency and voluntary disclosure from both parties. If one spouse refuses to be transparent about finances or is hiding assets, a dissolution may not be possible. In those cases, a divorce may be necessary so the court can compel full disclosure through legal discovery.

Urgent safety concerns can also make dissolution inappropriate. For example, if there are concerns about domestic violence, child safety, or one parent withholding the children, court intervention may be necessary to issue protective or temporary custody orders. Such interventions are only available in divorce proceedings.

Dissolution may be impractical if one spouse is uncooperative or causing repeated delays. Because there are no court-imposed deadlines in a dissolution, one party can stall progress indefinitely. In such cases, a divorce may be required to move the process forward under the court’s supervision.

The initiation of a divorce may be necessary if there is a need for immediate financial support or to prevent the dissipation of assets.

It is important to know that spouses can begin with efforts to have a dissolution and later file for divorce if negotiations break down. Much of the work completed for the dissolution- such as financial disclosures and early agreements- can still be used to streamline a divorce proceeding.

What Documents are Required for a Dissolution

Documents differ from county to county but every county requires various forms, including sworn financial affidavits and various waivers. There is normally a checklist for every form required under various types of legal situations that are published in each county.

Why Contact an Attorney

Even if you and your spouse are in agreement, it is important to consult with an attorney. Legal guidance goes beyond simply drafting documents; an attorney will ensure that your rights are protected and that all necessary topics are addressed. Many people are not fully aware of the range of issues that must be resolved in a dissolution, and an attorney can help avoid costly mistakes or oversights.

An attorney will help you navigate the legal landscape, clarify your options, and advise whether dissolution is appropriate or if a divorce may be necessary based on your circumstances. If you are uncertain, an attorney can provide insight into how the court may view your situation and what to expect under Ohio law.

No matter what your family’s situation looks like, understanding your legal options is the first step. If you are considering a dissolution or want to explore your options, you may contact our office to schedule a consultation.

Is it Financial Misconduct or Poor Judgment?

Fri, 16 May 2025 21:49:54 GMT

In many relationships, one person is historically the "spender" and the other is the "saver." In a divorce, the saver may be surprised to learn that the spouse had not established any savings, or worse yet, has acquired substantial debt during the marriage. As to the first scenario, if one party routinely invested in their retirement plan, and the other saved nothing, the good saver’s retirement assets earned during the marriage will be equally divided and there will be no consequence to the fact that the other party did not save. For the most part, courts divide the savings acquired during the marriage, and don’t penalize the person who didn’t save. A court is not responsible for deciding what could or should have happened during the marriage. A saver is not rewarded and a spender is not punished.

Generally, debt incurred during the marriage is deemed marital debt regardless of whose name the debt is in and regardless of whether the debt was approved by or known by the other spouse. A very common example is when a spouse learns at the time of divorce that there is considerable credit card debt owed that he or she had no knowledge of. Using the same rationale as the example of one person who didn’t save for retirement, the law sees the debt as a shared responsibility. Had that person spent actual marital funds instead of incurring debt, there would be less assets to divide. Courts do not go back and decide if a person should have made certain purchases on their credit card, or lived beyond their means. Just as assets are shared, so are debts.

However, if these financial choices are determined to be financial misconduct, the Court may compensate the offended spouse with a distributive award or a greater award of marital property in the final property division. The Court defines financial misconduct as "the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets."

Proving financial misconduct on your spouse's part is a high bar to reach. The Courts have previously ruled that "an implicit element of financial misconduct is wrongdoing." In other words, it's not enough for your spouse to have made financially irresponsible decisions or for you to not have been made aware of all those decisions during the marriage. Instead, the Court looks at whether the offending spouse meant to profit from the misconduct or meant to intentionally lessen what you would be distributed in marital assets.

Another factor a court may consider in determining financial misconduct is the timeline of when the alleged misconduct occurred. The Court will look more suspiciously at financial actions if these actions coincide with a divorce filing or separation. In a similar vein, whether the spending in question was normal during the marriage is a factor the Court considers – if a spouse historically spent outside of the couples’ means during the marriage, then those spending habits are more likely to be deemed financially irresponsible, but not financial misconduct warranting a remedy from the Court.

Determining whether your spouse's financial decisions reach the bar of becoming financial misconduct is a complex issue with many factors to consider. Speaking with an attorney about these issues can provide you with a helpful analysis.

Second Parent Adoption to Protect Your Family’s Rights

Fri, 16 May 2025 21:49:03 GMT

Following the 2015 Supreme Court decision of Obergefell v. Hodges, LGBTQ couples gained access to the marital rights afforded to heterosexual couples. Unfortunately, the parentage statutes in Ohio have not been updated to reflect the legalization of same- sex marriage. Therefore, there are still additional steps that may be necessary for LGBTQ families to solidify their parenting rights.

The parent who carries the child is automatically granted the legal rights as a natural or biological parent. If the biological mother is unmarried, the child’s biological father can be named on the birth certificate or his genetic paternity can be proven through a later legal process. However, if the second parent is not the biological parent, then he/she does not have access to the same statutory procedure to establish genetic paternity.

In cases of lesbian couples, the biological mother is the legal parent, and the couple must take steps for the other parent to obtain legal rights. If the biological mother is married, her spouse can be designated as the second parent on the birth certificate. When two men start a family, they must utilize adoption or surrogacy. If the men are married at the time of these processes, they may both be granted legal parent status in the adoption decree or parentage order.

LGBTQ families will often utilize a second parent adoption to formalize the legal rights of both parents. This can be if the parents were unmarried at the time of the birth or adoption of the child, but are now married and wish to give both parents equal legal parental status. Some married couples will use a second parent adoption to ratify the administrative designation of the non-biological parent on the birth certificate as an added layer of protection of their parental rights.

If the couple was not married at the time of the child’s birth or adoption, only the biological or adoptive parent is the legal parent. Upon marriage, the spouse of the legal parent becomes a stepparent. A stepparent’s legal standing is not equal to the legal parent’s standing, regardless of the parties’ intentions or the family history prior to the marriage. A stepparent cannot make legal decisions for the child, does not have the same inheritance rights as a parent, and is not granted custodial rights of a parent in the event of the termination of the marriage.

Through a second parent adoption, the non-biological parent is granted the same rights

and responsibilities as the biological or adoptive parent. The adoption process is only

available to married couples. An unmarried couple cannot adopt a child together, nor

can an unmarried partner adopt the other partner’s child without terminating the original

parent’s rights.

The second parent adoption is completed in the Probate Court utilizing the same process as a stepparent adoption. A stepparent adoption differs from a traditional adoption because the adoptive parent, known as the “petitioner,” does not replace the current parent. Rather, the adoptive parent is granted equal legal status as the current parent. Most LGBTQ families pursuing adoption in this context do not consider the adoptive parent to be a “stepparent.” The adoptive parent has likely always had the role of parent and not just the spouse of the legal parent. Our firm and the LGBTQ

community use the term “second parent” to identify that parent’s role. However, the court forms do not recognize the more inclusive terminology.

The process for a second parent or stepparent adoption has the same formalities as a traditional adoption. The adoptive parent must file a Petition with the Probate Court, provide consent of the legal parent, and complete a home study. The home study is conducted by an agency who will report to the Court about the safety and appropriateness of the adoption. After filing of the necessary paperwork and successful completion of the home study, the parents and children attend a final adoption hearing at the Probate Court. Upon granting of the adoption, the adoptive parent officially becomes a legal parent with the same rights, responsibilities, and duties as the natural parent.

When you are considering your family’s options to protect each parent’s legal rights, it is important to review the options with a family law attorney who has experience in this issue and can guide you in making the right choice for your family. Our team of attorneys has experience with assisting LGBTQ families with a compassionate and knowledgeable approach to protecting their rights.

How are GAL Fees Paid in a Divorce or Custody Case?

Wed, 04 Sep 2024 18:57:58 GMT

If you are going through a divorce or a custody dispute, the Court may appoint a Guardian Ad Litem ("GAL") to conduct an investigation and make a recommendation as to the child's best interest. In the Domestic Relations Court and private custody cases in Juvenile Court, the GAL is a private attorney paid for his or her services. Juvenile Court matters that involve Child Protective Services are treated differently and may involve a non-attorney GAL. For attorney GALs, the Court will issue an order determining how, when, and what amount the GAL is paid. The actual cost will vary based on several factors, such as who requests the GAL, whether the parties choose a GAL by agreement or random assignment, and the parties' respective incomes. This article will explain what you can expect if you have an attorney Guardian Ad Litem in Hamilton County, Ohio.

In Hamilton County Domestic Relations Court, parents have the option of utilizing the Court's social workers to conduct a Parenting Investigation at a flat fee or requesting the appointment of a GAL. A Full Parenting Investigation is a flat fee of $800.00. When allocating the cost of the GAL, the Hamilton County Domestic Relations Court may consider whether both parties wanted a GAL rather than a Parenting Investigation by the Court's social workers at a flat rate. Other local courts do not have social workers on staff to conduct custody evaluations, and therefore the options are limited to a court-appointed GAL or a private custody evaluation.

When a GAL is first appointed, the Court will issue an Order assigning a specific GAL, ordering the payment of an initial deposit, and setting the GAL's hourly rate. In Hamilton County Domestic Relations Court, the standard initial deposit is $1,750.00. In Hamilton County Juvenile Court, the standard initial deposit is $1,000.00. The Court can order a different amount as an initial deposit amount, but generally, the Magistrates in both Courts will use the standard amounts. The initial deposit is paid to the Clerk of Court.

The initial order appointing the GAL will also allocate the deposit payment between the parties. The Ohio Rules of Superintendence, which govern GALs, requires the Court to consider certain factors in determining the ability of a party to pay the GAL deposit and fees. This includes the financial circumstances of the parties, the complexity of the issues, and the anticipated expenses related to the GAL investigation.

In practice, the Hamilton County Domestic Relations Court magistrates will also consider which party requested a GAL and if the other party agrees. If only one party wants a GAL and the other party wants a Parenting Investigation, the Court may order that the parent requesting the GAL pay 100% of the initial deposit or a larger portion of the initial deposit, since the Parenting Investigation is available in Hamilton County Domestic Relations Court for a flat fee that is lower than the standard GAL deposit. In Hamilton County Juvenile Court, the Magistrate may order the parties to submit income affidavits and proof of income to determine the parties' ability to pay. The Magistrate may require the parties to divide the initial deposit proportionate to their incomes. Regardless of how the initial deposit is allocated, the Court may reserve the final allocation of all GAL costs, including the initial deposit and additional fees, upon motion of either party or at the conclusion of the case.

The GAL will bill his or her time at her hourly rate. The GAL is required to keep records of the time spent on the investigation. If the parties agree to use a specific GAL, that GAL will oftentimes require his or her specific hourly rate. This is usually higher than the standard GAL rate set by the Court. If the parties do not agree to use a specific GAL, the GAL will be appointed by the Court by random assignment from the Court's list of eligible GALs. In Hamilton County Domestic Relations Court, the standard GAL hourly rate is $200/hour. In Hamilton County Juvenile Court, the standard GAL hourly rate is $125/hour. A GAL may be appointed on a pro bono (free) basis; however, this is very rare.

Throughout the case, the GAL is required to submit requests to the Court for payment of the GAL fees. The fees are first paid from the initial deposit. When the deposit is exhausted, the GAL can request that the Court order the payment of an additional deposit or to pay outstanding GAL fees. Sometimes, the GAL will arrange payment with the parties, where the parties will pay their respective shares directly to the GAL during the pendency of the case.

All GAL fees must be approved by the Court. The Court will review the GAL's time spent on the case and bills for reasonableness. In general, the Court will approve the GAL's bills unless a party raises an issue with the fees charged. However, in practice, the Court will give deference to the GAL's billing unless it is patently unreasonable. At the conclusion of the case, the Court will issue a final order for payment of GAL fees. If any deposit remains, it will be refunded.

If a party fails to pay the court-ordered GAL deposit or subsequent fees and expenses, that party could be subject to sanctions by the Court. These sanctions include a finding of contempt of court, limitation of evidence, and dismissal of claims for relief. However, the Court of Appeals has determined that a party cannot face incarceration as a contempt sanction for not paying GAL fees, since the GAL fees are a civil obligation akin to court costs.

Engaging a GAL in your custody litigation is an important decision that can have a significant financial impact on you and your family. It is important to discuss the benefits and risks of requesting a GAL with a family law attorney who has experience in this issue and can guide you in making the right choice for your family. Our team of attorneys has experience with assessing the strategic and financial impact of a GAL appointment in your litigated case.

Is a Co-Parenting App Right for My Family?

Thu, 22 Aug 2024 18:50:49 GMT

Co-parenting apps are designed to encourage productive communication and reduce opportunities for conflict between parents living in different households. Two of the most common co-parenting apps are Our Family Wizard (“OFW”) and AppClose.

Most co-parenting apps allow for secure, written messaging by the parents that cannot later be tampered with or deleted. To encourage accountability and streamline efforts to resolve conflict, some apps allow for attorneys and other family professionals to have direct access to parents’ intra-app communications. To further assist with written communication, OFW is known for its “tone meter” feature. This feature is designed to screen drafts and cause parents to re-think sending potentially inflammatory messages. Some apps also allow parents to document audio or video calls to varying degrees.

Additionally, many co-parenting apps, including OFW and AppClose, assist parents with managing shared expenses and/or scheduling events and activities for their children. OFW and AppClose each have a running expense log that makes it simple for a parent to request reimbursement from the other while creating a clear record of the request. Both apps prompt the requesting parent to upload a corresponding bill or receipt and identify the expense’s purpose. Parents can even choose to exchange money within these apps. Both apps keep track of the total amount owed by a parent.

An app’s shared calendar feature also creates a central platform for parents to jointly keep track of a child’s activities and appointments and request deviations from the parenting schedule, including requesting vacation time with the children or offering time to the other parent.

Many apps advertise various other features designed to assist with co-parenting. While some apps may be free, other apps, such as AppClose, with an annual cost of $108 and OFW, are paid subscriptions. If you and your co-parent struggle with communication, it may be worthwhile to discuss using an app.

Should I Negotiate on My Own With My Spouse?

Mon, 24 Jun 2024 03:44:28 GMT

A problem arises when a couple has done their own negotiation and then brings that agreement to their respective attorneys. Once the clients receive legal advice, if they no longer want to abide by their earlier agreement, it can create a large obstacle to further settlement discussions. Rightly so, one party may have felt the right to rely on the other person’s representation and will invariably mistrust a lawyer who has dissuaded their client from honoring that agreement.

What is recommended, at a minimum, is that you enter into such conversations with your spouse conscientiously. You both may agree that these discussions are very tentative and should not be relied upon in any way until you both have advice of counsel. Alternatively, you may want to meet with a lawyer before you begin those discussions, so you are well informed before discussing details.

Standard Parenting Time

Tue, 11 Jun 2024 15:37:00 GMT

Hamilton, Butler, Warren, and Clermont Counties in Ohio have all adopted a Standard Parenting Order or Standard Parenting Time Guidelines in both their Juvenile and Domestic Relations Courts. The Standard Parenting Order or Guidelines contains the parenting schedules that serve as a starting point for the court when parents cannot agree on what schedule is in a child’s best interest. Generally, a court’s Standard Order or Guidelines provide for the minimum amount of parenting time that will be awarded to each parent in most circumstances. Over time, there has been a shift by Ohio courts to move away from the traditional model where one parent is granted most of the parenting time and to instead allow for a more equal distribution of parenting time between the parents.

For example, until last year, the Standard Parenting Order in the Hamilton County Domestic Relations Court contained a parenting schedule for school-age children that granted parenting time to the nonresidential parent (i.e., the parent exercising the least amount of parenting time) every other weekend and a few nights per month during the school week. The new Standard Parenting Order released by the Hamilton County Domestic Relations Court in April 2024, however, provides for several other schedule options for school-age children, including equal parenting time schedules such as a week on/week off schedule, 2-2-3 schedule, and 2-2-5 schedule. You can learn more about 2-2-3 and 2-2-5 schedules here .

The Standard Parenting Time Guidelines in the Hamilton County Juvenile Court has undergone a similar shift. A 2-2-5 parenting time schedule is now the default schedule that the Juvenile Court will consider for school-age children.

Importantly, most courts’ Standard Parenting Orders or Guidelines contain parenting schedules that vary based on a child’s age. The Hamilton County Domestic Relations Court’s Standard Parenting Order, for example, provides for different schedules for children under the age of 6. The schedules developed for children under the age of 6 do not result in equal parenting time between the parents. Another example is that the Hamilton County Juvenile Court’s Guidelines contain different schedules for children under the age of 2. These schedules also do not result in equal parenting time between the parents. Whereas the Domestic Relations Court contemplates parents considering moving to an equal parenting time schedule by the time a child turns 6, the Juvenile Court contemplates parents moving to an equal parenting time schedule by the time a child turns 2. Every court has developed its own age guidelines and list of corresponding schedules, but the overarching theme is that most courts trend towards an allocation of more equal parenting time as a child ages.

What the Hamilton County Domestic Relations and Juvenile Courts’ recent changes to their Standard Parenting Order and Guidelines suggest is that Ohio courts are currently poised, more than any time before, to grant parents equal or close to equal parenting time if that is something requested by either of the parents. Importantly, a court is not going to grant a parent parenting time that is not being requested by that parent. Additionally, if there are other reasons why an equal parenting time schedule may not be in a child’s best interest, a Court can choose to deviate from its Standard Order or Guidelines.

Reviewing the Standard Parenting Time Order or Guidelines for your particular county and court is a good starting point for evaluating whether your preferred parenting schedule is something the court might consider. It is also important to remember that, if you and your co-parent agree on a parenting schedule that differs from what is contained in the Standard Order or Guidelines, the court typically will not interfere. Ultimately, courts are required to choose the schedule that is in a child’s best interest, and courts recognize that parents are usually in the best position to make this determination.

Ohio’s Updated Child Support Schedule

Tue, 16 Apr 2024 18:00:00 GMT

In Ohio, child support is guided by a basic child support schedule that assists in determining what child support obligation is appropriate. The basic child support schedule is essentially a chart outlining what the annual guideline child support should be taking into account the number of children subject to the child support order and the gross combined annual income of the parents.

Section 3119.023 of the Ohio Revised Code states that at least once every four years, the Department of Job and Family Services is required to review the basic child support schedule to determine whether the existing child support schedule still adequately provides for children who are subject to child support orders. As such, the Ohio Department of Job and Family Services reviewed the child support schedule in February of 2022. Based on this review, the basic child support schedule was updated, effective June of 2023.This review was based on many factors, including but not limited to analyzing data on the present-day cost of raising children and labor market data such as current unemployment rates and employment opportunities available to parents in various industries.

Based on the most recent update to the child support schedule, someone’s child support obligation may have changed from what their obligation would have been if calculated using the old schedule, even if no other factors like the parent’s income have changed. This change in the guideline child support obligation becomes more evident as the parties’ combined gross income increases. For example, the updated schedule states the total annual guideline child support obligation for one child is $11,972 if the parent’s gross combined income is $80,400, which is an increase of $1,367 in annual support obligation for the same combined gross income if looking at the 2019 child support schedule. If the parent’s combined gross income is $180,600, the 2023 schedule increases the total annual child support obligation by $1,468 from the 2019 schedule for the same gross combined income. As the parent’s combined gross income grows, the difference in the 2023 and 2019 schedules becomes larger.

Courts are not bound by the child support guidelines. Deviations are permitted as long as the reasons for deviation are stated. In all cases, a child support guideline must be filed with the court so it is evident what the guideline support would be, were it not for a court order or agreed upon deviation.

Child support can be a complex issue and its calculation is crucial in ensuring your children are financially supported. Speaking with an attorney about the updates to the basic child support schedule in Ohio can help you in navigating what child support obligation is appropriate in your case.

A Cautionary Tale: Social Media is Not the Forum for Crowdsourcing Your Divorce Negotiations

Mon, 08 Apr 2024 17:22:00 GMT

When I initially meet with my clients, I will caution them to not post anything on social media that they would not want the judge deciding their case to see. This includes badmouthing your spouse, engaging in questionable behavior, or disclosing sensitive information. But what about discussing the terms you are negotiating for property division or parenting agreements?

As a family law attorney and someone on social media, I will sometimes see my professional and personal worlds collide online. I have seen my colleague’s confidential legal advice to her client shared by that client in a semi-public online group as “My attorney told me that I should …” I have seen a long-forgotten acquaintance, who for some reason is my Facebook friend, post a request for feedback on very personal terms of their divorce settlement. I have even seen posts pop up on my feed from the opposing party of our firm’s client seeking advice on parenting negotiations, which I can be sure they would not have wanted to directly share with their spouse’s attorney.

In the era of social media being a prime method of “being social,” many people are online friends with mere acquaintances. You may have even friended a person on Facebook, Instagram, or TikTok who you would not recognize, approach, or know in real life. That “friend” will still see your personal posts, which may only be intended for a small audience of online friends with whom you have an actual relationship. It is easy to forget that your posts are not just seen by those online friends that consistently interact on your page. This could lead to inadvertent sharing of personal information with someone that you would never share with in-person.

Social media has also become a source of support for many people when they are going through difficult times. The quintessential “Facebook Moms Group” is oftentimes a treasure trove of advice, recommendations, and listening ears. However, these large online groups, while they may be “private” or “members only,” are still public forums that include a fair amount of strangers. Unless you know every single member personally, there is no way to know if your spouse’s friend-of-a-friend, acquaintance, or co-worker is lurking in the group and reading your posts to the group. It is even possible that your spouse’s attorney or an employee of that attorney’s firm could be in the online group and see your posts.

Many online groups have their own internal rules, including prohibitions on screenshotting posts and sharing information outside of the group. However, these admin rules are not enforceable in court. If a member shares information from the group, he or she may face banishment from that group. If the member violates the terms of service or community standards from the online platform, he or she could be removed from that platform. But there is no criminal action that could be brought if a member discloses a group post to a non-group member. Nor is there any civil action that the author of that post could assert. More importantly, in the context of parties going through a divorce, social media posts, as well as private messages or DMs, can be admitted as evidence at trial, so long as they are properly authenticated.

If you post on your own social media or within an online group about the status or your divorce negotiations, you may be exposing your negotiation tactics (indirectly) to your spouse. Polling the crowd about whether you should agree to this term or that term may seem innocent and insulated within that group. Sharing that your divorce attorney recommended that you do X, Y, Z may feel helpful to the other members of the page who have asked for advice. But when that post is screenshotted, sent to your spouse, and then to his or her counsel, you have possibly lost a bargaining chip. And if your post or comments contain sensitive information about your case, you risk that information being screenshotted, shared, and admitted as evidence against you in your divorce trial.

When you are actively negotiating the terms of a divorce settlement or involved in family law litigation, it is best to stick to the old-fashioned in-person support methods. Talk about it with your friend over lunch, call you wise aunt, or confer with college buddy who went through the same thing. But leave the crowdsourcing and venting off of your social media. If you must post online, stick to the tried-and-true method of sharing your feelings without sharing details – Vague-Booking.

Considerations Surrounding Custodial Accounts in Divorce

Thu, 22 Feb 2024 15:12:00 GMT

There are several options available to parents who want to create savings for their children. Many parents or family members choose to set up either a Uniform Gifts to Minors Act (“UGMA”) account or Uniform Transfers to Minors Act (“UTMA”) account to begin investments for a child. The UTMA is actually an extension of the earlier UGMA. Compared to traditional savings accounts, these accounts are more secure from creditors and third parties and often come with certain tax benefits. These accounts also prevent children from gaining access to money before they reach a certain age. These accounts are commonly created to save for a child’s higher education or to safeguard money that should remain invested and not spent. 529 plans are another popular vehicle used to save for a child’s college, and these funds can also be used for high school education. A 529 Plan may be set up as an individual or custodial account. With a custodial 529 plan, the child the plan was created for owns the account. By contrast, an individual 529 plan is legally the property of the account owner, often a parent.

Unlike the assets held by a UGMA or UTMA account, which may be used for any purpose, money held in a 529 plan must go towards qualified education expenses such as tuition, room and board, and books. If funds from a 529 plan are withdrawn for another purpose, a penalty will be incurred. Another major difference between 529 plans and UGMA/UTMA accounts is that funds in 529 plans grow tax-free. Additionally, funds in an individual 529 plan can be transferred to another child or grandchild if the child who was originally named as a beneficiary does not need the funds. Funds in a UGMA account, UTMA account, or custodial 529 plan typically cannot be transferred between children because the child named as the beneficiary also legally owns the funds. Earnings from a UGMA and UTMA account are typically taxed at the child’s, and not a parent’s, tax rate.

Between UGMA and UTMA accounts, there are a few notable differences. The biggest difference is that a UTMA account can hold any form of property, including real property, whereas a UGMA account may only hold financial assets such as cash, stocks, or bonds. Additionally, the UGMA has been adopted by all 50 states. The UTMA, however, has not been adopted by Vermont or South Carolina.

UGMA and UTMA accounts are custodial accounts. This means that the account custodian, often a parent, manages the account until the minor who the account was created for reaches the age of majority. Importantly, any transfer of property into a custodial account is irrevocable because it becomes the property of the minor at the time of transfer. However, the minor may not access the property until he or she reaches the age of majority. The age of majority in Ohio is 18 under the UGMA and 21 under the UTMA. The age of majority in Kentucky is 21 under the UGMA and 18 under the UTMA. The account custodian has a fiduciary duty to manage any assets within the account with the child’s best interests in mind.

UGMA accounts, UTMA accounts, and 529 plans must be addressed during a divorce. Generally, these can only have one account owner or custodian and only one beneficiary. So, it is important to determine who will operate as an account owner or custodian following a divorce and what access the other parent will have to review that account. Other important considerations include determining if and when further contributions will made to an account and whether there will be any limitations as to how the owner and/or custodian may use the account before the child reaches the age of majority.

It is important to speak with an attorney to discuss your options for addressing accounts set up for your children and ensuring that the savings for your children are protected in the event of divorce.

Different Types of Mediation Services and Their Benefits

Fri, 05 Jan 2024 18:22:00 GMT

Mediation is the process where parties meet with a neutral third-party professional to facilitate discussion around reaching agreements in their divorce or dissolution, including issues of property, support, and custody. Mediation can also occur following a divorce or dissolution, often for new matters that come up concerning their children. In fact, almost all shared parenting plans include a mandatory mediation provision. A mediator is usually either an attorney or a mental health professional who has specifically been trained in leading mediation discussions. Generally, it is recommended that for all financial issues, a lawyer is engaged for mediation. Often a mental health professional can bring added value for parenting matters.

One mediation route that can be used to facilitate reaching agreements is utilizing a court’s mediation services. If court mediation is used, a mediator will be appointed to facilitate the mediation process. Parties may voluntarily agree to utilize the court’s mediation department, or the magistrate assigned to the parties’ court case may order that the parties attend mediation with a court-appointed mediator. In Hamilton County Domestic Relations Court, the court charges $300 for financial mediation pre- or post-Decree, $150 for parenting mediation post-Decree, and no cost for parenting mediation pre-Decree. This is a one-time charge, and the number of mediation sessions varies depending on what both the mediator and parties attending the mediation believe is helpful. Note that the cost for court mediation services varies depending on the county, and whether the case is in the Domestic Relations or Juvenile court in that county. Furthermore, some courts do not have mediation services to offer.

Another way the parties can utilize mediation is by hiring a private mediator. If the parties choose to hire a private mediator, the court is not involved in the process, and the private mediator would bill at their hourly rate or request a retainer to cover the cost of their work. The cost of a private mediator can vary depending on the mediator the parties select.

It must be understood that a mediator does not make decisions. A mediator is present to facilitate discussion between the parties to assist them in coming to their own agreement.

During either a court or private mediation session, the parties may attend the mediation with just the mediator, or with their attorneys present.

Consulting with an attorney can assist you in determining if mediation would be beneficial for your case specifically, and which road to mediation is the most appropriate for you.

What can parents do when they are unable to have productive email communication?

Mon, 20 Nov 2023 20:02:00 GMT

What can parents do when they are unable to have productive email communication?

I was recently involved in a collaborative case where the parents were unable to have productive email communication. There were complaints that emails went unanswered and that emails were accusatory. There are many books and articles written on effective communication between parents following a divorce, and there are tools such as Our Family Wizard that monitors the tone of emails.

With this particular couple, we wanted some simple rules, and we incorporated those rules into their Shared Parenting Plan. The rules were similar to the following:

Upon receiving an email, send an acknowledgment of receipt, even if it is to indicate that it was received and a reply will be forthcoming.
Provide a response within a reasonable timeframe, but generally within 24-48 hours.
When sending an email to report on something that a child said don’t assume that it is true. Say something such as “I’m sharing information with you that may or may not be accurate.” Ask questions but don’t accuse.
When responding to an email such as this, avoid defensiveness. Children may say things to one parent, thinking it is something that the parent wants to hear, or due to anger with a parent. Provide a factual response and propose a reasonable course of action to address the issue.
Avoid sending an email for the sole purpose of complaining. Attack the problems and concerns at hand. Do not blame each other.

And, of course, apply the most basic rule of pausing before sending an email. Read it out loud. Understand that every email has the potential to create a conflict. Conflicts are not healthy for anyone, including your children. Send it only after you have carefully considered the likely response.

What are the considerations in evaluating whether both spouses should remain on a mortgage together following a divorce?

Thu, 16 Nov 2023 18:59:00 GMT

It is common in a divorce that one spouse may retain the marital home in lieu of the parties selling the residence. When one spouse keeps a home, it raises several issues particularly if both parties are obligated on a mortgage. The first issue is how the other spouse will receive his or her equity in the home if it is a marital asset. There can be various solutions such as trading off the home equity against another marital asset that the spouse is retaining. Sometimes a person may have enough cash from the property division to make a lump sum payment. A third option is to refinance the home mortgage and borrow enough to pay off the other spouse. However, in many circumstances, the first two options are not available and in the third instance, if the mortgage is in joint names, it presents different challenges. There may be reasons both parties would consider remaining on a joint mortgage without the need for refinancing. Lawyers are often asked if remaining obligated on a joint mortgage is a reasonable solution.

Most lawyers will answer that if a joint mortgage can be avoided, it should. Many complications can arise which include legal issues if one of the parties dies while on a joint mortgage. Staying on a mortgage may lead to credit problems for both parties even though only one of the parties is required to make the payments. Furthermore, the spouse who is not retaining the home may want to buy a home and could have problems getting approved for his or her own mortgage while still legally liable for the mortgage on the marital home. On the other hand, the parties often agree that it is best for one of them to remain in the home for the benefit of the children, and the person remaining may not qualify for a mortgage due to his or her work record, lower earnings, or bad credit. In those situations, it may be impossible to qualify for refinancing, in which case, the choice is for both parties to stay on a mortgage for a certain period of time or the house must be sold. The other impediment many people face (especially in 2023 when this is written) is that the mortgage rate on the marital residence may be much lower than the rate would be on a new mortgage, and this could make the house unaffordable.

If both parties decide to remain on a mortgage, there are terms that can be written into a legal agreement that outlines conditions for when the residence must be refinanced solely into the name of the party keeping the residence, or even requiring that the house is sold at a certain time. These terms could include any of the following: a provision that states the spouse retaining the residence must refinance upon the mortgage interest rates dropping to a certain rate, providing a specific date or event such as the child’s graduation from high school that would trigger a refinance, or a term the states if the spouse retaining the home misses a mortgage payment, that person must immediately refinance the home into their sole name or list the property for sale. Terms such as these provide some protection for the party who is remaining on the mortgage, while still allowing the party staying in the residence some breathing room. These safeguards don’t provide complete protection but should be weighed against the importance of one person staying in the house.

Determining how to approach who retains the marital residence and under what terms can be a difficult subject, with many considerations informing the decision. A lawyer can present the pros and cons of such an issue so that a well-informed decision can be made.

Ohio Post-Nuptial Legislation

Thu, 16 Mar 2023 16:35:00 GMT

Prior to marriage, Ohio law allowed couples to enter into a pre-nuptial agreement with one another. This pre-nuptial agreement, also known as an antenuptial agreement, can assist the couple in defining and dividing their assets and debts in the event of future death, separation, or divorce and is often used to protect assets that a person owns prior to the marriage.

Until now, Ohio law did not allow spouses to enter into agreements setting forth their rights and obligations after they married except for the purpose of separating. Ohio was in the minority of states in prohibiting this. The reason for this is Ohio lawmakers took the position that it is against the public good to allow spouses to negotiate for rights with one another because this could result in harm to marriages. However, a bill recently passed and signed into law will now allow married couples to enter into post-nuptial agreements with each other.

On December 22, 2022, Governor Mike DeWine signed Ohio Senate Bill 210 into law. The Bill will go into effect on March 23, 2023. The Bill includes updated language for Ohio Revised Code section 3103.06. Specifically, ORC 3103.06 will now state that a husband and wife may (1) enter into a postnuptial agreement that alters their legal relations with each other, (2) modify or terminate an antenuptial or post-nuptial agreement or any other agreement that alters their legal relations with each other, and (3) agree to an immediate separation and make provisions for the division of property and support of either of them and their children during the separation.

Any agreement altering legal relations between spouses established under ORC 3103.06 shall be valid and enforceable if all of the following apply: (1) the agreement is in writing and signed by both spouses, (2) the agreement is entered into freely without fraud, duress, coercion, or overreaching, (3) there was full disclosure, or full knowledge, and understanding of the nature, value, and extent of the property of both spouses, and (4) the terms do not promote or encourage divorce or profiteering by divorce.

It remains to be seen what legal issues arise once married couples in Ohio begin to enter into post-nuptial agreements. The law on this subject will evolve over time, to address problems that emerge. People are urged to enter into these agreements only after very careful consideration of the potential consequences and to consult with an attorney in drafting an agreement that will impact their legal rights indefinitely.

What is a 2-2-3 and 2-2-5 parenting schedule, and which one is right for my family?

Wed, 15 Mar 2023 11:49:00 GMT

Parents who practice equal parenting time commonly choose between a 2-2-3 and 2-2-5 parenting schedule. Under a 2-2-3 schedule, beginning with Week #1, Parent A has the children overnight for the first two days of the week, and Parent B has the children overnight for the following two days. Parent A then has the children overnight for the next three days, which includes the weekend and concludes Week #1. The children spend the first two overnights of Week #2 with Parent B, followed by two overnights with Parent A. Finally, the children return to Parent B, who has the children for three overnights, including the weekend and concluding Week #2. The schedule then repeats itself by returning to Week #1. Here is a visual aid for this schedule:

Under a 2-2-5 schedule, Parent A has the children overnight every Monday and Tuesday, and Parent B has the children overnight every Wednesday and Thursday. The parents rotate who has the children overnight Friday through Sunday. This means that each parent will have the children five nights in a row every other week (three days Friday-Sunday + the parent’s regular two days on either Monday/Tuesday or Wednesday/Thursday). Here is a visual aid for this schedule:

There are many things to consider when choosing which schedule works best for your family. Under a 2-2-3 schedule, the maximum time children would go without seeing one parent is three days, whereas the maximum time under the 2-2-5 schedule is five days. Families with pre-school-age children and younger often gravitate to a 2-2-3 schedule because many young children have a hard time adjusting to a schedule in which they go without seeing one parent for more than a few days at a time. Additionally, compared to older children, younger children generally have more weekday flexibility that make frequent mid-week transitions between parents not a big deal.

Families with school-age children regularly choose a 2-2-5 schedule. This is partly because a 2-2-5 schedule provides children with more predictability and is easier to plan around since each parent has the children on specific days of the week, every week. For example, a child will learn to expect to be with Dad on Mondays and Tuesdays and Mom on Wednesdays and Thursdays. This schedule can also help parents plan for and keep track of a child’s weekly activities, such as if a child plays basketball every Tuesday and his or her father is the coach. Finally, there is less back-and-forth between parents under a 2-2-5 schedule, which may be preferable to parents and children who lead hectic lives during the school week.

These schedules are far from the only options, and, importantly, they are malleable. For example, parents who prefer the certainty of a 2-2-5 schedule but are concerned about going five days without seeing their children could build in a small capsule of time during the other parent’s five-day parenting time. Returning to the earlier example, under a 2-2-5 schedule, Parents A and B could agree that they each are entitled to take the children to dinner one evening during the other’s five-day parenting time (i.e., Parent A may take the children to dinner on Thursday nights, and Parent B may take the children to dinner on Sunday nights).

Transitioning from seeing your children every day to an equal parenting schedule may feel overwhelming. Ultimately, the mantra we try to instill in all our parents is quality over quantity. Children do not count the number of hours or number of nights they spend with each parent; children care most about spending quality time with both parents and feeling like their relationship with each is nurturing and consistent. The best thing you can do for your children is develop a schedule with your co-parent that has your children’s best interest in mind.

Pending Parenting Legislation

Tue, 07 Mar 2023 16:06:00 GMT

In a divorce where there are children involved, an important decision to make is what the parenting time schedule will be moving forward. A parenting time schedule simply refers to the time that each parent will have the child in their care, both during the day and overnight. If the parties agree on how parenting time should be allocated, they can enter into a Shared Parenting Plan. A Shared Parenting plan is a written agreement that specifies the parenting schedule the parties intend to follow, amongst other things.

When the parties cannot agree on parenting time, the court determines the parenting time schedule based on what is in the child’s best interest. Currently in Ohio, each county’s court references its own standard parenting order when creating the parenting time schedule for the parties. The standard parenting order varies from county to county, and the court has discretion to deviate from its own standard parenting order when it is appropriate and in the best interest of the child. However, if passed, a proposed bill in the Ohio Legislature will change how the court determines parenting time.

House Bill 14, also known as the “Equal Parenting Bill” was introduced in the House of Representatives on February 15, 2023. If the bill passes and becomes Ohio law, the court will work under the presumption that an equal parenting time schedule is appropriate and in the best interests of the child. While some courts’ standard parenting orders already reflect a 50/50 parenting time schedule as the baseline to work from, others do not. House Bill 14 would cause all courts across Ohio to begin parenting time analysis under the presumption that equal parenting time is appropriate. This presumption would be rebuttable only if the court finds by clear and convincing evidence that an equal parenting time arrangement would be detrimental to the minor child. House Bill 14 would put the burden on the parent who objects to equal parenting time to demonstrate that 50/50 parenting time would be detrimental to the child.

House Bill 14 is still in the early stages of moving through legislation, having been introduced in the house in February 2023. For House Bill 14 to become law, it will need to be passed by the House of Representatives as well as the Senate, where it would then be sent to the governor for signature.

Why Do Lawyers Charge Such Different Rates and Retainers?

Thu, 10 Nov 2022 19:44:00 GMT

As you begin the process of finding a lawyer to assist you in your case, you may notice that hourly rates and retainers vary from one lawyer to the next. Not only will you find a difference in rates between firms, but you will oftentimes find different rates for each lawyer within the same firm. After hearing a range of hourly rates and retainers, you may be scratching your head as to how lawyers set their retainer and hourly rates, and why these rates vary depending on the attorney.

First, it is important to understand the difference between a retainer and an attorney’s hourly rate. A lawyer’s hourly rate is the rate at which they bill per hour of work. A retainer is a sum of money the attorney holds in trust for their client. The attorney bills for their work at their hourly rate, taking money out of the retainer to pay this bill. If the retainer is exhausted, another retainer may be due for the attorney to continue their work. On the other hand, if a matter is resolved without having to exhaust the retainer, the remaining amount is refunded to the client.

An attorney sets their hourly rate based on a number of factors. The hourly rate of an attorney is based on the years of experience an attorney has in the legal field and the amount of experience an attorney has in their specific practice area, such as family law. An attorney will also look to the standard hourly rate for an attorney in the surrounding legal community with their level of experience and expertise. These factors result in each attorney’s rate being unique to their experience, expertise, and community’s standards.

Similar to hourly rates, the retainer that lawyers need to begin representation will vary. The first reason retainers vary is based on the case itself. The issues present in your case and the amount of time an attorney expects to take working on your case will affect the retainer needed. The more complex a case is, the more likely it is that a lawyer will need a higher retainer. Additionally, a retainer may vary depending on the hourly rate of the attorney. An attorney with more experience and expertise, and thus a higher hourly rate, may require a higher initial retainer to begin working on a case, with the reason being that a higher hourly rate will eat away at a retainer faster.

All in all, there are a variety of reasons why you may see different lawyers charging different hourly rates and retainers. The tenure and expertise of the attorney, the standard hourly rate in the community for attorneys of comparable skill level and experience, and the facts of your case may influence the hourly rate and retainer of an attorney.

Why You Can’t Trust The Internet for Research

Wed, 19 Oct 2022 15:12:00 GMT

When considering how a particular family law matter may be resolved, it is not uncommon for people to search online to form a baseline understanding of what issues may be at stake. In fact, searching online is likely what led you to our blog! Educating oneself is a good thing. However, it is important to recognize that a substantial portion of online legal information is incomplete, oversimplified, inapplicable to your situation, or altogether false. Always check your source and keep in mind the following questions: (1) was the online information written by an attorney; (2) does the online information integrate the laws of my state; (3) are the facts of my case exactly the same as those that the writer addresses; and (4) is the online information up-to-date? As a general rule, it is dangerous to accept online legal information as being reliable or applicable to your specific facts.

Even reliable online sources may not fully address your situation. Beth Silverman & Associates strives to provide up-to-date legal information on its blog and takes great care to remove information that may no longer be relevant. However, our short blog posts are just that– short. To address how one of our blog posts applies to a potential client’s unique circumstances, we must first speak one-on-one with that client. A unique circumstance not included in a blog post may entirely change how a particular issue could or should be handled.

A good example of oversimplification of possible legal outcomes is child support and spousal support calculators. When searching online it is important to remember that laws regarding child support, spousal support, custody, and property division are complex and differ among states, and even between counties in the same state. For example, in Ohio, a judge must consider several statutory factors when crafting an award of spousal support. Although spousal support calculators online suggest that spousal support awards are predictable, but they are not. There is no mathematical formula for a judge to rely upon when determining what amount to award. Instead, awards of spousal support are highly fact-dependent, and Ohio courts take varying approaches when applying the statutory factors to a given situation. The bottom line is that online spousal support calculators are grossly inadequate at predicting how much you might owe or be entitled to in Ohio and could cause you to develop unrealistic expectations regarding your case.

When used carefully, the internet may be a helpful tool for identifying potential strengths or weaknesses in your case. However, a one-on-one conversation with an attorney addresses the nuances of your situation in a manner that the internet is simply not capable of. Such conversations with an attorney will not only educate you on the various courses of action you could take with respect to your family law matter but will guide you in setting realistic expectations and establishing a positive tone for your case moving forward.

Securing LGBTQ Rights After Dobbs

Tue, 05 Jul 2022 15:19:00 GMT

On June 24, 2022, the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, overturning the 50+ year old law established by Roe v. Wade. Justice Clarence Thomas wrote a concurring opinion which suggests that, based on the legal precedent set in Dobbs, the Supreme Court should also consider overruling the right to same-sex marriage which was established in the 2015 case Obergefell v. Hodges.

Beth Silverman & Associates has long represented same-sex couples seeking to secure their legal rights. Since Obergefell, same sex parentage, rights to medical decision-making, and rights to property have been far more protected than ever before. Now, with Obergefell being threatened, it is hard to know what may happen to the rights of individuals who have married or relied upon the rights granted to them within the Obergefell decision.

Because these rights are at risk, we recommend that all same-sex couples take inventory of the legal documents they have currently in place and consider whether executing additional legal documents or court orders may be appropriate at this time. Below is a non-comprehensive list of the legal protections same-sex couples may want to consider, even if they are currently legally married:

Healthcare Powers of Attorney
Living Wills
Last Will & Testament
Co-Custody or Shared Custody Agreements
Second or Step-Parent Adoptions

Please do not hesitate to reach out to one of our attorneys if you have questions about the function of each of the documents listed above or if you would like to meet with one of our attorneys to discuss the best way to safeguard your rights.

Can I Relocate with my children?

Wed, 06 Apr 2022 20:56:00 GMT

Whether or not a parent can move or relocate with their children is a common question both before and after divorce. The answer to this question varies depending on whether the divorce has already occurred and if so, what the terms of the parenting plan provide regarding relocation. First, if you have not already terminated your marriage and neither parent has filed for divorce, there are no legal restrictions on a parent’s ability to move. Either parent is legally permitted to move with the children to any location he or she wishes. However, if such a move occurs without the other parent’s agreement or consent, this will likely cause the non-relocating parent to file for divorce and seek an order from the Court providing for the return of the children to their previous home. While not guaranteed, such orders are commonly granted because Courts prefer to maintain the status quo for the children while a divorce is pending. Any decision regarding the children’s relocation would be made after a full hearing on the matter.

At the time either parent files for divorce, the Court issues automatic temporary restraining orders. These orders include a restriction upon either parent from relocating with the children outside of a certain area while the divorce is pending. The specific area is different in each county, but it is commonly limited to the county where the divorce was filed, or a certain mile radius.

At the conclusion of a divorce or dissolution, the parents will have either have a legal document outlining their parenting agreements or the Court’s orders regarding parenting. In almost all cases, the final agreement or Court order will include some limitation on the children’s relocation. Most commonly, it will restrict either parent from relocating with the children outside of some defined area (such as certain counties, or a mile-radius from a particular location such as the other parent’s home, or the children’s school). If either parent wishes to relocate within the specified area, that parent does not need the permission of the other parent or the Court to do so. He or she would simply notify the other parent and the Court of the new address. However, if a parent wishes to relocate outside of the defined area, he or she would either need the consent of the other parent, or permission from the Court. Therefore, if the other parent does not agree, the parent wishing to relocate must file a motion with the Court asking for permission before he/she moves. Relocating with the children without either the consent of the other parent or permission from the Court would be a violation of the Court order and could lead to a finding of contempt of Court, which can include an order of attorney’s fees or court costs to be paid to the other party. Such a move without an agreement or a Court order would also be considered if either parent is seeking modifications to custody and/or parenting time.

In some cases, one parent has been designated as the residential parent and legal custodian of the children and there are no restrictions within the Court order regarding his/her ability to relocate. In this circumstance, the parent may legally relocate with the children without the other parent’s consent and does not need to seek permission from the Court before doing so. It should be noted that it is very rare for an order to be silent on relocation. Oftentimes, the order will refer to and incorporate the county’s Standard Parenting Order which does contain a relocation restriction. Therefore, it is wise to review your Court order carefully, including seeking review by an attorney, before relocating.

How Can I Obtain a Domestic Violence Civil Protection Order?

Tue, 08 Mar 2022 19:58:00 GMT

How Can I Obtain a Domestic Violence Civil Protection Order?

In general, people think of domestic violence as being between two spouses or partners, but the Ohio Revised Code provides protection to the “family or household member,” including parents and children.

The Ohio Revised Code §3113.31 defines domestic violence as conduct of an individual involving force or threat of force to control a family or household member. Conduct can include physical violence, sexual violence, or child abuse.

There are various avenues you can take when faced with domestic violence. You can pursue a civil protection order, file a police report, file for divorce, seek community resources, or any combination of these options. If criminal domestic violence charges are filed, a temporary protection order may issue in the criminal case; this is separate from a civil protection order.

Although all avenues may be an option for you, for purposes of this blog post, I will specifically address civil protection orders.

To start the process of obtaining a civil protection order, you must first file a petition for Domestic Violence Civil Protection Order “DVCPO.” Filing the petition will begin the process by asking the Court for protection. After the Petition is filed, the Petitioner (person filing the petition) will attend an ex parte emergency hearing, typically on the same day within a few hours of the filing of the petition. Ex parte means that the Respondent (person you filed the protection order against) is not given notice of the hearing and is not present for your testimony.

This hearing will allow you to tell your story, under oath, to the Magistrate and present evidence to the court. You can also bring witnesses to this hearing. In the petition and at the hearing you can ask the court to include other “protected parties” (such as minor children) in the order.

After you present your testimony at the ex parte hearing, the court will determine if you are entitled to an ex parte DVCPO. If an Ex Parte DVCPO order is granted, this means that in between the ex parte hearing and the full hearing, the Respondent is not permitted to be around you and any other protected parties, communicate with you and the other protected parties, and may even result in the Respondent having to vacate the residence if you live there as well. Regardless of whether an ex parte DVCPO is issued, a full hearing will be scheduled. The Respondent is served with a copy of the DVCPO and notice of the full hearing.

At the full hearing both Petitioner and Respondent appear and have a right to be represented by an attorney. Even if you filed your petition for DVCPO without an attorney, we strongly recommend you seek counsel prior to the full hearing to prepare and consider evidence to present. Like the ex parte hearing, at the full hearing, you are permitted to tell your story, however, this time the Respondent is given a chance to tell their side of the story in response. Both parties can bring witnesses, question the other party and the other parties’ witnesses, and submit evidence during this time. At the conclusion of the full hearing, the Court will determine if a final DVCPO is warranted. The Court will determine the length of protection based on the circumstances, but DVCPOs can be granted for up to five years.

Navigating the justice system as a survivor of domestic violence can be traumatic. Seeking counsel to assist you and advocate for you in court can make that experience less intimidating. Speaking to an attorney will give you an opportunity to discuss what filings are appropriate in your divorce proceeding given the domestic violence and whether filing for a DVCPO is in your best interest.

Click here for community resources from the Hamilton County Domestic Relations Court.

How and When Do We Tell the Children?

Tue, 11 Jan 2022 01:03:00 GMT

The biggest fear for many people who have decided to end their marriage is when and how to tell the children. This post is not a substitute for seeking professional advice from a trained therapist who can help you answer this question based on the particular needs of your children and their ages. Parents should seek professional guidance at such a difficult time in everyone’s life. I want to share what I have learned, from being present at many meetings when trained therapeutic professionals have been asked “when and how do we tell the children”?

Often, it is recommended that both parents are together when the children are told. Ideally, there would be a general understanding of what will be said and most importantly, what will not be said. When parents don’t do this, and one parent tells the children without the other parent’s knowledge, it can feel like a betrayal, or an effort by one to give a narrative that the other parent may be uncomfortable with. Imagine how a child feels hearing different things from their parents, not knowing who to believe and wondering how this is ever going to be resolved. Talking to the children together can reinforce a message that the parents are in agreement, and are choosing to work together to reach a satisfactory resolution for everyone. The hope is that this fraught conversation can be reassuring to children, who probably already have sensed discord. It’s important that they feel their parents will remain so . Although the family may look different, it will still be a family.

Some parents feel it is best to say nothing to the children until all decisions have been made. This can be helpful so a child can know what to expect, such as when will the separation occur, what time will the child be spending with each parent, and where everyone will be living. It can be recommended that even when parents have made decisions, the children are not told terribly far in advance because of the anxiety this may produce. It can be confusing to children if their family seems to still be the same as always and yet there is going to be a divorce. However, in some situations, where there is a great deal of unspoken tension or a great deal of fighting, children may be left to wonder if they are imagining conflict that doesn’t exist. In these situations, it may be appropriate to acknowledge to the child that they, the parents are working through some things, and the most important thing to them, is to make good decisions for the family. Children may be comforted to know that their parents realize that things have become bad at home, and are trying to figure out a path forward.

One thing that most professionals seem to agree on is that parents don’t owe their children an adult-like explanation of what led to the breakdown of the marriage. I often hear parents objecting to this advice, saying things such as they deserve to know “the truth”. This is often expressed when there has been infidelity, and one parent wants the children to know it’s the other’s fault. Often it is expressed as “My kids need to know that I wanted our family to stay together but it was their mother’s choice.” I don’t think I have ever heard a professional encourage that a detailed explanation is given to children. In a marriage, parents choose not to share intimate details of their relationship with the children all the time, because it is inappropriate. This is no different and while at the moment it may feel satisfying to encourage the children to be mad at the other parent, this almost never turns out well for the child. At a time like this, children want to know that their parents are handling their issues. Children never want to choose sides and it is inappropriate and can be harmful if a parent encourages this.

Some parents think that these principles don’t apply to adult children. Yet, children of all ages want to know that their parents don’t hate each other. It is common for adult children to immediately wonder how the parents will behave at their wedding, or at their own children’s birthday parties if both will be present. It is a gift to give to a child the comfort of knowing that his or her parents want to be able to attend milestone events together and be civil or even friendly.

Children of all ages want their parents to be happy. At a difficult time like divorce, it’s hard to hide feelings of sadness, loneliness or anger. Yet, be careful to avoid a situation where a child thinks he they must take care of you, and make you happy. A child may feel it is disloyal to see their other parent or worry that his the other parent will be too lonely if he leaves the house. The goal, to the extent possible, is to assure a child that you will be okay, and it will just take some time to get used to the changes in life.

I recommend the following aspiration: Make your children proud when in retrospect they think about how their parents handled their divorce. It is far better if they are grateful that their parents kept the children out of the middle, and did everything possible to preserve stability for their children. It is a gift that you can give your children.

Earned Income Tax Credit for the Spousal Support Recipient

Wed, 25 Aug 2021 15:32:00 GMT

The IRS provides an Earned Income Tax Credit to provide a tax break to low – moderate income earning families. Recently, there have been changes to federal tax law that may allow you to claim this benefit even if you did not qualify for it previously. For example, if your ex-spouse earned higher income and you filed joint tax returns during your marriage, you may not have been eligible for this tax credit. Once your divorce is finalized or after a physical separation of more than six months, you may file single or head of household, and the IRS will look only at your income to determine eligibility. Prior to the new law, a taxpayer who was otherwise eligible for the Earned Income Tax Credit could be barred from receiving the credit if he or she also received spousal support.

Under the Tax Cuts and Job Acts of 2017, spousal support is no longer taxable as income for the recipient spouse on his or her federal tax return if the divorce was finalized on January 1, 2019, or later. See this article for details about this new law. If your divorce was finalized after this date, depending on your other sources of income, if any, you may qualify for the Earned Income Credit since you do not have to include your spousal support payments as income.

The Earned Income Credit is only available if your Adjusted Gross Income (“AGI”) is within the parameters set by the IRS for each tax year. The AGI limit increases depending on the number of qualifying children claimed on your return. Additionally, you cannot receive investment income in excess of $3,650, and the credit is not available if you file as Married Filing Separately. For the 2021 Tax Year, the AGI limits are as follows:

Source: https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit/earned-income-and-earned-income-tax-credit-eitc-tables , last updated May 11, 2021.

The total amount of the credit increases with each dependent claimed but is capped at three or more dependents. If your ex-spouse is claiming your child on his or her tax return, you cannot claim that same child for the purposes of the Earned Income Credit that year. For the 2021 Tax Year, the maximum credits are as follows:

Since spousal support payments are not included as income, now it is easier for the low to moderate earning spouse to qualify for the Earned Income Credit after the divorce. Additionally, since the ability to claim the credit and the amount is directly affected by the number of qualifying children claimed, it is important to consider the allocation of the right to claim your dependent children when determining the terms of any negotiated settlement or requested relief from the Court.

Your attorney can help you navigate the process of ending your marriage, including considering the future tax implications related to your children and spousal support.

Should I Get Counseling?

Fri, 30 Apr 2021 16:30:00 GMT

Many of our clients ask us if they should be seeing a counselor or taking medication for the emotional issues they deal with during their divorce. While clients may feel that they could greatly benefit from counseling or medication during such a difficult time in life, they are fearful that their spouse will try to use the fact that they are receiving mental health treatment against them, or worse, try to obtain records from counseling sessions to learn more about their inner fears and concerns.

It is true that mental health of the parties is a factor the court must consider when allocating custody of minor children. It is also true that mental health treatment records can be accessed in a contested custody case regardless of whether the patient gives consent for the court or other party to obtain the records. If this is a concern, you should discuss this with your attorney, but as you will see below, in most cases the advantages of counseling outweigh these concerns.

There are a number of reasons why the benefits of counseling outweigh the risks identified above. First, the vast majority of cases settle long before they reach a courtroom when such records might come in to play. Second, the threat of using someone’s mental health treatment or records against them is most often just that – a threat. In the cases where records are requested, most courts are willing to accommodate reasonable requests to limit the information being shared to only those individuals who will be weighing in and making recommendations for custody. Third, mental health treatment providers are often very aligned with and supportive of their patients. As such, they typically resist providing full access to their file and when interviewed or examined on the witness stand, many therapists or doctors will give broad and vague answers so as not to betray the confidences of their patients. Additionally, when a therapist knows a patient is going through contested divorce proceedings, they may limit the session notes they take to only those high level matters, so that often even a review of detailed session notes would not reveal much.

Lastly, and most importantly, it is likely not surprising that there are often allegations concerning mental health in contested custody cases. This is something the court sees regularly. While there may be a stigma in the minds of some individuals regarding mental health treatment, this has not been our experience in the courts. When there is an allegation that a parent is dealing with mental health issues, the court wants to see that the parent is proactively taking care of those issues by seeking mental health treatment – whether it takes the form of medication, therapy, or both. The fact that someone is receiving treatment is therefore far more often considered as a positive in the determination of custody than it is as a negative against their character or fitness as a parent.

Another consideration when deciding whether to obtain mental health treatment is the cost of the services. We have found time after time that unresolved mental health issues typically result in higher attorney fees, either because the client is using the attorney as a stand in (and typically much more expensive) therapist, or because the client is simply not emotionally ready to tackle the conflict of the divorce until those mental health issues are better under control. For all of these reasons, when asked, we will almost always encourage our clients to seek the mental health care that they need during this very challenging time in their lives.

Same-Sex Step-Parent Adoption

Fri, 16 Apr 2021 16:28:00 GMT

If you are in a same sex relationship and you and your partner are raising children together, you may have questions about your rights, especially if you are the non-biological parent. The rights you have may depend on your relationship status at the time you and your partner had your children. If you were married at the time you had your children (in Ohio, this would mean a legally recognized marriage in this state), then your parental rights are already secured. An easy way to be sure is to check your child’s birth certificate. If your name appears, then you have already established parental rights over your child.

For families in who started having children prior to the United States Supreme Court’s decision in Obergefell v. Hodges, and were not married at the time their children were born, the non-biological parent may have no legal right to the children. It was a common practice in Ohio, prior to the Obergefell v. Hodges decision, for gay and lesbian couples to enter into “co-custody” or “shared custody” agreements which allocated custodial rights to both parties. While this a way to obtain some legal rights with respect to the children, custodial rights are inferior to parental rights. Custodial rights may be modified or terminated if a court determines it is in a child’s best interests to do so. Parental rights are constitutionally guaranteed, and therefore very difficult to strip away once granted.

Now that same-sex marriage is permitted in Ohio, many couples who had children prior to Obergefell v. Hodges have chosen to marry. While there is some question as to whether a child born prior to the marriage and raised jointly by the parties might be legitimized by virtue of the marriage alone, the best practice for securing a non-biological parent’s rights is to proceed with a step-parent adoption following the marriage.

A step-parent adoption goes beyond granting custodial rights and grants full parental rights to the non-biological parent in every way as if he or she were a biological parent. The non-biological parent’s name can then be added to the child’s birth certificate and the non-biological parent will have the same rights to custody of the child in the event of divorce as the biological parent. An adoption further ensures that the non-biological custody receives the child in the event of the death of the biological parent and that the child receives all rights of inheritance from the non-biological parent upon his or her death.

Because of the complexity involved in the same-sex marriage legal landscape, we advise you to contact an attorney in our firm if you have specific questions regarding your rights.

Should I tell my spouse that I am meeting with a divorce lawyer?

Wed, 17 Mar 2021 14:52:00 GMT

Should I tell my spouse that I am meeting with a divorce lawyer?

The common response to someone learning accidentally or discovering very much after the fact that their spouse has consulted with a divorce lawyer is (a) to be angry; (b) to interpret this as the first declaration of war or (c) at a minimum, to feel very threatened. We hear these responses all the time. It is understandable that this news may be devastating if this is how it is discovered that a spouse wants to end a marriage, but once that sinks in, I wish people could accept that it is reasonable that someone would want to speak to a professional about a subject they know nothing about. Speaking with a lawyer in most instances means that someone thinks it would be helpful to learn what happens in a divorce process. This is rational and reasonable.

While there are certainly circumstances where it is impractical or unwise to inform a spouse of such a meeting, it may also be a sign of honestly and respect to inform the spouse. This information can be given before a scheduled meeting or after a meeting with a lawyer. Sometimes this is the way to start the difficult conversation. It can be even better if there is enough trust between the parties to be able to share the factual information acquired from the attorney with the spouse. This can produce trust and can reduce the fear someone is likely to experience if they are kept totally in the dark. It can even be a foundation for the process where information will be shared and not hidden.

As with most assumptions we make in our lives, it is dangerous to make an assumption about what is going to happen if your spouse hires an attorney. First, and I know this may sound self-serving, all lawyers are not evil. I think most lawyers are honest and want to serve their clients’ best interests. The fact that someone hires a lawyer does not mean that he or she is out for blood. It means that a person believes their interests will be better served if a professional is involved. Good lawyers allow their clients to make decisions about it is they want-lawyers should not dictate to a client what outcome they must seek.

Granted, if someone is uncertain whether they want to end their marriage, it could be harmful to the relationship to even acknowledge one’s doubts, let alone revealing that steps have been taken to become legally educated. If there is a concern about violence or a punitive response, or a negative impact on children, these are good reasons to be cautious about informing a spouse of an initial divorce consultation. But, when divorce is acknowledged between two people, there is still often a fear of letting the other know . Some spouses make threats of what is going to happen if the other talks to a lawyer. What this is , is an attempt to control and manipulate the situation. I have told a client more than once that no apology is needed for wanting to educate themselves. One should ask themself what the upside and downside is of informing their spouse. The words that are chosen are as important as the tone of the message.

There is not a right and wrong answer to the question I have posed at the beginning. The message in writing this is to encourage people to consider this question from different angles, before assuming that secrecy is always best. And, if you happen to be the person learning of your spouse’s decision to talk to a lawyer, try putting that decision into perspective and remembering that obtaining professional advice on an unknown subject is almost always a sensible decision.

The very question posed is one that can be discussed with your lawyer. It is almost always a helpful conversation.

If I Move Out, Am I Abandoning my Spouse or Children?

Fri, 12 Feb 2021 15:13:00 GMT

A question that comes up frequently when a person is considering ending his or her marriage is “How will moving out affect me?” Your friends or family may have warned you that moving out will be considered “abandonment” and that you need to stay in the house to avoid the court finding that you abandoned your spouse or children. In Ohio, a court is not going to consider abandonment. However, moving out of the marital home could have significant ramifications for child custody, payment of support, and your ability to move back to the house.

If you choose to move out, you are not waiving your right to any marital equity in the home or the right to seek an award of possession from the court when the marital assets are divided. Regardless of who lives in the home, both spouses will be entitled to share in any marital equity in the home. If there is a dispute as to who will retain the residence at the conclusion of the divorce, the court may consider whether one spouse vacated the residence voluntarily.

If you have children, moving out can affect your rights as to child custody and your obligation to pay child support. When the spouses are living together, the court will not issue temporary orders for child custody, parenting time, child support, or spousal support. However, once one spouse moves out and a divorce is initiated, the court can issue these temporary orders. ( Read here for more information on temporary orders.)

When deciding temporary custody, the court will often look to which parent has remained in the marital home. The court usually focuses on maintaining as much as of the status quo as possible for the children. As such, the parent remaining in the residence, may be designated the residential parent on a temporary basis. The parent who vacated the residence, would then be awarded parenting time with the children, but that parenting time may be less or different than what the parent would have wanted.

Additionally, if you move out of the marital home, your spouse can ask the court for temporary orders for child support and spousal support. This is not available when the spouses are still living together, although the court can issue an order for division and payment of household expenses. If your spouse has been named the residential parent in a temporary order, you could have an obligation to pay child support even if you and your spouse are exercising equal parenting time with your children.

Furthermore, if you move out, the court may issue an order granting your spouse exclusive occupancy of the marital home. This varies by county, but in some counties if you vacate the marital residence for more than 30 days, your spouse can obtain an order for exclusive occupancy on an ex parte basis (i.e., without a hearing), prohibiting you from returning to the residence. In other counties, the court will set a hearing and will require your spouse to establish certain elements before granting exclusive occupancy. ( Read here for more information on orders for exclusive occupancy.)

Despite the general consequences discussed above, there are many factors that could impact a court’s treatment of your decision to leave the marital residence. For example, if there is a safety or domestic violence situation, the court may treat the matter differently. Additionally, if you and your spouse reach an agreement about your decision to move out, the court may consider that agreement in issuing any temporary orders. Your attorney can help you come up with a temporary arrangement and make sure that your rights are protected, even if you do move out. In the best of circumstances, if it seems reasonable that there is a separation, an agreement will be reached between the spouses, perhaps in writing, which would eliminate any of the risks discussed in this blog. Furthermore, if it is highly likely there will be cooperation between the parties, without one party wishing to take advantage of a separation, these issues don’t exist.

If moving out of the marital home results in you living in a different county or state, this could impact the jurisdictional issues regarding where divorce or dissolution action can be filed. ( Read here for more information on jurisdiction and venue.)

When facing the decision of whether you should move out of the marital home, there are many things to consider, but the term “abandonment” is not one of them. Your attorney can help you determine what impact your actions may have and come up with a plan to protect your rights as you end your marriage.

Parenting Schedule When Going Through Divorce

Thu, 07 Jan 2021 18:11:00 GMT

If you are going through a divorce or if you are thinking about starting the process, deciding what parenting schedule is best for your children is likely one of the most important things you will consider. Courts typically encourage parents to mutually agree on a schedule that best fits their children’s needs. However, if parents cannot agree, you might wonder if there are any defaults or standards that courts use when determining a parenting schedule. Some states like Kentucky have enacted a rebuttable presumption that for married parents, joint custody and equal parenting time is in the best interest of the child (KRS 403.270). In contrast, Ohio courts are not mandated by statute to presume that an equal schedule is in a child’s best interest. Most Ohio counties have adopted their own parenting order guides, which may be referred to as “guideline,” “model,” or “standard” parenting orders. The guideline parenting orders vary widely from county to county and they can also vary based on the child’s age. It is important to note the specific guideline parenting orders discussed in this blog apply to married parents. There may be different guideline parenting orders for non-married parents in each county.

While most Ohio guideline parenting orders do not presume equal time, almost every order highlights the importance of the child spending consistent and frequent time with both parents. Each guideline order also includes a suggested holiday schedule which alternates holiday time for both parents. The Hamilton County and Butler County Parenting Orders include five different parenting schedules based on the child’s age and developmental milestones. Warren County, Ohio’s Parenting Schedule includes a Basic I and Basic II parenting schedule. Whether the court uses Basic I, Basic II, or some other schedule may be based on many factors, including but not limited to: the needs of the children, the parent’s employment schedules, school schedules, or geographic proximity. On April 26, 2019, Clermont County adopted a guideline order with equal parenting time for children from birth to age 16, similar to Kentucky’s statewide presumption. While the individual county’s guideline orders vary, each court has the ability to make a decision based on the individual circumstances of your case.

The model parenting schedules in each county do not mandate a minimum or maximum amount of parenting time for either parent – they are simply meant to serve as a guide. For example, if one parent has a history of child abuse, domestic violence, or substance abuse, that might be a reason for the court to deviate from the guideline parenting order. On the other hand, some parents may already be exercising an equal parenting schedule and the court may issue an order to continue that schedule. Ultimately, each parent has the opportunity to present evidence to the court of individual circumstances and the court is tasked with ordering a schedule that is in the child’s best interest.

You should consult with a lawyer about the individual factors affecting your case. Below are links to the four Ohio county parenting orders specifically mentioned above:

Hamilton County, Ohio’s “Standard Parenting Order”

Clermont County, Ohio’s “Guideline Parenting Schedule”

Warren County, Ohio’s “Basic Parenting Schedules”

Butler County, Ohio’s “Guidelines for Parenting Time”

In what county and state can a family law matter be filed?

Mon, 07 Dec 2020 23:17:00 GMT

Before a legal action can be filed with a court, there are certain requirements that must be met. Two such requirements include “jurisdiction” and “venue”, as they are known in the legal world. In the family law context, this typically involves looking at where the spouses and/or children reside. To hear a case, the court must have jurisdiction over both the parties and the matter, and venue must be proper. For example, a divorce cannot be filed in Ohio unless the plaintiff has been a resident of Ohio for a certain period of time. Additionally, it must be filed in the county where at least one of the parties has been a resident for a certain period of time. Jurisdiction typically determines what state to file in and venue determines what county to file in. This blog post will outline the residency requirements for divorce, dissolution, child custody and support matters in Ohio. As these requirements vary from state to state, it is important to consult a local family law attorney for assistance.

Divorce & Annulment

The person filing for a divorce or annulment (the “plaintiff”) must be a resident of Ohio for at least 6 months prior to filing. The plaintiff can either file in the county in which he/she has been a resident for at least 90 days or where the other party (the “defendant”) has been a resident for at least 90 days. (For example, Plaintiff has resided in Hamilton County, Ohio for 1 year and Defendant has resided in Butler County, Ohio for 1 year. Plaintiff can file in either Hamilton County or in Butler County.)

Legal Separation

As opposed to a divorce or annulment, there is no 6 month residency requirement in order to file for a legal separation. However, at least one of the parties must still meet the 90 day residency requirements for the county in which they decide to file the action. Similar to a divorce, this can be in the county where either party meets this requirement. It is important to note that a legal separation doesnot result in the legal termination of the parties’ marriage. Instead, it is often an option for parties who have separated or will separate and would like to finalize the financial component of the separation, but have not yet met the 6 month residency requirement for a divorce or dissolution.

Dissolution

In order to file a dissolution, at least one spouse must be a resident of Ohio for a minimum of 6 months and of the specific county for at least 90 days prior to filing. Again, like a divorce, so long as one spouse meets the residency requirements, the dissolution can still be filed even if other spouse is living in another county and/or state.

Child Custody and Child Support

For married parents, child custody and child support matters are normally addressed through the divorce or dissolution. For unmarried parents, a parent seeking legal and/or physical custody, parenting time, or visitation, must file a complaint or petition in the child’s “home state.” A child’s “home state” is the state in which the child has lived with a parent for at least 6 consecutive months immediately preceding the filing. The case must be filed in the county where the child resides.

Child support cases may be filed in the county and state where the child and the parent seeking support resides. When parents live in different states, the Uniform Interstate Family Support Act (UIFSA) allows for the enforcement of an out-of-state child support order. As there are specific steps that must be taken to enforce out of state orders, it is always a good idea to consult a local attorney for assistance with these matters.

Jurisdiction

To make matters even more complicated, before a Court can hear a matter and/or make any orders, it must have the authority to do so. This is commonly known as jurisdiction. More specifically, a Court must have jurisdiction over the subject matter and all aspects of the case including the parties, the child, and even property. Thus, even if a one party meets the residency requirements as detailed above, a court may potentially be prohibited from making decisions about property, support or custody if the other party has not lived in the state or had other connections to the state. Furthermore, the place where a child has been living may determine whether a court can make parenting determinations. As jurisdictional issues can be complicated, it is very important to consult a local family law attorney for assistance with these matters.

It is important to note that even if you do not meet the specific residency requirements as detailed above, you can still consult with an attorney in the meantime to obtain legal advice about the process and/or complete the various documents that will be required once you do meet such requirements.

May a court restrict one person from speaking negatively on social media about their spouse?

Thu, 22 Oct 2020 14:56:00 GMT

Many people presently use social media to share significant moments of their lives with family and friends. People may also use social media as a platform to vent about difficulties they are facing. Occasionally, this leads to public complaints and personal attacks against spouses or other family members. Not only can such social media posts damage personal and professional reputations, but they can impact a person’s overall well- being. The question is whether the court has any authority to prevent an individual from making hurtful or embarrassing public statements about a family member in light of the First Amendment right to free speech.

Ultimately, there are very few instances in which a court can restrict someone’s right to free speech in the context of custody or divorce. However, a court may be able to punish or prevent a spouse from posting derogatory comments about the other online if it can identify a compelling interest to do so. If the posts fall within an unprotected category of speech such as defamation, obscenity, or speech integral to criminal conduct, a court may intervene. Moreover, courts recognize a compelling interest to protect the physical and psychological well- being of a minor child. Therefore, if a child has access to derogatory posts made by a parent online, then a court may inhibit such posts. The court would likely consider the child’s age and maturity in addition to the severity of the post in determining whether such posts cause significant harm to the child.

Even if a court cannot punish or prevent the derogatory speech from occurring, a parent’s behavior is always studied when custody is contested. The Ohio custody statute lists among many considerations to be used by a court “the ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent.” If one parent continues to make negative comments about the other, a court would likely be skeptical of that parent’s ability to satisfy this objective. Thus, a custody determination in favor of that parent could become less likely.

Unfortunately, harmful statements exchanged during divorce or custody proceedings are not uncommon. However, if the statements are particularly embarrassing or severe, they may justify court intervention. It is important to remember that all cases require their own analysis due to the unique circumstances of each situation.

What are the considerations in deciding to keep the marital home?

Tue, 15 Sep 2020 21:44:00 GMT

It may be surprising, but it is rare that both married partners want to remain in the marital home. If this happens in a court case, a court may look at how the best interests of the children will be served in making this decision. A court may order the house to be sold, although this is always a last resort.

Often, when one party is considering keeping the marital home, it is because of the desire to maintain consistency for their children. It is understandable that parents are deeply concerned about the impact of divorce on their children and wish to keep them in their home, neighborhood, school and community if at all possible. As lawyers, our concern is that a decision to keep the family home may be a financial hardship, which itself can be harmful to a family.

In a divorce or dissolution, if real estate is going to be retained by one party, a decision must be made about the value of the property. This can be done by agreement, where both parties feel comfortable with a certain number. Often, people obtain a real estate appraisal by a certified appraiser or bring in a realtor to provide comparative sales. To determine the marital equity of a home, the fair market value is reduced by any outstanding mortgage to arrive at the marital equity. (Note, there may also be separate equity if a party used separate money toward the purchase of the house.)

Traditionally, the marital equity is divided equally which will require a payment from the person keeping the house to the other party. This payment may come from savings, or taking a new mortgage on the property or surrendering one’s right to other assets, such as retirement, as a trade-off for keeping the home value. Each of these options will impact the financial position of the keeper of the home. Most financial planners will question the wisdom of someone relinquishing retirement money to keep a house because it is a short term decision impacting one’s long term financial security. The alternative of borrowing more money may create cash flow problems, as will a depletion of savings.

There are other considerations. If a mortgage is in joint names, which is common, normally the person keeping the house is required to refinance the mortgage so the other party is no longer liable. This requires lending approval which may be difficult depending on one’s income and the amount of support that is to be received.

Another consideration is when the home equity is determined, normally the costs of sale, including a realtor’s commission are not considered. Take for example a decision to keep a $400,000 home with a $200,000 mortgage. The person keeping the home will likely be required to refinance the mortgage. This may mean a mortgage rate higher than the current loan. If the spouse is owed $100,000 for his or her equity, the refinanced loan may jump to $300,000, likely causing a higher monthly payment. Then consider after one or two years, the person who kept the home realizes it is not financial feasible and has to sell. If the sale is for less than $400,000, the home owner loses out, and even if it sells for $400,000, the owner will have to pay a real estate commission, probably around $24,000 and the owner is likely to pay for various repairs to place the home on the market and to pass an inspection. In this scenario, the decision to keep the house may have been costly.

Of course, there is the possibility a house can be sold for more than the agreed upon value, or sold by owner, or with a mortgage at a lower rate. The point of this article is to explain the factors that should be considered in making a decision about keeping a home and to assess the amount of risk one is willing to accept.

If both parties agree to sell their home, normally the proceeds are divided equally, meaning that the parties share the real estate commission and all costs of sale, and there would be no reason to appraise the property.

When facing this issue, one must weigh all factors, including the desire to maintain stability as well as the financial impact of this decision.

Will My Child Support Obligation Be Reduced Based On My Parenting Time?

Wed, 12 Aug 2020 22:28:00 GMT

Courts in Ohio determine child support based on a worksheet. This worksheet includes the incomes of both parents up to a maximum combined income of $300,000, the cost to provide health insurance, and the work related child care costs for the children, which are limited to a certain amount, depending on the age of each child. After providing all necessary inputs, the worksheet determines the guideline child support obligation. This obligation is presumed to be in the best interest of the child(ren). However, the Court can deviate from this presumed amount if the Court finds that such a deviation would be in the best interest of the children. The court can consider many factors when determining whether a deviation is appropriate, some of which include: extended parenting time, the relative financial resources and incomes of the parties, the benefits of either parent’s remarriage or shared living expenses, significant in kind contributions of the parent , the standard of living and circumstances of each parent, the standard of living the child would have enjoyed has the marriage continued, and the responsibility of each parent for the support of others, to name a few.

When the State of Ohio revised the Child Support Statute in 2019, it provided two new specific circumstances under which the Court would consider parenting time when determining child support. The first, provides for an automatic ten percent (10%) reduction in the guideline child support obligation if the Obligor, the parent paying support, has court-ordered parenting time which exceeds ninety (90) overnights per year. This is an automatic reduction completed by checking a box within the child support worksheet.

The second, does not provide for an automatic reduction. The statute provides that if the obligor’s court-ordered parenting time is equal to or exceeds one hundred forty-seven (147) overnights per year, the Court is required to specify its reasoning if it does not provide an additional deviation based on the parenting time of the obligor. What this means is while Court is not obligated to provide for an additional deviation, if it does not, it must justify this decision. As such, a parent with more than 147 overnights per year, has a strong argument for additional reduction is support. However, this may be offset by other factors in the parties’ case, such as a significant disparity in the incomes or financial resources of the parents, or the standard of living the child would have enjoyed had the marriage continued.

Overall, the parenting time exercised by a parent can impact the obligor’s child support obligation. If the parent’s parenting time is more than 90 overnights, but less than 147 overnights, the obligor will be entitled to a 10% reduction in support. If his/her parenting time exceeds 147 overnights, the parent has a strong argument for an additional reduction. However this reduction is up to the Court’s discretion, based on the other relevant factors in that particular case. Finally, parents are always free to agree upon an appropriate amount of child support and often do. When agreeing to an amount that differs from the guideline obligation, the parents must indicate the reasons for their deviation in their written agreement.

When Parents Aren’t Married, Can One Parent Keep The Child Away From The Other Parent?

Wed, 06 Nov 2019 16:44:00 GMT

This answer to this question depends on whether the parents are married or unmarried. If the parents are married, both parents have equal custodial rights of the children born during marriage. If there is no court order allocating parental rights and responsibilities, either spouse can withhold the children from the other. If you want additional information regarding married parents, please see our blog psot from June 2019 “Can my spouse keep the children from me?”

However, the rule for unmarried parents is different. In Ohio, when a child is born to unmarried parents, the child’s biological mother is automatically designated the custodial parent and the father is not entitled to any parental rights until paternity is established.

Paternity can be established in a few different ways. If the mother and father acknowledge paternity, they may sign an Acknowledgment of Paternity Affidavit. This affidavit is the document that allows for the father’s name to be added to the child’s birth certificate. Thus, the affidavit is sometimes completed at the hospital when the child is born and both parents are present. However, it can also be completed anytime thereafter. Paternity can also be established through the mother’s local county child support enforcement agency (CSEA) office. The mother or father can request genetic testing to confirm the child’s biological father. Lastly, either parent can file a petition with the court to establish paternity. The court can order both parents to participate in genetic testing if he/she was unwilling to do so voluntarily.

Even upon paternity being established, however, a father does not automatically obtain legal custody or the right to parenting time with the child. Instead, the establishment of paternity allows the father to petition the court for visitation, custody, or shared parenting. The father does not have any visitation or custodial rights until the court grants him such an order. If a court grants the father’s request, then both mother and father have parental rights as outlined in the court’s order. Upon the issuance of the Court’s order, both parents are legally obligated to follow the order, and neither can withhold the child from the other or he/she could be held in contempt of court.

If paternity has not been established, the mother has sole legal custody of the child. As the legal custodian, mother has the sole authority to make any and all decisions regarding the child, including whether any parenting time with the father is appropriate. She may also relocate to another county or another state without the father’s consent.

Thus, in cases of unmarried parents, whether or not paternity has been established is critical. Until paternity is established, the mother is the sole legal custodian and the father has no parental rights. However, even after establishing paternity, a father must take the additional step of petitioning the court for an order to grant him custodial rights or parenting time. Thus, upon paternity being established, a father is one step closer to being on an equal footing with the child’s mother regarding custody rights of their child.

Can One Attorney Represent Both Spouses?

Mon, 23 Sep 2019 14:44:00 GMT

Many people ask the question of whether one attorney can represent both spouses, particularly when parties are seeking an amicable dissolution. However, the answer to this question is no. Due to a set of ethical rules all attorneys must follow in the practice of law, an attorney can only represent one spouse in a dissolution. However, two attorneys are not required in a divorce or dissolution and one spouse can be represented and the other spouse unrepresented. In this situation, the unrepresented spouse must sign a waiver of representation acknowledging that they understand they had a right to an attorney and they are not represented by their spouse’s attorney.

One reason attorneys are prohibited from representing both spouses in a divorce or dissolution is because even when the major terms are agreed upon, drafting the final documents required by the court can advantage one spouse over another. For example, if there is a retirement account that the parties agree to divide equally, the level of detail in the legal document can have an impact on how much the receiving spouse actually gets. The language may include whether market gains and losses will be included, what valuation date to use, and may even include issues with survivorship in the event that the participating spouse dies. An attorney cannot ethically advocate or advise two different people with opposing interests. Another example is if there is an agreed upon amount for spousal support, the language must detail whether and in what specific circumstances the court retains jurisdiction to modify the amount or duration of spousal support. Again, it would be a conflict of interest for an attorney to advise the spouses on both sides of this issue because there are opposing interests at play.

As is evident from the above examples, the details matter and one attorney cannot give legal advice to two people who have potentially opposing interests. For these reasons, it is advisable to obtain your own counsel in a divorce or dissolution so that you can ensure your questions are answered and your interests are protected.

There is an interesting twist to this issue and that is whether one party’s attorney can or should recommend an attorney to the other spouse. While it seems odd that someone would want to hire an attorney who was recommended by opposing counsel, there are reasons this is beneficial. When two attorneys have worked successfully with one another in the past, chances are good they will work successfully in this new matter. There is great benefit to both parties when their lawyers trust and respect one another. Usually this means your case can be resolved quicker and more amicably. It can be quite a disadvantage to both parties if their lawyers have a bad history or can’t work well together. The result is usually that the clients spend more in legal fees and have a less efficient process.

We encourage you to consider getting recommendations from your spouse’s attorney in dissolutions and then do you own due diligence in evaluating who to hire.

Can My Spouse Keep The Children From Me?

Thu, 27 Jun 2019 16:51:00 GMT

Not all divorcing parents can agree on when the children should spend time with each parent. In some higher conflict instances, this disagreement may result in one parent attempting to withhold the children from the other. What are your options if this happens to you?

It depends on where in the process you are. If no formal divorce proceedings have been initiated with the Court, then both you and your spouse retain full legal custodial rights to your children as their parents. This can become complicated when you are not residing in the same home. When there is no Court order in place, one parent can retain custody of the children to the exclusion of the other parent so long as that parent stays with the children in the same physical location. If the withholding parent chooses to drop the children off at school or with a childcare provider, the other parent could pick the children up and then also attempt to withhold them, creating a very negative pattern or even worse, a literal tug-of-war.

For this reason, it is extremely important for separated couples to agree upon a shared time schedule. Parents can and often do enlist the help of their attorneys in negotiating a temporary allocation of parenting time while they attempt to work through a negotiated dissolution of their marriage. If this is impossible, then one spouse must institute divorce proceedings so the court can make an order allocating the time between parents. However, it may take several weeks before such an order is issued which can result in one parent being deprived of contact with their children during this period. This can be terribly frightening and frustrating but our courts simply aren’t able to address these matters immediately. Be aware that a court will likely look very unfavorably on a parent who has refused contact between a child and parent. This may suggest that this parent cannot be trusted with good parental judgment in the future.

If a court order is already in place and a parent still attempts to withhold the children, that parent will be in contempt of the court’s order. Because a finding of contempt must be made by the court after an evidentiary hearing, it is not cause for an immediate arrest by the police as is a common misconception. Despite this, the police may be willing to assist you in enforcing the court’s order and convincing the withholding parent to turn over the children. However, you should think carefully before contacting police in this instance, as such a scene can be very traumatic for children. Instead, you should attempt to speak rationally with the other parent or try involving your attorney before resorting to police interference. If none of these efforts are successful, the court will often award makeup parenting time upon the finding of contempt.

Returning to the question posed in the title of this article, the answer is yes, a parent can keep the children from the other parent and it may take a little time before the problem can be addressed by a court. It is highly preferable if there can be a temporary agreement between parents, prior to separating, as to how the children will spend time with both parents. Such an agreement can be placed in writing and will likely be enforced by a court.

If you are not married to the other parent of your child, the rules are quite different than what is discussed in this article for married parents. Look for a future Beth Silverman & Associates blog post regarding the rights of unmarried parents.

How Do I Change My Name Back After Divorce?

Mon, 25 Mar 2019 20:34:00 GMT

If you changed your name when you got married, how easy is it to change it back after a divorce? In Ohio, it is pretty simple but there are some required steps: 1) Get a court order with your new name, 2) Change your name with the Social Security Administration and 3) Change your name with the BMV.

1) Get a court order.

ORC 3105.16 provides the domestic relations court with the power to “restore any name that the person had before the marriage.” If you are going through a divorce and you want to go back to your previous name, make sure the restoration to your former name is included in your final Decree of Divorce or Dissolution. A spouse has no say in whether one should or can return to a former name. It is important to note that the domestic relations court does not have the power to grant a petition for a name change to a completely new name you never had. This request would have to be done through the probate court in your county.

If you aren’t sure whether you want to be restored to a former name through your divorce, but you later decide that you want a name change, you must go to the probate court in your county to request the name change. You will need to fill out some forms and Ohio Law requires that notice of the application be given once by publication in a newspaper of general circulation in the County at least thirty (30) days before the hearing on the application. A final hearing will be set to determine whether your petition for name change is granted. These name changes are typically granted unless the court finds evidence there is a specific reason to deny the name change, such as defrauding creditors. It’s not a difficult or terribly costly process but in contrast, when the name change occurs in a divorce or dissolution, it is merely the matter of adding one sentence to your decree.

2) Change your name with Social Security.

Next, you will need to complete an application (you can complete this online) for a new social security card and show the required documents. Your requested name must match the evidence of the legal name in your court order. Along with a completed application, there are required documents: 1) proof of citizenship (passport or birth certificate) if not already established; 2) proof of the name change (certified copy of your divorce decree or court order); and 3) proof of identity (driver’s license, state-issued identification card or passport). The SSA will not accept photocopies or notarized copies.

Once the application and documents are prepared, you can either take them in person or mail them to your local Social Security office. There is no charge for changing the name on a Social Security Card.

3) Change your name with the BMV.

Finally, you will need to go to an Ohio BMV office and request a name change. You will need: 1) Your Ohio driver’s license; 2) Your new Social Security Card; 3) proof of your name change such as divorce decree or court order; and 4) payment for any fees. Once this step is complete, your driver’s license should be changed to reflect your former name.

If you have questions about any of the above steps, you should contact a local attorney who can assist you with this process.

Kentucky—Presumption of Equal Time and Joint Custody

Wed, 02 Jan 2019 15:29:00 GMT

On July 14, 2018, Kentucky amended its custody laws enacting a legal presumption that joint custody and equal parenting time is in the best interest of the child under KRS 403.270. While many Kentucky Judges have informally applied such a presumption in divorce and custody matters in the past, this statute now makes it clear that the Courts must start with this presumption in all cases. It is important to note that this presumption is rebuttable by a preponderance of evidence. Therefore, parties still have the opportunity to present evidence to the Court demonstrating that joint custody and equal parenting time are not in the best interest of their child or children. In making any determination, the Court will consider the best interest factors as identified in KRS 403.270, some of which include the wishes of the parents, the wishes of the child with due consideration given to the influence a parent may have over the child’s wishes, and the motivation of the parents in the proceeding.

The statute also specifically provides that a finding of domestic violence must be considered in determining the child’s best interest, instructing the Court to consider “the extent to which the domestic violence and abuse has affected the child and the child’s relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program.” This factor illustrates that a finding of domestic violence in a case could have a significant impact on the order of parenting time and custody, both on a temporary and permanent basis.

In addition to creating this new required presumption, this change in law also differs greatly from the laws in the State of Ohio, where no such presumption for equal time or joint custody exists. Therefore, it is essential for parties to understand the differences between Ohio and Kentucky law if the parents reside on opposite sides of the Ohio River. Reviewing and analyzing one’s case under both state’s laws, may impact important decisions regarding where to file for divorce or where to file for custodial rights of child if the parties are not married.

Spousal Support Will No Longer Be Tax Deductible in 2019

Thu, 11 Oct 2018 15:11:00 GMT

Until the passage of the Tax Cuts and Jobs Act of 2017, spousal support payments were tax-deductible to the payor and taxable income to the payee. Now, that will change. For all spousal support orders entered after December 31, 2018, spousal support will no longer be tax deductible to the payor spouse and will be tax free to the payee spouse. This change will have significant impacts on the amount of overall cash available to divorcing families. In most cases, the payor of spousal support is in a higher tax bracket and the payee is in a lower bracket. Thus, when the support is taxed to the payee, a lower total amount of tax is collected. Now, tax on spousal support payments will be paid by the party in the higher tax bracket, resulting in more overall tax being paid on the support funds and less after-tax cash available...

The post Cincinnati Family Law & Divorce Blog: Spousal Support Will No Longer Be Tax Deductible in 2019 appeared first on Beth Silverman & Associates .

How are Temporary Custody, Support and Parenting Time Determined in a Pending Divorce?

Mon, 06 Aug 2018 15:38:00 GMT

Upon filing for divorce in Ohio, the filing party or the responding party can request temporary orders from the Court regarding the custody of minor child(ren), parenting time, child support, spousal support and the payment of marital expenses. In order for the Court to issue any temporary orders regarding custody, parenting time, child support and/or spousal support, the parties must be living separate and apart at the time of the request. If the parties are still residing together, the Court can issue temporary orders regarding the payment of household expenses and debts. The process for requesting temporary orders and deadlines for responses differ between the counties. For this reason it is imperative to know the Court’s local rules and procedures in your county. Furthermore, if you and your spouse reside in different counties, the local rules of each county may impact your decision regarding where to file.

In Hamilton and Clermont County, Ohio, the requesting party files a motion and affidavit requesting temporary orders. Upon being served with the pleadings, the other party has 14 days to file his/her response to the request. Once the response is filed or upon the 15th day after the other party was served, whichever occurs first, the Court can issue temporary orders based on one party’s or both parties’ affidavits, without a hearing. If either party is unsatisfied with the order, he/she can file a request for a hearing before the Court, during which each party can present evidence and testimony regarding the changes they want made to the temporary orders. Until the Court issues a new order, its original order will remain in effect.

In Warren County, the Court will issue temporary orders based upon a party’s affidavit on the same day the request is filed, so long as the request is made along with the initial complaint for divorce. As such, the order is issued before the other party has an opportunity to respond. Upon being served with the pleadings and temporary orders, the responding party may request a hearing with the Court and request changes to the temporary orders. This hearing is typically scheduled within 30-60 days of the request. The temporary order will remain in place until the Court issues a new order after the requested hearing.

In Butler County, the local rules require very specific orders in regards to parenting time and child support based on the circumstances at the time of filing. The requesting party files an affidavit with the Court and a proposed order at the time of filing, which is approved and issued shortly after filing. The responding party may request a hearing to revise the temporary orders. The Court will not order temporary spousal support without a hearing, and one must request a hearing date in order to request temporary spousal support.

Under any of the above circumstances, if the parties are able to reach an agreement regarding temporary orders, they can submit a proposed Agreed Entry to the Court for approval and adoption as a Court order. The goal of the processes for temporary orders as outlined above are to provide the parties with a relatively quick court order providing for the care and support of the minor children and to ensure that the parties can pay their necessary household bills while the divorce is pending when the parties are unable to reach an agreement between themselves.

Important Tax Law Changes for Claiming Children as Dependents

Tue, 12 Jun 2018 16:47:00 GMT

At the end of 2017, Congress enacted the Tax Cuts and Jobs Act and many of these sweeping changes have a direct impact on those going through a family law issue. This blog post will attempt to outline the changes on how children are claimed for tax purposes. However, there are many other changes to the tax code that may impact your case that are not discussed here. It is important for you to talk to a local family law attorney and/or tax professional to review the situation based on your individual circumstances.

One question that often comes up for a divorcing or separating couple is: which parent is permitted to claim the child as a dependent for tax purposes. Divorcing couples can reach an agreement, or the court will order which parent can claim the child for tax purposes. This is an important tool for negotiation and litigation because claiming a child could have many beneficial tax breaks for parents. Under the old tax law, claiming a child for tax purposes meant that parent could claim a personal exemption – a reduction in taxable income of $4,050 per child in 2017 (subject to a phase out for very high-income earners) and the parent could also receive the child tax credit, which was $1,000 for a child under 17 (also subject to a phase-out for high-income earners). Unlike the exemption which reduced the amount of a parent’s taxable income, the child tax credit directly reduced the tax owed, dollar for dollar.

Beginning January 1, 2018 and before January 1, 2026, the exemption for claiming a child is reduced to $0. However, the child tax credit is increased to $2,000 for each qualifying child under 17. Previously, many parents could claim the child as a personal exemption up into their college years if they were a full-time student, but this will no longer be the case. Additionally, the phase-out rules for the child tax credit are different. Under the 2017 tax code, the phase out for the child tax credit began at an Adjusted Gross Income (“AGI”) of $75,000 for a single person and $110,000 for married filing jointly. Under the 2018 tax code, the phase out does not begin until an AGI of $200,000 for a single filer and $400,000 for married filing jointly. Thus, higher wage earners can take advantage of the credit under the new tax laws, whereas they may not have been able to do so under the old laws.

The suspension of the personal exemption also has implications on the calculation of child support when a parent has other children living with them. Previously, parents with other children living with them received a reduction in income for purposes of the child support calculation. However, the amount of the reduction was determined by the federal tax exemption – which is now $0. Therefore, there is no automatic credit for other children on the child support worksheet. Some courts are considering other children as a reason to deviate from the child support guidelines. You should talk with a family law attorney to determine how your local court is handling this issue.

Although these tax credits can’t be assigned by a divorce decree, other tax benefits pertaining to children might include the Child and Dependent Care Credit (a credit for a certain percentage of childcare expenses incurred for working parents) and the Earned Income Tax Credit (“EITC” a credit for low to moderate-income parents). The recent tax law changes did not alter a parent’s ability to claim these credits.

What Are My Rights if My Spouse Has Cheated?

Wed, 18 Apr 2018 15:26:00 GMT

Few people find it fair to learn that the answer to this question, in most Ohio cases, it is none. It seems fundamentally unfair that a married person can commit adultery and face no consequences, monetary or otherwise. Yet, in an Ohio court of law, there are no penalties against people who have committed adultery and, in fact, rarely will a court even be interested in hearing the details. The reason for this is a court looks at marriage like a business partnership. It is the obligation of the court to determine the assets and debts of the marital partnership and equitably divide those assets and debts, and to then decide if support is appropriate. Nowhere will you find among the factors a court is to consider whether someone was at fault.

The few exceptions to this rule relate to financial misconduct or the determination of the best interest of children.

If a person is found to have used marital earnings or assets to buy gifts or support a paramour, the court can determine the amount misspent and award money back to the other spouse. This does require proof however. A vague accusation that gifts were purchased, or trips were taken, will not provide the factual basis required by a court to issue a monetary award.

An affair can be considered when it comes to a court making decisions about custody. For example, if one party is involved with someone who has a history of drug abuse or domestic violence, a court can consider the impact of this relationship on a child. Or, if a parent has made poor choices by attempting to integrate a child into the family of a paramour prematurely, this questionable behavior will be considered.

Great disappointment and anger can be heard in clients’ voices when they learn from their attorney that courts don’t care about all the wrongs their spouse committed. We are sympathetic to these feelings. Yet, a lawyer does a client disservice to experience the same outrage or to suggest that punishment will be imposed by a court. It is our job as lawyers to be frank and sometimes this means telling a client something they don’t want to hear.

Undoubtedly, people do horrible things to their spouses that cause immeasurable pain. But the court system is not in the business of placing a dollar value on that pain or punishing the wrongdoer. That is not what a family court does. For better or worse, the job of the court is to divide the assets of the marital partnership.

This information is based on Ohio law. Other states may view these issues differently. Ask your attorney for more information.

How to Obtain Exclusive Occupancy of the Marital Residence

Wed, 28 Feb 2018 17:49:00 GMT

During a divorce proceeding, it is not uncommon for one party to want exclusive occupancy of the marital residence, meaning that the other party would be required to vacate the residence and would not be permitted to enter without the remaining spouse’s permission. Unless there is a court order granting one party exclusive occupancy, both spouses have the right to remain in the marital residence regardless of how the house is titled.

Often one spouse may voluntarily vacate the residence. Such an action does not cause the vacating spouse to lose any property rights he or she has in the house. However, if the parties have minor children, vacating the residence could have an impact on the allocation of parental rights and responsibilities. Therefore, a party should consult with an attorney about what impact this may have on the parenting issues prior to taking any action.

The process of obtaining exclusive occupancy over the other party’s objection varies from county to county. In some counties, if one spouse has voluntarily vacated the marital residence for more than thirty (30) days, the remaining party may obtain an order for exclusive occupancy on an ex parte basis, i.e. without a court hearing. However, in other counties, in order to obtain an order for exclusive occupancy, you must have a hearing before a judge or magistrate. At that hearing, the requesting spouse must establish that the other party had done one of the following: (1) attempted to cause or recklessly caused bodily injury by acts of physical violence, (2) placed a party, by threat of force, in fear of imminent serious physical harm, (3) committed any act with respect to a child that would result in the child being an abused child as defined by Ohio law, (4)engaged in conduct which caused or is likely to create an environment which significantly endangers the spouse, and/or minor children’s physical health or mental or moral or emotional development, or (5) engaged in conduct abusive to the spouse and/or minor children whether by physical or verbal acts.

An order requiring a person to leave a marital residence is normally issued if a person has been criminally charged with domestic violence. This is done through a Temporary Restraining Order. Sole possession of a home may also be ordered if a Civil Protection Order is issued by a Domestic Relations Court as a result of allegations of domestic violence.

Although it is recognized that a couple continuing to live together while going through a divorce can be very difficult for both the parties and the children, courts are reluctant to make decisions about parties’ rights to property until all of the facts are presented in a comprehensive trial. Such a trial commonly occurs months after a divorce is filed. As such, it is only in rather extreme cases where a court will order one party out of the marital home, at the beginning of the divorce process.

Do Non-Parents Have Any Custody Rights in Ohio Courts?

Fri, 12 Jan 2018 16:17:00 GMT

It is becoming increasingly common for grandparents and other non-parents to seek custody of children. A number of factors could contribute to this including the rise in substance use, domestic abuse, a parent passing away, etc. Some questions from a grandparent or non-parent might be: Can I obtain custody or any other rights? What are the legal standards involved?

First, it is important to note that custody and visitation are two separate concepts. Legal custody means that the adult has physical care and control of the child as well as the right to make decisions regarding the child’s health, education, welfare, and other major decisions. If someone has “visitation rights” or “companionship rights” with a child, this refers to certain days and times the adult has with the child.

Parents are afforded a constitutionally protected due process right to the care and custody of their children. The U.S. Supreme Court has held that parents who are suitable persons have a paramount right to the custody of their children. In order to obtain custody, a non-parent must prove that the natural parent is unsuitable. Unsuitability is determined on a case by case basis. It is not enough if a non-parent simply disagrees with the way the parent is raising the child or even if non-parent has a better home situation than the parent. The non-parent must show that it would be detrimental for a parent to have custody of the child. For example, if a non-parent can show that a parent has a pervasive and consistent issue with drugs, alcohol, abuse, or some other issue, the chances of a court granting custody to a non-parent become greater. A non-parent can also obtain custody if the natural parent signs a binding agreement granting the non-parent custody. However, it is important to note that an award of custody is never permanent, and is always subject to modification by the court. Lastly, if a child is deemed abused, neglected, or dependent by the court, a different set of laws apply in which case parenting rights can be taken away from parents by the state and the court can place a child with an appropriate family member.

Even if a non-parent cannot obtain custody of a child by one of the above methods, Ohio law allows a non-parent to seek companionship or visitation rights in certain instances. These actions are brought either in the Juvenile Court or Domestic Relations Court, depending on whether the parents were married. If the parents were unmarried at the time the child was born, grandparents and relatives may seek companionship rights (See O.R.C. 3109.12). A non-parent may also seek companionship rights in a proceeding for divorce, dissolution of marriage, legal separation, annulment, or child support case (See O.R.C. 3109.051). If a parent has died, a court can grant the parents or relatives of the deceased parent companionship or visitation rights (O.R.C. 3109.11). In any of these instances, the court must determine whether it would be in the best interest of the child to award companionship time to a non-parent. The Ohio statue lists a number of factors the court must consider including: the natural parent’s wishes, the child and parent’s available time, the child’s adjustment, prior interaction with parents and other relatives, the wishes of the child if the court has interviewed the child, as well as several other factors. Although the court may give special weight to the wishes of the parents (See Harrold v. Collier), this is just one factor among many in determining the child’s best interest. Talking with a local family law attorney can help you determine which factors are strongest for your case.

How Are A Spouse’s Rights To The Other Party’s Social Security Benefits Determined In A Divorce?

Tue, 12 Dec 2017 18:11:00 GMT

One’s rights to claim Social Security benefits under their ex-spouse’s earned benefits is determined by federal law, rather than state domestic relations law. For this reason, except in very unusual situations, a divorce or dissolution decree is silent as to the parties’ rights to claim under the other party’s benefits after the divorce.

The Social Security Administration states that you can receive benefits if you were married to an ex-spouse for more than 10 years, you are 62 or older, you are currently unmarried AND your benefits from your own work record would be lower than the benefits you would receive based on your ex-spouse’s work. The latter determination is whether your own earned benefits are less than one-half of your ex-spouse’s benefits. What is often surprising to most people is that a divorced spouse’s benefit does not reduce the other spouse’s earned benefit. In other words, the Social Security Administration will payout 150% of one spouse’s benefit.

It will not matter whether your ex-spouse has applied for his or her benefits at the time you wish to or even if your ex-spouse has remarried and has a current spouse. You will still be entitled. There are certain rules that apply if you are divorced within 2 years or less of your request to initiate Social Security benefits.

Happily, your ex-spouse has no say as to whether you receive benefits under his or her work record and your ex-spouse will not even know that you are claiming off of his or her record.

If a person has been married more than once, for more than 10 years with each marriage, he or she is permitted to claim benefits under any one of the former spouse’s work record.

Contested Custody Cases in Hamilton County, Ohio

Thu, 26 Oct 2017 13:47:00 GMT

Many of our clients find themselves confused about the path their case might take through court if they are unable to decide upon the custody arrangements for their children via a negotiated agreement. This blog post will explain the process for a contested custody case in Hamilton County Domestic Relations Court.

In Hamilton County, the first court date is called the Initial Case Management Conference (ICMC) and typically takes place before a judge, rather than a magistrate. Both the parties and their attorneys attend the ICMC. At this time, the judge will learn basic facts about your case to determine what options might be best to help move the case toward resolution. Almost all cases are sent to the Court’s mediation department as the first step following the ICMC. Typically, the parties will attend mediation without their attorneys. Mediation is provided by the Court at no cost.

If mediation is unsuccessful, the court will schedule a conference for the parties’ attorneys and the judge to discuss the status of the case following mediation. At that time, the judge may order the parties to attend Early Neutral Evaluation (ENE). ENE takes place at the courthouse. The parties and their attorneys are assigned a magistrate and social worker to guide them through this confidential dispute-resolution process. This magistrate and social worker will never be assigned to your case for any other reason. Each party submits a detailed brief to the magistrate/social worker team in advance of the session. At the session, each party has the opportunity to speak for ten minutes to tell the magistrate and social worker his or her side of the story and why he or she believes her position is the correct one. The magistrate and social worker then provide feedback to the parties as to what they believe the likely outcome of the case would be if it were decided by the judge. The parties stay at the courthouse after the ENE session to attempt to reach an agreement based on the feedback of the social worker and magistrate.

If the ENE is unsuccessful, the court will order a full parenting investigation to be conducted by a social worker (not the same one from the ENE session). This investigation is extensive, and takes a few months to complete. The social worker will meet with each party multiple times as well as meet with the parties’ children and talk to their teachers, coaches, medical providers, etc. At the conclusion of the investigation, the social worker issues a detailed report making recommendations for the resolution of the custody dispute. Many parties attempt to settle their cases prior to the start of the investigation so they can keep their children out of the court process. If they do go through with the investigation, many cases will settle upon receiving the investigation report. Because the social workers who conduct the parenting investigations are employed by the court, their opinions are heavily weighted in custody trials. The parent attempting to refute a custody investigation recommendation faces an uphill battle. A parenting investigation must be conducted in every custody case before a trial will be scheduled.

In some cases, a Guardian Ad Litem (GAL) will be appointed. The GAL is an attorney appointed to advocate for the best interests of the children. The GAL conducts a similar investigation as the social worker in the custody investigation, and also issues a report with recommendations. The GAL may also take on an expanded role in helping to facilitate better communication between parties and/or assisting with settlement negotiations. A GAL is a great way for the court to hear about the case from the child’s perspective.

Many clients wonder why there are so many steps before the Court will make a decision about custody. The Court seeks to avoid making custody decisions due to their opinion that these important matters should be left to the parents themselves to decide whenever possible. If all of these avenues do not lead to resolution of the case, the court will hold a trial. The trial could be scheduled as long as 9 months or up to 12 or more months after the case is initially filed. There is significant preparation and expense involved in going to trial. The results of mediation and/or ENE cannot be introduced at trial, and nor can any statements the parties made during mediation or ENE be used at trial. The opposite is true for the parenting investigation and GAL reports, which will both be utilized at trial, along with all evidence reviewed and interviews conducted by the GAL and investigator. Each party may bring witnesses to testify on his or her behalf and the judge may want to speak with the children in chambers. Following the trial, the judge will issue a decision. Decisions are not made from the bench and can take a few weeks or up to a few months to receive from the court after the trial date.

Do I Need a Guardian ad Litem or Custody Investigation?

Thu, 21 Sep 2017 13:10:00 GMT

When parents decide to end their marriage or relationship, the children become a central focus of the negotiation. The parents must decide how the children will be cared for and supported while living in two different households. These decisions include recognizing that each of them cannot spend as much time with the children as they had become accustomed to and face significant impacts to their cash flow.

If the parents cannot agree on the custody arrangements for the children, then a court will ultimately decide which parent should make decisions for the children and how the parents will share time.

Depending on the county where your case is pending, you may have various options to provide information to the Court about your wishes and the needs of the children. The two most common are the appointment of a Guardian ad Litem and Custody Investigation. While neither are necessary in a custody case, both can provide valuable gain insights to the Court that would not otherwise be possible through the parents individual testimony.

The Guardian ad Litem (GAL) is an attorney specifically trained to represent the child or children’s best interests. The GAL does not advocate for the children’s wishes but rather what the GAL determines to be in the children’s best interest. The GAL will be a very active participant in your case. He or she will meet with your children and interview other people that come in contact with them and can provide information about the family dynamics. The GAL is required to prepare a written report with recommendations regarding the custody and parenting time of the children. Additionally, the GAL will attend court proceedings and can file motions and question witnesses. The cost of a GAL is usually billed hourly with a deposit being required upfront. These costs vary depending on county and GAL appointed. It can be hard to accurately estimate the total cost of the GAL he or she will bill their time depending on the needs of the case.

A custody investigation is completed by a mental health professional either employed by the court, if they are on staff, or hired privately. These professionals are engaged for the specific purpose of providing a recommendation to the court after interviewing the family and children. This person cannot be engaged for therapeutic services. Custody investigators may also complete psychological testing if deemed necessary. The custody investigator will be called as an expert witness at a trial and will not be involved in any other capacity. The cost of a custody investigator varies greatly depending on whether the court provides this service (usually a flat fee of $500 – $800) or private retainers in the range of $3000 – $5000.

The decision to request a GAL or custody investigation depends on a full examination of the case. It is a strategic decision that should not be taken lightly because the resulting recommendation carries great weight in the ultimate decision being made by a Court. You should discuss your concerns and hopes with your attorney to decide whether a GAL or custody investigation is warranted and could be helpful in your case.

When Can The Child Decide?

Mon, 21 Aug 2017 13:10:00 GMT

When discussing issues of custody and parenting time, a very common question is “at what age does my child get to decide where he or she lives” or alternatively, “when can my child decide when he or she wants to see the other parent.” There is a common misconception that at a certain age, whether it is 12 or 16, that a child will have the right to determine which parent has custody or what his or her parenting time with each parent will be.

However, that is not the case in Ohio. Rather, under Ohio law, both custody and parenting time, is determined by the Court after considering a wide range of relevant factors which help the Court to ascertain what is in the child’s best interest. (O.R.C. 3109.04 and 3109.051) Some of these factors include the wishes of the child’s parents, the child’s interactions and interrelationship with his or her parents, siblings, the child’s adjustment to his or home, school, and community, the mental and physical health of the parents, the schedule of the child and the parents, and the age of the child. The child’s wishes may be taken into consideration, particularly if the child has been interviewed by the Court or if the child has expressed those wishes to a Guardian ad Litem, which an attorney appointed to represent the best interest of the child. With all of this said, it is true that in most cases, the older and more articulate the child is, more weight will be given to that child’s wishes, because the court must also recognize that ignoring a mature child’s wishes can in and of itself be harmful.

However, the child’s wishes alone, will not determine custody or the parenting schedule and for good reason. For example, a child may want to live with the parent who allows him/her to skip school, stay out all night, and ignore all the rules. In such a case, the Court is likely to find that while the child may want to live primarily with this parent, such an order would not be in the child’s best interest. Alternatively, when a child has legitimate reasons for wanting to live with one parent over another, the Court can take those wishes into consideration. However, the child’s wishes will still be one factor, of many, which the Court will review in making its decision.

The Role Of The Family Relations Specialist In Collaborative Divorce

Wed, 05 Jul 2017 15:24:00 GMT

When a couple decides on a collaborative divorce, each party must engage his or her own attorney; preferably an attorney who has been trained in the collaborative model. There are other professionals that can be engaged and it is up to the parties and their attorneys to decide if other professionals are appropriate. There are two types of professionals that are part of the Cincinnati Collaborative Group Practice. These are family relations specialists (“FRS”) and financial neutrals. This post addresses the role of the family relations specialist.

Our family relations specialists are all psychologists or trained therapists. Generally speaking, the FRS uses their specialized skills and training to coach people through the major transition of ending their marriage. In addition to the purely legal considerations in a marital termination, social, emotional and parenting concerns are among the many issues competing for the couple’s attention. The goal is to navigate through these non-legal variables in order to reach an agreement that successfully addresses the financial goals of the parties as well as the future needs of all family members.

A family relations specialist can assist in the following ways:

Help clients to manage their stress and minimize the stress that could interfere with the negotiation process.
Help clients clarify their priorities for the divorce and their life after divorce.
Facilitate a problem-solving approach to difficult negotiations.
Be a voice for the children, including educating parents about psychological, emotional and developmental implications of divorce-related dynamics and decisions upon children.
Facilitate clear and constructive communication in negotiations.
Help clients navigate emotionally charged issues with clarity and safety.
Assist in creating a thoughtful parenting plan that addresses the developmental and emotional needs of the children.

In most collaborative cases when an FRS is used, the parties meet with the FRS prior to the first collaborative meeting. It is up to the FRS as to whether this meeting will be individual or joint. In many cases, the FRS participates in the team meetings although there are some cases where an FRS is engaged only for the purpose of meeting with the parties privately and assisting with the issues at hand, which may, for example be, the development of a parenting plan or improved communication. This decision is up to the parties and their attorneys.

Is it Important to Establish Paternity in Ohio?

Mon, 15 May 2017 15:56:00 GMT

When a child is born to married parents or within 300 days of the termination of a marriage, there is a legal presumption that the husband is the father of the child. However, it is increasingly common that children are born to unmarried parents. In this case, there is no an automatic presumption, and fathers must take further steps to establish paternity. Establishing paternity is important because it is necessary for fathers to establish parenting rights, for the child to be able to inherit Social Security and Veteran’s benefits from the father, and it provides a sense of identity for the child.

There are a few different options on how an unmarried father may establish paternity. Both parents can sign a Paternity Affidavit, a document that acknowledges who the biological parents are without the need for genetic testing. This form is usually generated by the hospital but it can also be provided by the local Child Support Enforcement Agency (“CSEA”) office. The form includes affirmations from both the mother and the father that they are the natural parents and they assume the parental duty of support of the child. The father can be placed on the child’s birth certificate if both the mother and father sign the Paternity Affidavit. No signatures are required on the original birth certificate. If you are wondering whether you signed a Paternity Affidavit, these records are easy to request from the Central Paternity Registry. A parent has 60 days from the date of the last signature to rescind the Paternity Affidavit. A rescission form can be obtained through the local CSEA office.

Another option for establishing paternity is by way of an administrative order through the local CSEA office. This option is good for fathers who wish to seek genetic testing. The CSEA can order everyone to submit to paternity testing and issue an order of paternity if the results come back that the man is the biological father of the child. Fathers should contact the local CSEA office where the mother resides to initiate this process. This administrative order then provides a legal basis for the father to seek custody and/or visitation through the local juvenile court.

The third option for establishing paternity is through a court order from the juvenile court. This occurs when one person initiates a paternity lawsuit against the other. The judge may order genetic testing and hear evidence on whether the alleged father is the child’s biological father. The judge can then enter a final paternity order. After paternity is established, there is a basis for the court to issue an order of child support, custody, or visitation.

In Ohio, unmarried mothers have full custody of their children until a court orders otherwise. Merely signing a paternity affidavit or establishing paternity through the CSEA does not establish parenting rights. However, establishing paternity by one of the above methods is necessary for fathers to gain the legal standing to ask a court for visitation or custody of their children.

Where is Custody Determined if My Child Lives In Another State?

Wed, 15 Mar 2017 14:38:00 GMT

In custody determinations, there is often a question of which state has the power to make decisions for a child, or in legal terms, “has jurisdiction”. The issue presents itself when parents live in two different states, or both parents leave the state where an original custody decision was made.

In an initial custody determination between parents the court that has jurisdiction over the child is the court in the child’s home state. Home state is defined in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as “the state in which the child has lived with a parent for at least six consecutive months immediately before the commencement of the child-custody proceeding.” It can also mean the state where the child lived in the 6 months prior to commencement of the action even if the child is no longer living in the state.

For example, if a mother lived with her child and the child’s father in State A for the first 2 years of the child’s life, State A would be the home state. If mother moved to State B and immediately asked a court in State B for sole custody of the child, State A would still be the “home state” of the child and would have jurisdiction.

The UCCJEA provides that jurisdiction can be achieved if a court of the home state of the child has declined to exercise jurisdiction because another state is a more appropriate forum AND (A) the child and the child’s parents, or the child and at least one parent, have a significant connection with the other state other than mere physical presence AND (B) substantial evidence is available in the other state concerning the child’s care, protection, training and personal relationships.

Once a court makes the initial child custody determination, that state has continuing, exclusive jurisdiction over the child. Therefore, no other state can exercise its jurisdiction over the child until the original state loses jurisdiction. The original state will lose jurisdiction once that court determines that neither the child, or the child and one parent, has a significant connection with the state and there is no longer substantial evidence regarding the child’s protection, care, and personal relationships. The originating state would also lose its jurisdiction once a court of any state determines that all parties (i.e. the child and the parents) have moved out of the originating state. If one parent leaves the state where the initial custody determination was made and moves to a new state, only the state that made the initial custody determination could determine that it no longer has jurisdiction. If both parents move out of the state, ANY court could determine that the initial custody state no longer has jurisdiction.

Therefore, if you plan on moving with your child out of the state that granted your divorce, you should be aware that you may have to return to that state to address any future litigation concerning your child. However, if both you and your spouse plan on moving out of state, you should try to register your decree in the new state and request that the new state take jurisdiction over the out-of-state custody determination.

Can I Legally Change My Child’s Name?

Thu, 16 Feb 2017 15:25:00 GMT

Parents can petition the Court to legally change their child’s name. Such petitions are filed through the Probate Court. If both parents agree that the change is in the child’s best interest, it is a simple process involving basic paperwork and a filing fee. However, there are often cases where one parent requests the name change and the other parent does not believe the change is in the child’s best interest. For example, if the parents are unmarried, the mother may have chosen the child’s name without any input from the father and the father, after obtaining other legal rights such as parenting time and/or custodial rights, may request that the child have his last name instead of mother’s last name. In other cases, the child may have the father’s last name, but due to specific circumstances, mother may no longer believe it is in the child’s best interest to retain that last name.

If one parent is seeking a change over the other parent’s objection, the parent petitioning the court bears the burden to establish that the requested change is in the child’s best interest. The Court will consider a number of factors including the length of time the child has used a surname, the effect of the name change on the father-child and mother-child relationship, the identification of the child as part of a family unit, embarrassment, discomfort or inconvenience that may result with a child bears a surname different from the custodial parent’s, and the preference of the child if the child is of an age and maturity to express a meaningful preference.

When both parents are active, involved parents who have a strong relationship with the child, it can be difficult to prove that replacing one parent’s surname with another parent’s surname is in the child’s best interest. The Courts have repeatedly found that the long standing tradition of a child taking the father’s surname alone is not a sufficient reason to change a child last name. Instead, the Court has often looked to hyphenation as the best solution, finding that a combined surname recognizes each parent’s legitimate claims and threatens neither parent’s rights. This solution allows the child to have the opportunity to grow up identifying with both sides of his or her family.

There can be circumstances in which it is in the child’s best interest to remove one parent’s surname. For example, in cases where the parent has been absent from the child’s life for a significant period of time, and fails to provide any emotional and/or financial support for the child the court may find it is appropriate to remove that surname. Additionally, if there is significant information available online regarding a parent’s criminal history, the court may find that the child could suffer extreme embarrassment and discomfort from being linked with said parent. In our increasingly digital world, the court could consider search results from Google as to how the child’s could be negatively impacted by having said parent’s surname.

Overall, the Court’s focus in making any change to a child’s name will be the best interest of the child. The parent will need to focus the evidence they present on the child’s needs as opposed to the importance of the surname to the parent or societal norms.

Is Legal Separation Right for Me?

Sat, 19 Nov 2016 13:02:00 GMT

There are many reasons why a client might consider a legal separation. Here, we will explain exactly what a legal separation is, and a few of the common reasons people seek to enter into a legal separation.

First, it should be noted that a legal separation is not the same as a physical or “trial” separation. Many couples physically separate prior to terminating their marriage. These physical separations may be very informal, with one spouse moving out and the parties making informal agreements as to how they will divide time with their children and manage the monthly expenses. A physical separation could also be accomplished with the assistance of attorneys, who would help parties to negotiate these terms. This situation is different than a legal separation, which is a specific type of legal proceeding.

In a legal separation, the parties go through essentially all of the same steps as they would in a divorce or dissolution. They typically make final determinations of the division of all debts and assets, they must allocate custody rights for their children, and will determine the amount of spousal and child support that will be exchanged. The parties can either make agreements on these issues or the decisions can be made by a court if the parties are unable to agree. At the conclusion of the process, a “Decree of Legal Separation” is entered by the Court, and the parties are considered legally separated. Their marriage has not been terminated, but many or all of the issues of their marriage have been finally decided.

The legal separation process can be just as lengthy and/or expensive as a divorce or dissolution. If the parties later decide to fully terminate their marriage, they must institute a new action for divorce or dissolution and ask the court to incorporate the terms of their legal separation decree into a new decree of dissolution or divorce. For this reason, we often work with clients to make sure a legal separation is the right fit before moving into that process. If a termination of the marriage is the ultimate goal, it may make sense to move forward with a divorce or dissolution at the beginning of the process rather than taking the extra step of a legal separation.

When would a legal separation be the right choice? Often legal separations are sought by individuals who have not resided in their state or county long enough to meet the jurisdictional requirements to file for divorce. In these instances, a legal separation action can be converted to a divorce once the party has met the residency requirement.

Another example is when a party objects to divorce for reasons of culture or religion. These individuals may need the legal structure and security of an allocation of debts, assets, custody and support, but do not wish to legally terminate their marriage.

In the past, parties have sought legal separations in order to remain on the same health insurance policy, however many health insurance companies will no longer allow legally separated individuals to remain insured on the same policy. Make sure to check with your provider before choosing a legal separation for this reason.

Do Parents Have Legal Obligations to Emancipated Children?

Wed, 19 Oct 2016 12:57:00 GMT

While it is true that Ohio Courts are prohibited from issuing orders regarding the care and support of children after they turn 18 or graduate from high school, whichever occurs later, the Court can enforce agreements that parents make with one another.

Many parents recognize that their children will need continued support beyond 18 and want to ensure that these expectations are clearly outlined and discussed in a divorce settlement. It is especially important to consider the following obligations during your negotiation: child support for children with disabilities, maintenance of health insurance, dependency deductions, and the payment of college education. If parents agree on these items and include the agreements as part of the divorce or dissolution decree, the agreements will be enforced by the court.

CHILD SUPPORT FOR CHILDREN WITH DISABILITIES

Monthly child support terminates when a child is 18 or graduates from high school except in the circumstance of a child with a significant disability who will be unable to provide for himself. Provisions regarding extended child support are extremely intricate and must consider the impact the payment of support has on other benefits the child may receive such as social security and Medicaid. It is often important to consult a social security attorney as well as a divorce attorney when negotiating support for a child with a disability. The Court has jurisdiction to enter orders and enforce orders for child support beyond 18 when it’s found that the child has a disability and is unable to self-support.

HEALTH INSURANCE

Another issue that became more relevant upon the passing of the Affordable Care Act is an agreement to maintain health insurance for adult children so long as it is permitted by law. Currently, children can be covered by a parent’s health insurance plan until age 26. Although this is permitted by the federal law, a divorce court cannot order parents to do so unless the parents have reached this agreement prior to the child(ren) turning 18. This must be included in the parties’ divorce decree.

DEPENDENCY DEDUCTION

The same is true for claiming a child as a dependent for tax purposes. The IRS allows this deduction for adult children that have 50% of their support being provided by a parent (usually where the college student is living in the summer). If there is no agreement to alternate the dependency deduction then the IRS rules apply, even though the parents may both be contributing to the support of the child.

COLLEGE

A main talking point in many cases is a parent’s obligation to pay for college. Parents can structure an obligation to pay for college in various ways. Some choose to contribute to a college savings account monthly or yearly, while others agree to pay a percentage of tuition and/or room and board at the time their child ultimately attends. In either scenario, it is important to account for contingencies that may make these obligations impossible to meet in the future, such as a disability or unemployment of one of the parents. This question looks very different for parents whose children are teenagers and approaching college in the immediate future than those parents with small children and many years of uncertainty before college is on the forefront. You should discuss college provisions with a lawyer and ensure that you understand all of the risks and benefits of including such a provision in a final court order. Of course, parents can pay for college without a court order and some parents prefer this route, especially when the parents share similar values about the payment of college.

You Need Not Worry That Custody Decisions Are Permanent

Mon, 05 Sep 2016 21:22:00 GMT

At the termination of a marriage, parents are encouraged to reach agreements about the care of their children, to avoid the court making those decisions.

One of the biggest worries parents have, whether reaching their own agreement, or allowing the court to do so, is that they will be stuck with a parenting allocation or a fixed amount of child support for the duration of their child’s minority. This is one worry that is unfounded.

The court retains the authority (“maintains jurisdiction”) to modify all orders concerning children. This means that parents may ask the court to change the parenting schedule, modify child support, terminate shared parenting and order sole custody and any other matter involving children. The law recognizes that the needs of children change over time, and recognizes it is the obligation of the court to determine what is in the best interest of a child at any given time. There are different standards that must be met to modify a court order, depending on whether it is a financial matter or a parenting schedule but there is nothing that is deemed to be a permanent order. This is very different than other orders issued in a divorce or dissolution relating to property division-those orders may not be changed.

If parties have shared parenting, in most cases, they are required to attempt to participate in mediation before they seek court involvement to modify a parenting plan. The reason for this is because the essence of shared parenting is for parents to attempt to reach agreements between themselves about their children. However, the law recognizes that there are times when parents can’t reach agreements, and the court is available to resolve disputes.

All Ohio counties have standard parenting schedules that serve as guidelines for the court in determining a parenting schedule. In most cases, those guidelines incorporate different schedules depending on the age of the children. What may be an appropriate schedule for a 10 year old may be different for a teenager. At the time of divorce, parents or the court can determine whether the schedule should anticipate a change as a child ages. We have found, however, that most parents aren’t comfortable making assumptions that a different schedule will be preferable at a certain age, and feel better knowing that if a change is needed, it can be pursued at that time.

Can I Relocate During or After My Divorce?

Mon, 08 Aug 2016 20:45:00 GMT

At the termination of a marriage, parents are encouraged to reach agreements about the care of their children, to avoid the court making those decisions.

Is Ohio a No Fault State?

Mon, 11 Jul 2016 20:16:00 GMT

According to Ohio statutes, grounds must exist to terminate a marriage by divorce. There are eleven grounds that permit a court to terminate a marriage. The first nine listed are considered “fault” grounds and the tenth ground of “living separate and apart without cohabitation for one year” is considered a “no fault” ground. Technically, incompatibility is not a ground for divorce, rather a status of the marriage that must be agreed upon by both parties which when agreed upon, allows a court to grant a divorce.

As a practical matter, the majority of divorces are granted because the parties agree they are incompatible. The reason many people are seeking a divorce due to incompatibility or living separate and apart for more than one year is to avoid public accusations of wrongdoing.

In the rare case where the parties do not agree that they are incompatible and they have not lived apart for one year without cohabitation, the spouse seeking the divorce must prove though oral or documentary evidence that another ground exists. The fault grounds vary from very specific – adultery, to very broad – gross neglect of duty. Most courts will find sufficient evidence to support a broad ground finding. The trials on the issue of grounds necessitates a thorough examination of the parties’ marriage and an airing of the so-called “dirty laundry”. Most couples choose to avoid this invasive hearing due to the cost and futility of a legal challenge. The reality is that if someone wants a divorce, he or she will be able to get a divorce, even if the person is forced to wait until a separation of one year has occurred.

With the advent of no fault, a finding of fault has little to no impact on awarding and dividing the marital estate. Even if a spouse is found to have committed adultery or acted with extreme cruelty, no financial penalty is imposed. So the objection to incompatibility is not usually a cost beneficial position to take. It requires legal expense and preparation without the real benefit of a monetary award even if successful. There is also the risk that the spouse objecting to grounds could be forced to pay attorney fees to the other spouse if the court finds the objection unreasonable or a tactic for delay.

Dissolutions, on the other hand, are all granted on the basis that the parties are incompatible. Grounds are not alleged in a dissolution and the parties jointly request that the court grant a dissolution of their marriage.

Although Ohio still has statutory “fault” grounds for divorce, they are rarely used. You will not likely even be discussing these with your lawyer, given the cost and the ability to obtain a divorce without proving grounds.

How Does Bankruptcy Impact Divorce?

Mon, 13 Jun 2016 14:22:00 GMT

It is not uncommon for the fields of bankruptcy law and divorce law to intersect. One way this can happen is if one or both parties file for bankruptcy while a divorce action is pending. Another way is if one party seeks to be relieved (“discharged”) from an obligation that arose out of a divorce or dissolution by filing for bankruptcy. This blog post will attempt to give a general overview of what happens in these specific situations.

If a divorce action is pending and one or both parties file for bankruptcy, a court can still carry on aspects of the divorce case. While the law provides an automatic suspension (“stay”) of judicial proceedings, there are several exceptions. A court can still hear cases to establish paternity, establish or modify spousal support or child support, hear cases concerning child custody or visitation issues, or hold hearings related to domestic violence (11 U.S. Code § 362(b)(2)). However, a divorce court cannot divide marital assets and property while a bankruptcy case is pending (11 U.S. Code § 362(b)(2)(a)(iv)); See Brooks-Lee v. Lee, 2005-Ohio-2288).

If there is an order for the payment of child or spousal support arising out of a divorce or dissolution, and a party later files for discharge, that party cannot discharge his or her obligation. This type of payment is considered a “domestic support obligation,” which is defined as any debt incurred before or after a bankruptcy filing that is owed to or recoverable by a spouse, former spouse, child or governmental unit; in the nature of alimony, maintenance or support; and established pursuant to the terms of a divorce decree, separation agreement, property settlement agreement, court order or administrative determination (11 U.S. Code § 101(14A)). In both Chapter 7 (liquidation bankruptcy) and Chapter 13 bankruptcies (reorganization bankruptcy), domestic support obligations are non-dischargeable (11 U.S. Code § 523(a)(5); 11 U.S. Code § 1328).

Can other obligations, such as an order for payment of debt or a payment of property division to a former spouse be discharged? This is where the distinction between Chapter 7 and Chapter 13 bankruptcies is important. In a Chapter 13 bankruptcy, a debtor may be able to get relief from an obligation to a former spouse that is not in the nature of support. In a Chapter 7 bankruptcy however, these obligations are non-dischargeable (11 U.S. Code §523(a)(15)).

How Will My Retirement Be Divided?

Mon, 16 May 2016 14:18:00 GMT

In a divorce or dissolution, the parties will divide their marital assets. Often, the largest and most valuable assets accumulated during the marriage are their retirement accounts. In dividing these assets, there are a number of important considerations to consider.

First and foremost, retirement benefits are treated differently than other assets because they have different tax consequences. In most cases, the retirement benefits are pre-tax, meaning that once the party receives the benefit or draws from the balance of the account, he or she will pay income tax on that benefit. For this reason, these assets are typically not offset with the value of other assets such as bank accounts or the equity in a residence, or, if they are, tax adjustments will be made. In most cases, the retirement accounts are divided between the parties with separate court orders, such as a Qualified Domestic Relations Order (QDRO) or a Division of Property Order (DOPO). These orders are filed with the court and then submitted directly to the administrator of the retirement plan who would implement the division of the benefit. The way the benefit is divided will depend on the type of retirement plan.

In general, there are three different types of retirement benefits (1) an individual retirement plan such as an IRA (both Rollover IRAs and ROTH IRAs), (2) an employer sponsored defined contribution plan, such as a 401K or a 403B, and (3) an employer sponsored defined benefit plan such as a private pension or a public pension for public employees like teachers.

The IRAs can be divided with a simple IRA Transfer Order. These forms are typically simple and can provide for a portion of the IRA to be transferred into another IRA or to be withdrawn. If the funds from the IRA are withdrawn by a party, that party will have to pay income taxes on the amount withdrawn and may have to pay a penalty if the withdrawal is prior to age 59 ½.

Most employee sponsored retirement plans can be divided by a Qualified Domestic Relations Order (QDRO). The QDRO may instruct the plan to transfer the retirement funds into a new account, into another IRA or to be withdrawn. With a QDRO, if the party chooses to withdraw the funds, he or she will still be required to pay income taxes on the amount he/she receives, but there is no penalty for the early withdrawal.

For the defined benefit plans, a QDRO or a DOPO is typically required to divide these benefits. These orders will divide the retirement benefit and distribute the benefit at the time of the parties’ actual retirement. This will traditionally result in a payment to the spouse for his or her lifetime, rather than a lump sum payment. For example, if Husband earned a pension benefit of $1000 per month during the marriage, the Court could order that a QDRO be entered, granting Wife 50% of that marital benefit. Later, when Husband and Wife retire, the plan administrator of Husband’s pension will have a copy of the order on file and will pay to Wife $500.00 per month of Husband’s benefit. Husband would then receive the other $500.00 monthly benefit that was earned during the marriage, plus any other benefit that he earned after the divorce.

Overall, it is important to understand that each and every retirement plan is different and they all have specific requirements regarding the division of its benefits. Therefore, the parties and their attorneys must gather all the necessary information to determine how the plan should be divided based on the specific facts involved in that case.

Who Has The Right to Remain in the Marital Home?

Thu, 14 Apr 2016 15:58:00 GMT

In nearly all divorce cases, the question of what to do with the marital home will arise at some point. In some cases it is easy, neither party wants to stay and the home is sold, or only one party wants to stay and that person keeps the residence. But what about the cases where both parties want to stay in the marital home? How does the court decide? There are several factors that may come into consideration.

Can you refinance? Often times, the mortgage on the marital home is in both parties’ names. This means that the party who wishes to stay in the home will typically need to prove that he or she has the present ability to refinance the loan into his or her own name. Refinances are usually required for two primary reasons; (1) the court favors financial disentanglement of parties to divorce cases, and (2) it is unfair to the party who is not remaining in the home to stay obligated on the mortgage. The party in the home could stop paying the mortgage, resulting in a negative credit impact to the party who left the home or, more commonly, the person who left the home will not be able to qualify for a new home loan of their own because the old mortgage is still considered his or her debt by lending institutions.

Can you afford to “buy out” the other party? When there is marital equity in the home, the party who wishes to stay will have to find the funds to pay the other party for his or her share. This issue does not arise when a house is sold because the parties can simply split any profits. The funds to buy out the other party can come from a variety of sources. In many cases, so long as the remaining party has good credit and there is significant equity in the home, the funds can come from the refinance of the mortgage. Other times, the parties have cash reserves that can be allocated so that the other party is compensated. Some parties have a significant amount of debt, and so long as the remaining party can still qualify to refinance, that party can take on more debt to balance out the ledger. It is also possible to use retirement funds to equalize equity in a home, however parties should be careful about this because retirement funds are typically considered less valuable than liquid assets due to the taxes and penalties often associated with withdrawals. In some cases, the court may be willing to allow for a party to delay paying his or her spouse the equity in the home if it serves the best interest of the children and other opportunities for payment do not exist.

Do you have the children more of the time? Another factor the court will look at, assuming both parties can afford to stay in the home and to finance the home in their own name, is which party will have the children more of the time. Courts will typically do whatever is possible to ensure consistency for children through a divorce process to minimize the negative impact on them. For this reason, the court may seek to keep the children in the comfortable environment they are used by awarding the home to the party who has the children more often.

Do I Need a Lawyer, And How Do I Choose?

Mon, 07 Mar 2016 08:30:00 GMT

With so much information available on the internet, many people question if they need a lawyer in a family law matter. There are no legal proceedings that require a lawyer. The availability of family law forms on the internet has made it far more common for people to be unrepresented. The problem with forms on the internet is these forms are not prepared with your facts in mind. Nor are there explanations of considerations that must be made if other circumstances exist which are not covered by the forms. It may seem like a very simple matter, to just check certain boxes on the forms, but it’s what you don’t know that can hurt you.

As a general rule, if retirement benefits are going to be divided, professional assistance is needed because a specific order, known as a Qualified Domestic Relations Order, is required. Many people may not even understand, after looking at forms, that they are entitled to share in their spouse’s retirement benefits. If real estate is owned, there are many considerations such as transferring of a deed, how a mortgage is to be held and terms of a sale that must be addressed. If spousal support is ordered, one of the most significant aspects of the order is whether the order is modifiable, and if so, under what circumstances. And, if you have children, you absolutely want to make sure that your rights are protected, and your children’s best interests are being served by the parenting plan. Without legal representation, these considerations may be ignored by an unrepresented person.

Every lawyer has been placed in the difficult situation of meeting with a client who concluded a divorce or dissolution without representation, and finds themselves explaining that their documents were not prepared properly and there is simply nothing that can be done to reverse the damage. Given that people are making decisions that affect their rights to their children and rights to support and or property, there is great danger in not understanding what you are signing, or what may have been overlooked.

Understandably, many people cannot afford legal fees. The problem is you likely can’t afford to go unrepresented, having no idea of what you have legally committed to, or failed to obtain from your partner. I encourage every person to at least consult with a lawyer to review any documents prepared on one’s own, or by their spouse, to make sure they understand what the documents provide for and what may be missing.

If you have decided you wish to be represented, the next question is how to select an attorney. First and foremost, it is recommended that you work with an attorney whose practice largely consists of family law. Ask the question – how much of your practice is family law? Believe it or not, if you know your spouse’s attorney’s name, ask whether the prospective lawyer has worked with him or her in the past. The worst thing you can do is to engage a lawyer who has bad blood with your spouse’s attorney – this will end up costing you money and aggravation. Trust your instincts when talking with lawyers. This is an important relationship you are investing in and you want to feel comfortable that your attorney is listening to you and clearly understanding your concerns and priorities. If the attorney takes days to respond to your initial phone call, this suggests you won’t likely get improved attention as a client. All of us have different styles and you must assess the style are you most comfortable with. Certain lawyers are known for being tough litigators. Others are known for their skill in keeping matters out of court. Try to assess your needs and comfort level with the person you speak to over the phone or meet with. If you have concerns at the beginning, raise them. If you feel you are not being kept informed of developments, tell your lawyer and ask for more involvement. If you are not comfortable with hearing from a paralegal or associate, rather than your lawyer, request more direct contact. This relationship is no different than any relationship – trust your gut and make your needs known.

In short, the decisions you make as to whether you will be represented, and if so, by whom, will impact the most important aspects of your life-your children and your financial security, so make these decisions cautiously.

Is it Mine or is it Ours: Tracing Separate Property Interests

Mon, 22 Feb 2016 09:22:00 GMT

A major consideration when contemplating a divorce is how assets and debts will be divided between the spouses. In Ohio, any asset or debt accumulated during the course of a marriage is presumed marital and subject to division by the court unless it can be shown that the asset or debt is separate or non-marital. There are three main types of separate property: inheritance, gifts, and property owned prior to marriage. These categories of property are not subject to division by the Court. To the extent that any asset or debt is solely the separate property of one spouse, then that spouse will retain the asset or debt in the divorce free from any claims the other spouse.

Complications arise when a spouse’s separate property is commingled with marital property. For example, Wife receives an inheritance when her father passes away. This money, if deposited in a separate account with no other funds, will be considered separate property and awarded to Wife in the divorce. However, if the money is deposited in the parties’ primary checking account where income is also deposited, it is hard, if not impossible to distinguish it from marital funds. The funds may no longer be traceable to a separate asset which is a key factor in being able to prove separate property claims.

Let’s assume that instead of depositing the inheritance in the joint checking account, Wife purchases a vehicle with those funds. Now the money can be clearly traced to the vehicle and the vehicle is considered Wife’s separate property as it was purchased solely with the separate inheritance of Wife.

This concept of traceability also comes up frequently in real estate. It is common for one spouse to use separate funds as a down payment, either by using proceeds from the sale of a residence owned prior to marriage, premarital savings or a gift from family. Many attorneys use a formula to determine the percentage of current home equity that is attributable to the separate property of one spouse versus the equity that is attributable to the marriage. Presumably, if the value of the house increased simply as a result of market forces, the separate property claim has also increased. It was a good investment. The converse is also true, if the house has declined in value so has the separate property claim.

If improvements have been made to the real estate, the analysis becomes even more complicated. A $50,000 home improvement does not necessarily mean that the home has increased in value by $50,000 so the full amount put into the house may not be recoverable as separate property.

One common misconception is that an asset or debt titled in only one spouse’s name is his/her separate property. While the title of certain assets or debts carries legal implications it is not significant in the context of determining separate or marital property subject to division in a divorce proceeding. For example, a retirement account in Wife’s individual name is marital to the extent that it was earned during the marriage even if Husband’s name is not on it.

It is important to discuss all of these concepts with your attorney to fully understand if any assertions can be made for separate property in your negotiation. If a party is making a separate property claim the burden is on him/her to provide proof or evidence of the claim. You will need to gather any documentation that shows the funds that were inherited, gifted, or owned prior to marriage and how the funds have been used.

The Question of Moving Out of the Marital Home

Mon, 25 Jan 2016 13:40:00 GMT

One of the most common misconceptions is that a person will be found to have “abandoned” their home, by moving out, and that there will be a loss of rights resulting from this action. There is nothing in Ohio law that provides for a loss of rights if one moves out of the marital home. The home continues to be a marital asset and both spouses will be entitled to share in the value of the marital home, subject to other legal principles surrounding the source of the funds that were used to purchase the home.

However, there are considerations that should be made, in deciding whether to move out of your home when a divorce is being considered.

The first consideration is whether there are minor children. If there are minor children, and custody of those children is in dispute, the court may give stronger weight to award temporary custody to the parent who remains in the home. The reason for this is to provide stability for the children. For this reason, it is always preferable to have an agreement, in writing, with your spouse about the care and custody of the children before moving out. There are situations where this is impractical, such as when there are concerns for personal safety, and in those cases, one’s safety must always come first.

Another consideration is whether you and your spouse may both wish to be awarded the right to remain in the house after the divorce. Again, this has nothing to do with the award of monetary value of the house, but instead comes up if both parties will be asking the court to award physical possession of the home to them at the conclusion of the divorce. Obviously, there is only one house, so if a court has to decide who should be allowed to remain, one consideration is who has remained in the home up to that point. If there are minor children, it is likely that a court will allow the parent who will be the primary custodian of the children to remain in the house if he or she wishes. But in a case where there aren’t minor children, the scale may tip toward the person who has remained in the house.

In the best of worlds, couples should come to an agreement before one moves out, covering how the expenses for the home will be maintained, the servicing of marital debt, whether income will be shared or kept separately, and if there are children, the parenting schedule that will be followed. This allows for both parties to be able to appropriately plan, and to know what can be expected. If reaching such an agreement is not possible, it is advisable to consult with an attorney before moving out, so there is an understanding of the possible ramifications. The good news is that one need not worry about being found to have abandoned the home.

How are Household Goods Divided?

Tue, 01 Dec 2015 14:51:00 GMT

When a couple divorces, along with the division of all of their larger assets, such as the home, bank accounts, and retirement assets, they also have to divide their household goods and personal property. People are often unsure how the court will divide this property, especially when many of the items may appear to have little value, but in fact have great personal value to one or both of the parties. First, each party would be entitled to retain any personal property which would be considered separate or non-marital property, such as property that was acquired prior to the marriage, purchased with funds acquired by gift or received as inheritance or a gift. All remaining personal property that is marital, would then be divided. In the eyes of the court, all personal items and household goods are valued based on what another person would pay for the the item, often referred to as the “Craig’s list value.”

For the majority of personal property, the court typically does not review the proposed value of each item and divide the property to provide an equal allocation of that value. Rather, the court will have the parties create a master list of items and require the parties to take turns choosing a piece of property from that list, with the parties flipping a coin to determine who chooses first. Because this method can seem harsh, parties are encouraged to reach an agreement on their own regarding the division of personal property. Further, the parties’ attorneys often suggest that the parties begin the division by themselves and only bring the remaining items that they cannot agree upon to the attention of their attorneys. This allows the parties to avoid incurring large amounts of attorney fees arguing over which party retains which couch. With certain items of significant value such as a piece of art or jewelry that was purchased as investment, the Court will make a determination of that value and award that particular property outside of such a list.

Another very important piece of personal property is the family pet. The court will award the family pet to one party or another. However, under the law, the family pet is a piece of property and is treated as such. Therefore, while the court will take evidence regarding the care of the pet and make a decision regarding who will retain the pet, the court will not make orders regarding visitation or “shared custody” of the pet. If the parties are able to reach agreements without the court’s intervention, they can include terms including a visitation schedule and division of veterinarian expenses. Due to the fact that pets are viewed as property, while the court will have the authority to enforce these agreements, it will not have the ability to modify such agreements. Therefore, if the parties negotiate such agreements, they have to be sure that the arrangements will be acceptable for the foreseeable future.

The post Cincinnati Family Law & Divorce Blog: How are Household Goods Divided? appeared first on Beth Silverman & Associates .

Do I Need a Pre-nup?

Tue, 22 Sep 2015 17:49:00 GMT

Ohio law allows written contracts between parties before a marriage that define various aspects of marital rights and rights upon the death of either spouse. These contracts are called prenuptial agreements, premarital agreements, or antenuptial agreements. All of these terms can be used interchangeably. Prenuptial agreements may not always be enforced. To avoid the most common challenges to these agreements, the following should be adhered to: (1) both parties should have lawyers represent them during the negotiation and execution of the agreement, (2) it should be signed as far in advance of the actual wedding as possible to avoid the possibility of coercion, and (3) there must be a complete and accurate disclosure of assets and debts between the parties.

Currently, Ohio law protects premarital assets and assets which are acquired during the marriage by gift or inheritance and a prenuptial agreement may not be needed. It is often a misconception that you need a prenuptial agreement to ensure that you protect an inheritance you received from a family member. These assets are characterized as separate property and they are not subject to division in a divorce settlement so long as the asset can be traced to an inheritance or gift, or it can be proven that it was owned prior to marriage and the asset is not commingled with marital funds/assets. A prenuptial agreement is often more important to define how marital funds/assets accumulated during a marriage may be allocated upon a divorce or dissolution or how specific assets will be distributed upon the death of a spouse. After a marriage, income earned or assets/debts accumulated are considered marital in nature and will be subject to equitable division upon termination of the marriage. A prenuptial agreement can redefine marital assets or change the default division under domestic relations law. It can act as a contract to make a will and/or eliminate all rights to property under probate laws, including the right to act as an executor and administrator of your spouse’s estate.

There are many reasons why a prenuptial agreement may be wise. In second marriages, where there are children from a previous relationship, a prenuptial agreement can ensure that certain assets are protected for these children upon death or divorce. If one party has significant debt, the other party may end up having to pay some of that debt if there is no agreement. If one party owns a business, a pre-nup can prevent forced valuations and liquidations. Parties could agree that each would receive his or her own retirement account vs. sharing the accumulated retirements of both spouses. Prenuptial agreements are not allowed to regulate issues relating to the children of the marriage, in particular, custody, because matters involving children must be decided in the children’s best interests. In situations where one spouse earns significantly more income than the other spouse, agreements can be reached about the amount and term of spousal support that should be paid upon a termination of marriage. Although, prenuptial agreements can attempt to limit spousal support, a court at the time of a divorce can set this agreement aside, if it deems that the limitation is unconscionable.

In Ohio, parties are not allowed to enter into agreements after the date of their marriage that will be controlling in the event of divorce or death. The only exception to this rule is the allowance for people to enter into a Separation Agreement when they have decided to separate. Therefore, if a couple has not entered into a prenuptial agreement, they can’t provide for the same after they have married.

What Are Some Differences Between Child Support and Spousal Support?

Wed, 02 Sep 2015 15:16:00 GMT

Until January 1, 2019, child support and spousal support had different tax consequences whereby spousal support was tax deductible by the payor and taxable to the recipient. In a major tax overhaul, Congress changed this. Currently, a payor cannot deduct child support or spousal support from their taxable income and the recipient does not report either type of support on his or her tax return.

Child support ends upon a child’s 18th birthday or graduation from high school, whichever is later. In most cases, child support may not extend beyond a child’s 19th birthday, even if the student is still in high school, unless it is determined that the child is a dependent child, meaning he is unable to support himself. In Ohio, a parent cannot be ordered to provide support, or pay for college expenses for an emancipated child. However, if the parties voluntarily agree to do so in a legal document, the courts will enforce these agreements.

Spousal support can end at a specific date or it can be of indefinite duration. Indefinite awards of spousal support are unusual because the law favors finality but in cases of long-term marriages, such as 30 years or more depending on the ages of the parties, a court may order the support to continue indefinitely. This would allow a court to terminate the support in the future if the circumstances warrant it, or could result in a lifetime award.

Child support is always subject to modification by a court, upon a significant change of circumstances, as are all matters concerning children. When a court issues a spousal support order, or when the parties, in a dissolution, agree to spousal support, the amount may be certain (i.e. unchangeable) or it may be subject to modification. When subject to modification, the reasons can be open-ended, or they can be limited. For example, it is common for people to agree to the possibility of modification only in the event of involuntary circumstances such as disability, or loss of a job due to reasons outside of one’s control. The longer the period of spousal support, the more likely it is that there will be a reservation of jurisdiction to modify the amount.

Child support in Ohio is subject to a formula. (See blog Cincinnati Family Law & Divorce Blog: How is Child Support Calculated in Ohio?) Parties, or the court, may deviate from the formula, but the written guidelines must be submitted to the court, and an explanation given when an amount is ordered different than the formula. There are many reasons for deviation, including the amount of time each parent spends with the children, and cases with high combined incomes, typically greater than $336,000. There is no formula for setting spousal support in Ohio, although there have been many legislative efforts to do so. The law requires that many factors be considered, but the most important are the length of the marriage, the earning potential of each party, sacrifices made by either party to their own career, the education of the parties, and their health.

What is Collaborative Law?

Tue, 09 Jun 2015 18:30:00 GMT

Collaborative law or collaborative practice is another option for parties who want to terminate their marriage without resorting to litigation or the adversarial process. There are several key features to a collaborative case. Each party must engage a collaborative attorney and a participation agreement will be signed. The agreement requires (1) an exchange of complete financial information (2) the maintenance of confidentially during the process so that each spouse can freely express his or her needs and concerns, (3) a commitment to resolving the case out of court and (4) an understanding that the collaborative attorneys may not represent them if either chooses litigation. The goal of the collaborative process is to reach a comprehensive agreement on all issues so that the parties can dissolve their marriage without court intervention.

Collaborative law empowers spouses to dissolve their marriage with dignity. While each party’s attorney will support him or her through advocacy, problem solving, and negotiating skills, the parties are also in control of the process. Each party is a major participant in the meetings as you identify goals, concerns, options and solutions. This allows you and your spouse to preserve a respectful working relationship during and after the process.

Collaborative law may be the best option for you and your spouse if you believe it is important to protect your children and family from the emotional and financial damage that litigation can cause and you and your spouse are able to focus on a positive solution for the entire family. Collaborative agreements can often result in more detailed and unique solutions that would otherwise be ordered by a court after a litigated court proceeding.

Collaborative law also allows the parties to employ the services of other experts including mental health professionals and financial neutrals. These professionals can play a key role in finalizing agreements and working through complex issues.

If you believe the Collaborative Law may be the right fit for you and your spouse, you should ask for more information from your attorney and express your interest in the process to your spouse. You may even share information and links to your spouse, such as www.collaborativelaw.com and www.collaborativepractice.com, so that he or she can seek out a collaboratively trained attorney as well.

Is Mediation Right for Me?

Thu, 16 Apr 2015 14:05:00 GMT

Mediation services are used for resolving all sorts of disputes between individuals or businesses in many different areas. Mediation is commonly used in family law as an alternative to litigation. In the Cincinnati area, there are attorneys who are trained mediators, and mental health practitioners, and individuals without any required professional licensing who act as mediators. In our law practice, we normally work with attorneys and mental health professionals as mediators.

A mediator can be engaged at various stages of a family law matter. For example, there are cases where a couple decides to end their marriage, and rather than seeking independent legal counsel, they engage a mediator to help them resolve their issues and then engage lawyers to prepare the legal documents and have the case processed through court. In other cases, a couple may each engage legal counsel and their attorneys may recommend they attempt mediation to resolve their issues. In this type of situation, the lawyers may recommend their clients participate in mediation without the lawyers being present, or they may request to be present for the mediation sessions. In other situations, the parties and their counsel may attempt to reach a settlement and when they find themselves at a roadblock, may suggest the services of a mediator.

The role of a mediator, even a mediator who is a trained lawyer is not to give legal advice. Their role is to act as a neutral facilitator who assists the parties in reaching resolutions. All effort is made to facilitate successful negotiating. Sometimes this means the mediator goes back and forth between two rooms and keeps the parties apart, but most often the mediation occurs with both parties and the mediator together.

We are often asked about the advantages and disadvantages of mediation, as well as the differences between mediation and collaboration. Both processes are “alternative dispute resolution” techniques, meaning these are approaches that can be taken as alternative to the court process. The selling point of both techniques is to attempt to minimize the contentiousness between two parties and to use creative thinking to develop solutions that will meet both parties’ goals. It is often thought that mediation can be a less expensive process than collaboration because only one professional is involved (assuming that the lawyers are not present). In all candor, sometimes lawyers can make a case more difficult, especially if they mistrust one another or have a bad history, so there may be situations where clients prefer doing as much as possible without lawyers. However, the main reason people may choose collaboration rather than mediation is because of a concern about negotiating with their spouse without the support of their lawyer. In many cases, one spouse feels less informed or has a fear of being intimidated by negotiating directly with their spouse.

Mediation can be a very effective approach for resolving family law matters, whether it is for a divorce or just parenting issues. You should discuss this option with an attorney to decide if this approach would be comfortable and productive for you.

Tech Tools for Co-Parenting

Mon, 23 Mar 2015 13:48:00 GMT

When couples with children divorce, they are faced with the reality of an entirely new parenting dynamic. While married, each parent most likely had certain “domains” that he or she took care of for the children, often with little or no input from the other parent. This is the nature of married parenting, but it isn’t the same for divorced couples. Most divorced parents want to have access and input into all areas of their children’s upbringing, even when they didn’t in the past. This can be challenging, considering many couples end their marriage due to poor communication.

Thankfully, there are a few extremely helpful apps that can streamline the co-parenting process and help families transition into a new dynamic. Programs such as these ensure that all of the children’s activities, expenses, appointments and important information can be kept in one place, and can be documented for the court if necessary. Below is a brief overview of two programs we recommend to our clients:

Our Family Wizard is a paid program ($99.00 per parent, per year) that allows parents to upload and track expenses, communicate with one another via a messaging feature, and utilize a joint calendar for the children’s activities and appointments. For parents who are especially high-conflict, Our Family Wizard has additional tools that allow attorneys, parenting coordinators, therapists, and courts to log in and view certain information that is shared between the parents.

2houses is a free program with many of the same features as Our Family Wizard. 2houses also offers spousal support tracking features, a “wish list” that allows parents to upload photos of items they would like to purchase for the children, a journaling function to make notes after events such as parent-teacher conferences and doctor’s appointments, and an “Info Bank” area where parents can upload contacts, addresses and other information such as social security numbers and clothing sizes. 2houses also has an “Albums” area where parents can upload shared photos of the children.

We strongly encourage parents to utilize these free and low-cost technology tools to make a difficult time less challenging and to ensure optimal communication for your children’s best interests.

What is a Divorce Restraining Order?

Fri, 27 Feb 2015 16:58:00 GMT

When a party files for divorce in most Ohio counties, the Court will automatically issue a Temporary Restraining Order (“TRO”) that prohibits either spouse from taking certain actions while the case is pending in Court. The Court issues these orders as a matter of course, without a specific request by the parties, to ensure that the status quo is not changed unilaterally by either spouse.

Temporary restraining orders can vary from county to county so it is imperative that you review the specific order issued by the Court where your case is pending. Typically, these restraining orders include the following prohibitions: removing children from the county where they reside at the time of filing for purposes of establishing a residence, selling or otherwise disposing of property owned by the parties, changing or canceling insurance of any kind (life, health, car, etc.), withdrawing funds from any retirement or investment accounts, or incurring debt in joint names. Even with these specified prohibitions, the parties are able to continue using marital funds, so long as the use is consistent with the practices of the parties during the marriage.

In most counties the restraining order is issued against both spouses simultaneously. It may be necessary to request additional restraining orders that are not included in the automatic orders issued by the Court. In that case, it is necessary to file a motion and affidavit supporting the request. Examples of this would be very specific to the case, such as a concern that a party would change school enrollment for a child, or purchase a new vehicle. The Court may be able to issue the orders without a hearing, However, some requests will require a hearing and the submission of evidence.

It is usually unlikely for a Court to order a temporary restraining which requires a party to move out of the residence. You should review the Court’s local rules regarding exclusive use of a residence to determine your county’s procedures. In Hamilton County, exclusive occupancy of a residence must be accomplished through other means, and is permitted only in extreme circumstances, such as a domestic violence.

The temporary restraining orders issued automatically in divorce actions should be distinguished from Civil Protection Orders and Temporary Protection Orders that are issued in the cases of domestic violence. These orders are issued after a party alleges domestic violence and the Court determines that the order is necessary to prevent further abuse. These orders if violated have criminal implications. If a party violates a restraining order issued in a divorce proceeding, they can be held in contempt of court with penalties that include fines, the payment of the other parties’ attorney fees, and/or, a 30 day jail sentence.

How to Obtain Exclusive Occupancy of the Marital Residence

Wed, 07 Jan 2015 18:48:00 GMT

How is Spousal Support Determined in Ohio?

Mon, 15 Dec 2014 13:51:00 GMT

There is no formula for the calculation of spousal support (formerly known as “alimony”) in Ohio. Spousal support is determined on a case-by-case basis after a consideration of several factors set forth in Ohio Revised Code Section 3105.18. Spousal support is not appropriate in every case, and is most commonly awarded in marriages of significant duration where there is a large disparity in incomes between the spouses. However, there are many other factors that go into the determination of an award of spousal support.

The statutory factors in determining an award of spousal support are (1) the income of both parties; (2) the earning capacities of both parties, as compared to one another; (3) the age, physical, mental, and emotional health of each party; (4) the retirement benefits available to each party; (5) the duration of the marriage; (6) whether it would be appropriate for the party receiving support to seek employment outside of the home, based upon that party’s duties to care for the minor children of the marriage; (7) the standard of living the parties established during their marriage; (8) the education level of each party; (9) the assets and debts of each party, including court-ordered payments like child support; (10) whether either party contributed to the training, education or earning ability of the other party, including contribution toward the acquisition of a professional degree of the other party; (11) the time and expense necessary for the party seeking support to obtain proper training and job experience to obtain appropriate employment to support his or herself; (12) tax consequences of the payment of spousal support; (13) lost income capacity of a party resulting from that party’s marital responsibilities; and (14) any other relevant factor.

Spousal support is not just a dollar figure paid each month. There are a few other key factors that make up a comprehensive agreement or order for spousal support. Specifically, the parties and their attorneys must consider under what terms the spousal support award will be modifiable. Common events justifying a modification of spousal support are involuntary loss of income and involuntary physical disability, among others. An order for spousal support must contain specific language stating the circumstances under which a court may modify an order in the future. If this language is not specifically included, courts have no statutory authority under which to review an award of spousal support after the entry of an order, even if the award no longer seems justified because of new circumstances.

The other necessary consideration is when support will terminate. In most cases, spousal support will terminate after a term of months or years, based on the length of the marriage. Only in very long term marriages (usually 25-30 years) does spousal support continue indefinitely. Certain events will trigger a termination of spousal support before the conclusion of the term of months or years specified in the order. These events typically include the remarriage or of the party receiving support, the death of the party receiving support, and the death of the party paying support. Cohabitation (with a new partner, in a marriage-like relationship) may cause the spousal support to terminate or be subject to modification.

There have been many efforts to create a formula for the determination of spousal support, to provide greater predictability for litigants and more uniformity among the courts in Ohio. These efforts however have not been successful, largely due to the desire of judges to maintain the right to make decisions based on individual circumstances. Rules of thumb are often discussed but cannot be relied upon. In fact, it is commonly stated by family law attorneys that spousal support is the least predictable issue in any case.

How is Child Support Calculated in Ohio?

Wed, 22 Oct 2014 14:52:00 GMT

In Ohio, child support is calculated according to a formula written into state law. That formula combines the Father’s and Mother’s gross income. Each parent is allowed certain deductions from gross income. For example, local income tax paid, child support for other children, or spousal support paid or received. The adjusted gross income is then applied to a chart which identifies the amount of support required to raise children in their parent’s income category. The paying parent will pay his or her prorated share of the charted amount. The child support calculation will also make adjustments if there is private health insurance being paid for the children and/or work related childcare. This final figure is the calculation of guideline child support and is presumed to be the correct amount of child support.

The guideline child support calculation can be reduced if the Court determines that it is not in the child’s best interest after reviewing specific facts of the case. These factors are called “deviation factors” and must be considered by Court when examining the appropriateness of guideline child support. There are 16 deviation factors and a catchall factor that allows the Court to consider anything relevant when making a determination to reduce the child support order. Common deviation factors include a consideration of the amount of time the children are spending with each parent, additional costs incurred by a parent for the children, or extraordinary travel expenses. This is a very subjective determination by the court.

The Court also has the authority to establish a child support order which exceeds the guidelines – meaning a child support order that is higher than provided by chart in the statute. The chart which identifies the amount of support required to raise children only includes combined parental income up to $150,000 per year. Therefore, if parents earn more than $150,000 in combined income the Court must determine, on a case by case basis, whether the guideline calculation is appropriate or if the child support obligation should be increased to meet the needs of these specific children and lifestyle. The Court will consider the needs and standard of living of the children who are the subject of the child support order and of the parents.

When a court is asked to determine child support, the court may also determine which parent is permitted to claim a child as a dependent for tax purposes.

A court has the authority to order an allocation of certain expenses for the children for things such as tuition and activities. In all cases, a court will determine how uncovered medical expenses for children should be shared between parents.

What is the Difference Between Sole Custody and Shared Parenting?

Wed, 15 Oct 2014 20:36:00 GMT

In a divorce or dissolution involving minor children, or in the case of unmarried parents, the parties or the court must make a determination regarding the custody of the minor children. Custody can be allocated in two ways. First, one parent can be designated as the sole residential parent and legal custodian of the children. In this scenario, the custodial parent retains the right to make all major decisions regarding the children, including but not limited to educational, medical, religious and disciplinary issues. The non-custodial parent is still entitled to parenting time with the children, including regular parenting time, holidays and vacation time. Additionally the non-custodial parent is entitled to equal access to the children’s school and medical records.

The alternative option is Shared Parenting. Under a Shared Parenting Plan, both parents are designated as the legal custodian and residential parents of the children. The most important factor to understand about Shared Parenting is that both parents must jointly make all major decisions regarding the children, including but not limited to educational, medical, religious, disciplinary, etc., unless otherwise stated in the parties’ Shared Parenting Plan. When the parents have shared parenting, the children are permitted to attend school in either parent’s school district. If the parties are unable to reach a consensus on any matter regarding their children, prior to seeking an order from the court, they must attend mediation in order to attempt to resolve the matter. A Shared Parenting Plan requires that both parents communicate and cooperate together to address their children’s needs. For the most part, shared parenting is favored in Ohio. This preference stems from the belief that it is better for the minor children if both parents are involved in raising them. However, there are cases where shared parenting is not appropriate. For example, if there is a history of one parent of substance abuse or if there is a history of domestic violence, shared parenting may not be appropriate. However, each determination is made on a case by case basis.

A common misconception about Shared Parenting is that it automatically entitles each parent to an equal division of parenting time. Rather, the allocation of parenting time varies in each particular case and is not dictated by the custodial designation. A non-residential parent may have 50/50 parenting time, and a parent in a Shared Parenting Plan, may have parenting time every other weekend or vice versa. The differentiating factor between the two options is how decisions regarding the children are made.

Another misconception is that if parties have Shared Parenting, neither parent will pay child support. However, this is not accurate either. Rather, as explained in another blog post, child support is determined on a case by case basis and is not determined solely by the custodial designation.

Marital Property, Separate Property and Mixed Property Explained

Wed, 08 Oct 2014 19:18:00 GMT

In a divorce or a dissolution, Ohio law provides that the court must order an equitable division of all marital property or debt. Generally, property or debt acquired by either party during the marriage is deemed “marital”. This includes any property acquired during the marriage, regardless of which party’s income was used to purchase that property. Retirement benefits, household goods, cars and investments are marital property and this is true even if these assets are not tiled jointly. However, certain property can be deemed one party’s separate, otherwise called non-marital property. Separate property can include property that either party owned prior to the marriage, received as a gift or inheritance, or purchased with funds that the party had prior to the marriage or received as an inheritance or gift. Separate property will not be included in the overall division of property, but rather will be awarded to one party....

The post Cincinnati Family Law & Divorce Blog: Marital Property, Separate Property and Mixed Property Explained appeared first on Beth Silverman & Associates .

Should I Negotiate On My Own With My Spouse?

Wed, 01 Oct 2014 19:17:00 GMT

Attorneys are placed in a difficult position in answering a client’s question about negotiating on their own with their spouse. On the one hand, we want our clients to make their own choices and, contrary to popular perception, don’t want clients to incur legal fees unnecessarily. On the other hand, we cringe when we hear that a client has reached an agreement with their spouse without understanding their legal rights or the significance of the decision. A problem arises when a couple has done their own negotiation and then brings that agreement to their respective attorneys. Once the clients receive legal advice, if they no longer want to abide by their earlier agreement, it can create a large obstacle to further settlement discussions. Rightly so, one party may have felt the right to rely on the other person’s representation and will invariably mistrust a lawyer who has dissuaded their client...

The post Cincinnati Family Law & Divorce Blog: Should I Negotiate On My Own With My Spouse? appeared first on Beth Silverman & Associates .