Category Archives: Family Law
YOU WILL NEED A WITNESS IF YOU ARE THE PLAINTIFF IN AN OHIO DIVORCE ACTION: If you are the Plaintiff in Montgomery, Greene, Clark, or Warren County Ohio (filing for divorce first), you will need to have at least one Witness with you at the final divorce hearing that can corroborate your testimony, whether or not the case is contested or not. Under Ohio law, the legislature has made a policy decision that all testimony related to the grounds for a divorce must be corroborated by another witness.
The can be anyone that knows you (friend, mother, brother, sister, etc). You will need to provide the full name, address and relationship to you of the person that will be your witness. The person may or may not have to testify about personal matters of your marriage, depending on whether the divorce is “contested” or “uncontested.”
If the case is uncontested and you are seeking a divorce based upon the ground(s) of incompatibility and/or living separate and apart for more than one year, the witness will simply have to testify that you and your spouse are incompatible and/or have been living separate and apart for more than one year. If the ground(s) for divorce include adultery, extreme cruelty, gross neglect of duty, etc., then obviously the witness will have to testify to more personal marital matters of which they have personal knowledge.
DIFFERENCE BETWEEN A CONTESTED AND AN UNCONTESTED DIVORCE IN OHIO: INCLUDING MONTGOMERY, WARREN, AND GREENE COUNTY:
A contested Divorce is one where the Defendant files an Answer to the complaint for divorce. The Defendant could also file a counterclaim for divorce along with the Answer. An uncontested divorce is one where the Defendant does not file an Answer to the Complaint or enter an appearance in the case at all. If the case is uncontested, you will only need to appear in court one time for the final “merits” hearing or “final trial.”
If the Defendant files an Answer to the Complaint (or Answer and Counterclaim) and the matter becomes contested, the case will be moved to the “contested docket” and there will now be multiple court appearances. The court will schedule (1) a pre-trial at the court and (2) the final trial.
The pre-trial is where both parties and their respective counsel meet with the judge in his or her chambers in order to discuss the particulars of the case (what is being disputed, what the parties are in agreement as to, whether the case is likely to settle, what issues will be litigated, etc.). The pre-trial is not conducted in the courtroom or on the record, but is more of an informal meeting.
After the pre-trial is concluded, the parties will usually continue to negotiate a settlement of the case, often based upon feedback from the judge as to how to resolve the remaining disputed matters. If the parties do come to an agreement as to all issues, the final trial will consist simply of the parties agreeing on the record that the court has jurisdiction and that each voluntarily entered into the proposed agreement, that each find it fair and equitable, and that each is requesting the court adopt the agreement as part of the final decree of divorce.
If the parties are unable to reach an agreement as to all issues (say, for instance, the parties cannot agree on child custody or the amount and duration of spousal support) then all remaining disputed issues will have to be litigated at the final trial. Both parties will be able to call witnesses and introduce other forms of evidence, such as school records, medical records, etc. in an effort to prove he or she should prevail on the disputed issue(s). Divorce trials are normally scheduled for an entire day, but depending on how much testimony will be taken on the record, the case could last for several days.
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Often, people want to know whether they can leave the state with their child during or after a divorce. Like many answers to legal questions, a good attorney will tell the client, “it depends.” Here is a very brief overview of the law and considerations.
Prior to the Divorce Process
If the two parents are still married and there has not been a complaint for divorce filed in any court of this state, Ohio law states that parents stand on equal footing as to custody of the children, and that both parents are considered the residential and legal custodian of the children. This means that yes, technically, there is no crime involved for taking the children and moving to another state. As a legal custodian, the parent that wants to move certainly can determine where and with whom the child shall reside.
However, it should be noted that while a parent that is the legal custodian of the children can move and relocate with his or her children, this fact may in fact impact a court’s later determination on how to allocate parental rights and responsibilities (custody and parenting time/visitation). Some of the factors that a court is to consider is whether a parent is or is planning to establish a residence outside of Ohio, whether a parent is more likely than the other to facilitate and promote visitation, and finally, whether the other parent has been guilty of parental kidnapping. Please note that although no criminal charges will follow, taking the children out of state may be considered “parental kidnapping.”
During the Divorce Process
When the parents are not yet divorced, but a complaint for divorce has actually been filed in an Ohio court, there still has not been a FINAL allocation of parental rights and responsibilities. However, unless the parents are still residing in the same household, the Court will issue temporary orders as to custody and visitation. The Court will normally award one parent the interim temporary custody of the children during the pendency of the case. If the parent that was not designated as the temporary custodian takes the children, then that parent will be guilty of contempt of court for violating a valid court order.
Furthermore, it is very common and routine for both parents to seek and obtain temporary restraining orders during the pendency of the case. Normally these restraining orders prohibit a parent from removing the children from the state of Ohio, except for vacations of 14 days or less. Again, if the non-residential (temporary) custodian removes the children to another state, that parent will be in violation of a valid court order.
If a parent believes it is necessary to move to another state, that parent will have to file a motion requesting the court allow that parent to do so.
Again, this is a very brief sketch as to this subject and it cannot be urged strongly enough that any parent that wants to move out of Ohio consult an attorney to ensure that it will not negatively impact that parent’s case for custody or subject him or her to civil or criminal penalties.
Gay and lesbian couples are often concerned that their “non-traditional family” will be a disadvantage in custody decisions. While technically this issue is never to be determinative of custody disputes, lest the Court violate the Equal Protection Clause, many gay and lesbian couples feel that their sexual orientation played a role in the ultimate disposition of the Court. Putting aside potential biases of certain judges, there is at least one case that seems to lend credence to those concerns. In 2008, the Second Appellant District in Clark County decided a case by the name of Page v. Page in which the Court specifically stated that a homosexual relationship of a mother caused adverse affects to the minor children and warranted a change of custody from that mother to the father. The facts of that case can be summarized as follows:
Four years after the mother was designated the residential parent of both children, the father filed a motion to modify the allocation of parental rights and responsibilities. The common pleas trial Court granted the father’s motion and awarded him custody. The appellate court held that the common pleas court did not err in finding that a change of circumstances occurred as there was evidence that, as a collateral result of the mother’s relationship with her same-sex partner, both children had experienced personality disorders, and therefore, modification of custody was in the children’s best interest. The court determined that the adverse collateral effects of the mother’s relationship with her partner and the partner’s role in the children’s lives showed little room for improvement in the future.
While the Court was careful to say that it was not basing its decision on the simple fact that the mother was a lesbian, but rather the collateral affects that her relationship had on the children, it should give pause to the gay and lesbian couples fighting for custody. This is something to keep an eye on in the future as more and more gay and lesbian couples fight for custody of one of the partner’s minor children.
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In the first installment of what is planned to be a series on dividing retirement / pension benefits during a divorce settlement, we look briefly at the common questions of dividing retirement and pension plans between spouses. The parties’ retirement benefits is an important consideration when equitably dividing marital property, because, like the marital residence, retirement benefits are often the largest asset or assets of the parties. Therefore, dividing these plans or funds becomes enormously important. So, let’s now address some common questions.
Is my retirement / pension considered marital property?
As the intro gave away: yes. Just as with any other asset of value that is acquired during the marriage, generally, retirement benefits accrued during the marriage are considered to be “marital assets” and must be divided equally between the parties. If a spouse is working during the marriage and this results in the accrual of retirement benefits, the law sees it as if the non-working spouse contributed equally to the creation of those benefits.
This frequently makes it difficult for a court to carry out its statutory mandate of dividing all marital property equally. Technically, the non-working spouse is entitled to at least a portion of the employed-spouse’s pension fund (as marital property), but the money may not be easily accessible at the time of divorce. Because courts like to maximize the value of all retirement and pension funds, it is normally preferable to avoid causing the withdrawal of the accrued monies, and leave the fund growing in the name of the working spouse. Fees, penalties and taxes can often destroy a pension that is withdrawn when it is not fully matured. But, the problem is that sometimes there simply isn’t other marital property to award to the other (non-earning) spouse at the time of the divorce that will adequately compensate that spouse for his or her rightful portion of a retirement fund. For this reason, valuing and dividing retirement benefits should be one of the first issues contemplated by a divorcing party.
Is it true that my spouse is entitled to half of my pension?
No. Not always. Only the portion of the retirement fund that was contributed to or earned during the marriage is considered “marital property” and subject to division between the parties. The portion of the retirement fund that was earned by the working spouse while unmarried is considered that party’s separate property and the other spouse has no interest in that money. Therefore, the first step is to determine what portion of the retirement fund is marital and what portion is separate property.
How do you value the portion of the retirement fund that is considered “marital”?
In determining the portion of a pension or retirement plan that is considered a “marital asset” and subject to division between the parties, the court should calculate the ratio of the number of years the employed-spouse worked during the marriage to the total number of years he or she worked at the qualifying employment to earn the pension. Only the portion of the pension that was earned during the marriage is a marital asset, and the spouse of the employee is only entitled to a proportionate share of the marital asset.
Example – Employed spouse works 25 years to earn a vested pension of $100,000. 10 of these years were worked during the marriage. This equates to a 40% ratio, and only $40,000 of the pension is a martial asset. Because the division of marital property always begins with an equal division, the non-employed spouse would typically be entitled to $20,000 in this scenario.
Now, assuming the court doesn’t want to destroy the fund if it would be better for the employed spouse to contribute for 30 years, you see where it could be difficult to off-set this amount with other marital property? How many couples have $20,000 (in liquid form, moreover) lying around to award the other spouse his or her fair share of this fund at the point of divorce?
Are Social Security Benefits Divided?
No. Not directly, anyway. Social security retirement benefits are not considered marital assets to be divided when a couple divorces. A court cannot distribute a portion of one spouse’s SS benefits to the other spouse directly. However, the court does consider the SS benefits when making an equitable division of retirement benefits overall – See Smith v. Smith (1993, Franklin Co) 632 N.E.2d 555 (“while not divisible as a marital asset, SS benefits must be considered when equitably dividing pension benefits”).
Are State and federal retirement plans treated differently?
Yes. The law related to state and federal retirement plans will be the subject of a later post. There are specific rules that govern certain public-forms of pensions, such as military pensions, State pension plans (e.g., PERS) and deferred compensation plans. Those forms of retirement benefits are impacted by specific federal and state statutes that must be consulted where applicable.
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