Tag Archives: child visitation in Ohio
Can the Child choose which Parent they want to live with in Ohio?
It is one of the most common myths that people maintain when it comes to child custody: Once a child reaches a certain age, that child can choose which parent to live with, right? Well, that is actually incorrect. However, this myth is based in history and actually grounded is truth. Under former Ohio law, once a child attained the age of 12 years old,
that child had the power to choose which parent was to be deemed the residential parent and legal custodian of that child. However, under current Ohio law, minor children no longer have the ability to choose which parent they want to live with on a permanent basis. In other words, when the Court issues its final divorce decree which, among other things, allocates parental rights and responsibilities, it is not the child that determines which parent is to be the residential parent, even if that child is a teenager. Ohio law treats a 14 year old in the same manner as a 4 year old when it comes to determining which parent with be designated as the residential parent. And, like almost all issues involving minor children, the determination is guided by what is in the “best interest of the child”.
So, divorcing parents, remember that your child will not be choosing for or against you when it comes to custody issues. Rather, the Court will decide and you need to focus your energy on convincing the Court that it would be in the best interest of the child to live with you … do not work on convincing the child that he or she should choose you. Which, in truth, is not fair to the child anyway.
Dividing Pension & Retirement Benefits in Ohio Divorce – Part 1
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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Can a child get SSI in Ohio?
Can a Child Qualify for Social Security Disability Benefits?
Many parents and guardians with children under the age of 18 wonder whether their children could qualify for Social Security disability benefits. Disabled children under the age of 18 can qualify for benefits under the Supplemental Security Income (“SSI”) program, which is administered by the Social Security Administration, depending on the nature of their disabilities, on their income, and on the resources available to them. According to 42 U.S.C. § 1382c(a)(3)(C)(i), a child under the age of 18 is disabled if the child “has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” In simpler language, a “disability” for purposes of SSI benefits must be a very serious medical condition that will last for at least one year. For example, a child who suffers from partial or total paralysis, or from mental retardation, could qualify for SSI benefits. A child with a broken leg, however, would likely not qualify.
In addition to satisfying the definition of “disabled,” a child may not earn more than a certain amount from employment. 42 U.S.C. § 1382c(a)(3)(C)(ii) states that a child under the age of 18 who “engages in substantial gainful activity” does not satisfy the definition of “disabled.” This means that a child who is employed and who earns more than $1,000.00 per month from employment would not qualify for SSI benefits in 2011 (the limit on a child’s total monthly income changes every year). At the same time, a child who is unemployed, or who is employed but earns less than $1,000.00 per month, could qualify.
Further, a determination of a child’s eligibility for SSI benefits also involves the income of the child’s parents or guardians. This part of the eligibility determination can be relatively complicated, but in short, a child whose parents or guardians could be described as among the working poor would probably qualify, whereas a child whose parents could be described as among the middle or upper class would probably not qualify (or would qualify for only minimal benefits).
Normally, a determination of eligibility can take three to five months. Children with certain conditions, however, can qualify for immediate benefit payments while the determination is pending. Examples of conditions that would qualify a child to receive immediate payments include cerebral palsy, Down syndrome, HIV infection, muscular dystrophy, total blindness and total deafness.
Although the Social Security Administration publishes a number of self-help guides regarding the eligibility of children for SSI benefits, the process of applying for SSI benefits can be complex. If you have questions about whether your child could be eligible to receive benefits, then you should consider a free consultation with an attorney focusing in Social Security law.
Posted in Social Security SSD/SSI
Tagged can a child get ssdi?, can a child get ssi, xenia ssi child
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Are Gay and Lesbian Couples Disadvantaged When Seeking Custody in Ohio?
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 t
he 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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Posted in Family Law
Tagged bi-sexual, gay, gay adoption, gay custody, gay parents, homosexual, lesbian
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Interim custody, attorney fees, spousal, and child support while a divorce case is pending in an Ohio Court
It is often the case that a couple that is going through a divorce has one of the spouses move out of the home, leaving the other spouse with primary custody of the children. The vacating spouse is often the breadwinner of the home, however (after all, he or she has the funds to rent an apartment during the course of the divorce action). This can leave the remaining spouse in the home with the children and no source of (or not enough) income to continue to run the household and properly care for the children. So, what is that spouse to do? One answer is to file a motion with the court requesting that the other spouse be required to pay monthly child support until the final divorce decree is filed with the court.
This temporary child support is but one example of “interim orders” that the court is empowered to issue while the divorce case is proceeding through litigation and until there is a final resolution to the case. Other interim orders that the court may grant include: (1) Temporary spousal support; (2) award one spouse sole occupancy of the marital residence; (3) award interim attorney fees for one of the spouse to be paid by the other spouse, among others. Therefore, when you speak with your attorney, be sure to bring up all financial concerns that you may have with filing for divorce and there may be a remedy available.
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