tag:blogger.com,1999:blog-1870754369884822712024-03-08T05:54:46.060-05:00Musings, Legal Ease and other stuff on Family LawThoughts from a family law attorney. This blog does not provide legal advice. Before applying anything you have learned here to a specific legal problem, you are urged to seek advice from an attorney.Unknownnoreply@blogger.comBlogger20125tag:blogger.com,1999:blog-187075436988482271.post-68840933403344074682021-01-15T20:47:00.005-05:002021-01-15T20:48:13.495-05:00Tough times<p> These are tough times for all of us. That stuff going on in Washington, DC, used to stay in DC. Now it is at our front door. With Covid and the attacks on democracy, it is no wonder we're all stressed out. But be kind took one another, try to bring peace to the things you can control. Like your relationships with your kids. Try to tamp down the stress on them and those around you. Stay safe! Stay well!</p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-19328079212163390002013-07-31T12:15:00.002-04:002013-07-31T12:38:44.068-04:00Taking your children through the divorce processNo, I don't mean divorcing your children, although I am sure that sometimes that is tempting.<br />
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But it is a challenge to get a divorce, deal with the change in your family set-up, and dealing with the changes that the children are going through.<br />
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I came across this really good advice, and thought I should share it with you:<br />
<a href="http://movingpastdivorce.com/2013/07/how-to-prevent-scarring-your-kids-during-and-after-divorce/">http://movingpastdivorce.com/2013/07/how-to-prevent-scarring-your-kids-during-and-after-divorce/</a><br />
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I especially like the advice about making sure the children understand that they are not to be blamed for the divorce.<br />
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The only thing I would add is that you need to reassure the children that you both still love them and that you will both make sure that they are cared for. Don't make specific promises, because it is unlikely that you will be able to deliver on them. Don't promise that they will stay in the house, or school district, or that visitation will be set up a certain way. Even if you and your spouse do not see eye to eye, you can certainly tell them that you both love them and that you will make sure they are cared for. That is all they need to know.<br />
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I always tell parents that when children ask about the divorce, they just want to know the general concepts. Yes, we are getting a divorce. Yes, there will be changes, but we both love you and you will be taken care of. Other than that, they probably do not really want to know if someone had an affair or what the current financial picture is. If they are asking that, someone may have put them up to that. I always tell parents to respond by saying that those are adult issues and that you and your spouse (or in post-decree cases, former spouse) will be taking care of those matters. If you are arguing, you can admit that you do not agree on everything, but do not include the details of the argument. Overall, most parents report to me that the children are satisfied with this answer. If not, you might want to consider counseling, since there is a concern that the child or children are being too involved in this process.<br />
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This is probably one of the most difficult issues with respect to divorce, followed by dealing with the financial fallout. Hopefully this article is helpful.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-22949821697155566522013-01-29T17:08:00.001-05:002013-01-29T17:08:22.533-05:00Being flexibleHow do some parents end up in court with a holy war, while others just drop in to finalize paperwork and then get on with there lives? There are probably a fair number of cases that deserve to be fought out, either because one parent or the other has taken a truly untenable position. However, there are so many cases that are in Court and really shouldn't be. My observation is that this comes down most frequently to flexibility. And by flexibility, I am not referring to being flexible about a schedule. I am referring to thinking in a flexible way. For example, it is Friday at 6:00 and you are waiting for the other parent to pick up the kids. You have, appropriately, made other plans for 6:30, so you are anxious because there is no other parent in sight at this point. When the other parent shows up at 6:15, you are upset, maybe even angry, because you did not get a call and you are going to be late. This is a big deal, and how come the other parent doesn't get it. As any attorney will tell you, there is always another side to the story. Maybe the delay was caused by work, a sick spouse, a jealous spouse, a family situation, or just forgetting the time. Maybe a call wasn't made because it was known that the reaction would only be hostile, and why put up with that on the phone as well as in person. That's two times. Just go for the one big blow up. <br />
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In this case, both parents are more concerned about their own personal situations, and not the other party. How to solve this? Parents just have to be flexible in their thinking. Give the other person a chance. Yes, it is rude to not call, and, yes, you should explain to the other parent that not calling is upsetting, but do so calmly. Yes, the anger builds up when there is no communication, but maybe you need to own up to the problem, especially if you are chronically late, and suggest a schedule that works.<br />
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The problem is that people get stuck in a relationship and do not understand that things have and will change. Once you are no longer together as a couple, you will have many forces pulling on you that really make things difficult. Taking a little time to understand that this is happening to the other party, too, will go a long way. One of you has probably been the one to be primarily responsible for the children. There is a learning curve. But let me ask you this. If you child was late and did not call, would you be angry or would you be worried? Why? Why a different reaction? Probably because you care about your child. If you child were chronically late, would you just yell and him or her every time, or would you try to get to the root of the problem.<br />
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And finally, what do you think your children are observing? They aren't watching a drama play out and then rooting for the good guy, which you probably presume is you. They are looking at both of you and saying, oh, so that's how adults communicate with each other when they are mad at each other. You should overhear some of the things that children say about parents who are in conflict constantly. Most of them do not understand why there is conflict, nor do they want to. And they do not want to take sides. They just want peace. Give them peace. Be flexible. Try to approach each problem with a willingness to understand and resolve the problem. Utilize a counselor if that will help. Or a mediator. Maybe this could lead to fewer court cases! Or at least fewer protracted court cases! Bad for lawyers! But good for kids!<br />
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What are some of your thoughts or experiences with this?Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-76449199416950044492011-11-12T11:42:00.001-05:002011-11-12T12:03:32.525-05:00Talking to the other parent, Part IIOkay, I realize that I have strongly encouraged parents to talk to each other about their children. I know that good co-parenting happens when there is open communication.<br />
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However, the other day I witnessed a very sad situation.<br />
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We were out to eat at an Arby's after watching our Hartley Hawks win the semifinals for the State Championship in volleyball. We were elated but tired, wanted a quick meal and then planned to head home. After placing our order, we headed to a booth away from the crowd. When I sat down, I noticed a young man, about 13 years old, very tall and slim, sitting next to his dad in another booth. He was looking longingly at his father, who was on the cell phone having a very intense conversation. It was not angry or hostile, just intense. It seemed to involve a scheduling issue. Eventually it became clear that he was on the phone with the child's mother, discussing scheduling issues for the next week. It was the usual scheduling things that most parents deal with when you have teenagers who are very involved in activities but can't drive yet. I know, from listening to his side of the conversation, that the son had to be picked up from school at a different time every day and these two parents were trying to juggle a somewhat difficult schedule. Okay, hurray! They were actually communicating and figuring things out. And then little things, little angry things, got sprinkled into the conversation. He said, "I can't just take off from work like that," and "she works full-time, too," and "next time, try to give me more notice." Okay, these are legitimate concerns. After nearly 30 minutes on the phone, he flipped the phone shut and turned to his son to say, "We have to go. I have to have you home in a half hour." Ah, ha! My suspicions were confirmed. This was that famous mid-week three hour visitation in the flesh! And then I thought, how sad this is. Yes, the parents are talking. Yes, they seem to be working things out. But this was the son's time to talk to his dad, not to listen to his parents talking about his schedule. Fortunately the slight show of anger did not escalate (probably because the son was sitting right there) but it was clear that it could. So, why did they have to have this conversation right now? Why not drop off the son, and then call after mom has had time to talk to him a little bit and send him off to bed? I don't know who initiated the call, but if it was the mom, shame on her for imposing on her son's time to visit with his father. If it was the dad, shame on him for wasting his precious time with his son on this conversation. Was the conversation urgent? Of course it was, but not so urgent that it couldn't be handled later in the evening.<br />
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And maybe this is the problem with cell phones. Everyone is so accessible, it is ridiculous. You just push a button on your phone, and you are able to rouse up a friend instantly. Why wait until later to find out something when you can call right now? And people feel so compelled to answer the phone when it rings. Very few people are able to ignore a call. I am sure that everyone has experienced having someone tell you to hold that thought while they respond to the phone. Even if they decide to not respond, it is still an annoying distraction.<br />
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So, yes, please talk to the other parent. But when you are having a special time with your son (or parent or sibling or friend) seriously consider turning the phone off so that it does not distract you and you are not distracted by the compulsion to call someone. If your child brings up something that raises some questions for you, and you want to talk to the other parent about it, good for you, but make a mental note to call <i style="font-weight: bold;">later</i>. Believe me, without distractions, your time with your child will probably result in learning more about him or her than you will ever learn with the constant interruptions. After all, this may be your parenting time, but for your child it is time to spend with a parent, and maybe the child has something on her or his mind that needs to be communcated without interruption. So, keep talking to the other parent, but do so when it is not trampling on your special parent-child time.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-38651549723125767652011-03-08T14:31:00.000-05:002011-03-08T14:31:15.840-05:00Talking to the other parentA friend of mine did a very thoughtful blog, in which he suggested that we have parents refer to one another as the co-parent rather than the ex. Nate Riggs had some very good insight into this issue: <a href="http://nateriggs.com/2011/01/23/the-thing-about-ex/">http://nateriggs.com/2011/01/23/the-thing-about-ex/</a> Nate is a very smart guy and has some excellent insight into the situation. Also, I recommend you follow him if you are interested in learning about marketing and social media.<br />
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So I have really been thinking about this idea lately as I try to help clients navigate the difficult waters of custody and visitation. So today, when I was grabbing lunch at my favorite Subway, I was nearly brought to tears as the man sitting at the table across from me got into a very hostile confrontation over the phone with what is to apparently be his ex-wife. I felt bad for him, because I think he originally called just to confirm or change a pick up time for the kids, and he was probably not expecting this battle. But the whole thing escalated to the point that they seemed to be arguing over when to have the exchange for the children - 7:30 or 8:00. I couldn't believe it! He was saying, "I will do this," and "You will do that." I was afraid he was going to his something, as his face turned redder and redder. Obviously, communication was not going well. If I had known him, I would have tried to take his hand and give him a reassuring look to help him calm down. But then, as if he was suddenly aware that people could hear this going on, he stormed out of the place, but only to step out onto the sidewalk. We could still hear him, but could not make out the words. Then I thought, how can we change this system? And I realized we can only do it one step at a time. So I decided to pack out and head out to talk to him. I did not have very far to go, and he had just wrapped up the call. So I said to him, "I understand if you want to tell me to shut up, but I couldn't help from overhearing and I just wanted to share something with you." He was more than willing to listen. I told him about Nate's post, about co-parenting, and about saying things like "Can we exchange the kids?" instead of "I" will do this and "you" will do that. I told him that I was sure that they knew how to push each others buttons, which used to be a good thing, but now is a terrible thing. We chatted a bit about the situation. <br />
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After we parted, I felt hopeful that those kids might have a chance at having both of their parents parent them. The man seemed very sincere and earnest and really willing to try to make it work, but he was very frustrated because he could not get himself out of the pattern of the relationship he had with his wife, which was obviously not good. I still want to cry about this, but I am feeling hopeful.<br />
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What do you think? What do you think we need to do to change the system? How can we make this work and really start co-parenting practices in the best interests of the children? Let's get a dialogue going, shall we?Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-26766788256090408772010-04-21T11:13:00.000-04:002010-04-21T11:13:56.620-04:00My Musings on custody mattersI do a lot of custody cases where the parties are not married, and these can be the most difficult cases. With a divorce, the parties loved each other at one time, have developed a relationship, although it is obviously not healthy at the time of the divorce, but they are used to the idea of working as a partner with that particular person. The partnership may not be healthy, but the dynamics of a partnership are present.<br />
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In juvenile custody matters, the parties are typically not married, and likely had very little if any relationship to work on. Usually they were dating and they were boyfriend and girlfriend, but they were just having fun, not worrying about paying bills together, saving money together, planning a future together.<br />
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And then a baby comes along.<br />
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Now you have two independent people who have to carve out not only a relationship, but an unexpected relationships that is guaranteed to last at least 18 years, whether they can stand each other or not.<br />
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And this is where the ability to compromise becomes essential.<br />
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Of course, it is not appropriate for one parent to "compromise" by giving in to all of the demands of the other party, but it is important for the parties to figure out how to work together. <br />
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But there are so many barriers to this. For one thing, one or both of the parties may feel abandoned or ignored by the other party, or they just may feel embarrassed about the obvious - that they had a sexual relationship with that person and birth control failed or was not used.<br />
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Both parties are not used to the idea of partnering with another person to make important life changing decisions. Until the baby came along, they were deciding where to go to dinner or where to spend a vacation together. They were not trying to figure out how to clothe, feed and educate a child.<br />
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The new parents are also not used to the idea of deferring gratification for the benefit of another. Usually these parents are young and they are still being told that the future is whatever they want to make of it, that they have opportunities, that the world is their oyster.<br />
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These barriers can also serve as an impetus to change and grow. The future is still whatever you want to make of it, you just have to remember that your child needs to be part of that future. You can still reach out for your dreams, as long as your other hand is holding your child's hand tightly. The world is still your oyster, you just have to share it with your child. AND you have to keep the other parent involved as well with regard to issues involving your child.<br />
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This may not sound much like legal information, but these issues need to be addressed early on in an custody or paternity case, because the way we decide to handle this matter will impact everything about the child.<br />
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If the parents can figure out how to make shared parenting work, for example, then they are both assured of having full involvement in the raising of that child. If both parents have their own ideas of how the child should be raised and cannot reach a middle ground, there is a risk that they will always be competing and might even risk alienating the child from one or both of them. <br />
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Often a new parent will tell me all of their dreams for their child, and I am happy that they have dreams for their child, but I also know that the child is going to reach an age where the child is going to start having his or her own dreams, and as a parent we have to learn to nurture those dreams and let our child know that the future is whatever he or she makes of it and the world is his or her oyster. I usually don't say anything, though, because I think the new parent sitting in front of me will probably have to find that out on his or her own, much as I had to do.<br />
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In the meantime, legally, we have to make decisions, such as custody, visitation or shared parenting, that will have a long lasting impact on the relationship between these three people at a time where the parents are usually not ready and the child is a complete unknown. For example, it breaks my heart to have to remind the parents of an infant that we need have flexibility in a shared parenting plan because we do not know if the child will actually be able to attend a particular school that the parent wants guaranteed. Maybe that school won't work because a parent has to move outside of the school's district or the child won't be able to cut it or their might be a special need that the school cannot address. When you have an infant, you look at these comments as negative. Once you have raised a child, you understand that these challenges are all part of the joy of raising a child and you revel in the joy that you were able to guide your child through that difficult time so that your child was able to overcome those obstacles and strike out on his or her own.<br />
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And this probably explains why I love doing this work. Even when the parents are fighting, I know that this is just part of the process that can result in a win-win situation for the child. My goal is to help the client navigate to a position where the child is protected and my client-parent feels that he or she has a voice in making decisions for the child and in raising the child. This is usually a struggle, and sometimes is more of a struggle than other times, but it is a noble goal and I am happy that so many clients agree to let me be part of the mechanism that helps them get there.<br />
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Anyway, enough for musing. Back to work.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-21852271763766822292010-01-08T09:52:00.007-05:002010-01-08T10:10:55.412-05:00What Columbus CEO Monthly left out....<span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">I was recently quoted in Columbus CEO Monthly about special needs trusts for disabled adult children. While I appreciated the recognition, I was sad that so many of the things that I had raised were not included, so I thought I could include them here. </span></span><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"><br /></span></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">If you have a disabled adult child, there may be many services available to him or her that will help reduce the financial burden for you and give your child the independence that she or he needs and deserves. Your child may be eligible for SSI. You apply for this through the Social Security Administration, and you can do it on line by going to </span></span><a href="http://www.ssa.gov/"><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">http://www.ssa.gov/</span></span></a></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"><br /></span></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">If in Ohio, and maybe in other states as well, your child may be eligible for services through the local board of developmental disabilities. There is one for every county. The state web page for ohio is </span></span><a href="http://dodd.ohio.gov/"><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">http://dodd.ohio.gov/</span></span></a><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"> The list of county boards and other related links can be found at </span></span><a href="http://dodd.ohio.gov/contacts/countyboards1.htm"><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">http://dodd.ohio.gov/contacts/countyboards1.htm</span></span></a></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"><br /></span></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">With regard to support, keep in mind that if your child is disabled, then you may be entitled to receive long term child supp</span></span><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">ort indefinitely beyond the traditional age of 18 under the Castle case. The citation for that case is </span></span><span class="Apple-style-span" style=" color: rgb(51, 51, 51); line-height: 14px; "><b><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">Castle</span></span></b><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"> v. </span></span><b><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">Castle</span></span></b><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"> (1984), 15 Ohio St.3d 279 Here is a comprehensive article that explains it in great detail. </span></span><span class="Apple-style-span" style="color: rgb(0, 0, 0); line-height: normal; "><a href="http://www.divorcesource.com/research/dl/childsupport/97oct188.shtml"><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">http://www.divorcesource.c</span></span><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">om/research/dl/childsupport/97oct188.shtml</span></span></a></span></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"><br /></span></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">There are many more things that can be done with adult disabled children, but these resources are a great way to get started. In addition, as with any disability issue, it is a good idea to look at the Ohio State Legal Rights website to understand your legal rights. Here is the cite to that:</span></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">/</span></span><a href="http://olrs.ohio.gov/ASP/HomePage.asp"><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">http://olrs.ohio.gov/ASP/HomePage.asp</span></span></a></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;"><br /></span></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><span class="Apple-style-span" style="font-size: medium;">Hope some of this helps. As always, feel free to call me if you need more information.</span></span></div>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-187075436988482271.post-58374996512982117932009-12-04T12:43:00.003-05:002009-12-04T12:48:26.857-05:00Ohio Supreme Court caseI've been very busy lately getting ready for my Ohio Supreme Court oral argument, regarding whether the county board of developmental disability has the authority to intervene in a guardianship. While this may not sound like the most interesting case to you, it was very interesting to me. Here is a summary of the case from the Ohio Supreme Court website:<div><br /><div><a href="http://www.supremecourt.ohio.gov/PIO/oralArguments/09/1202/1202.asp">http://www.supremecourt.ohio.gov/PIO/oralArguments/09/1202/1202.asp</a><br /><div><br /></div><div>Here is the video of the oral argument:</div><div><br /></div><div><a href="http://www.ohiochannel.org/media_archives/supreme_court/media.cfm?file_id=123257&">http://www.ohiochannel.org/media_archives/supreme_court/media.cfm?file_id=123257&</a></div><div><br /></div><div>Comments welcomed.</div></div></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-66306245141671375482009-11-17T12:56:00.009-05:002009-11-17T13:34:08.472-05:00Shared Parenting - Not just about the time split - Basic factors to be considered.<span style="font-family:arial;">Often parents come to me filled with questions about shared parenting and, frequently, I find that their idea of shared parenting is to have a 50/50 split of time with the children. While this is the common idea of what shared parenting is, it is not the only way to have shared parenting.</span><br /><span style="font-family:arial;"></span><br /><span style="font-family:arial;">Shared parenting (in Ohio) is basically an agreement between the parents to write their own rules for how parenting time (often referred to as visitation) will be handled, but it can include so much more, including agreements on how to deal with the most fundamental decisions that go into raising a child. There is an Ohio statute that outlines the factors to be considered in developing a shared parenting plan. It is found in R.C. 3109.04. Click here for a link to that statute: </span><a href="http://codes.ohio.gov/orc/3109.04"><span style="font-family:arial;">http://codes.ohio.gov/orc/3109.04</span></a><span style="font-family:arial;"> It is a fairly lengthy statute, and can be difficult to walk through, so I am going to highlight the relevant portions here.</span><br /><span style="font-family:arial;"></span><br /><span style="font-family:arial;">Shared parenting is based on a plan that the parents propose. It can be a mutually agreed plan, or each party can propose a plan. Ultimately, the Court must approve the plan as being the the best interests of the child or children. The Court can also determine that shared parenting is not appropriate. The best part of shared parenting is that the parents get to set the rules for their children and not the Court. Usually, the parents are in the best position to know what is best for their children.</span><br /><span style="font-family:arial;"></span><br /><span style="font-family:arial;"> The best interests of the children is the standard for any allocation of parental rights and responsibilities, and these are all spelled out in the same statute. As you review these, scroll down and you will find the additional factors that are considered in shared parenting plans. If you feel that shared parenting is appropriate for your particular situation, there are many ways to approach this. If both parents can work together, they can formulate a plan, considering matters such as the child's schooling, religious upbringing and medical issues, and then have this reviewed by an attorney to put in proper format for the Court. If you cannot agree, you can still have your attorney propose a shared parenting plan, which can be adopted or modified by the Court, if appropriate. Be sure to review when shared parenting may not be appropriate and keep in mind that the Court is charged with the responsibility of determining what is in the child's best interests, regardless of what the agreement of the parties is. Also keep in mind that each separate Court may have its own rules or its own procedure when it comes to what is acceptable or not in a shared parenting plan. Now you know that shared parenting is much more than just a 50/50 split of time, and may not even include a 50/50 split of time. It is a plan for trying to meet the best interests of the child as a team, and when it works out, it can be a wonderful thing.</span><br /><br /> <blockquote><p> <em> (F)(1) In determining the best interest of a child pursuant to<br />this section, whether on an original decree allocating parental rights and<br />responsibilities for the care of children or a modification of a decree<br />allocating those rights and responsibilities, the court shall consider all<br />relevant factors, including, but not limited to: </em></p><em><p><br />(a) The wishes of the child's parents regarding the child's care;</p><p>(b) If the court has interviewed the child in chambers pursuant to<br />division (B) of this section regarding the child's wishes and concerns as to the<br />allocation of parental rights and responsibilities concerning the child, the<br />wishes and concerns of the child, as expressed to the court;</p><p> (c) The child's interaction and interrelationship with the child's<br />parents, siblings, and any other person who may significantly affect the child's<br />best interest; </p><p> (d) The child's adjustment to the child's home, school, and community; </p><p> (e) The mental and physical health of all persons involved in the situation;</p><p> (f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; </p><p> (g) Whether either parent has failed to make all child support payments,<br />including all arrearages, that are required of that parent pursuant to a child<br />support order under which that parent is an obligor;<br /> <br /> (h) Whether either parent or any member of the household of either parent<br />previously has been convicted of or pleaded guilty to any criminal offense<br />involving any act that resulted in a child being an abused child or a neglected<br />child; whether either parent, in a case in which a child has been adjudicated an<br />abused child or a neglected child, previously has been determined to be the<br />perpetrator of the abusive or neglectful act that is the basis of an<br />adjudication; whether either parent or any member of the household of either<br />parent previously has been convicted of or pleaded guilty to a violation of<br />section 2919.25 of the Revised Code or a sexually oriented offense involving a<br />victim who at the time of the commission of the offense was a member of the<br />family or household that is the subject of the current proceeding; whether<br />either parent or any member of the household of either parent previously has<br />been convicted of or pleaded guilty to any offense involving a victim who at the<br />time of the commission of the offense was a member of the family or household<br />that is the subject of the current proceeding and caused physical harm to the<br />victim in the commission of the offense; and whether there is reason to believe<br />that either parent has acted in a manner resulting in a child being an abused<br />child or a neglected child; </p><p> (i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court; </p><p> (j) Whether either parent has established a residence, or is planning to establish a<br />residence, ouside this state.<br /></p><p>(2) <span style="color:#6600cc;">In determining whether shared parenting</span> is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors<br />enumerated in division (F)(1) of this section, the factors enumerated in section<br />3119.23 of the Revised Code, and all of the following factors:<br /> <br /> (a) The ability of the parents to cooperate and make decisions jointly,<br />with respect to the children;<br /> (b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;<br /> (c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;<br /> (d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;<br /> (e) The recommendation of the guardian ad litem of the child, if the child has a<br />guardian ad litem.<br /></p><p>(3) When allocating parental rights and responsibilities for the care of children, the court shall not give preference to a parent because of that parent's financial status or condition. </p><blockquote></blockquote></em></blockquote>Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-187075436988482271.post-7321966720527563732009-07-22T11:09:00.009-04:002009-07-22T11:27:47.977-04:00Recent Ohio Case Law Update<p class="MsoNormal"><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;"><span class="Apple-style-span" style="font-size:medium;">Here are some recent </span><st1:state st="on"><st1:place st="on"><span class="Apple-style-span" style="font-size:medium;">Ohio</span></st1:place></st1:state><span class="Apple-style-span" style="font-size:medium;"> cases involving family law issues.</span><span><span class="Apple-style-span" style="font-size:medium;"> </span></span><span class="Apple-style-span" style="font-size:medium;">This is being provided as a service to you, and you are cautioned to consult with an attorney prior to applying these cases to your particular situation, as there may be several other factors that would have to be considered in analyzing your particular situation, including other Ohio cases that are not listed here.</span></span></i></p><p class="MsoNormal"><span class="Apple-style-span" style="font-family:Calibri;"><i>(Clicking on case name will take you to Casemaker link and you must have a password to access that. Clicking on the link will take you to the publicly available link.)</i></span></p> <p class="MsoNormal"><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal"><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal" style="margin-left:.35in;text-indent:-.2in;mso-list:l0 level1 lfo2; tab-stops:list .15in"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;"><span class="Apple-style-span" style="font-size:medium;">Tabatabai v. Tabatabai, 2009-Ohio-3139 (9</span><sup><span class="Apple-style-span" style="font-size:medium;">th</span></sup><span class="Apple-style-span" style="font-size:medium;"> District)</span><span class="Apple-style-span" style="font-size:medium;"><o:p></o:p></span></span></i></b></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2009/2009-ohio-3139.pdf"><span class="Apple-style-span" style="font-size:medium;">http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2009/2009-ohio-3139.pdf</span></a></span></o:p></span></i></b></p><p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2009/2009-ohio-3139.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">Trial court's award of a civil protection order against plaintiff's husband, entered on Form 10.01-I or other form approved by the Supreme Court of Ohio and signed by a magistrate and a judge, is a final appealable order under R.C. 3113.31(G); this decision overrules</span><span class="apple-converted-space"><span class="Apple-style-span" style="font-size:medium;"> </span></span><span><span class="Apple-style-span" style="font-size:medium;">Mills</span></span><span class="Apple-style-span" style="font-size:medium;">. In awarding a civil protection order against victim's husband, trial court did not err since it conducted an independent review of the magistrate's findings that husband threatened to kill victim, that he was violent and that he had a number of guns.</span></span></span></o:p></span></i></b></p> <p class="MsoNormal"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;color:black;"><span class="Apple-style-span" style="font-size:medium;">Curington v. Moon, 2009-Ohio-3013 (2nd District)</span></span></i></b></span></o:p></span></i></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style="font-family:Calibri;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3013.pdf"><span class="Apple-style-span" style="font-size:medium;">http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3013.pdf</span></a></span></o:p></span></i></b></p><p class="MsoNormal" style="text-indent:.35in"><b><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3013.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">Trial court's grant of civil stalking protection order was proper since R.C. 2903.211(A)(1) is not void for vagueness because statute contains a "knowingly" scienter requirement. Trial court’s grant of civil stalking protection order was proper where defendant's failure to provide hearing transcript triggered presumption of regularity in trial court's proceedings and there was no plain error; fact that municipal court had issued no-contact order as part of defendant's conviction of telephone harassment did not require its being afforded jurisdictional priority, since criminal prosecutions for menacing by stalking and civil stalking protection orders are not mutually exclusive remedies, and actions that may have been subject of prior convictions may be used to prove menacing by stalking for civil protection order, R.C. 2903.211(D)(1).</span></span></span></o:p></span></i></b></p> <p class="MsoNormal"><i><span style="font-family:Calibri;mso-bidi- font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal" style="margin-left:.35in;text-indent:-.2in;mso-list:l1 level1 lfo1; tab-stops:list .15in"><span style=" font-family:Wingdings;mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family: Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-3010"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Amlin v. Amlin, 2009-Ohio-3010 (2nd District)</span></span></a><span class="Apple-style-span" style="font-size:medium;"><o:p></o:p></span></span></i></b></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span></span></i></b><i><span style="font-family: Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.ohiobar.org/Lists/Case%20Summaries/editForm.aspx?ID=7314&source=http://www.ohiobar.org/Members/Pages/OSBAReport.aspx"></a></span><o:p><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3010.pdf"><span class="Apple-style-span" style="font-size:medium;">http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3010.pdf</span></a></span></o:p></span></i></p><p class="MsoNormal" style="text-indent:.35in"><i><span style="font-family: Calibri;mso-bidi-font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3010.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">In modification of dissolution child support determination, reduction of obligor’s income was properly denied, despite obligor’s claimed expenditures for rental properties that resulted in a loss, since obligor produced no receipts or expense vouchers showing actual cash expenditures that were ordinary and necessary, sole evidence was an income tax return, purposes of Internal Revenue Code and child support guidelines are vastly different and trial court was not required to unquestionably accept all expenses deducted in previous tax returns. </span></span></span></o:p></span></i></p><p class="MsoNormal" style="text-indent:.35in"><i><span style="font-family: Calibri;mso-bidi-font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">In modification of dissolution child support determination, trial court did not abuse its discretion in imputing income of $20,800 to obligee; trial court considered statutory factors, and obligee had 19 years experience and income in family business that was not likely obtainable elsewhere, had limited education and was currently employed at $9.50 per hour.</span></span></span></o:p></span></i></p> <p class="MsoNormal"><b><i><span style="font-family:Calibri;mso-bidi- font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></b></p> <p class="MsoNormal"><b><i><span style="font-family:Calibri;mso-bidi- font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-3109"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Saylor v. Saylor, 2009-Ohio-3109 (5th District)</span></span></a></span></i></b></span></o:p></span></i></b></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link:</span><span><span class="Apple-style-span" style="font-size:medium;"> </span></span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-3109.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-3109.pdf</span></a></span></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left:.5in"><i><span style="font-family:Calibri;mso-bidi- font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">In divorce action child support determination, trial court abused its discretion in using health insurance costs of much higher than the amount that wife testified to and that was stipulated to by the parties; it was not error for the court to equally apportion child daycare expense since their payment by wife's parents was not guaranteed in the future.</span><span class="Apple-style-span" style="font-size:medium;"><o:p></o:p></span></span></i></p> <p class="MsoNormal"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><span style=" font-family:Wingdings;mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><i><span style="font-family:Calibri;mso-bidi- font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-3106"><b><span style=" text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Sinclair v. Sinclair , 2009-Ohio-3106 (4th District</span></span></b><span style="text-decoration:none; text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">)</span></span></a></span></i></span></o:p></span></i></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span></span></i></b><b><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3106.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3106.pdf</span></a></span></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left:.5in"><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">Trial court abused its discretion in improperly limiting duration of civil protection order to one year, reasoning that divorce proceeding automatically alleviated need; trial court erred in concluding divorce decree removed threat of domestic violence. Protection order is an additional remedy, R.C. 3113.31(G).</span></span></p> <p class="MsoNormal" style="margin-left:.5in"><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;"> </span></span></p> <p class="MsoNormal" style="margin-left:.35in;text-indent:-.2in;mso-list:l1 level1 lfo1; tab-stops:list .15in"><span style=" font-family:Wingdings;mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-1042"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Gartrell v. Gartrell, 181 Ohio App.3d 311, 2009-Ohio-1042 (5th District)</span></span></a></span></i></b><i><span style="font-family: Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;"><o:p></o:p></span></span></i></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">LinK:</span><span><span class="Apple-style-span" style="font-size:medium;"> </span></span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-1042.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-1042.pdf</span></a></span></o:p></span></i></b></p> <p class="MsoNormal"><b><i><span style="font-family:Calibri;mso-bidi- font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span><span class="Apple-style-span" style="font-weight: normal; "><span class="Apple-style-span" style="font-size:medium;">In divorce action, trial court's rescission of prenuptial agreement was proper on grounds that agreement was void as against public policy by encouraging divorce or profiteering by divorce,</span><span class="apple-converted-space"><span class="Apple-style-span" style="font-size:medium;"> </span></span><span><span class="Apple-style-span" style="font-size:medium;">Gross</span></span><span class="Apple-style-span" style="font-size:medium;">; parties entered prenuptial agreement that provided a significant sum to wife for a marriage of very short duration, and thus the terms of the agreement encourage divorce or profiteering by divorce. In divorce, trial court's rescission of prenuptial agreement was improperly based on grounds that agreement was merely negligently prepared where neither husband-attorney nor his counsel read agreement before execution, that constituted more than ordinary negligence; husband had practiced law for 20 years, faxed back changes to first draft and signed without further review, which constituted gross negligence.</span></span></o:p></span></i></b></p> <p class="MsoNormal"><i><span style="font-family:Calibri;mso-bidi- font-family:Arial;color:black;"><!--[if gte vml 1]><v:shape id="_x0000_i1025" type="#_x0000_t75" alt="" style="'width:.75pt;height:.75pt'"> <v:imagedata src="file:///C:\DOCUME~1\PAMELA~1\LOCALS~1\Temp\msohtml1\01\clip_image001.gif" href="http://www.ohiobar.org/_layouts/images/blank.gif"> </v:shape><![endif]--><span class="Apple-style-span" style="font-size:medium;"><img border="0" width="1" height="1" src="file:///C:/DOCUME~1/PAMELA~1/LOCALS~1/Temp/msohtml1/01/clip_image001.gif" shapes="_x0000_i1025" /></span><span class="Apple-style-span" style="font-size:medium;"><o:p></o:p></span></span></i></p> <p class="MsoNormal"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-3059"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Rodgers v. Rodgers, 2009-Ohio-3059 (8th District)</span></span></a></span></i></b></span></o:p></span></i></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2009/2009-ohio-3059.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2009/2009-ohio-3059.pdf</span></a></span></o:p></span></i></b></p><p class="MsoNormal" style="text-indent:.35in"><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2009/2009-ohio-3059.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">In ex-wife’s Civ.R. 60(B)(5) postdecree motion to divide marital asset, namely ex-husband’s pension, trial court did not abuse its discretion in denying the motion since motion was not filed for more than 27 years after the divorce and property settlement where she does not argue that he hid this asset from her or committed fraud in some way, but that the pension was “undisclosed” from the court, not her; a party may not circumvent the one-year limitation applied to Civ.R. 60(B)(1), (2) or (3) by seeking to vacate a judgment under Civ.R. 60(B)(5) when the ground is duplicative of a ground subject to the time limitation, and the record reveals no reason why ex-wife or her counsel could not have discovered the pension at the time of the original proceeding or any valid reason for the 27-year delay. No evidentiary hearing was required where ex-wife did not allege operative facts that would entitle her to relief under Civ.R. 60(B)(5) since she did not give a reason in her affidavit for waiting 27 years before requesting the relief.</span></span></span></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left:.5in"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal" style="margin-left:.5in"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-3116"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Hesseling v. Hesseling, 2009-Ohio-3116 (4th District)</span></span></a></span></i></b></span></o:p></span></i></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3116.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3116.pdf</span></a></span></o:p></span></i></b></p><p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3116.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">In divorce action, award of spousal support to wife was too financially burdensome on husband, where spousal support, child support and other financial obligations imposed by trial court consumed more than 75 percent of his pretax income since husband would be unable to pay the support without significant economic hardship.</span><span class="Apple-style-span" style="font-size:medium;"><img border="0" width="1" height="1" src="file:///C:/DOCUME~1/PAMELA~1/LOCALS~1/Temp/msohtml1/01/clip_image001.gif" shapes="_x0000_i1026" /></span></span></span></o:p></span></i></b></p> <p class="MsoNormal"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal" style="margin-left:.35in;text-indent:-.2in;mso-list:l1 level1 lfo1; tab-stops:list .15in"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-3144"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Nemeth v. Nemeth, 2009-Ohio-3144 (11th District)</span></span></a><span class="Apple-style-span" style="font-size:medium;"><o:p></o:p></span></span></i></b></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span><span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2009/2009-ohio-3144.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2009/2009-ohio-3144.pdf</span></a></span></o:p></span></span></i></b></p><p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2009/2009-ohio-3144.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">In divorce action, wife's motion for leave to file mandamus action is denied; wife's argument is without merit that, despite being declared a vexatious litigator, she should be allowed to bring this action to challenge the propriety of certain judgments rendered in the underlying divorce case. Wife has not satisfied the standard to be granted leave to proceed under R.C. 2323.52(F)(2); there is already a final judgment in case, wife has already appealed it and she had an adequate remedy at law, so she could not state a viable claim for mandamus.</span></span></span></o:p></span></span></i></b></p> <p class="MsoNormal"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style="font-size:medium;"> </span></o:p></span></i></p> <p class="MsoNormal" style="margin-left:.35in;text-indent:-.2in;mso-list:l1 level1 lfo1; tab-stops:list .15in"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-907"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Underhill v. Underhill, 181 Ohio App.3d 298, 2009-Ohio-907 (2nd District)</span></span></a><span class="Apple-style-span" style="font-size:medium;"><o:p></o:p></span></span></i></b></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-907.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-907.pdf</span></a></span></o:p></span></i></b></p><p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-weight: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-907.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">In marriage dissolution postdecree proceedings, trial court erred in concluding that husband’s failure to object to magistrate’s decision determining liability only as to property settlement but not determining amount to be paid, later divested trial court of subject matter jurisdiction to consider objections once all of the issues had been resolved; requiring objections to decisions that are interlocutory in nature does not promote judicial efficiency, and absence of an objection did not divest trial court of subject matter jurisdiction to consider objections once all of the issues had been resolved.</span></span></span></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left:.5in"><span style="font-family:Wingdings; mso-fareast-font-family:Wingdings;mso-bidi-font-family:Wingdings;color:black;"><span><span class="Apple-style-span" style="font-size:medium;">w</span><span style="font:7.0pt "Times New Roman""><span class="Apple-style-span" style="font-size:medium;"> </span></span></span></span><b><i><span style="font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><a href="http://www.ohiobar.org/Members/Pages/CasemakerCite.aspx?cite=2009-Ohio-3009"><span style="text-decoration:none;text-underline:nonecolor:black;"><span class="Apple-style-span" style="font-size:medium;">Algren v. Algren, 2009-Ohio-3009 (2nd District)</span></span></a></span></i></b></p> <p class="MsoNormal" style="text-indent:.35in"><b><i><span style=" font-family:Calibri;mso-bidi-font-family:Arial;color:black;"><span class="Apple-style-span" style="font-size:medium;">Link: </span></span></i></b><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3009.pdf"><span class="Apple-style-span" style="font-size:x-small;">http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3009.pdf</span></a></span></o:p></span></i></p><p class="MsoNormal" style="text-indent:.35in"><i><span style="font-family:Calibri;color:black;"><o:p><span class="Apple-style-span" style=" font-style: normal; font-family:Georgia;"><span class="Apple-style-span" style="font-size:medium;"><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3009.pdf"></a></span><span class="Apple-style-span" style=" font-style: italic; font-family:Calibri;"><span class="Apple-style-span" style="font-size:medium;">In divorce action in which son claimed ownership of closely held corporate stock, wherein wife filed declaratory judgment action to determine whether son had any interest in corporation, trial court erred in granting summary judgment for wife; existence and transfer of certificates are not required as a matter of law to prove gift of corporate shares by husband to their son since a certificate only represents a share and it is not required in order to prove ownership. However, there is a fact issue concerning number of shares son owned where husband filed gift tax returns as to the shares but some returns were unsigned, there was a stock sale restriction document stating that son and husband were sole shareholders that was witnessed by wife, corporate income tax returns indicated husband's transfer to son and there were share certificates in son's name. In divorce action in which son claimed ownership of closely held corporate stock, wherein wife filed declaratory judgment action to determine whether son had any interest in corporation, trial court did not err in finding that the restriction was binding on son, husband and company, despite claimed failure of consideration for restricted stock sales agreement; agreement has marginal effect since it is evidence only of son's ownership, agreement would have evidentiary force even if not legally binding, trial court would not be constrained by it in division of marital property since restriction applies only to voluntary transfers and not to transfers by operation of law and it was supported by consideration, as set forth in its recitals.</span></span></span></o:p></span></i></p>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-42465635618029416182009-06-17T20:18:00.005-04:002009-06-17T20:33:06.061-04:00Social Media and Lawyers - my perspective<span class="Apple-style-span" style="font-family:'lucida grande';"><i>I am officially a big fan of all the new social media. I twitter, I am on facebook, myspace, linkedin, jdsupra, justia and an assortment of other places. Obviously I have this blog and my blog on fibro, and I try to be everywhere. Many lawyers who talk to me about this complain that it is just too much to do, and they are already too busy. I agree that it takes work, but once you have set yourself up, I think that it makes so many things much easier.</i></span><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i><br /></i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i>For example, on Facebook I have been able to easily reconnect with people I have not seen in over 30 years. And it is so pain-free. I can quickly scan what is going on in their lives. I can also keep in touch with more recent acquaintances, professional and otherwise. I just have to remember that what ever I put out there is out there for the whole world to see. I also have to remember that my opposing counsel or my opposing party is likely to be reading some of these things.</i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i><br /></i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i>Of course, you can spend hours looking for people on Facebook, too. That can be a lot of fun and very rewarding, but you have to make sure it does not cut into your work time. This is true of anybody, including lawyers.</i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i><br /></i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i>When I served on the school board, I remember a school board member asking why do we need to have so much technology in the schools for our kids, when it used to be that a pencil and paper were adequate. Surprisingly, that was only eight years ago. Look at how things have exploded. Paper and pencil - who needs them? I have diddlebug on my Centro, and those notes are saved forever on my Centro and on my computer. I can do Sudoku puzzles, take notes in court, keep track of my billable time, read major newspapers, get a weather report, get a tweet about local traffic conditions and all in the "Palm" of my hand, and all without paper or pencil.</i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i><br /></i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i>However, social media does open up a new area of concern. It is more public than you can even imagine. There are people I run into on the street that I recognize from one of these social mediums, and they look familiar, but I can't quite place them. Then I realize that I followed a twitter link to their web page and learned all about them, all without meeting them. Or there are Judges who are following me on Twitter - better not insult any of their colleagues, right? (Not typically my style anyway, but something to keep in mind.) And Facebook becomes a mixed bag, when you have clients following you as well as old friends from high school who just want to keep reminding you of those embarassing things you did before you were even old enough to drive. </i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i><br /></i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i>That is why you need to take the time to understand how the medium works. You can put controls on who sees what, but you need to pay attention and not just skip through the "fine print" on the websites. Learn to adjust your settings. Learn to rethink the settings as time goes by. Find software that can help you make your participating more in tune with your time schedule. Learn to make it work for you.</i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i><br /></i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i>Anyway, I am loving the social media explosion and I love being toward the forefront, although I think everyone is going to catch up with me real soon. Just like anything, make sure you understand what it can do for you and what you can do with it. Use technology, don't let it use you. </i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i><br /></i></span></div><div><span class="Apple-style-span" style="font-family:'lucida grande';"><i>That being said, I better get back to my 300 emails so that I don't miss anything important.</i></span><span class="Apple-tab-span" style="white-space:pre"><span class="Apple-style-span" style="font-family:'lucida grande';"><i> </i></span></span></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-5998387764530182922009-05-08T11:34:00.004-04:002009-05-08T11:55:51.345-04:00Trying to develop a less expensive divorceIn these tough economic times, almost every call from a prospective client starts with - what will you charge me to do a ______? That is a difficult question for a lawyer, because each case presents a unique set of facts. Have I ever had anyone tell me that the parties have agreed to everything, and they really did? Yes, once or twice in twenty-eight years of practice. Generally, there is some issue, and it is usually just because they didn't think of it. They did not know that they could split the retirement account or that, at least in Ohio, you have to consider the Social Security Benefits as part of the overall property division. They did not know that a shared parenting plan has to spell out so many things that they had not even talked about, like whether the parents agree to pay for college, or when do the children switch for Christmas Eve? Or Fourth of July fireworks? Not that these are insurmountable, but sometimes you get surprised by these issues, as does the client, and all of the sudden it is not such a simple divorce. This is particularly true when both parties just assumed something and that assumption turns out to be incorrect (I assumed you would pay for it, it was your idea, after all.)<div><br /></div><div>Well, I find that one area which takes up a lot of time, but does not need to be done by me, is the fact gathering part. I mean not only getting together all of the bank statements and bills, but also thinking things through about the children, or where you will live, or what to do with the house since the children want to live there, but you are not sure whether you can afford it. So I have spent a considerable number of hours developing an extensive workbook that I give to my clients and I let them be the fact gatherers and the fact organizers. Organizing the paperwork so that it is meaningful to a lawyer can be a real time saver. Which translates to a real money saver. When a client puts a pile of bills or bank accounts on the desk in front of me, I still need to go through them to determine if the client thinks the bills are all legitimate, if any of the assets are separate property and how the client thinks these things should be divided. Those are the kinds of facts that take time.</div><div><br /></div><div>So what I have developed and what I am working with is a comprehensive workbook (and I mean comprehensive) that asks critical questions along with seeking paperwork from my client. I am constantly retooling this idea, and I am now investigating providing the workbook in a folder along with other materials, such as books that I might recommend or a list of social service agencies that can help. If my client wants to save money and is willing to spend what could be days to complete this workbook, then I am happy to receive a completed and well organized workbook with all of the paperwork that I need in order to properly advise and advocate for the client. Any ideas or suggestions for improvement are always welcomed.</div><div><br /></div><div>This is just an idea for a new way to do business in this new economy. While I am not willing to freely share the workbook itself, since I consider it to be proprietary, particularly given all of the long hours I have put into it, I am happy to share the idea of it. </div><div><br /></div><div>Well back to actually practicing law. My brother always says that he hopes someday after all of the practicing, I am able to actually do it.</div>Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-187075436988482271.post-46976829971716559102009-05-06T08:53:00.002-04:002009-05-06T09:42:57.217-04:00How is Spousal Support determined in Ohio, anyway?<span class="Apple-style-span" style="font-family: 'trebuchet ms';"><span class="Apple-style-span" style="font-size: small;">Spousal support, or alimony, is often the most frustrating issue for clients. While child support is determined in Ohio by going to a chart or computer program, spousal support is based on many different factors. By the way, the child support calculation seems easy by going to the chart, but then there is the opportunity to have deviations (up or down) so that it better fits your situation. However, more on that in another post!</span></span><div><span class="Apple-style-span" style="font-family: 'trebuchet ms';"><span class="Apple-style-span" style="font-size: small;"><br /></span></span></div><div><span class="Apple-style-span" style="font-family: 'trebuchet ms';"><span class="Apple-style-span" style="font-size: small;">So what are these factors. They are found in </span></span><span class="Apple-style-span" style="line-height: 14px; "><span class="Apple-style-span" style="font-family: 'trebuchet ms';"><span class="Apple-style-span" style="font-size: small;">3105.18, which can be found at </span><span class="Apple-style-span" style="font-family: Georgia; line-height: normal; "><a href="http://codes.ohio.gov/orc/3105.18"><span class="Apple-style-span" style="font-size: small;">http://codes.ohio.gov/orc/3105.18</span></a><span class="Apple-style-span" style="font-size: small;">. I will list them in here:</span></span></span></span></div><div><span class="Apple-style-span" style="font-family: Verdana; font-size: 13px; line-height: 18px; "><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;"></span></p><blockquote><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(b) The relative earning abilities of the parties;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(c) The ages and the physical, mental, and emotional conditions of the parties;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(d) The retirement benefits of the parties;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(e) The duration of the marriage;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(g) The standard of living of the parties established during the marriage;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(h) The relative extent of education of the parties;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(l) The tax consequences, for each party, of an award of spousal support;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(m) The lost income production capacity of either party that resulted from that party’s marital responsibilities;</span></p><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;">(n) Any other factor that the court expressly finds to be relevant and equitable.</span></p></blockquote><p style="text-align: justify; "><span class="Apple-style-span" style="font-size: small;"></span></p><p style="text-align: justify; "><br /></p><p style="text-align: justify; ">As you can see, with the catchall at the end, almost anything can be a factor in determining spousal support. In addition, some courts have rules of thumb although not official rules governing the amount and the duration. Many people worry about the amount, but there is also a need to consider the duration and whether the support itself will be modifiable at a future time. For that reason, it is probably necessary to consult with an attorney regarding your particular circumstances.</p><p style="text-align: justify; ">In addition, it should be noted that in Ohio there are attempts to set up a formula similar to the child support formula. Whether the result of that is fair or workable will need to be determined later. However at this time, these are the factors so when consulting with an attorney, keep these factors in mind so that you can share whatever relevant information you might have to make sure that your voice is clearly heard in the divorce process.</p><p style="text-align: justify; ">If you are interested in consulting with me, please feel free to call me a 614-564-6500. The initial consultation is free!</p></span></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-59167251424773704342009-05-04T09:36:00.006-04:002009-05-04T09:48:40.984-04:00Ohio Putative Father Registry<a href="http://jfs.ohio.gov/pfr/">http://jfs.ohio.gov/pfr/</a><div><br /></div><div>There it is. Here it is again: <a href="http://jfs.ohio.gov/pfr/">http://jfs.ohio.gov/pfr</a> This is the website that can give you information on how to register as a putative father. And why should you do this? If you are a man, and you know that someone is pregnant with your child (or at least suspect that you are the father), you need to register. And you need to do it right away. If you are registered before 30 days after the birth of the child, you will be notified if the mother attempts to have the child adopted. Adoption is a form of permanently terminating the father's rights to that child. In addition to registering, you must provide support to the mother and child in order for your consent to be required. There are many other legal steps that need to be followed. Therefore, if you are not married to the mother you might want to consult with a lawyer to make sure that you are following the legal steps necessary so that the child cannot be adopted without notice to you or without your consent. There is a very limited window of opportunity, and I would urge anyone in this situation to register. If you ultimately agree with the adoption (after you meet the prospective parents, for example), then you can always consent. But if you don't register, you may never know. So, if you know someone is pregnant with your child, register, and seek the advice of counsel so that you take all steps necessary to protect your future relationship with that child.</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-27773744255405670202009-04-06T09:23:00.005-04:002009-04-06T10:00:54.031-04:00Books on Divorce, Even Some for the Kids!Clients are always interested in finding out more and ask me to recommend books to them. I think that it is the uncertainty of the divorce outcome that makes them thirst for more knowledge in order to try to make the outcome more predictable. Unfortunately, the only way to have a predictable outcome is for the parties to come to agreement on all of the terms of the divorce. In that regard, education is very helpful. These are some books that clients have read and told me they would recommend to others, so I thought I would share them here. As usual, this is not a substitute for legal advice in your particular situation. For that, you need to consult with a family law lawyer.<br /><br /><strong><em>What Every Woman Should Know About Divorce and Custody</em></strong>, by Gayle Rosenwalk Smith, J.D. and Sally Abrahams (Pub: Perigee) - Men should read this too! Has good explanations of situations (don't take out the bad news on your lawyer, use the energy to gather information needed to fight or your lawyer may deviate from the script because, if she is good, she will be able to read the courtroom). Very practical advice that will help you communicate better with your lawyer and maybe even help reduce your fees. Also gives guidance on whether you should represent yourself and how to hire a lawyer.<br /><br /><strong><em>What About The Kids? Raising Your Children Before, During, and After Divorce</em></strong> by Judith S. Wallerstein and Sandra Blakeslee (Pub: Hyperion) Gives general information, but also breaks it down by age. Talks about resolutions to various issues, even gives help regarding stepparents and blending families after the divorce. Can help you flesh out issues involving your children which may help lead you to working things out with the other parent in the best interests of the child. (Hint: This can help you both avoid protracted litigation.)<br /><br /><strong><em>Divorce For Dummies</em></strong> by John Ventura and Mary Reed (Pub<strong>:</strong> For Dummies) Yes, it is just like the Volkswagen for Dummies book I used in Law School to save money on my oil changes (what a mess I made, though). This book in particular was highly recommended to me by a client who brought it to every appointment and court hearing and regularly would way to me, "Wow, that's just what they said in this book!" I have not read this book but in general it has received good reviews, including good customer reviews. Does not have specific state by state requirements, but in the state I practice, you would almost need county by county information!<br /><br />There are also some books for the children to help explain divorce to them. Some of my favorites are:<br /><br /><strong><em>It's Not Your Fault, Koko Bear: A Read-Together Book for Parents and Young Children During Divorce</em></strong> by Vicki Lansky<br /><br /><strong><em>Dinosaurs Divorce</em></strong> by Marc Brown (the same author of the Arthur series)<br /><br /><strong><em>Two Homes</em></strong> by Claire Masurel and Kady MacDonald Denton, Illustrator<br /><br /><strong><em>I Don't Want to Talk About It</em></strong> byJeanie Franz Ransom and Kathryn Kunz Finney, Illustrator<br /><br />There are many others out there that probably deserve to be mentioned, but this is all the time I have for now. Back to lawyering!Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-89493867314469123742009-04-01T10:25:00.001-04:002009-04-01T10:25:01.129-04:00Using Therapists and other professionalsIn many divorce cases, therapists can come into play, particularly where children are involved. (Reminder: I am an Ohio lawyer giving you general information. For legal advice in your particular situation, please contact a family law attorney.)<br /><br /><br /><br />Therapists can play many roles. It is important to remember that the therapist role is limited to the way the therapist is employed, and everyone needs to clearly understand that from the beginning. If the therapist is a pre-existing therapist who is actually treating someone, whether the child or the parent, the therapist is limited to that role and cannot start treating other people or making custody recommendations. However, a treating therapist can testify about the treatment progress and any issues that pertain to that particular patient. This is where is gets very tricky, and each therapist has to decide how to proceed under their own ethics rules. For example, in Ohio is it clear that a therapist treating a child cannot make a custody recommendation. That must be done by a neutral party, usually a forensic custody evaluator. However, a child's treating therapist might be able to testify that the child has exhibited an unusually high amount of anxiety when speaking about that one relative who just got out of prison. This could be used by the lawyer to lead the Court to issue orders limiting the contact with that person. See? It is very tricky.<br /><br /><br /><br />There are also therapists who can be family therapists, just to help the family learn how to function in its new configuration. Yes, even though the parents are divorced, this is still a family. Sometimes these can be very difficult situations, and the individuals involved may need their own therapists as well.<br /><br /><br /><br />Therapists can also serve to help mediate and resolve disputes, sometimes more effectively and efficiently than the Court can. You can also employ the services of a mediator if that is appropriate.<br /><br /><br /><br />Finally, there is the therapist who is actually the forensic custody evaluator. Typically, this person will administer a series of psychological tests to both parents, spend a considerable amount of time privately with each parent to discuss the issues involving the children, observe the children interacting with each parent. This is an expensive and time consuming process, but sometimes it is what is ultimately needed.<br /><br />So, when you decide to involve a therapist in your divorce case, keep in mind the limitations, but also remember that therapists can often resolve issues that courts are just not as effective at resolving.<br /><br />For more information, feel free to call me at 614-564-6500 or email me at <a href="mailto:pamela.makowski@gmail.com">pamela.makowski@gmail.com</a>. Also, don't forget to check my website at <a href="http://www.makowskilaw.com/">www.MakowskiLaw.com</a>.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-80126485120471481272009-03-30T09:57:00.000-04:002009-03-30T09:57:00.571-04:00Prenupt: a great way to start a great relationshipEveryone had heard about prenuptial agreements, but usually because people are in the middle of a divorce and fighting over it. However, a prenuptial can be an wonderful way to start your life together. (Reminder: I am an Ohio lawyer giving you general information. You should seek the advice of an attorney for your particular situation.)<br /><br />The first problem is how to start the dialogue for a prenuptial agreement with your future spouse. No one wants to talk about what we will do if we get divorced, because getting divorced is the last thing you are thinking about while picking out wedding cake and wedding favors. (However, if the stress of this makes you think of running, that is understandable.) However, a prenuptial agreement is a way to make sure that you will be fair to the person you love even if the marriage thing doesn't work. One suggestion for bringing it up is to initially bring up the idea of prenuptial agreements (I heard that so-and-so got a prenuptial agreement; what do you think of that?) Maybe your fiance is also thinking about a prenuptial agreement and hasn't had the nerve to bring it up.<br /><br />It is important to remember that a prenuptial agreement is a two way street: it is designed to protect your assets and your fiance's assets. You could probably identify some items of your fiance's that should be protected as well, such as a savings account or retirement account. A prenuptial agreement is a mutual agreement so that you enter the marriage with a firm understanding about where you are and maybe even where you want to be.<br /><br />The dialogue for a prenuptial should include identifying each others assets and even talking about what the plans are for them. If, for example, your fiance is planning to sell a premarital asset such as a house, you can talk about whether that is going to be maintained as separate property or if you plan to consolidate assets to acquire a new house together. That might even lead to conversations about expectations regarding children, how to raise the children, financial plans (especially your philosophies about saving and spending money). If you are planning to get married, you should be able to discuss these intimate things with each other openly, honestly and lovingly. While many of these items are not typically identified in a prenuptial agreement (although I have seen some where they are), it is still great to have this discussion.<br /><br />Once you have had the discussion, it is important that you retain counsel. You each should get different counsel, but the two of you should have a pretty good idea of how you want the prenuptial set up. This will save you time and money. One lawyer can prepare the prenuptial for you and the other can just review it for your fiance. You can even agree to split the costs if you want. Considering the time that can be involved in arguing over separate property if there is a divorce, and considering that you should be sharing this financial information with each other prior to getting married anyway, the cost of doing a prenuptial agreement is really minimal.<br /><br />When you go to the lawyer, have an outline of the agreement ready to show the lawyer. Sometimes the lawyer may raise issues you haven't thought of. A lawyer can also explain how to deal with things that are ongoing, such as the 401(k) that you have been investing in and plan to continue to invest in. As always, come to the lawyer with a list of questions that the two of you have. Have your fiance go to a different lawyer to establish a relationship, but decide between the two of you which lawyer will actually write the agreement and which will review it for you.<br /><br />For more information, or if you have any questions, please feel free to contact me at 614-564-6500 or <a href="mailto:pamela.makowski@gmail.com">pamela.makowski@gmail.com</a>. Also feel free to check out my website: <a href="http://www.makowskilaw.com/">http://www.makowskilaw.com/</a>.Unknownnoreply@blogger.com1tag:blogger.com,1999:blog-187075436988482271.post-4846596388678710362009-03-27T09:12:00.004-04:002009-03-27T09:36:49.651-04:00Practical tips if contemplating divorce/dissolutionMany people who show up in my office don't know where to start when contemplating a divorce. As a lawyer, I see a divorce as divided into three primary categories, maybe just two: children's issues, property division, ongoing spousal support. These categories are considered to be independent of each other, but in real life they all play into each other. For example, if there is not enough money (property division or support) then how can I afford to send my child to college?<br /><br />The easiest issue is usually the property division. Anything that is marital property is usually divided. (This is Ohio law, and you need to seek specific legal advice for your situation, but this general information is provided to help guide you.) There can be issues of financial misconduct (hiding assets, spending money on a paramour, voluntarily reducing income and assets in contemplation of the divorce so the other spouse doesn't get them) and there can be issues about separate property. Usually inheritances, gifts given to one party in particular (e.g. birthday gift) and similar things are separate. The biggest issue is identifying all of the assets. Before coming to a lawyer, it is best to get together copies of all statements of any accounts or investments, along with copies of the titles to any vehicles, boats, trailers and the like. Make a master list of everything you own. Usually you can just say household goods for most of the things, but if you own an unusually expensive item you might want to list that separately. Sometimes, just the making of the list can help you figure out how to divide things. And don't worry about dividing that pension which you don't think you can touch. If you need to divide it, the court can issue what is called a QDRO (Qualified Domestic Relations Order), which will minimize the tax consequences of dividing the account. You probably need a lawyer to do the QDRO.<br /><br />If there are no children, determining spousal support can be the most difficult issue. Generally, during the course of a marriage, under Ohio law, the income that is derived, regardless of who earned it, is considered marital. This can be a very emotional issue, especially when one spouse feels that the other spouse did nothing and deserves nothing. However, for those who are willing to compromise and work toward a resolution, you need to understand that when there is a disparity in income and there has been a long term marriage, it is likely that there will be an award of spousal support. While Ohio law does not currently have a formula for determining spousal support, most good family law attorneys can help you with the analysis to determine what would be a fair amount and length of time for spousal support. You will need to bring in proof of income both for you and your spouse. Prior tax returns are good, but recent pay stubs should also be included. For people in business for themselves, it gets trickier, so bank account statements showing deposits for the past year can be helpful.<br /><br />Children's issues can either be very easy because the parents have figured out who gets the kids when, child support is determined by a formula, and the parents are working together for the benefit of the children. Look at my earlier blog on children's issues for resources to help in this area. However, if the parties don't agree, this could be the most difficult part of the case, and in some cases I have seen people spend all of the property down to fight over custody. There are guardians ad litem, forensic custody evaluators, mediators and a variety of other experts, that might be used in a custody case. There can be ongoing disputes about visitation and custody, or even the amount of support, who is paying for school, who gets Christmas Eve, how the summer is divided, and the list goes on and on. I have seen some couples fight until the children are adults. Sometimes the fighting is just necessary for the sake of the children, but understand that the Court, which looks at <em>evidence</em>, will ultimately rule. That is why you should gather together anything that helps show the Court why you should have custody. School reports, photographs, police reports (if applicable), names, addresses and phone numbers of people who could be witnesses for you. All of these things should be gathered and copied before even filing the divorce, so that you are prepared.<br /><br />Finally, make a list of you important questions. How will I live while the divorce is pending? (There are temporary orders and your attorney can explain that to you.) What do I do with my old car that needs major repairs right now and my spouse has told me I am not allowed to spend the money on it? (The attorney can guide you so that you are not exposing yourself to financial misconduct by getting the repairs or buying a new car.)<br /><br />Armed with your property list, you tax returns and pay stubs, the school reports and list of questions, you are now ready to have a very productive meeting with your counsel.<br /><br />And most of us foolishly don't charge for that initial half hour (me included!) For more information, just call me at 614-564-6500 or email me at <a href="mailto:pamela.makowski@gmail.com">pamela.makowski@gmail.com</a>. Also, if you didn't get there from here, check out my website at <a href="http://www.makowskilaw.com/">www.MakowskiLaw.com</a>.<br /><br />Good luck!Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-16111321799380542242009-03-25T14:46:00.002-04:002009-03-25T14:50:21.650-04:00High Tech comes to Solo PracticeI have been keeping really busy with work, and trying to balance it with all of the new technology stuff I've added. I am twittering, facebooking, myspacing, linkedin-ing, updating my webpage and of course blogging.<br /><br />On Twitter a lawyer complained that it is yet one more thing we need to do. I actually think it is a new way of doing an old thing. I just spoke to a potential client this morning who told me that she does everything on the internet. By the way, that is where she found me and, even though she couldn't remember which ones, she found me on many different sites. That is the point. People are not walking through the yellow pages anymore. This new technology is working really well.<br /><br />Of course, I have had to fill everything with a disclaimer, but that is only because the technology approach tends to be a little more interactive, and that is actually really good for lawyers. I am really embracing this technology, and would love to hear from others about what they are doing.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-187075436988482271.post-5860685300787851552009-03-10T14:59:00.000-04:002009-03-10T15:11:10.066-04:00Family Law dynamicsFamily law - and why blog? A family law case is often a very emotional and frustrating situation. Obviously, things are not going well, which is why you have consulted with a lawyer. Furthermore, the legal rules and the way families function often don't mesh well. But it is the best system we currently have to resolve familial disputes, and it is an area of law that is constantly evolving to improve the ability to resolve them amicably rather than in a courtroom. However, it takes more than a little hand holding to get through some of these cases. With that in mind, my thinking is that I should blog so that I can pass on resources or ideas that might help. As usual, this is not legal advice and you should seek the direct advice of an attorney for a particular situation. <br /><br />Since issues with children seem to be the most difficult, I wanted to mention that I recommend Vicki Lansky's book:DIVORCE BOOK FOR PARENTS:Helping Your Children Cope with Divorce and its Aftermath. More info can be found at her web site, which is: <a href="http://www.practicalparenting.com/divorce.html">http://www.practicalparenting.com/divorce.html</a>. If anyone else has a book that they have enjoyed or which they think can be helpful, let me know at <a href="mailto:pamela.makowski@gmail.com">pamela.makowski@gmail.com</a>. Books are always good, because they don't involve any technical stuff, can be put down at a moment's notice, can be highlighted and dog-eared, and can be covered so no one knows what you are up to!Unknownnoreply@blogger.com0