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Columbus Ohio Collaborative Divorce Attorneys

February 4, 2013

What is collaborative divorce? Simply put, it is a process designed to streamline the process for ending a marriage, and to motivate clients and attorneys to reach resolution quickly, instead of engage in long, drawn out court battles. The Ohio Collaborative Family Law Act (Ohio Revised Code 3105.41 to 3105.54) becomes effective March 22, 2013.

Does that mean that there is no collaborative divorce in Ohio before that time? Absolutely not! Collaborative divorce has been around in Ohio for a long time. Here at the Law Offices of Virginia C. Cornwell, our Columbus Ohio Collaborative Divorce Attorneys are pleased to represent clients in Collaborative Divorce and Collaborative Family Law. Virginia Cornwell is also an Ohio State Bar Association Certified Family Relations Specialist.

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Why is Collaborative Family Law for you? Well, to start with, everybody’s motivation and wallet are in the right place. Those two issues are huge in a divorce! If the parties don’t reach an agreement, the Collaborative Family Law participation agreement says that the parties both lose their attorneys – the attorneys cannot represent the parties in any court proceedings. That agreement is not just a statement of good intention either – effective March 22, 2013, it is the law in Ohio! So all the time spent in selecting an attorney that the parties like and trust, all the time and money spent negotiating trying to reach resolution – all of that will be lost if no agreement is reached.

In Collaborative Family Law, most, if not all of the negotiating should be done with the attorneys and the parties together, at what is called a “four way meeting”. Clients usually like this better than a divorce with multiple court appearances, where they wait outside and only the attorneys talk to the judge or magistrate. In Collaborative Family Law, because the parties and attorneys are meeting face to face, the parties and the attorneys should be focused on the task at hand, instead of engaging in months of costly back and forth letter writing and court appearances. With Collaborative Divorce, the parties and attorneys have one court appearance.

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So what kind of attorneys practice Collaborative Divorce, and what is the Collaborative Divorce process? First, let us dispel a few myths.

It is NOT true that a Collaborative Divorce attorney must be a collections of sole practitioner attorneys who form a collaborative association. Larger family law firms can include collaborative divorce lawyers and collaborative family law attorneys as well. It is also NOT true that to practice Collaborative Family Law, an attorney must belong to one of these Collaborative Family Law associations.

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The Ohio Collaborative Family Law Act defines a Collaborative family lawyer as a “lawyer who represents a party in a collaborative family law process but does not include a lawyer who is a public official and who does not represent individuals other than public officials in their official capacities”. The Act defines the Collaborative family law process as a “procedure intend to resolve a matter without intervention by a court in which the parties sign a collaborative family law participation agreement and are represented by collaborative family lawyers. ”

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So attorneys that practice litigation can also be collaborative family law attorneys or collaborative divorce attorneys. Collaborative divorce attorneys or Collaborative family law attorneys do not have to be in associations, clubs or firms with other collaborative family law attorneys in order to practice collaborative family law. Likewise, Collaborative divorce attorneys and Collaborative family law lawyers can practice litigation as well. In fact, if your spouse has an attorney in one of these clubs, associations or firms, and will not engage in the collaborative family law process with you and the attorney you have chosen, it is possible that your spouse has been misled about the collaborative law process, or the other side is not fully committed to the process yet.

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But what about experts? Sometimes the divorce process requires the advice of tax accountants, real estate appraisers, and other experts. Most domestic attorneys, whether they are in collaborative associations or not, work with these types of experts. The parties can jointly select an expert for advice or appraisal in order to speed up the process and reduce costs.

So what is the difference between Collaborative Family Law, divorce, dissolution and mediation? First, Collaborative Family Law can be for the purpose of resolving ANY family law issue, not just divorce. It involves attorneys, and the attorneys cannot represent the parties in contested litigation if agreement is not reached. Collaborative divorce is similar, but the process is designed only to decide issues needed to end a marriage. The term “divorce” usually refers to a contested divorce process where one of the parties file for divorce, and they proceed to litigate about the issues (at least for a while). Dissolution is a process for ending the marriage where the parties first agree on all issues, and then file the paperwork to end the marriage. The parties can come to agreement on their own, through negotiation with the help of an attorney, through mediation, or through the collaborative divorce process.

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In mediation, the mediator’s job is to get to “yes”. The mediator is not looking out for YOU. The mediator cannot give you legal advice. The mediator’s client, so to speak, is agreement, and as such, a mediator will often not point out problems that may arise with making a certain agreement. They just figure if a problem arises, you can just come back to mediation! A Collaborative Family Law Attorney will be trying to help you reach agreement, but also help you reach an agreement that you are going to be able to live with for as long as possible without having to “come back to the to table” constantly.

Once you reach an agreement, the attorneys prepare the legal documents necessary to make the parties’ agreement an order of the court (custody orders, shared parenting, divorce, support, spousal support, dissolution, child support orders, etc.) The parties appear before the court (sometimes) to tell the court that they agree to what is in the court documents, and the court makes the agreements an order.

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Of course, people change over time, and sometimes the circumstances which were the basis of your original agreement may have changed such that your original agreement no longer works. Can you use Collaborative Family Law to revisit your orders on a post-decree basis? Of course you can, as long as the court has authority to modify its original order.

The Law Offices of Virginia C. Cornwell is located in Columbus, Ohio, and has Columbus Ohio Collaborative Family Law Attorneys and Columbus Ohio Collaborative Divorce Lawyers who will represent clients in all 88 Ohio Counties.

CALL NOW! (614) 225-9316

DISCLAIMER – Read it, it’s important!

You are NOT the Father! Can you sue to recover the child support you paid?

February 19, 2012

Virginia Cornwell is a Columbus Ohio Family Lawyer in Columbus, Ohio and an Ohio State Bar Association Certified Family Relations Specialist. She helps clients throughout Ohio and accepts cases from all 88 Ohio Counties. The information in this article applies only to the state of Ohio.

So you paid child support for years thinking you were the father of a child (or children), and now you find out that you are not. Can you get the child support back because the mother lied about who was the father of the child? Is this fraud under the law? Can you sue to recover the child support you paid? Ohio Law says the answer is yes, but it is not that simple.

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The questions you should be asking are:

Who do I sue to recover the child support?
Do I sue the mother who received the child support or the father who should have paid it?
How do I sue to get my child support back?
What kind of case do I file (in other words, what law allows me to do this)?
What court do I file this case in?
Am I likely to win?
If I am not likely to win, why not?
If I win, am I likely to get my money back?

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The short answer is YES, Ohio law DOES allow people to file an action to be recover child support paid for a child that turns out not to be their child. Unfortunately, Ohio courts have found the law to be unconstitutional in many judicial districts. Even if your appellate district did not find the law to be unconstitutional, (brace yourself), while the law in Ohio allows you to file an action to recover child support, the law has a strict list of conditions that you would have to pass in order to win.

When the laws were passed that would allow people to “undo” a paternity determination in Ohio, many courts believed that paternity was a matter that should be decided by the courts, and the laws were unconstitutional.

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See, before you can recover child support, a person has to disprove paternity. Some courts are very hostile to this idea, and to the rights created by the legislature when Ohio Revised Code 3119.96 – 3119.967 were enacted. One example of this was a Franklin County Court decision in the VanDusen case in Franklin County (Tenth Appellate District):

{¶ 15} The legislature, when it enacted R.C. 3119.961, clearly was on notice that it was attempting to dictate to the courts of this state what to do with paternity judgments rendered months, years or even decades earlier. The legislature also was on notice that the statute it was enacting was in conflict with Civ.R. 60(B) and the body of case law surrounding that Civil Rule. In short, notwithstanding the doctrine of the separation of powers which has helped our state and federal governments to function for over 200 years, the legislature wished to tell the courts how to address matters normally reserved for the courts to determine.

{¶ 16} Such a disregard for the traditional powers of the other branches of government is especially egregious in the context of parenting and parentage *497 matters. The legislature has in effect ordered the courts to enter new judgments taking away the only father a child has ever known if a DNA test indicates that the father and child are not genetically linked. Such a legislative mandate overlooks how complex the parent-child relationship is. A person who has served as a parent for many years is still in many ways a parent to the child, no matter whose genes and chromosomes are involved. If this were not so, no adult could successfully adopt a child and raise the child to adulthood…

¶ 20} When the original divorce decree was journalized in 1995, Kelly Van Dusen was expressly found to be the child of Brian K. Van Dusen and Donna A. Van Dusen. Kelly’s parentage was clearly a matter expressly decided by the trial court—to use the Latin phrase, {¶ 21} Once a fact has been adjudicated, the way to change that adjudication is through the use of Civ.R. 60(B). Eight years have now passed since that adjudication occurred. Kelly is now 17 years old. For many purposes, Kelly is and will remain Brian Van Dusen’s child, no matter what a court says in the future.

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If this is how unfriendly the courts are to disestablishing paternity, even in the face of DNA evidence, you can imagine how much more resistant courts are to recovering wrongly paid support. In fact the only decision that this author could find that even comes close to a victory only stated that the laws allowing such claims were not unconstitutional, and, on appeal, referred the case back to the trial court to determine the claim. Any guesses as to how much, if any, the trial court likely awarded in back support?

What’s the moral of the story here? The law is trying to help fathers who paid support for a child that was not his. The courts want fathers to step up EARLY in a child’s life, and if you are paying support for a child that is not yours, the court wants you to do something about AS SOON AS YOU FIND out. The longer you wait, the less relief you are going to get. If you have questions about your child’s paternity, do something immediately.

CALL NOW at (614) 225-9316 or contact us by e-mail.

DISCLAIMER – Read it, it’s important!

Supervised Visitation in Ohio

February 24, 2011

As Columbus Ohio family law attorneys, we are often asked about supervised visitation. We are asked questions such as:

What is supervised visitation?
Who supervises the Visitation?
Can the County supervise the Visitation?
Can one parent or the other supervise the Visitation?
Can relatives, aunts, uncles or grandparents supervise the Visitation?
Are there places you can go where they are paid to supervise the Visitation?

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What is supervised visitation?

When the Court has concerns that a parent might make unsafe choices or the child does not know the parent, the Court may order supervised visitation. This can happen in many kinds of court cases, such as custody, visitation, shared parenting, father’s rights / paternity cases, grandparent custody or visitation cases, divorce, legal separation, post-decree matters, emergency custody situations, and abuse/neglect/dependency cases.

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Who supervises the Visitation?

Court ordered supervision can be done by any person the Court deems fit, by the County, or by a private facility.

Can the County supervise the Visitation in Ohio?

The County can only supervise visits in abuse/neglect/dependency cases. According to Ohio Law, the Courts cannot order the County to oversee the visit in any other type of case.

Can one parent or the other supervise the Visitation?

Yes, if the Court allows it. This is most often done when one parent has been excluded or has not been involved in the Child’s life and the Court wants to allow the Child a little time to get more comfortable with the Parent. This arrangement is usually short-lived. Courts do not usually order one parent to supervise on a long term basis, unless both parents agree to this.

Can relatives, aunts, uncles or grandparents supervise the Visitation?

Yes, but Ohio courts will not usually require a person to do this unless he or she is willing to do so.

Are there places you can go where they are paid to supervise the Visitation?

There are businesses who do this for a fee. Usually, but not always, the Court orders the Parent to be supervised to pay the fee. Here is a link to a directory of places that provide this service in Ohio. http://www.svdirectory.com/state.htm?st=oh. In Franklin County, there are several places that provide supervised visitation, including Welcome to Our Place and the Buckeye Ranch.

Do you have more questions about supervised visitation, but you are not sure if you need an attorney? Maybe our FAQ page will help. If you would like to meet with one of the attorneys from our office, call us at 614-225-9316.

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You may also be interested in some of our divorce articles:

DISCLAIMER – Read it, it’s important!

Family Support Columbus Ohio & UIFSA

February 19, 2011

What is family support? It’s not a legal term in Ohio law, but it is included in the Uniform Interstate Family Support Act, or UIFSA. Family support is a term that is used to mean child support and/or spousal support (alimony).

The UIFSA is a result of federal regulations requiring states to cooperate in establishing child support, and assist in enforcing child support, spousal support and family support orders. If you are seeking help with interstate family support orders in Columbus, Ohio (Franklin County), you can consult with a child support attorney. To visit the website for the Franklin County Office of Child Support Enforcement, or CSEA, just place your cursor over the link and click it.

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Interstate Family Law Attorney in OH Ohio Franklin County Ohio’s CSEA has published a helpful brochure on interstate child support enforcement issues. Just click the link to read it. The brochure answers questions such as:

What to do if you have a child support case with different orders in different states?
How long will it take to work with another state to establish or collect child support?
How do you get your child support or family support order changed when one or both parents have moved to another state?
How do you enforce your child support, spousal support or family support order when one or both parties have moved to another state?

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Attorney in Ohio UIFSA Child Support Spousal Support Alimony To help Ohio parents better understand the meaning of the terms in UIFSA, the Cuyahoga County CSEA has published a helpful glossary. They also have a short and sweet explanation of UIFSA on this page. To find out information about UIFSA from the CSEA in your county, click here for a directory.

Franklin County Courts have also provided some helpful information about family support and child support. When you click the link at the end of this paragraph, scroll down past all the phone numbers and you will come to the question and answer section. http://www.fccourts.org/drj/childsupportfaq.html

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Last but not least, in unraveling UIFSA, take a look at this Ohio Attorney Guide to UIFSA. It is over ten years old, so you or your child support attorney will have to check to make sure it complies with the current law regarding UIFSA in Ohio, but it can provide a good framework for understanding the Law.

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Need more help with interstate child support or spousal support (alimony), but not sure if you need an attorney? Maybe our FAQ page will help. If you would like to meet with one of the attorneys from our office, call us at 614-225-9316 or e-mail us.

DISCLAIMER – Read it, it’s important!

Psychological Evaluations in Ohio Divorce and Custody Cases: Series on Divorce Part 16

February 18, 2011

There is a lot of fuss and fanfare about psychological evaluations in family law. The most common reason we hear for requesting a psychological evaluation in Ohio family law cases (divorce, custody, visitation, shared parenting), is, “I think my ex is bipolar and I want custody of my children.” Many clients want to have a psychological evaluation performed in their cases, but what happens in those evaluations is a big mystery to them.

When the purpose of the psychological evaluation is to determine which parent is more suitable to parent children (a Child Custody Evaluation), there are guidelines that an evaluator must use. On February 21, 2009, the American Psychological Association revised their “Guidelines for Child Custody Evaluations in Divorce Proceedings”. They are now known as the “Guidelines for Child Custody Evaluations in Family Law Proceedings“, an acknowledgment to the fact that the definition of family in America is changing, and psychological evaluations are no longer used only in divorce.

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The new guidelines can be seen here: http://www.apa.org/practice/guidelines/child-custody.pdf. Contrary to what most parents believe, the purpose of a psychological evaluation is not to see if either parent has a mental health diagnosis. The Psychologist’s contact with the parents is unlikely to be sufficient for the Psychologist to actually make a diagnosis. At best, they may be able to observe characteristics which might be “consistent with” a certain diagnosis or disorder.

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If the purpose of the examination is not to make a diagnosis, then what is it? In a nutshell, the purpose is of the psychological evaluation, or child custody evaluation, is:

Where possible, to answer the referral question that was set out in the Court’s order which required one or both parents, and the Child, to participate in the evaluation; and
To determine the psychological best interests of the Child. Where appropriate, the Psychologist can make a recommendation as to which parent is better equipped to meet the psychological needs of the Child.

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10 Things to Discuss with Your Attorney

Sometimes the Court will choose the evaluator, and sometimes the Court will allow the parties or attorneys to choose or have input regarding which psychologist will perform the evaluation. In that case, here are 10 important things to discuss with your attorney:

How much will the psychological evaluation cost?
Who will pay for the psychological evaluation?
Does this Expert generally prepare a written report? If so, does the Expert generally prepare the report on time, or request multiple extensions of time to prepare the report? If you don’t want your case to drag on, is this the Expert for you?
When this Expert prepares a report, does he or she generally make a recommendation to the Court, or avoid making a recommendation to the Court?
What does this Expert charge for his or her time in depositions, and for court time? Is it a higher hourly rate or an expensive flat fee? If your case goes to trial, you will probably need this Expert to come to court. Can you afford to pay for that?
Has your Attorney worked with this Psychologist before? If so, what were your Attorney’s impression of his or her work?
In your Attorney’s experience, does this Psychologist generally make a recommendation which favors mothers? Or fathers? If your Attorney’s experience is that a particular psychologist almost always recommends one parent over the other, and that parent is not you, you should discuss your concerns with your Attorney.

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If need be, will the Psychologist participate in depositions and testify in court? Believe it or not, some psychologists who will perform custody evaluations do NOT want to give a deposition or go to court in any way, shape or form. Although they can be compelled to do so, discuss with your Attorney why you would voluntarily agree to hire an unwilling expert.
Is the Expert willing to supply his or her information, notes, etc. in response to a subpoena, to the extent permissible by law? Does your Attorney know if the Expert has redacted information or notes when his or her records were subpoenaed? If so, why? Was there a legal basis for doing so, or was the Expert trying to hide something that should be discoverable?
What is the Expert’s working relationship with the Guardian Ad Litem? Does your Guardian Ad Litem always suggest this Expert? If so, why? Does the Expert have discussions with the Guardian Ad Litem that he or she does not disclose to your Attorney?

You may also be interested in some of our divorce articles:

DISCLAIMER – Read it, it’s stuff you need to know!