Divorce – Page 2

Is my spouse entitled to half of my retirement when we divorce?

April 8, 2015

Columbus Divorce Lawyer

Virginia Cornwell is a Columbus Ohio Family Law Attorney.

Retirement plans are often the most significant asset of a marriage, often worth even more than the couple’s house. Therefore, people are naturally worried about what is going to happen to that asset when the couple divorces.

In Ohio, all assets are presumed to be marital, and therefore subject to division, UNLESS the husband or wife shows that some of the asset is separate property. With retirement assets, an experienced family law attorney can help you show the Court what portion of the retirement was yours before marriage, which is called tracing. The attorney can then help you retain your separate property, leaving the rest of the retirement, the portion that was acquired during the marriage, subject to division in the divorce.

There are different ways to trace different kinds of accounts, and it may require the assistance of a financial expert to testify for the court to preserve your pre-marital interest in a retirement account, but it can often be done.

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Want your questions answered by a live person (either in person or by telephone)? We would be happy to schedule a consultation with you.

Columbus Ohio Divorce Lawyer

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Is your property commingled with the property of a divorcing couple? You may want to protect your property by becoming a party to the case.

October 9, 2014

A recent Ohio Ninth District Court of Appeals decision, Deitz v. Deitz, shows how things can go very wrong when your property is in some way combined with the property of a couple who is getting a divorce. If that is happening to you, the question then becomes, how much do you trust the party you are aligned with to prove that the property is not marital property, but is in fact (at least partially) yours?

In Ohio, divorce courts presume that all property is marital, unless one of the parties prove that the property is separate property, or the property of neither the Plaintiff nor the Defendant.

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In the Deitz case, Husband was living with his mother and brother during the divorce. At trial, Wife introduced an exhibit which was a list of cars, trailers, parts and tools that she asked to have classified as marital property and sold at auction. Wife testified that she hoped to have the proceeds of the auction applied to Husband’s child support arrearages. At trial, the Wife, the Husband, and Husband’s mother all testified regarding specific items of property that Wife asked to be classified as marital property.

The Magistrate’s decision ordered that most of the property listed on the exhibit were presumed to be marital property because husband had failed to properly trace the items as his separate property. The Magistrate’s decision ordered the items to be sold at auction. The Judge adopted the Magistrate’s decision the same day.

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The Husband objected to the Magistrate’s decision stating that “some of the property listed appears to be the property of third parties.” Shortly afterwards, the husband’s brother and mother filed motions for joinder under Ohio’s Civil Rule 75(B)(1). The court denied the motions for joinder saying they were “too little, too late”.

Civil Rule 75(B) allows persons claiming an interest in property out of which a party seeks a division of marital property, a distributive award, or an award of spousal support to be made a party defendant to the case, at the discretion of the trial court. The trial court has to believe that the person’s interest in property needs to be protected within the divorce action.

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Likewise, Civil Rule 75(B) allows the Plaintiff or Defendant (a party) to a divorce case to join a person as a party to a case, even against their will, if it is necessary for the court to protect property from which the Plaintiff or Defendant are seeking a division of marital property, a distributive award, or an award of spousal support. This can be very important when one of the parties is trying to hide assets outside of the court’s reach.

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The court of appeals stated that the term “interest” as used in Civil Rule 75(B)(1) means lien or ownership, legal or equitable. The court said that the parties seeking to join in the divorce bore the burden of sufficiently detailing their respective property interests and the basis for their claim of ownership. Because they had not done so, the Court of Appeals concluded that the trial court did not abuse its discretion by denying their motions to be joined as a party.

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What is to be learned here is that if you have property that is joined, shared or collective in any way with the property of a couple who is being divorced, it is up to you to make sure your property is protected, early on, and with specificity.

Business partners often assume that their interests are protected, however, in reality, they are relying on their friend, partner or family member to do adequate tracing at a time when they are financially and emotionally stressed. It may be advantageous to be asked to be joined to the case yourself if you have proof to present that the property is not marital property.

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Need some help? We would be happy to schedule a consultation with you. Please give us a call, and one of our Columbus Ohio Dissolution Lawyers will meet with you to discuss your case.

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

DISCLAIMER – Read it, it’s important!

How long do you have to live in the state of Ohio and your county before you can file for divorce, annulment or legal separation?

September 27, 2014

Virginia Cornwell is a Franklin County Ohio Divorce Lawyer, Columbus Ohio Divorce Lawyer, and Ohio State Bar Association Family Relations Specialist.

You do NOT have to have been married in Ohio to end your marriage in Ohio. Where you file your divorce is about residency.

RESIDENCE IN THE STATE OF OHIO TO FILE DIVORCE OR ANNULMENT

In Ohio, pursuant to Ohio Revised Code 3105.03 states that The plaintiff in actions for divorce and annulment shall have been a resident of the state at least six months immediately before filing the complaint. Note that Ohio Revised Code 3105.03 does not mention legal separation or dissolution.

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WHICH COUNTY YOU SHOULD FILE

DIVORCE, ANNULMENT OR LEGAL SEPARATION IN?

If you want to file a divorce, annulment or legal separation in Ohio, the Ohio Rules of Civil Procedure tell you which county to file in and how long you have to live there to file:

RULE 3. Commencement of Action; Venue

(B) Venue: where proper.

(9) In actions for divorce, annulment, or legal separation, in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint;

Neither ORC 3105.03 or Civil Rule 3 place restrictions regarding the filing of dissolutions.

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Need some help? We would be happy to schedule a consultation with you. Please give us a call, and one of our Family Law Attorneys will meet with you to discuss your case.

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

DISCLAIMER – Read it, it’s important!

6 Things You Need to Know About Prenups (Prenuptial Agreements or Antenuptial Agreements) in Ohio

September 20, 2014

A prenuptial agreement, also be called an antenuptial agreement, or “prenup”, is a contract between two parties who are soon to be married. The usual purpose is to protect property rights. These agreements must be in writing. See Ohio Revised Code 1335.05.

1. It is best to draft with precise language that makes the intent of the parties clear. When the agreement includes waiving of rights provided by statute, such as the statutory right to “take against the will”, then the agreement should specifically reference with clear language what statutory rights are being waived by the agreement.

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2. It is important that the circumstances surrounding the execution of the agreement show that the agreement was signed voluntarily, with full knowledge, that both parties had time to consider the agreement, and both parties knew that they could consult an attorney to represent their interests. The best practices is to (if possible) require each party to have their own attorney. In addition, the prenuptial agreement should be signed well before the marriage date instead of surprising one party just prior to the wedding date. A Court may inquire if the party had time to read and consider the agreement, if the party had independent counsel, or if there was coercion or undue influence as part of considering whether there is a defense such that the agreement was unconscionable or there was overreaching.

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3. A court may inquire if there was full and fair disclosure of all assets and of the effect of the agreement. Good practice may include attaching an inventory of assets and the value of each asset to the agreement to provide full disclosure. This is an area where one party often resists – full disclosure. They just want a document that says something to the effect of “what is yours is yours and what is mine is mine” and to bypass disclosure. Full disclosure makes the document less subject to attack in a divorce.

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4. Ohio law gives a surviving spouse only four months to bring a legal action to contest an ante nuptial agreement after the death of his or her spouse. Ohio Revised Code 2106.22. Affirmative defenses such as fraud or duress must be put in the legal pleading.

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5. A Court may find certain provisions of the prenup to be unconscionable at the time of divorce. This may be due to unforeseen circumstances such as a large change in the assets of one party. A court may choose not to uphold provisions of the prenup that it finds unconscionable.

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6. Parties should be aware that modifications (postnuptial agreements) made after marriage which are more restrictive or harsh than the original agreement may be closely scrutinized by the Court.

Key cases on prenups in Ohio include:

Hook v. Hook

Gross v. Gross

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Need some help? We would be happy to schedule a consultation with you. Please give us a call, and one of our Prenuptial Agreement Attorneys will meet with you to discuss your case.

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

DISCLAIMER – Read it, it’s important!

Part 22: Five More Dirty Divorce Tricks to Avoid

September 3, 2014

This is the 22nd installment in a series by Virginia Cornwell, a Columbus Ohio Divorce Lawyer and an Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximately 100 attorneys in Ohio to have received this honor. Divorce litigation has its share of dirty tricks, maybe more than its share of dirty tricks. This article is part 3 of our series on Dirty Divorce Tricks. When we say “dirty”, that’s not a good thing. Dirty is not meant to be another word for clever. More like an expensive and mostly unproductive waste of time.

DIRTY TRICK NO. 11: TRYING TO MOVE THE CHILD FAR AWAY FROM THE OTHER PARENT. This one is especially popular. Courts understand the desire to move closer to your family if your marriage ends, but that does not necessarily mean that the court thinks it is in the best interest of the child. Some people like to present it to the court as their only option, as a survival issue. This can back fire, with the court perceiving the other parent as more stable. Ohio courts generally like a child to have frequent access to both parents, and will expect both parents to make great compromises to make that happen. While a court cannot tell a parent where to live, a court CAN tell a parent whether they can move the child.

DIRTY TRICK NO. 12: HAVING YOUR PARENTS FILE A MOTION FOR GRANDPARENT VISITATION IN AN ATTEMPT TO EXPAND YOUR OWN PARENTING TIME. Puh-lease. Courts see right through this one. Unless the grandparent is alienated from their own child, courts do not take this one seriously. If the grandparent IS alienated from their own child, or says that they are, the court generally carves out some time from their own child, not the other side. This tactic falls flat from the get go.

DIRTY TRICK NO. 13: PLAYING GAMES WITH THE OTHER PARENT’S VISITATION. Typically this dirty trick manifest in ways such as not answering the phone when it is the other parent’s turn to talk to the children, not sending appropriate clothing, playing games about sending and receiving the child’s belongings, having an overabundant number of illnesses, suddenly enrolling the child in a bunch of extra-curricular activities, you name it. The child is the pawn here. NOT. GOOD.

DIRTY TRICK NO. 14. HACKING THE OTHER PARENT’S EMAIL OR COMPUTER. Illegal, unwise, and very risky. Better to ask for what you want in discovery, including inspection of your spouse’s computer by an expert of your choice (if you think there is something really, really valuable on there). Most of what you NEED to prove you can prove another way.

DIRTY TRICK NO. 15: STALKING THEIR FACEBOOK, TWITTER, INSTAGRAM, ETC. ACCOUNT. Be warned about what you post on the internet while you are in litigation.

You may also find some of these articles in our divorce series to be of interest:

Adultery, Annulment, Alimony (Spousal Support), Best Interest of the Child, Child Custody, Child Custody Jurisdiction , Child Support (deviation), Child Support (how much), Child Support (how to pay), Child Support (lower), Child Support (myths), Child Support (resources), Child Support (sign up),Contempt, Dissolution, Divorce Basics, Divorce Myths, Foreclosure Mediation, Grandparents, Guardian ad Litem, House, How Long Your Divorce May Last, International Abduction,Legal Separation, Mediation, Moving, Packet of Forms vs. Getting a Lawyer, Prenuptial Agreements (Antenuptial Agreements), Shared Parenting,Temporary Orders, Temporary Orders Affidavits, Where to File for Divorce

DISCLAIMER – READ IT, IT IS INFO YOU NEED TO KNOW.