Ohio Series on Divorce Part 21: Dealing with the Guardian ad Litem

September 2, 2014

If custody or parenting time is contested in your Ohio divorce, then the court is probably going to appoint a guardian ad litem. To read about what a guardian ad litem is, click HERE, and to read about the Ohio Supreme Court Rule governing guardian ad litem investigations, click HERE.

Once you have a guardian ad litem (attorney appointed to represent the best interest of the child) appointed to your case, they will do an investigation. You and your Ohio Divorce Lawyer want to do your very best to help the guardian ad litem understand your point of view. Here are some tips for doing the best job you can with the guardian ad litem.

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Columbus Divorce Lawyer, Divorce Lawyer Columbus, Divorce Lawyers Columbus, Divorce Lawyers Columbus OHio, Divorce Attorney Columbus The guardian ad litem (GAL) will almost always send a questionnaire to be filled out with details about the case, along with perhaps some releases.

Take your time to do a good job on the questionnaire, but do NOT submit it to the GAL until your Ohio Divorce Lawyer has had a chance to look at your responses.
Do not sign any releases until you have your Ohio Divorce Attorney‘s consent to do so.
Fill out the questionnaire thoroughly, and take the questions seriously. Do the home work to give complete answers.
Understand that NOTHING you say to the GAL is privileged, the questionnaire may be disclosed to the other side in discovery, and may even end up as a trial exhibit. Yes, there is a chance, although slim, that the Magistrate will see your questionnaire. Therefore, do not be casual when answering, be careful.

Understand that GAL’s often have a busy case load. The more organized you and your Columbus Ohio Divorce Lawyer are when presenting your information to them, the more easily the GAL can understand your point of view.

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Your Columbus Ohio Divorce Lawyer should prepare a packet of information to be sent to the guardian ad litem. What goes in that packet of information should, at a minimum, include a copy of all the pleadings in your case. If your Columbus Divorce Attorney has additional information relevant to your case, you and/or your Columbus Divorce Lawyer can organize the information in a way that is easy to digest (usually, but not always, chronological order). It is helpful, but no crucial, if your Columbus Divorce Attorney can send this information to the GAL before his or her first interview with you. Hopefully, the GAL will have had time to look at the information before your first meeting, but do not become upset if it does not work out this way. Be respectful of their schedule and work load. They do not receive a packet of materials from all Ohio Divorce Lawyers, and the bigger the packet, the bigger an unexpected surprise the GAL will have received.

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Before your first meeting with the GAL, think about what you want to tell him or her. Make a list of important points, so that you do not forget them. Think about what you think the other side will want to say to the GAL, so that you can present your side of the story. If your Columbus Divorce Lawyer sent materials to the GAL (other than just pleadings), you should bring a copy with you so that you can tell the GAL about those materials, especially if the GAL has not had a chance to read them yet.

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Tell the truth.
NEVER FORGET, the GAL is not your attorney, and nothing you say to them is privileged (secret). They can use ANYTHING you say against you, if they think it is best for the child.
The GAL is not exactly a neutral, they are an advocate for the child. They will use any evidence they gather from their investigation in whatever way they think will benefit the child, as long as it is legal and ethical.
If you have ANY QUESTIONS AT ALL about touchy subjects that will have to be discussed with the GAL, talk to your attorney first. You may find that the subject you are worried about is perfectly okay to discuss with the GAL. Regardless, you will feel more confident and less nervous having discussed it with your attorney first.

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divorce custody lawyers columbus, child custody divorce lawyers columbus, custody divorce lawyers columbus, columbus ohio divorce lawyer, columbus ohio divorce lawyers After the GAL’s investigation is complete, he or she will make a recommendation to the court. This recommendation is HUGE, HUGE, HUGE. Very important. Some courts flatly follow the recommendation of their guardians without variance. In this writers experience, with many different Ohio counties, about 90% of the time, if a case goes to trial over custody matters, the court will make orders which are the same or similar to the recommendation of the GAL. Do not count on being the exception to the rule, and don’t expect your attorney to make you the exception to the rule once the bad news is in. Instead, work hard at the very beginning of the case to present organized information to the GAL about your point of view so that this person can understand a lot of information in a short period of time, and hopefully reach a favorable conclusion.

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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 Ohio Child Custody Lawyers will meet with you to discuss you case.

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

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Filing for Divorce Does Not Have to Mean Declaring Nuclear War, by a Columbus Ohio Divorce Lawyer

August 26, 2014

Virginia Cornwell is a Columbus Ohio Divorce Lawyer.

When potential clients come in to see us to end their marriage, they sometimes have the initial impression that they have only two choices:

End their marriage by dissolution; or
File for divorce and prepare for nuclear war.

In reality, the truth is not so black and white. Some people believe that they are incapable of negotiating with their spouse, and that their spouse will not respond to an offer of settlement. This may be true – for a while. Sometimes, a client finds out that while their spouse is resistant to negotiating with them, they are even more resistant to paying a bunch of money to a lawyer for a messy divorce. So while spouses may be reluctant to address the issues and settle them, all of that may change after the divorce is actually filed.

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In this writer’s experience, over 90% of divorce cases settle. Filing a divorce case is not the same thing as committing to a trial. Rather, it is taking the first step, the beginning of the end. From that point, the goal can be moving toward an informed divorce settlement. Sometimes it takes a while to get there, sometimes all it takes is extending an olive branch.

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Where both spouses can be trusted to follow through with their agreement and appear at the dissolution hearing, dissolution is a quicker, faster option than divorce. But where parties’ motivation to end the marriage, or to broker the agreements necessary to end the marriage are not in the same place, filing for divorce may be the better option, if only to get the process moving toward finalization.

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The divorce process has a way of moving the parties toward settlement. The Judge, at pretrial conferences, will help the parties to resolve conflicts that are barriers to settlement. This can help when one or both parties is “digging in their heels” on an issue.

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Between the benefit of the experience of the attorneys and the guidance of the Judge, most divorce cases settle. Therefore, parties should understand that filing for divorce does not mean starting a war. It is important, however, that the client and the divorce attorney be on the same page regarding settlement.

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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 Divorce Lawyers will meet with you to discuss your case.

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

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What is Uncontested Divorce? (By a Columbus Ohio Uncontested Divorce Lawyer)

August 26, 2014

Virginia Cornwell is a Columbus Ohio Uncontested Divorce Attorney.

In Ohio, uncontested divorce is not the same thing as dissolution (which is often referred to as amicable divorce, no fault divorce, agreed divorce, and “disolutionment“).

As the name suggests, uncontested divorce is part of the divorce process, not part of a dissolution. One of the primary differences between a divorce and a dissolution is that the marriage can end with only one party present at the final hearing. This can be important where one party either ignores the divorce papers, or, in the case of deployed military members, would like the marriage to end but find it difficult to attend the hearing.

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Uncontested divorce has, more or less, three scenarios:

1. The parties agree on the terms of ending the marriage, but for whatever reason, one of the parties cannot or does not want to attend the final hearing. The case is filed as a divorce. The parties may execute joint paperwork if they wish, such as a Separation Agreement and a Shared Parenting Plan. The parties can request an uncontested hearing. At this point, the party who is not attending the hearing is at some risk. Although he or she may have seen the divorce decree the parties agree upon, they run the risk that the Agreed Decree of Divorce will not be presented to the Judge, and instead another Decree, more favorable to the party attending the hearing, will be presented. It happens. Therefore, the party that cannot attend the hearing would be wise to have an attorney attend the hearing on his/her behalf to make sure the paperwork is correct.

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2. One party files for divorce. The other party, once served, does not answer the complaint or come to the uncontested hearing. The party who filed the complaint gets everything they asked for, providing the court has jurisdiction to award it.

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3. Someone files for divorce and initially, the case is contested. However, at some point, the parties reach agreement and settle the case. They have an uncontested final hearing, at which they give brief testimony regarding the facts in the complaint and the terms of the settlement.

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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 Divorce Lawyers will meet with you to discuss your case.

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How long do I have to wait to get a divorce, annulment or legal separation in Ohio?

August 22, 2014

Ohio Rule of Civil Procedure 75(K) says:

(K) Hearing. No action for divorce, annulment, or legal separation may be heard and decided until the expiration of forty-two days after the service of process or twenty-eight days after the last publication of notice of the complaint, and no action for divorce, annulment , or legal separation shall be heard and decided earlier than twenty-eight days after the service of a counterclaim, which under this rule may be designated a cross-complaint, unless the plaintiff files a written waiver of the twenty-eight day period.

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Clear as mud, right? To understand the rule you have to break it down a little bit.

First, no divorce, annulment or legal separation can have it’s final hearing earlier than 42 days after the Defendant was served with the Complaint.

Second, if the Defendant filed a counterclaim, then the final hearing cannot be held earlier than 28 days after the service of the counterclaim.

This is the fastest that anyone can get a divorce, annulment or legal separation in Ohio. You should know that unless both parties are cooperating, this is not a realistic timeframe. Even if the parties are cooperating, there may need to be extra time factored in to accommodate the schedules of the parties, the court and the attorneys.

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Does this still sound complicated? We would be happy to schedule a consultation with you. Please give us a call, and one of our Columbus Ohio Divorce Lawyers will meet with you to discuss your case and

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Ohio Supreme Court: Unvested Military Retirement Benefits Are Marital Property

August 14, 2014

MILITARY DIVORCE LAWYER The Ohio Supreme Court, in Daniel v. Daniel, 139 Ohio St.3d 275, 2014-Ohio-1161, has made clear that unvested military retirement benefits earned during marriage fall within the definition of marital property in Ohio Revised Code 3105.171(A)(3)(a) and must be considered for division of marital property in a divorce.

In the Daniel divorce the Supreme Court said: “While the exact amount to be divided is not ascertainable unless and until the service member completes the required 20 years of service, the percentage of ownership of the benefits on the date of divorce can be readily discerned. It is simple math: the number of years in service compared to the number of years of marriage provides the formula for division.

The court acknowledged that it may be difficult to determine the value of benefits that have not vested and may never vest, but stated that it does not follow that those future benefits have no value. Favoring the deferred distribution method of dividing the asset, the Ohio Supreme Court noted that the trial court was provided with all of the information necessary to calculate the “coveture fraction” (ratio of number of years of employment during the marriage to number of years over the total years of employment).

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Sound complicated? Okay, it is kind of complicated, but the bottom line is that a court can make orders to divide unvested military retirement benefits in Ohio. However, the “deferred distribution” part of this means that if the military member never collects, then the former spouse never collects, and that is just a risk the former spouse has to take.

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

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