Divorce – Page 4

Who gets to keep the ring?

September 29, 2013

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

When an engagement or a marriage ends, the matter of who gets the engagement ring(s) / wedding ring(s) is very common.

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In Ohio, generally, when an engagement ends, regardless of who is at fault, the ring is returned to the person who gave it. This is because the ring is a conditional gift, in other words, a gift that is conditioned upon a marriage. When the marriage doesn’t happen, the gift may not be kept.

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If the marriage actually happened, the gift is complete, even if the marriage does not last forever, and the person who received the gift gets to keep it.

If you would like to discuss your divorce or dissolution with one of our family law attorneys, give our office a call at 614-225-9316.

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I live in one state and my spouse lives in another. Where do I file for divorce?

July 3, 2013

Virginia Cornwell is an Family Lawyer in Central Ohio. She is an Ohio State Bar Association Certified Family Relations Specialist.

Where you must file for divorce depends on jurisdiction. To make it more complicated, it depends on more than one kind of jurisdiction.

If children are involved, the first consideration is subject matter jurisdiction. Subject matter jurisdiction means the court is authorized to hear a certain kind of claim, in this case, custody matters. Under the UCCJEA, which is adopted in Ohio and most states, a court make initial custody decisions unless, generally, 1) the child has been living in that state for the last six months (the child’s home state), or, if the child has no home state, the state where the child has the most significant connection. Custody modifications have different rules. To learn more about the UCCJEA, click any of these links: https://cornwell-law.com/01/columbus-ohio-child-custody-part-4/, https://cornwell-law.com/06/interstate-family-law-jurisdiction-attorney-series-part-i/.

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A court either has subject matter jurisdiction or it does not. It is not something the parties can give the court by agreement. If an Ohio court makes orders that it did not have subject matter jurisdiction to make, those orders can be challenged, and voided, at any time. So step number one, if there are kids involved, figure out which state has subject matter jurisdiction.

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HOW The second type of jurisdiction involved in divorce is personal jurisdiction. This is what a court needs to make order over the parents, the parents’ property, and the parents’ money. This can be kind of tricky. Personal jurisdiction is usually where each parent lives. Sometimes, if parents have connections to more than one state, then a court can have “long arm” personal jurisdiction. However, your children living in a state is not enough to give a court personal jurisdiction over you. Generally, what is enough is you living in a state, you having property there, you being served with papers in a state, you (or your lawyer) filing a general entry or notice of appearance, you (or your lawyer) making an appearance in a court proceeding without stating that you are making an appearance for the purpose of challenging jurisdiction, or doing something to invoke the jurisdiction of the court which you assert has no jurisdiction over you.

So at this point, take a look at which state (or states) have personal jurisdiction over the parents (and their property and money). If there is a state that has personal jurisdiction over at least one of the parents, AND subject matter jurisdiction over the children, then that is probably the best state to file in. But there’s a hitch. There’s always a hitch.

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WHERE In Ohio divorce cases, according to Ohio Revised Code 3105.03, the PLAINTIFF (the person who files the divorce), has to have been a resident of the state (lived in the state) for six months before filing a complaint for divorce. So what if you do not live in Ohio, your spouse and children do, and your spouse will not file for divorce? You may have to file for divorce in the state where you live. Unless that court has “long arm” jurisdiction over your spouse, the court will only be able to end the marriage. It will not be able to make orders regarding your spouse’s property or money, and will not be able to make orders regarding the children. Once your marriage is ended in the other state, you can file an action in juvenile court in Ohio to secure orders regarding your children.

Sound complicated? If you would like to talk to one of our Columbus Ohio Family Lawyers, please give our office a call at 614-225-9316 to schedule a telephone or office consultation.

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

DISCLAIMER – Read it, it’s important!

An Overview of Qualified Domestic Relations Orders

June 26, 2013

This article will discuss Qualified Domestic Relations Orders (“QDRO”), what they are, when they are needed, and what the process is for having the order approved and the process completed.

What is a QDRO?

QDRO’s are governed by federal law. A QDRO, as defined by Internal Revenue Code Sec. 414(p)(1)(A), is a court order in a divorce case that divides ownership of an employee-sponsored retirement asset. Typically a QDRO is prepared after a settlement or trial along with the Decree of Divorce and other related court orders and transfer documents. It essentially orders the plan administrator to divide the asset between the parties and gives instructions on the specific details of the division of the asset.

When a QDRO is Needed

Most assets divided in a divorce case will not require a QDRO. For example, real estate, vehicles, non-retirement financial accounts, and even IRAs (usually) can be divided and transferred between the parties without the need for a QDRO. That is good because QDROs add some additional work and expense. The only assets that absolutely require a QDRO are employee-sponsored retirement assets, typically pensions and 401k accounts. Division and transfer of these assets is simply not possible without a properly prepared QDRO that is approved by the plan administrator.

What Information Must a QDRO Contain?

According to Internal Revenue Code Sec. 414(p)(2)(A)-(D), in order to qualify as a QDRO the order must contain:

The name and address of each party
The specific name of the plan
The dollar amount or percentage of that is to be paid to the alternate payee (sometimes this is done with a formula)
The number of payments or time period to which the order applies

What Provisions Can NOT be in a QDRO?

Internal Revenue Code Sec. 414(p) also explains that a QDRO can never require the plan to:

provide any type or form of benefit not otherwise provided under the plan
provide for increased benefits
pay to an alternate payee benefits that are already required to be paid to another alternate payee under a previously approved QDRO
pay benefits to an alternate payee in the form of a qualified joint and survivor annuity for the lives of the alternate payee and his or her subsequent spouse

Brief Summary of the QDRO Process

Often the attorney for the party receiving a share of the other spouse’s retirement will draft the QDRO. Sometimes that attorney (or the client) will hire a QDRO attorney specialist to prepare the QDRO. The draft is reviewed and signed by both attorneys and often both parties as well prior to submission to the court. Often the QDRO is submitted and signed the same time as the Final Decree, although it is not uncommon for delays to occur with the preparation of the QDRO and for it to be submitted sometime shortly after the Decree. For example, some attorneys prefer to first provide a draft to the plan administrator to obtain pre-approval prior to submission to the court.

Once the court has signed the QDRO a certified copy of the order is obtained and submitted to the plan administrator. If approved the appropriate division is made. If for some reason the QDRO was not approved the plan administrator is required to explain the reason for rejection. Then the party can submit an amended QDRO to the court and start the process all over again.

About the Author

Scott Morgan has practiced family law in Texas since 1994, and is a guest writer for this blog. Scott is board certified in family law by the Texas Board of Legal Specialization and is the founder of the Morgan Law Firm which has offices in Houston, Austin and Sugar Land. Currently Scott handles primarily Travis County divorce cases from the Austin office.

Looking for an Alimony or Spousal Support Calculator for Ohio?

January 24, 2013

Looking for an alimony (or spousal support) calculator for the state of Ohio? Alas, you won’t find one, because it doesn’t exist. Alimony is completely within the discretion of the court. There are no statutory spousal support guidelines in Ohio like you see in child support.

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There is, however, a statute that contains a list of factors that courts must consider when awarding spousal support. To see the Ohio spousal support statute, click the link. Many Judges or Magistrates have guidelines that they use when decided whether to award spousal support and how long to order it. Generally, most courts do not consider awarding permanent spousal support unless the parties have been married at least 20 years. Below 20 years, many courts use a rule of thumb that they will award 1 year of spousal support for every three years of marriage.

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Before deciding whether to award spousal support, courts look at the income of the parties, particularly at the difference in the parties’ income. If the parties make pretty much the same amount of money, are close in age and have similar health situations, the court may award no spousal support at all. Each case is different. To get an idea of what factors apply to your case, click the link above to the Ohio spousal support statute. It may be helpful to discuss your case with an Ohio Family Law Attorney.

Virginia Cornwell is an Ohio State Bar Association Family Relations Specialist. She practices in Columbus, Ohio, but represents clients in most counties in Ohio and travels throughout the state.

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

CALL NOW (614) 225-9316

DISCLAIMER – Read it, it’s important!

What is the average cost of a divorce in Ohio?

January 21, 2013

We get this question all the time. Know why lawyers look so nervous when you ask them this question? Because there is no average divorce. Clients really really want there to be, because they want to know what to expect. Of course they do! This is one of the most stressful times of their lives! But family law is a different animal, and especially divorce.

In divorce, people often feel that the things that they are trying to leave the marriage with will have a huge impact on their lives in the coming years. The more reliant he or she is on what they want to take with them, the longer and harder they are going to fight for it. So, in a word, the average cost of divorce is expensive. How expensive your divorce will be depends on a lot of things. Take a look at this list. The more things on this list that apply to your case, the more likely you are to have an expensive divorce:

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Adultery. This makes for an expensive divorce not because it is especially legally relevant in Ohio, but because somebody in the marriage is probably pretty ticked off and not in a hurry to just let their spouse go on their merry way.
Attorney Fees. Can you afford to pay your attorney to litigate long enough to try to get all the things you want? Even if you can, will the cost of attorney fees outweigh the cost of what you are trying to get? Given your attorney’s advice re the likelihood of getting or not getting what you want, should you settle? Can the other side afford to pay his or her attorney? How likely is it that the court is going to order you to pay part of your spouse’s attorney fees, or vice versa? Is your spouse continuing to litigate despite the fact that he or she has no apparent way to pay his or her attorney?

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Child Support. Who is going to pay it? How much should be paid? Can you agree on how much each of you earns so that the court can calculate child support guidelines? Is either person deflating his or her income? Is either of you underemployed or unemployed? Is somebody who is capable of working deciding not to work? Does your child have any special needs? How much time is each parent going to have with the child? Should the amount of time each of you spends with the child be a factor in how much child support is ordered?
Custody. If you have children, do you and your spouse agreed regarding the terms of custody? Should it be shared parenting, or should one person have sole custody? How much time should each parent have with the child? What should the parenting schedule be? Who should do the transportation? Who will take the tax exemption for the children? Who will have authority to enroll the children in extracurricular activities? Who will pay for them? Will both parents continue to foster the child’s love for the other parent in their home, or will they engage in parental alienation? Who will make medical decisions?
Division of Property. Have each of you agreed who gets what? Have you each disclosed to the other everything that you have?

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Division of Debts. Have each of you agreed who pays what? Can you afford to live in two households and still pay all your bills and your support (child support and spousal support obligations)? Have you each disclosed to the other everything that you owe? Does either of you plan to file bankruptcy during the divorce or after the divorce?
Duration of the Marriage. How long have you been married? Have you been separated for many years? Should what you earned or acquired during your separation be divided as marital property?
Has either party hidden assets? If either party has a history of being secretive about their finances, this can make the divorce last longer. The other party cannot trust that they are getting a fair deal, because their spouse has always been so secretive. If proof of hidden assets has been discovered, this can be especially difficult, because then the deceptive spouse is in a position of trying to prove a negative. In other words, how can you ever prove your are NOT hiding any more assets? You can’t. So best to disclose right from the start.

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Health insurance. Who is going to pay for health insurance during the divorce? Is COBRA coverage available after divorce? Who is going to pay for it?
Mediation. Will your spouse participate in mediation? How hard will they work to come to resolution?
Moving or Relocation. Is the parent who will be the child’s “home base” allowed to move away from where they live now with the children? If so, how far away? Who will provide the transportation for visits after the move?
Retirement benefits and Pensions. Has either of you acquired retirement plans, 401Ks, IRAs, Keoghs, deferred compensation, PERS, STRS, TIAA CREF, pensions, military pensions or other assets during the marriage? What are they worth? Is yours equal in value to your spouse’s? Is it fair to just let him take his and she takes hers, or do the plans need to be divided?
Spousal Support. Will either party pay spousal support to the other? If so, for how long?

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Separate Property. Do you have any separate property such as property you inherited, property you had before the marriage, property that was a gift during the marriage to you only, property that is protected by an Prenuptial Agreement?
Temporary Orders. What are you going to do while the case is pending – with kids, with child support, paying the bills, who lives in the house, who drives the car, everything?
Who gets the house? This question can be one of the most problematic question in a divorce, especially when the house is “under water”. Who can afford the house? Often neither party can afford the house, and neither party wants to take the credit hit or financial repercussions of foreclosure or bankruptcy. This issue alone can make a divorce linger for months before parties realize that they have to do SOMETHING and make a decision.

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The answers to these questions and more go into how much a divorce will cost. Bottom line is – divorce is not ever cheap, and no two divorces are the same. In addition, you are not the only one who controls the cost of your divorce. Your spouse and his or her attorney, and the Magistrate or Judge assigned to your case have a lot of control over how much things are going to cost. You and your attorney should discuss all the above issues and then maybe you can get an idea of what your divorce would look like, but without that information, it is a wasted effort to try to tell you what to expect from your divorce.

It is worth it to really put your all into trying to come to agreement with your spouse on every issue possible. Even if you can’t agree on all issues, you can settle some issues early on and limit the cost of your divorce. From there, you can work with your attorney to do all of the “home work” that you can to try to keep costs down.

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

DISCLAIMER – Read it, it’s important!