Military Family Law

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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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.

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Military Custody Issues: Deployment and Active Service in Ohio

October 8, 2012

When military servicemembers (sometimes also referred to as service members) are called to active duty or are deployed it can wreak havoc on their families, especially families with children. Even though the servicemember may already have a Family Care Plan in place, service members who are divorced or unmarried parents may be worried that the other parent is going to try to take advantage of the situation to gain custody of their children. However, Ohio has special protections for members of the uniformed services who are called to active duty. Uniformed Services means according to Ohio Revised Code 3109.04: the United States armed forces, the army national guard, and the air national guard or any reserve component thereof, or the commissioned corps of the United States public health service.

ACTIVE MILITARY SERVICE IS NOT A CHANGE OF CIRCUMSTANCES IN OHIO!

The good news in Ohio is that state law prohibits a court from changing custody based solely upon military service. Specifically, Ohio Revised Code 3109.04(I)(2) says: The court shall not find past, present, or possible future active military service in the uniformed services to constitute a change in circumstances justifying modification of a prior decree. This may not provide as much comfort to a parent in this situation, because they may believe (rightly or wrongly) that when a court wants to modify custody, the court finds a way to do it. In other words, what if the court modifies custody anyway, but doesn’t admit that the deployment is the reason for changing custody? In the very next sentence, Ohio Revised Code 3109.04(I)(2) provides additional protection to the servicemember. It says: The court shall make specific written findings of fact to support any modification under this division. What does this mean? It means that the court cannot just change custody, say that it is not based on the military service, but not give the reason for changing custody. The court MUST write down the facts upon which the court chose to change custody. These facts allow the military member to appeal if there was no legitimate basis for the court to change custody.

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Skeptics may say well, that’s great that the law allows me to fight for my kids’ rights, but how am I going to do that from Afghanistan (or Korea, Japan or wherever you are being deployed to)? Of course there is always the good old Servicemembers Civil Relief Act, but when it comes to kids, stalling the proceedings until you can appear is not always good enough, especially if the non-custodial parent has obtained emergency custody. Ohio Revised Code 3109.04(I) provides opportunities to the active duty or deployed military member that Ohio courts will rarely offer to anyone else. If the court will put a stay on the proceedings pursuant to the SCRA until the member can attend, then, at least while the member is deployed the problem is solved. The member may have to reapply for the stay several times, but the children will stay put and be cared for under the member’s Family Care Plan. However, if the non-custodial parent is seeking or has obtained any kind of temporary order or emergency custody order, the court MUST, pursuant to Ohio Revised Code 3109.04(I), allow the service member to “participate in the proceeding and present evidence by electronic means, including communication by telephone, video, or internet to the extent permitted by the rules of the supreme court of Ohio.”

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ACTIVE MILITARY SERVICE
So who qualifies for the protections Ohio offers under this law? ORC 3109.04 defines “Active military service” as service by a member of the uniformed services in compliance with military orders to report for combat operations, contingency operations, peacekeeping operations, a remote tour of duty, or other active service for which the member is required to report unaccompanied by any family member, including any period of illness, recovery from injury, leave, or other lawful absence during that operation, duty, or service.

NOTICE TO THE OTHER PARENT IS REQUIRED
If you are the parent of a child who is subject to an Ohio order “allocating parental rights and responsibilities” (custody, shared parenting visitation order or child support), or you are a party to a case to allocate parental rights and responsiblities, and you receive a military service order calling you to active duty, you must notify the other parent within three days of receiving the order. See Ohio Revised Code 3109.04(I)(1). You must also give written notice to the court, child support enforcement agency, and the other parent of the date of termination of the your active military service not later than 30 days after the date on which your service ends.

Once notice is received, EITHER parent can apply to the court for a hearing to expedite a custody change or modification proceeding so that the court can issue an order before the parent’s active military service begins. The application must state the date upon which the active duty service begins. The court MUST schedule and hold a hearing not later than thirty days after receipt of the application, except that the court shall give the case calendar priority and handle the case expeditiously if exigent (unusual, emergency) circumstances exist in the case.

Although the court cannot change custody based solely upon military service, according to Ohio Revised Code 3109.04(I)(1) Ohio courts can make a temporary order “for the duration of the parent’s active military service”. A temporary order shall specify whether the parent’s active military service is the basis of the order and shall state that the temporary order ends and the old order resumes within 10 days after receipt of notice of the end of active military service, unless the other parent demonstrates that resumption of the prior order is not in the child’s best interest. However, even in those circumstances, the court still cannot change custody based solely on military service. Remember, in Ohio, the court must have a change of circumstances to change custody. Instead, the court would put on a new order which the court believes is in the child’s best interest, but does not change custody.

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