Family Law: Dissolution, Divorce, & Child Support

What is the difference between a divorce and dissolution?

Dissolution is a procedure to terminate a marriage where the parties settle all the issues without court intervention.   The parties can reach the settlement in a variety of processes, including settlement conferences, mediation, and negotiation.  However, both parties must attend the final merits hearing which is  part of the court’s procedural termination of the marriage.    Generally, dissolutions are less expensive and more favorable to the parties than divorces because the parties create the settlement terms.  A dissolution requires the cooperation of the parties. 

Divorce is an adversarial procedure to terminate a marriage where one party files against the other party alleging specific grounds for the divorce.  The process usually involves many court appearances and ultimately the court will decide the issues if the parties do not reach a resolution on all of the issues.  Child support, spousal support and allocation of household expenses can be ordered during the pendency of the divorce proceedings.

What is an Annulment?
Annulment  is the legal process to terminate a marriage and  is granted if one of the parties was under the legal age to be married, a party was married to someone else at the time of the marriage,  one party was adjudicated incompetent, consent to the marriage was obtained by force, fraud or deceit, or if the marriage was never consummated.

What are support obligations?

Child support is the money paid to one parent for the care and expense of raising the children of the marriage.  The Ohio courts require parties to file a child support worksheet which calculates the amount of child support based on the total of both parties’ incomes with adjustments for various expenses, including day care and health insurance for the children.   A deviation from the worksheet is acceptable with the court’s approval.  Child support is usually deducted from the obligor’s pay check and paid to a government agency which distributes it to the party who is to receive the child support. A processing fee is also collected from the obligor when the support is paid.

Spousal support  (formerly alimony) is the money paid by one spouse to the other spousal for the spousal’s living expenses.  The factors that are considered for spousal support  include the marriage length, standard of living during the marriage, the parties’  earning abilities, ages, physical abilities, retirement benefits,  education, assets and liabilities,  and  tax consequences.  The payment of spousal support is a tax deduction for the payor and considered taxable income for the recipient.  Usually, spousal support is withheld from a parties’ paycheck and paid through a government agency.

How is legal separation treated in Ohio?

A legal separation in Ohio has very similar procedures as a dissolution or divorce, but the parties maintain the status as "married.” Retaining the marital status can be important for some couples for a variety of reasons.  However,  after the parties are legally separated  the parties must then file a dissolution or divorce to terminate the marriage and go through the same process for a dissolution or divorce as if there was not legal separation.   

What is Custody?

Custody of the minor children is usually either Sole Custody  or Shared Parenting.  With Sole Custody one parent has custody of the children.  Shared Parenting means that both parents have custody, but it does not necessarily mean that each parent has the children 50% of the time.   Shared Parenting requires the parties or the court to create a Shared Parenting Plan which is an agreement of the parents or order by the court  about how the children will be raised, when each parent will see the children, who will provide transportation, etc.  Sole custody is when one parent has custody and has control over where the minor children will live and go to school,  unless the separation agreement provides for the non-custodial parent to have input on those decisions.  In sole custody,  the non-custodial parent retains the right to go to all school and other activities as well as the right to medical records for the children. With both Sole Custody and Shared Parenting child support can be ordered. 


What is collaborative law?

Collaborative Law’s goal is to develop effective relationships, solve problems jointly and prevent a court battle.    All parties and their attorneys are so committed to reaching a settlement without the court’s intervention that they sign an agreement stating that neither party will file for divorce.  If a party decides to file for divorce, they must hire another attorney to represent them.  The collaborative process provides for face-to-face meetings with the parties and the lawyers in an attempt to produce an honest exchange of information while expressing the needs and expectations of the parties.  The open discussions allow the parties to solve the issues with an interest based approach.  Attorneys who participate in the collaborative law process have specific training in the process.   Giselle Huberhas collaborative training and successful experiences in the family law area. 
 

What is Mediation?

Mediation is a process which encourages and facilitates parties to resolve issues with the assistance of a mediator.  Giselle Huber is trained and has successfully mediated family law cases involving child support, custody, and various post decree matters.  Mediation is a very effective tool to resolve issues because it allows the parties to divulge and discuss issues concerning them and discover solutions to their issues in a controlled  environment.   The agreements reached in mediation must be drafted in the appropriate form by an attorney and then filed with the court to be binding by the court.


What are Qualified Domestic Relations Orders (QDRO)?

Qualified Domestic Relations Orders  (QDRO) are the court orders used to divide retirement benefits such as 401(k), 403(b) and pensions.  Certain government pensions require another type of order, a Division Of Property Order (DOPD).  These orders must be expertly prepared to fulfill the terms of the specific retirement plan as well as the parties’ desired division of the retirement account, filed with the court and submitted to the plan's administrator,

 

Probate: Estates & Wills

What is Probate?

When a person dies having previously executed a  Last will and Testament they have died “testate” or if they do not have a will it is called dying “intestate”.

Probate is the process used to pay the decedent’s  bills, and then divide and distribute assets from a decedent’s estate according to the decedent’s wishes as expressed in their Will or if they died intestate, according to the distribution statute.  Only those assets which are not in survivorship must go through probate.  Examples of survivorship assets are life insurance with named beneficiaries, bank accounts in more than one person’s name, payable on death accounts, real estate with specific survivorship wording, or a transfer on death affidavit is recorded.    Since survivorship assets do not go through probate, they can easily be transferred without court involvement.

The Probate process has several steps which ensure that the assets are distributed to the proper beneficiaries.  

Does everyone need a will?

A Will  or Last Will and Testament is the document that states to whom the estate assets are to be distributed and names an executor to handle the estate process.  Having a Will allows a person to control who receives their assets after they die and who will be in charge of the probate process as the executor.  It also allows the estate to dispense with the requirement of a bond for the executor.  This saves the estate time and money.  It is very important to consult with an expert about the preparation of a will and to totally understand what assets are controlled by a will.  Not all asset are controlled by a will, but everyone should have a will.

What is Power of Attorney?

A Power of Attorney (POA) is a very important document in which an individual gives someone else the authority to handle their financial assets. It allows the person to do common everyday banking as well as handle specific financial events such as buying or selling real estate.   A POA  can be drafted to be limited to certain assets, duration, or situations, or it can be drafted to be complete control over all assets and last indefinitely.   Great care and consideration should be given before a person decides who should take care of their financial affairs.   The person should be someone you trust implicitly. The Power of Attorney ceases to be valid once the person who signed it dies. If you do not have a valid POA and you become incompetent or incapacitated, then the court may need to name a Guardian to maintain your assets and pay your bills. A Guardianship is very expensive and cumbersome, so having a POA can be very beneficial.

When is a Guardianship necessary?

Guardianships can control a person or  their assets or both.   Guardianships are used for minors and persons who do not have the legal capacity to handle their financial or personal living situations.  A Guardianship over the assets is called a Guardianship of the Estate and a guardianship over the person for their personal living situation is called a Guardianship of the Person.  The guardian must account to the court for all expenditures in the guardianship and the court must approve all expenditures.

Do I need a Living Will?

If you do not want to be put on life support with feeding tubes when you have no brain function, then you should sign a Living Will.  Living Wills indicate that you do not want to be put on life support if you are terminally ill or permanently brain dead.  Your attending physician plus one other doctor must agree that you are in that condition before life support will be withdrawn.

What is Durable Power of Attorney for Health Care?

 A Durable Power of Attorney for Health Care names a person to make health care decisions for you when you are unable to make them for yourself.

When do  I need a HIPPA Release?

HIPPA Release names who you want to be able to communicate with doctors and  health insurance companies regarding your medical status or needs.

What is a Designation of Remains?

Designation of Remains indicates who you want to control your body or remains after your death.  This can be especially important if you have conflict within your family, a blended family, or have strong wishes about the place or process you wish for your remains.

 

Real Estate

What is are Quit Claim and Survivorship Deeds and Transfer on Death Affidavits?

A Quit claim deed is a type of deed that transfers whatever interest in the real estate the transferor owns without any warranties.  Typically, a quit claim deed is used to transfer the real estate during a divorce or dissolution.

Survivorship deeds provide co-ownership and allows real estate to avoid the probate process when one of the owners dies.

Transfer on death affidavits allows the owner of the real estate to designate who should get the real estate upon their death without it going through probate.  The transfer on death beneficiary does not own any interest in the real estate during the owner’s life and the beneficiaries’ signature is not necessary for a sale of the real estate.