Divorce and Child Custody
Divorce and child custody is often an emotionally charged situation that requires consideration of both legal and personal issues. You need representation that is aggressive, but also adaptable to your particular needs.
Litigation can be expensive and emotionally draining on yourself and your children. In some situations the benefits of proceeding to litigation outweigh the cost. In other situations it is in everyone's best interest to reach a reasonable settlement without proceeding to a trial.
I offer a frank and honest assessment of your case so that you can protect your rights while avoiding any unnecessary time and expense.
Areas of Practice:
- Divorce and Dissolution
- Child Custody
- Child Support Modification
- Post Decree Modification
- Contempt of Court
Dissolution of Marriage
The result of a dissolution and divorce are the same. The difference is the speed and means by which the marriage is ended. A dissolution is accomplished in a quicker time frame and with less hassle and expense. A dissolution can usually be granted within 2-3 months. A divorce typically takes 9 months to a year to be completed. Highly contested divorces can take upwards of 2 years to complete.
The catch is that a dissolution requires both parties to agree in advance on all issues related to the division of their property and the custody of their children. In cases where the parties are amicable and there are no complex financial issues, negotiating a dissolution is usually in everyone's best interest.
A dissolution can be paid for with a low flat fee that will result in significant savings.
The two main concerns in a divorce are the division of marital property and the custody of any minor children. The following section is intended as a broad overview of the law in Ohio for dividing marital property and allocating child custody. This area of the law is riddled with exceptions and fact specific rules. The purpose of this section is to give you a general idea of where you stand if you are contemplating filing for divorce or have been served with divorce papers. You should not act in reliance on the following information. Before you make any decisions or take any action, please contact my office for a free consultation.
Division of Property
The division of property in a divorce is based upon the categorization of property as separate property and/or marital property. Each party is entitled to keep all property that is their separate property and one half of all marital property.
However, the court is able to deviate from an exact 50/50 spilt of the marital property based upon what it determines to be fair for all of the parties involved.
Marital Property includes all property that was acquired during the marriage be either spouse as a result of either spouse's labor or other efforts. Generally speaking, all property is considered marital property unless it can be shown to be separate property.
Separate property includes:
- all property that was owned by one spouse prior to the marriage;
- all property that was inherited by one spouse during the marriage;
- any property that was given as a gift to only one spouse;
- any property that is excluded by a valid pre-nuptial agreement; and,
- any recovery by one spouse for a personal injury settlement.
Appreciation of Property
The increase in the value of property is referred to as appreciation. Appreciation can be classified as active appreciation or passive appreciation. Active appreciation is the increase in value of an asset that is attributable to labor or money put into an asset. Passive appreciation is the increase in value that is attributable to the change in the market for the asset. If a home is remodeled, the increased value of the home would be active appreciation. If a home increases in value because the overall appeal of the neighborhood has improved, the increased value would be passive.
The passive appreciation of separate property is still separate property. However, the active appreciation of separate property is marital property that is entitled to a division by the court.
Suppose one spouse owned a home prior to the date of marriage and at the time of the divorce the value of the home has increased significantly. If the increased in value due to a new shopping center being built nearby, then the entire value of the house would be separate property. If, however, the increase in value was due to remodeling the kitchen during the marriage, then the increase in value would be marital property that would be entitled to be split.
In practice, the value of a home will typically consist of both passive and active appreciation. The amount allocated to marital and separate property must be unraveled by the court.
The court has the authority to order one spouse to make monthly payments to the other spouse. These payments can last for a period of a few years or they can last for a spouse's lifetime. The decision of the court to award or deny spousal support will be specific to the facts of the case, but is usually based upon the income of the parties and the length of the marriage. In general, if the marriage lasted only a few years and/or the parties have similar income, then spousal support will not be awarded.
Child custody is often the most emotional and highly contested part of a domestic case. As long as both parents are reasonably responsible people, the court will seek to allow both individuals to be part of the children's lives. The typical situation is for the children to live with one parent and then allow the other parent visitation every other weekend with longer periods during school breaks and on holidays. The court has wide latitude to tailor a custody schedule to the specific facts of your case, including a schedule that includes equal time with each parent.
The general guidelines for child support are set by statue. The amount of support is based upon the total income of the parties, the number of children and various other financial or living considerations. Either by agreement or through a hearing with the Judge or Magistrate, the amount of the guideline child support can vary greatly. It is important to have someone advocate on your behalf in setting child support.
The duty to provide support will last until the child turns 18 years old, so even small differences in monthly payments can add up to significant amounts over time.
Can I afford an attorney to lower my child support payment?
The reality is that if you have lost your job or had a significant reduction in your income, you cannot afford to ignore your child support obligation. If you are unable to meet your child support obligation, you will eventually be sent to jail. If you wait long enough you will be charged with a felony. Not only does this affect your right to vote and ability to get or maintain a job, it can result in going to prison. I have had several clients who ignored reducing their child support when they lost their job and a few years later ended up in jail or prison. The unfortunate truth is that had they contacted my office when they lost their job, they would have been able to avoid what eventually became an expensive and difficult experience.
Reducing your child support is a fairly routine and inexpensive legal process. Even if you are not facing the possibility of jail time, the overall savings by reducing your child support will more than make up for the expenses involved.
Modification of Custody and Visitation
Prior decisions of the court can be modified based upon the changed circumstances of the children and/or either parent. Often times a visitation schedule that made sense for a toddler does not make sense for a child in high school. If the circumstances have changed, prior custody and visitation orders can be modified to reflect what is in the best interest of the child.
Contempt and Enforcement of Previous Orders
Legal action can be taken to enforce the terms of your custody and visitation arrangement. If your ex is refusing to abide by the terms of your decree, an action for contempt of court can be a quick way to get them to follow the decree and stop playing games. The court can also award you legal fees to compensate you for your expenses.