Saturday, January 4, 2014

Presentation of Competing Decrees and Judgment Entries in Contentious Divorces

Some divorces are so contentious that decrees and judgment entries are submitted by both parties, even after the court directed one of the parties to do the drafting. In some cases, following a lengthy bitter contested divorce that was resolved at trial, the blood continues to be spilled over the wording of the orders summarized in competing drafts of the final decree. Despite the parties’ beliefs that the court’s decision set matters out in black and white, motions for clarification are sometimes filed by both sides and competing drafts of the final decree are submitted by the parties setting in writing their different interpretations regarding what the court meant in the court’s detailed decision.

Sample language in notice of presentation of final decree of divorce:

Now comes _______, Defendant, by and through counsel, and respectfully requests that the Court sign the attached Decree of Divorce, as it accurately reflects the Court’s "Date" Decision. The undersigned prepared the attached Decree and forwarded it to opposing counsel via first class mail and email on “Date”. On “Date”, opposing counsel indicated that both parties simply submit their own drafts and let the Court decide.
Sample County Domestic Relations Court Rules:

Excerpt From Warren County Domestic Relations Court Rules As Amended And Effective April 1, 2012.

6.1 Decrees and Judgment Entries in Contested Matters.

B. Disagreement Concerning Documents Prepared by Counsel.
If the prevailing party prepares the necessary document as noted above but opposing counsel objects to the document as to form or because it does not accurately embody the court’s decision, counsel shall indicate objections by affixing the words “subject to objection” under counsel’s signature. Counsel shall then prepare his or her own entry, sign it and mail the original to the prevailing attorney along with the entry previously mailed to him or her by the prevailing attorney. Either or both counsel shall then set the matter for a hearing on the entry as soon as possible. Each attorney must present a draft entry to the Judge/Magistrate at such hearing. The Judge/Magistrate shall approve and file one or the other of the submitted entries or shall prepare and file his/her own entry or decision.

C. Failure to Respond to Draft Documents.
If the prevailing party prepares the necessary document(s) as noted above but opposing counsel fails to respond with approval or objections, or if the prevailing party fails to timely prepare the necessary document(s) as noted above, counsel may file a “Notice of Presentation of Entry” with the court in substantial compliance with DR Form 9 (included in Appendix 4). Such notice shall include the following:

1. Notice to the opposing counsel that the proposed entry will be presented to the court for approval after the expiration of fourteen (14) days from the date of mailing unless the other attorney, within the fourteen days, files a written objection stating the grounds with particularity, attaches his/her own proposed entry and sets the matter for hearing.

2. Failure to file written objections and/or to set a hearing will be construed as acquiescence to the filing of the proponent’s entry.

3. The proposed entry shall be attached to the notice.

If, after the expiration of the fourteen (14) day period, opposing counsel has not filed a written objection, the counsel who drafted the document shall present both the file stamped Notice of Presentation of Entry and the actual proposed entry to the assigned Judge/Magistrate for consideration.

D. Nothing in this rule precludes the Judge/Magistrate from preparing and filing his or her own entry/decision at any time.

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances. Each divorce has its own unique set of facts and circumstances and is governed by the rules of the Ohio county domestic relations court that has jurisdiction over the divorce.

Friday, December 27, 2013

Should I Be The First To File For Divorce?

When spouses are preparing to divorce each other, they often wonder whether there is a benefit to being the first to file. When you file first you will have to pay the deposit required by the court. Filing first affords you the following opportunities in a contested divorce:

Restraining Orders
In contested divorces, court restraining orders are sometimes needed to protect spouses from each other’s actions. Such orders are Ex Parte in nature (sought by one of the spouses and granted without notice or an initial hearing allowing the other spouse to be heard). Mutual and temporary restraining orders are sought to protect your relationship with your children and preserve your marital assets.
Mutual and Temporary Restraining Orders are Detailed at:
Temporary Parenting, Temporary Spousal Support, Temporary Child Support Orders

Spouses often request temporary court orders regarding: parenting; temporary spousal support and; temporary child support.

Sample form regarding temporary parenting, spousal and child support orders (Hamilton County Domestic Relations Form 3.2):
See also:
Exclusive Possession of Marital Residence

A spouse seeking exclusive possession of the marital residence may move for such an order when filing for divorce.

Legal Fees and Litigation Expenses
A spouse may have limited resources and may even move the court to award payment of legal fees and the costs of the litigation.

See: http://codes.ohio.gov/orc/3105.73

Venue

Filing first may allow you to exert some control over what court will have juridiction over your case. Sometimes spouses move away before a divorce is filed in an effort to gain an advantage in later proceedings ("forum shopping").

Example:

The Parental Kidnapping Protection Act (PKPA; (Pub.L. 96-611, 94 Stat. 3573, enacted December 28, 1980; 28 U.S.C. § 1738A).

Purpose: to establish national standards for the assertion of child custody jurisdiction within the United States. The home state where a child resided within the past six months is given preference in order to prevent forum shopping. Forum shopping occurs when one parent commences an action in another state for the purpose of obtaining a favorable court ruling.
In addition to its provisions for full faith and credit, the Act provides that a State cannot modify the child custody decree of another state without complying with the terms of the Act. When a State modifies a previous child custody order not in compliance with the Act, the modification shall not be entitled to full faith and credit in other states.

1999 Congressional amendment included “visitation” rights in the definition of “custody” rights covered by the Act.

See:http://ohiodivorceguide.blogspot.com/2011/08/can-my-spouse-move-away-with-our-child.html

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Friday, October 4, 2013

Ohio Divorce Guide: Content and Links



Property Division and Spousal Support (“Alimony”)

Ohio Spousal Support Calculations; Ohio Child Support Calculations

Cohabitation and Spousal Support (“Alimony”)

Inheritances and Divorce Property Division: What is Separate Property?

Divorce Contempt Actions: Pre and Post Decree

Spousal Support Modification Issues: Court Reservation of Jurisdiction

Using Experts For Determination of Spousal Support And Property Division

Divorce Restraining Orders

Divorce Depositions

Divorce and Division of Social Security Benefits

Frivolous Conduct

Can My Spouse Move Away With Our Child Or Children Or Interfere With My Relationship With Our Children?

Domestic Violence and Divorce

County Domestic Relations Courts: Divorce and Dissolution Rules and Forms

Legal Separation, Dissolution or Divorce?

Bankruptcy and Divorce

Infidelity And Divorce

                                                                             



Inheritances and Divorce Property Division: What is Separate Property?



 A party often wishes to retain inheritance funds specifically bequeathed to one spouse. Ohio domestic relations courts allocate inheritance funds by determining whether an inheritance can be regarded as separate property. Commingling of the inheritance does not necessarily destroy its identity, as the long as the inheritance is clearly identifiable and traceable. 

Consider how the Ohio Revised Code characterizes separate property: 

Ohio Rev. Code Ann. § 3105.171(A) provides in part:(3)(a) "Marital property" means, subject to division (A)(3)(b) of this section, all of the following:(i) All real and personal property that currently is owned by either or both of the spouses, including but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage.(6)(a) "Separate property" means all real and personal property and any interest in real or personal property that is found by the court to be any of the following: (i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;(b) The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable.

Example: Parties were divorced after a 36-year marriage. Prior to the divorce, the husband received an inheritance after his mother’s death. During the marriage, the inheritance funds were placed in joint accounts and some of the funds were used to purchase marital property. At trial no effort had been made to determine if the inheritance funds had remained separately identifiable property. The wife correctly contended that at least some of the funds had lost their character as separate property when the funds were placed in joint accounts and used for family purposes.

An appellate court may likely reverse the part of the trial court's judgment that declared the husband's inheritance to be separate property without attempting to trace the amount which was identifiably separate and remand for the trial court to determine if any of the inheritance had remained separate property.

Example: A wife failed to prove that inherited funds were her separate property. The funds lost their status as such, because they were co-mingled into the parties' joint bank accounts, and some of the funds were expended on business expenses, and others on marital expenses. Further, one of separate properties contained improvements, which were paid for with marital funds and separate funds. Said property was presumed to be marital property, and the wife failed to met her burden with testimony and documentation to trace the inheritance funds.
 
The two examples above are provided to illustrate issues regarding whether property will be regarded as marital or separate, and, how separate property must clearly identifiable and traceable.

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Friday, August 2, 2013

Divorce Contempt Actions: Pre and Post Decree


Motion To Show Cause/Contempt

A “Motion to Show Cause” why a party should not be held in contempt of court shall state with specificity each provision of a prior court order with which a party allegedly has failed to comply, the date of such order, and the facts constituting the noncompliance. The motion shall be supported by an Affidavit signed by the party bringing the action. Show cause motions may be filed during pre decree divorce proceedings or post decree. The Ohio Revised Code sets out:

2705.02 Acts in contempt of court.

A person guilty of any of the following acts may be punished as for a contempt:

(A)  Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer…

The moving party (movant) must show failure of compliance with a valid court order. Proof of willful, purposeful or intentional noncompliance with a court order is not prerequisite to a finding of civil contempt. The trier of fact (Judge, Magistrate) will determine a finding of contempt based on clear and convincing evidence producing a firm belief or conviction regarding the facts to be established.
Once a prima facie case of contempt (sufficient evidence exists to support the case) is established by the movant, the contemnor (party held in contempt) has the burden of proving the defense of their inability to comply with the court order.

Defenses
An alleged contemnor makes a showing that they substantially complied with the order. Substantial compliance is grounded in evidence that one has taken all reasonable steps to comply with the court order(s) subject to a show cause motion. When one has exercised reasonable diligence and effort to comply with the order, “all reasonable steps”, a finding of substantial compliance may result.

An alleged contemnor has a viable defense when punishing noncompliance with the order would constitute punishing a nullity (holding a person in contempt for noncompliance with something null and void, with no force or effect).
Example: A decree of divorce often orders a party to convey a property by quitclaim deed, but, also provides that if the party fails to convey the rights to the property, the order of the court shall constitute and operate as such conveyance. A finding of contempt based on the requirement of a party signing and conveying a quitclaim deed would be punishing a nullity. In such a case, the quitclaim deed and the decree of divorce both have the same functions under Ohio law.

Presumptively, one should not conclude they are released by the decree conveyance language from their obligation to provide the signed quitclaim deed as ordered, but, if circumstances make timely compliance problematic (overseas transfer, deployment), alleged noncompliance may be regarded as a nullity, as the decree constitutes and operates as the instrument of conveyance.
When a person alleges contempt in a show cause motion and the person defending against the action can show the motion to be grounded in an improper purpose, such as, obviously serving merely to harass or maliciously injure the other party, the injured party can seek damages and sanctions. At times, it may appear a Show Cause motion is brought by a movant with unclean hands and in bad faith. Great caution and diligence must be exercised before pursing this option. See:


The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Saturday, July 20, 2013

Spousal Support Modification Issues: Court Reservation of Jurisdiction

Before a separation agreement or final decree of divorce is submitted to the court for adoption, language such as, “The Court shall maintain jurisdiction over the amount and duration of spousal support,” MUST be considered should future relief be a possible issue.

The Ohio Revised Code spells it out:

3105.18 Awarding spousal support - modification of spousal support. (Content edited for readability.)

(E)

(1) The decree of divorce or a separation agreement of the parties to the divorce that is incorporated into the decree, contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(2)  In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(F)

(1) For purposes of division (E) of this section and subject to division (F)(2) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as BOTH of the following apply:

(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.

(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.

(2) In determining whether to modify an existing order for spousal support, the court shall consider any purpose expressed in the initial order or award and enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court shall not modify the continuing jurisdiction of the court as contained in the original decree.

“A court's reservation of jurisdiction is a FORM OF RELIEF awarded in a final judgment. Ohio Revised Code 3105.18(E)(2) authorizes the court to exercise the jurisdiction IT RESERVED by modifying a spousal support award. However, that section does not likewise authorize the court to modify its prior order by vacating its reservation of jurisdiction. Courts may not modify or vacate their prior final orders except pursuant to Civ. R. 60(B) or an express legislative mandate. The reservation of jurisdiction authorized by R.C. 3105.18(E)(2) is therefore not, by its own terms, subject to subsequent modification by the court.” [Edited excerpt taken from Apt v. Apt, 192 Ohio App. 3d 102; 2011 Ohio 380; 947 N.E.2d 1317; 2011 Ohio App. LEXIS 326, HN6.]

When a court expressly does not maintain jurisdiction over the amount and duration of spousal support, the party seeking relief from the court for any reason justifying a modification of the court ordered spousal support (such as an involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances) may file, as stated above, a motion pursuant to Civ. R. 60(B). The factors underlying Civ. R. 60(B) motions are set out below.

RULE 60. Relief From Judgment or Order

(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc.

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

Often relief from an order regarding the amount or duration of spousal support is premised on Civ.R. 60(B)(5). This rule provides that the trial court may relieve a party from a final judgment for any "reason justifying relief from that judgment." The rule is intended as a catch-all provision reflecting the inherent power of the trial court to relieve a person from the unjust operation of a judgment.

Before filing a motion pursuant to Civ.R. 60(B), the party seeking a modification of the court’s prior spousal support order must carefully consider Ohio Revised Code 3105.18 (E)(F) as set out above.
 
Should You Appeal The Court's Decision?
 
Trial Court's Discretion:
The trial court is accorded broad discretion in determining whether to modify an existing spousal support award. Hines v. Hines, 3d Dist. No. 9-10-15, 2010-Ohio-4807, ¶ 17; Mottice v. Mottice (1997), 118 Ohio App.3d 731, 735, 693 N.E.2d 1179.
A trial court's decision regarding modification of a spousal support award will not be disturbed on appeal absent a finding that the court abused its discretion.
See Bostick v. Bostick, 3d Dist. No. 1-02-83, 2003-Ohio-5121, ¶ 8, citing Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028.
An abuse of discretion amounts to the trial court being found to have made an unconscionable, unreasonable, or arbitrary judgment. You may feel the trial court made an error in its judgment, but, before pursuing a costly appeal, consider what an appellate court must find to hold the trial court's judgment constituted an abuse of discretion.
The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Thursday, May 9, 2013

Using Experts For Determination of Spousal Support And Property Division

Vocational Experts: Determination of Voluntary Underemployment
At times it is prudent for a vocational expert to evaluate your spouse’s earnings capacity in the current job market. If your spouse has educational and/or professional background applicable to particular employment opportunities, a vocational expert can evaluate your spouse’s current earnings ability related to available jobs advertised in the local market. When a spouse has voluntarily left the job market, chosen to not work or voluntarily left one job for a lower paying job, the court will often be unable to impute (assign, give offsetting credit for, etc.) the spouse’s earnings capacity in the current job market, beyond minimum wage. When your spouse has work related education, training and/or employment experience you want to be able to present evidence that enables the court to appropriately impute your spouse’s earnings ability in the current local market.
Courts listen to vocational experts. If their testimony is credible, the underemployed spouse’s imputed income may be substantially greater than minimum wage and your  current income will be offset by your spouse’s imputed earnings ability. An engineer who has voluntarily left the engineering field to follow the dream of being a massage therapist or a nail tech, may for example, be evaluated for current earnings capacity and placement ability in the current engineering job market versus the massage therapy or nail tech market, without the requirement of any retraining. In some cases, a spouse’s imputed income can be double or triple their current actual earnings. Without the testimony of the vocational expert the judge may only be left to speculate. Speculation can lead to imputation of earnings at minimum wage.
          The expert report will detail vocational assessment of earnings capacity in light of available jobs in the current market. The general procedures for conducting a vocational assessment consist of:
A review of background information; a vocational interview; testing if appropriate; an analysis of work history; an analysis of transferable skills from the work history;  educational background; psychological and/or medical issues; and, current labor market information.

Sample vocational expert credentials: 

Ph.D. Vocational Rehabilitation.

M.Ed. Rehabilitation Counseling.

Certified Rehabilitation Counselor

Sample Memberships and Designations:

Diplomate - American Board of Vocational Experts (ABVE) 

Fellow - American Board of Disability Analysts (ABDA)

International Association of Rehabilitation Providers (IARP)

National Rehabilitation Association (NRA)

Vocational Evaluation and Work Adjustment Association

National Association of Service Providers in Private Rehabilitation

Southwest Ohio Self-Insured Association

Ohio Rehabilitation Association 

Southwest Ohio Rehabilitation Association
 
Sometimes it is prudent to move the court for an order that a spouse cooperate with the vocational expert (or business valuation expert described below).

Business Valuation Experts

A business started during a marriage is technically marital property. When such a business is clearly the enterprise of one spouse, and the business is laden with debt, the majority of the debt may be allocated to the spouse who is directly involved with the business. When the business has substantial equity, the court must determine a reasonable allocation of the equity between spouses.

It may be prudent to employ an expert to value the equity of the business. Such experts are expensive, but, proceeding with an unrealistic idea of what you think your share of your spouse’s business’s equity might be can be even more costly. The court needs credible testimony presented from someone qualified to value the equity of the business. Speculation does not serve that purpose. Introduction of quick books records, product inventory records, accounts receivable records, pay pal records, office equipment inventory records, business real estate records, payroll records, etc., may not be weighed as credibly as a business valuation expert’s testimony.

Some businesses produce substantial income for a spouse but have no equity. A dentist, for example, may earn a six-figure income from the practice, but, the equipment, building and supplies may be so heavily financed that the practice itself has no equity. Income generated from a business may not be realized in the equity of a business.
Business valuation experts can report on such matters as:

Fair market value: the price a willing buyer pays a willing seller;
 
Liquidation value: the net amount an owner could realize if the business is terminated and the individual assets are sold off.

Even the good will of certain businesses may hold some equitable value.

Sample related certifications: National Association of Certified Valuation Analysts; (NACVA); and the American Institute of Certified Public Accountants (AICPA).
Lay Witnesses: Marital Home

            Appraisers v. Realtors

            Equity or “negative equity” (more indebtedness than value of home) requires a showing of what the home may sell for in the current market. Courts may weigh the testimony of a licensed real estate agent as favorably as an appraisal, as long as the marital home’s market value is properly detailed. A realtor’s testimony regarding what comparable homes have sold for, supported by proper documentation (multiple sales listings, auditor’s records available at websites, etc.) may suffice.

Matters to consider regarding disposition of marital home:

When the marital home is shown to have equity in the current market, the equity will be allocated by the court between spouses. One spouse may pay the other spouse the amount of equity allocated to her/him. The compensated spouse will be ordered to quit claim deed whatever interest the spouse has in the marital home. The spouse keeping the marital home will be ordered to remove the other spouse from any debt obligations (mortgages, lines of credit) within a period of time agreed upon by the parties or set by the court, in exchange for the quit claim deed. The home may also be sold and the equity or debt may be divided between the spouses according to court allocations or by agreement between the parties.

Do not forget to inquire about credit for "Reduction of Principal". During divorce proceedings, when only one spouse has made monthly mortgage payments from the date the parties separated, that spouse may receive credit ("offset") for the amount of reduction of the principal balance during that time. Each month your equity is increased by the amount your principal balance is reduced.

            When the marital home is shown to have no equity in the current market, or negative equity (more loan balances than market value), one spouse may elect to keep the marital home. The other spouse would quit claim deed any interest in the home and be removed from the home’s debt obligations by the spouse electing to keep the home. Provided appropriate language is included, a certified copy of a final Decree of Divorce, Dissolution or Legal Separation may act as a transfer of such property. 
Sample Transfer Language:

If Wife fails to convey all right, title and interest to this real estate according to the order of this Court, this order shall constitute and operate as such conveyance and the Auditor and Recorder of Warren County, Ohio are hereby respectively authorized and directed to transfer and record same, for a public record of such conveyance. The property is legally described as follows:

SITUATED IN THIS STATE OF OHIO, THE COUNTY OF WARREN, AND IN THE CITY OF MASON.

SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD.

BEING ALL OF LOT 10 AS THE SAME IS KNOWN AND DESIGNATED ON THE RECORDED PLAT OF HOLLINGDALE FARMS, SECTION 3, AS RECORDED IN PLAT BOOK 5 PAGE 42 OF THE WARREN COUNTY, OHIO PLAT RECORDS.

PARCEL NUMBER: 16-22-141-002.
This Agreement may serve as a complete conveyance of any claim of dower Wife may have had regarding the aforementioned real estate.

Expert Witnesses:  Disclosure Requirements


ORC § 2317.38. Notice of intention to offer report

The report or finding mentioned in section 2317.36 (expert report) of the Ohio Revised Code is not admissible unless the party offering it has given notice to the adverse party a reasonable time before trial of his intention to offer it, together with a copy of the report or finding, or so much thereof as relates to the controversy, and has afforded him a reasonable opportunity to inspect and copy any records or other documents in the offering party's possession or control, on which the report or finding was based, and also the names of all persons furnishing facts upon which the report or finding was based.

Sample Domestic Relations Court Local Disclosure Requirements (Warren County Domestic Relations Local Rules):

3.6 Expert Witnesses

A party may not call an expert witness to testify unless a written report has been procured from the expert and forwarded to opposing counsel. It is counsel's responsibility to take reasonable measures, including the procurement of supplemental reports, to insure that each report adequately sets forth the expert's opinion. Unless good cause is shown, all reports must be supplied to opposing counsel no later than thirty days (30) days prior to trial. The report of an expert must reflect his or her opinions as to each issue on which the expert will testify. An expert will not be permitted to testify or provide opinions on issues not raised in his or her report.

Absent extraordinary circumstances, all experts must submit reports. If a party is unable to obtain a written report from an expert, counsel for the party must demonstrate that a good faith effort was made to obtain the report and must advise the court and opposing counsel of the name and address of the expert, the subject of the expert's expertise, together with his or her qualifications, and a detailed summary of his or her testimony. The court shall have the power to nonetheless exclude the testimony of the expert if good cause is not determined for the absence of a report.