FREQUENTLY ASKED QUESTIONS
DIVORCE / DISSOLUTION / FAMILY LAW
What is the difference between a divorce and a dissolution?
Either a divorce or dissolution will result in the termination of your marriage but they are two very different procedures. A divorce is generally a “full-blown” adversarial legal proceeding in which each party has subpoena power and the right to compel the other party to divulge financial and other relevant information. A divorce proceeding may take as long as a year or more and there are many hearings along the way. During the course of the divorce, the Court may issue temporary orders which provide for the support of the spouse and the children. If the parties cannot ultimately settle their differences, a Judge will decide how their property is divided, who gets custody of the children and all support issues.
A dissolution is a much different proceeding. Prior to filing in Court, the parties will have entered into a separation agreement in which they have agreed on all issues regarding support, custody, visitation and the division of property. The agreement is reduced to writing and filed with the Court. The Court has the authority to grant dissolution as soon as 30 days after the paperwork is filed. All of the hearings that take place with a divorce are eliminated. A dissolution proceeding can be much quicker and cheaper than a divorce. However, a dissolution is not always the best solution especially if you do not have full and complete understanding of all of the income and assets or if you fear that a person is hiding property or not accurately reporting income.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
How is property divided in a divorce or dissolution?
Upon the termination of the marriage, all property acquired during the marriage (martial property) must be divided. In a dissolution, the parties agree to the division of property and reduce their agreement to writing. The Court will approve the agreement if the parties entered the agreement knowingly and without coercion. The Court must also find that the agreement is fair and equitable.
In a divorce proceeding the Court will divide the marital property equally unless circumstances indicate that such a division is unfair or inappropriate. Each party is considered to have contributed equally to the production and acquisition of marital property. Marital infidelity and misconduct will not be considered. A property division includes pensions, retirement accounts and social security benefits. These assets are often overlooked yet they can be one of the largest assets acquired during the marriage and the failure to obtain your fair share could significantly impact you later in life.
In a divorce proceeding the Court may sometimes make an award of a person’s separate property. Separate property includes property owned by one party prior to the marriage or property which was acquired during the marriage by inheritance or gift. Generally, separate property is retained by the party who owns the property however, in certain circumstances the Court may award some or all of the separate property to the other spouse.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
What is the difference between sole custody and shared parenting?
If there are minor children of the marriage, the Court must allocate parental rights and responsibilities. The Court will decide if one or both parents shall have custody of the child. In rare circumstances the Court can award custody to a non-parent. The Court, in making its determination, must do what is in the “best interest” of the minor children. The Court, in making its determination, will consider a number of factors including the mental and physical health of each parent and child, the child’s interaction and interrelationship with each parent, the child’s adjustment to home, school and community, and whether either parent or a member of the parent’s household has been convicted of an offense involving the abuse or neglect of a child.
If the Court determines that one parent shall be the sole custodian of the child, that parent has the care, custody and control of the child. That parent has the right to make all decisions regarding the child and is not required to involve the non-custodial parent in the decision making process. The non-custodial parent will have companionship/visitation rights with the child.
Shared parenting is quite different. In a shared parenting order both the mother and father are considered custodians of the child and the decision making for the child is to be shared. Even though the marriage is terminated both parents participate equally in decision making. Shared parenting does not require that the child live with each parent 50% of the time. The living arrangement will be determined by what works best for the parents and the child. The focus of the shared parenting is not the shared living arrangement rather the focus is on shared decision making. Both parents are equal partners in raising the child.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
How is child support calculated?
Ohio utilizes child support guidelines. Child support is based on the combined income of the parents and the number of children of the marriage. Once the total support obligation is established the parent required to pay support will pay a percentage of the obligation. The amount paid will be based upon the percentage that the paying parent’s income bears to the combined income of the parties.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
Are health insurance and child care costs considered in the child support calculation?
Yes. The cost of both healthcare insurance and day care will be added to the child support obligation established by the child support guidelines. The court will require one or both of the parties to obtain healthcare insurance for the children if it can be obtained at a reasonable price. Each parent will be required to contribute to the health and child care expenses based upon the percentage that the party’s income bears to the combined income of both parties.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
Can the court deviate from the child support guidelines?
Generally, no deviation is permitted unless there are unusual circumstances and it would be in the best interest of the children to deviate. When considering a deviation a court may look at the time the child spends with each parent; travel expenses related to long distance visitation; healthcare needs; unusual education expenses and any other relevant factors.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
How is child support collected?
Most often, the court will issue a wage withholding order requiring the employer to withhold child support from the wages of the parent required to pay child support. The employer then forwards the funds to the local child support enforcement agency. The agency will then pay the funds to the parent who is entitled to receive support.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
Can the amount of child support be modified?
Yes. Child support is subject to modification if here is a substantial change of circumstances. The amount of child support can be raised or lowered, if the financial circumstances of either party or the needs or circumstances of the child change.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
What if a parent fails to pay child support ordered by the court?
The parent who is to receive child support can seek enforcement of the order in court by filing a “Motion for Contempt”. The parent can also request the court to grant a lump sum judgment for past due support. The judgment can be collected by attaching assets. The Child Support Enforcement Agency may also be able to seize federal and state income tax refunds of the person who has not paid support. Other remedies may be available in addition to those set forth above.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
Can I get spousal support (alimony)?
Spousal support is left to the sound discretion of the court. Unlike child support, there are no guidelines establishing the amount of spousal support. Rather, the court is required to consider a number of facts and circumstances in making its determination.
Spousal support will only be considered after the court has made a division of the party’s property and debt. The factors that the court will consider include the following:
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The length of the marriage
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The income and earning abilities of the parties
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The age of the party
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The physical and mental and emotional condition of the parties
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The retirement benefits of the parties
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The standard living of the parties
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The education of the parties
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Whether one party stays home to take care of the minor children
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Any other relevant considerations.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
When does spousal support end?
Generally an award of spousal support will end upon the death of either party, the remarriage of the party receiving the spousal support or a specific time period specified in the order. If no time period or triggering event is specified in the order, spousal support is subject to modification/termination upon motion of either party based on a change of circumstances provided the court has retained jurisdiction over the matter.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
What are the tax consequences of spousal support?
Generally spousal support is taxable as income to the party receiving it and is a deduction from income for the party paying it. The payments must be truly for the purpose of support rather than being a part of a property division. The payments must be periodic and terminate on the death of either party or the remarriage of the party receiving the support.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
ESTATE PLANNING / PROBATE
Do I need to create an estate plan?
Yes. Everyone should take the time to develop an estate plan. An estate plan is necessary so that your wishes regarding the distribution of your property on death are made known and carried out. If you do not designate to whom your property should be distributed at death, the State of Ohio will make that determination for you. As a part of an estate plan, your desires regarding medical treatment and health care can be made known and implemented in the event that you are not able to express your desires. Estate planning documents will be of immense benefit to your relatives and will relieve a great deal of pressure for them when you are facing end of life health care decisions and after your death. Proper estate planning documents can also alleviate the need for a guardianship during life in the event of your disability or incapacity.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
How complicated and expensive is the probate process?
The answer depends upon many factors including the value of the estate and the amount of the outstanding debt. Smaller estates with limited debt can be probated rather quickly and inexpensively. Some can be completed within 30 to 60 days, others can take a few months and more complicated estates can take a year or longer.
Trusts used to avoid probate are not always a cheaper alternative. It costs money to create, establish and fund a living trust. Sometimes the cost of creating and funding the trust are more expensive than the probate of an estate.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
What estate planning documents to I need?
Generally speaking, a typical estate plan will utilize the following documents. There are other documents that can be used in place of or in addition to these.
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A Will or a Trust – to express your wishes concerning the distribution of property after you have died.
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A Living Will -a document which expresses your instructions about the use of life sustaining treatment if you are terminally ill or permanently unconscious.
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A Durable Power of Attorney for Healthcare – a document which authorizes a person to make healthcare decisions for you when you are unable to make your own healthcare decisions.
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A Financial Power of Attorney – a document which authorizes a particular individual to act on your behalf with respect to your real and personal property and financial affairs.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
What is Probate?
Probate is the legal proceeding used to distribute certain property (called probate property) of the person who died. Probate property is made up of both real estate and personal property which the decedent retains an interest in after death. As a part of the probate proceeding, the executor/administrator of the estate files a report with the court identifying the probate property of the decedent. The legitimate debts of the decedent are paid from the assets of the estate. The property that remains is distributed to the beneficiaries identified in the decedent’s Will. If the decedent did not leave a Will, Ohio has a statute which identifies the persons who will inherit the property and what portion of the property they will inherit.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
Can a probate proceeding be avoided?
Yes. There are numerous ways to avoid the probate of a person’s property upon his death. One way is to create an inter vivos trust (Living Trust). The person creating the trust places all of his property into the trust. Title is held by a trustee, usually the person creating the trust and the person creating the trust generally retains a beneficial interest in the property during life. On death, the trust designates beneficiaries who will receive the property. The property passes to the beneficiaries without going through probate court.
There are numerous other ways to avoid the probate process other than the creation of a trust. Each method allows the person to designate a beneficiary of the particular property who will receive the property upon the person’s death. Upon death the property passes directly to the designated beneficiary without the need of the probate process. Some of these probate avoidance tools include the following:
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Real estate held jointly with right of survivorship
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A Transfer on Death Affidavit executed by the owner of real estate and recorded with the county recorder’s office
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Bank and investment accounts which are held jointly with right of survivorship or which are designated as payable upon death or transfer on death accounts
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Life insurance
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Retirement benefits
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Other forms of property ownership allow for the designation of a beneficiary upon death
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
CRIMINAL LAW
What happens after I have been arrested?
After you have been arrested, you will be taken to the police station or sheriff’s department where law enforcement officers will obtain background information from you and generally will provide you with a copy of the charges. If the charge is for a minor offense there may be a pre-established bond schedule. If you are able to post bond you will be released. If there is not bond scheduled you will be held at least until your initial Court appearance (generally within the next day or two). The Court will establish bond at the Court appearance.
After you have been taken into custody, you will be permitted to make phone calls to arrange bond and/or contact an attorney.
Sometime after you have been arrested, police will seek to question you regarding the facts of the offense. It is important to understand that you are not required to answer any questions relating to the facts of the offense. You have the right to remain silent. It is normally in the person’s best interest not to talk about the facts of the case with law enforcement officers until after the person has consulted an attorney. If you do not have the funds to hire an attorney, the Court will appoint an attorney to represent you if your case involves the possibility of a jail sentence.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
Do I have to consent to a search of my property?
No, you are not required to consent (say yes), when a police officer asks you if he can search your person, your vehicle, your house or other property. If you do not give consent, the police must either have a warrant to search or they must have enough evidence to obtain a warrant before they search. If you do not give consent and if the police search without a warrant (often permitted), do not resist. You may later be able to challenge any incriminating evidence found. Many clients give consent and the search results in the discovery incriminating items which are used to convict them. In many of those cases, the police could not have conducted search without consent. As a result, the consent lead directly to a conviction.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com
How will a criminal defense attorney help me?
A criminal defense attorney helps in many ways including the following:
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Help you to understand the charges and penalties
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Independently investigates and reviews the facts and circumstances of your case
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Obtains and reviews evidence from the prosecutor and police; analyzes the conduct of the police, the evidence, potential defenses and develops a strategy designed to obtain the most favorable outcome given the nature and circumstances of the case.
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Has ongoing discussions with the prosecutor regarding the case and possible resolutions of the case
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Appears with the defendant at all Court proceedings and effectively communicates to the Court on the client’s behalf
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Once all of the information has been gathered and analyzed the attorney and client together will determine whether to proceed to trial or to attempt to negotiate a “plea bargain.”A plea bargain is a negotiated settlement which results in a reduced charge or a recommendation of a lesser sentence.The determination of whether or not to enter into a plea bargain or proceed to trial is always made by the client after having been given advice by his attorney.
For more information please call Attorney Thomas Kelley at (330) 434-2113 or email him at TKELLEY1@neo.rr.com