Crossman & Maciorowski LLC
888-858-3410 or 937-528-1730
Call Today to Schedule a Consultation

Dayton Divorce Law Blog

Father's right to legal custody of children trumps stepfather

A natural parent generally has a constitutional right to raise his or her children. The right can be limited, of course, as when there is abuse or neglect. However, in Ohio and all other states, the natural parent will have a superior right to legal custody over a stepfather or a grandparent.

Thus, where the children were living with the mother and stepfather, and the mother died, it is unlikely that the stepfather will have a superior right to custody over the natural father. That very issue is playing out in another state right now, and it will be interesting to see whether the court will affirm the general, longstanding rule of superior rights to the father. Apparently, the two teenage children have expressed a wish to remain with the stepfather.

Property division of retirement funds may require a QDRO

The division of property in a divorce includes the distribution of retirement funds. Employee retirement accounts will usually be governed by a Qualified Domestic Relations Order. A QDRO is a legal document signed by the family law judge that sets forth precisely in what proportions the retirement account shall be distributed. In an equitable property division state such as Ohio, the retirement account can generally be divided according to a percentage agreed upon by the parties or one that is ordered by the family law court.

Certain types of retirement plans, such as government plans, may have a mandated formula for spousal benefits already written into the plan. However, this amount can be changed through the divorce negotiation process, and the final terms will be formalized by a QDRO. In an equitable property division state, it is important to remember that all marital property, including retirement assets, is subject to fair division by the court based on several statutorily designated factors.

Hiding marital assets during divorce may be a criminal offense

It sometimes happens in divorce cases in Ohio and elsewhere:  a high-income spouse decides to hide money and/or other assets from the other spouse. A recent case demonstrates how such a reckless strategy can backfire and translate into a term of imprisonment. The issue was highlighted when a plastic surgeon in another state was convicted of income tax evasion through the execution of a scheme to hide millions from his wife of 28 years while they were going through a divorce.

The attempt to cheat his wife necessitated not reporting the money on his personal income tax returns. However, through its resources, the IRS discovered the doctor's large transactions, and he was indicted for tax evasion and wire fraud. He now faces up to 95 years in prison.

Divorce settlement sometimes faces snags over the marital home

It is common in Ohio and all other states for difficulties to occasionally arise in a typical divorce concerning the division of a marital residence. Often the parties will agree in the divorce settlement to sell the property and divide the proceeds equally, or in agreed percentages. The problem arises in another common situation where the parties agree that one spouse will stay in the marital home and will assume ownership and the debt that is owed.

In the latter arrangement, it is difficult to have a clean separation of the parties' liability without requiring the new sole owner to obtain his or her own financing. This is done by making a new application in the person's name, individually. If the applicant has a regular work history and no extraordinary credit problems, the granting of a new mortgage in that person's name will be feasible and generally successful.

Woman who was duped into fake marriage is denied alimony

While it may be true in Ohio and elsewhere that some people will go to extremes to avoid paying alimony, there are some things that most normal persons just would not do. Certainly, the vast majority of people would not even contemplate or dream of creating a false marriage certificate and arranging a fake marriage ceremony. Most people would find it unthinkable to engage in the charade of living as husband and wife under those fraudulent circumstances. It is now reported, however, that one man did in fact create a false marital life for the purpose of not having to pay alimony if it fell apart.

At least, that is one theory behind the nonexistent marriage that one man played out for four years in full deception of his unknowing wife in a nearby state. After convincing her that she did not have to appear in person, he obtained or made a false license, and affixed to it her forged signature and a fake court seal. Then he hired an actor to pose as a minister and marry them. The only hitch remaining after the dust settled, of course, was that the couple was not legally married.

Settlement terms remain private in billionaire's divorce pact

A high asset divorce in Ohio and other states will follow similar general legal concepts for asset division, support, alimony and other issues. The general contours of the law in a divorce case with substantial assets is generally similar in all jurisdictions. Probably the first critical question that arises in such matters is whether the parties signed a prenuptial agreement.

A prenup is a contract between a couple signed prior to the marriage. In essence, it states that the marriage is based on certain agreements between them regarding the ownership of assets, and it may also attempt to regulate matters of alimony and support. Generally, these agreements are held to be valid and enforceable. However, they can be challenged where the less wealthy spouse claims that the wealthier party hid and concealed assets or coerced the other to sign it.

Alimony requires tax compliant treatment in separation papers

The basic income tax rule in Ohio and all other states is that alimony is income to the recipient and deductible to the one who pays it. Conversely, if the payment is for child support, it is not generally income to the recipient and not deductible by the payer. The general rule makes it attractive for tax purposes for the paying spouse to negotiate an agreement that classifies as much of the payments as possible as alimony. This often works out well because the recipient may be in a lower tax bracket where additional income is not hurtful, whereas the person paying generally has more income and thus benefits by having a legitimate deduction.

However, the IRS does not sit back and let people design these classifications arbitrarily. Therefore, certain rules have developed to determine whether a payment is alimony or not. First, the payment must be part of a divorce or separation agreement, which is generally an easily met condition.

Determining spousal support in Ohio

Current estimates suggest that nearly half of all marriages in the United States are likely to end in divorce. In Ohio and elsewhere, it is not uncommon, during marriage, for one spouse to depend on the other spouse's income for his or her temporal provisions of food, clothing and shelter. Especially with regard to divorces that occur after long-term marriages, the court sometimes determines that spousal support is appropriate toward the future care and well-being of one of the former spouses.

In Ohio, judges use family law statutes as a guide for determining whether an individual situation warrants spousal support and, if so, in what amount it should be paid. Several factors are carefully considered when the court is making such decisions. Among those are the length of a marriage, the acceptable standard of living by which the spouses lived while married and the age, level of education and physical/mental health of each spouse.

Financially passive spouse must step up during and after divorce

When a divorce occurs, studies indicate that women nationwide, including in Ohio, are less confident to assume full control of their financial affairs. That is because the male is the person who is in contact with the couple's financial adviser in the majority of cases and is in charge of overseeing the couple's affairs. However, in some divorce situations, the shoe may be on the other foot. Whether it is the husband or the wife that wears the financial aprons in the family, here are some general guidelines for managing one's affairs in the wake of a life-changing divorce.

According to one financial planner who specializes in divorce situations, the first thing to do is to take account of one's liabilities and expenses. Finding out what is owed is an essential aspect of being in control of one's finances. It is necessary to make sure that the accounts are separated and that one is not paying for the debts of the other. There may be some installment payments in both names that really belong to only one of the spouses. They should be identified and separated.

Detained children "reunified" with father who gets child custody

A child custody story that garnered widespread attention, including in Ohio, has ended, at least for now, with a final custody order placing three children in the sole custody of their father. That is surprising because the child custody case gained notoriety a few months back due to the fact that the kids were refusing to visit with their father despite a court order. The judge had them incarcerated in a juvenile facility but amended the order to place them in a summer camp after receiving intensive criticism.

Clearly, the court adopted the father's assertions that the mother had brainwashed the children and that they were afflicted with Parental Alienation Syndrome (PAS). That means that one parent has used manipulation to convince the children that they have to fear or hate the other parent. The theory, however, has its own drawback, which is that it can be manipulated by an accused parent to cover up actual abuse.