Virginia Cornwell is an Ohio Family Lawyer in Columbus, Ohio and an Ohio State Bar Association Certified Family Relations Specialist.  She helps clients throughout Ohio and accepts cases from all 88 Ohio Counties.

What is community property in Ohio?  We get that question a lot from our divorce clients.  The truth is, there is no community property in Ohio because Ohio is not a community property state.  Ohio law uses the term “marital property”.  Naturally, the next logical question would be “Okay, so what is considered marital property in Ohio?”  The answer is simple.  Everything is considered marital property in Ohio unless you can prove that it is separate property.

SEPARATE ASSETS

So what is separate property in Ohio?  Ohio Revised Code 3107.171 governs property division during a divorce, legal separation or dissolution.  (There is no property division in an annulment because the marriage is invalidated.)  That statute defines separate property as being any real property (real estate) or personal property (every kind of property EXCEPT real estate) that a court finds to be one of these things:

• An inheritance by one spouse
• Any property that was acquired by one spouse before marriage
• Passive income and appreciation from separate property.  “Passive income” means income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse.
• Any property acquired by one spouse after a decree of legal separation issued under section 3105.17 of the Revised Code;
• Any property excluded by a valid antenuptial agreement (prenuptial, aka a “prenup”) ;
• A personal injury award, (except for loss of marital earnings)
•  Any gift that is made after the marriage and  is proven to have been given to only one spouse

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MARITAL ASSETS

So if property doesn’t fall under the category of separate property, then what is it?  The answer is MARITAL PROPERTY.  Ohio is not a community property state.  Ohio law presumes everything is marital property until the party asserting the claim of separate property PROVES IT.  If you can prove that something is separate property, then it is marital property, subject to division by the court in a divorce, dissolution or legal separation.  The same law that defines separate property in Ohio defines marital property.  Ohio Revised Code 3105.171 says that the following types of property are marital:

•  All property currently owned by either spouse, including, retirement benefits and deferred compensation, that was acquired by either during the marriage;
• All interest that either spouse currently has in real or personal property, including retirement benefits and deferred compensation, that was acquired by either during the marriage;
• All income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either spouse during the marriage;
• “Marital property” does not include any separate property.

Sounds simple enough, doesn’t it?  Not so fast.  In our next article about marital and separate property we’ll talk about the burden of proving separate property, “tracing” separate property, and what happens when separate property is “transmuted”, or becomes untraceable.

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DISCLAIMER – Read it, it’s important!

Virginia Cornwell is a Columbus Ohio Family Law Attorney who assists clients with family law matters throughout Ohio.

Trying to end your marriage in Ohio can be difficult if the wife is pregnant.  Difficult, but not impossible.

Ironically, the difficulty does not come from any obstacle in the law, but rather from the practices in your county, or from the preferences of the Judge in your case.  Ohio law does not contain any authority for a Judge or Magistrate to refuse to grant a divorce, dissolution, annulment or legal separation on the basis of pregnancy.  Nevertheless, for several reasons, many Ohio courts will delay granting the divorce (or ending the marriage) if the wife is pregnant.

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One reason that Ohio courts will sometimes decline to grant the divorce until the child is born is so that child support will be established.  The court does not want the child to go without support for several months while paternity is established and support is ordered through the child support enforcement agency.

Another reason the court may be reluctant to grant the divorce while the wife is pregnant may be that the Judge does not want the mother and father to have to go through yet another court action to establish parentage, support and parental rights.   In such cases, it is possible that the domestic court believes that if the paternity is not established in the divorce case, that the father will have to seek parental rights in a juvenile court case.  The domestic court Judge may also be concerned that if the father has to file a separate action in juvenile court to establish paternity of the child, he will be disadvantaged.  For various reasons, unmarried fathers in Ohio juvenile courts sometimes have to work harder to receive the same rights they would receive in domestic court.

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However, Ohio Revised Code 3111.06(A)  states:

If an action for divorce, dissolution, or legal separation has been filed in a court of common pleas, that court of common pleas has original jurisdiction to determine if the parent and child relationship exists between one or both of the parties and any child alleged or presumed to be the child of one or both of the parties.

This would allow the domestic relations court to retain jurisdiction over the parents for purposes of establishing paternity of the unborn child.  The statute does not limit such jurisdiction only to the divorce proceedings.  Thus, there appears to be no legal reason the court cannot grant the divorce now, and deal with paternity, support and parental rights later, on a post-decree basis in the domestic court (divorce, dissolution, annulment, or legal separation) case.

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If the parties want to get divorced NOW, and do not want to wait until the child is born, there may be some steps the parties can take to convince the court to approve the divorce.

First, the issue of whether a Judge will or will not grant a divorce while the wife is pregnant often boils down to the preferences of the individual Judge (and possibly Magistrate) assigned to your case.

Second, the level of cooperation between the parties may have some influence on whether the Judge will trust that the issues of paternity, support and parental rights will be dealt with quickly after the child is born.  There are several ways the parties can cooperate to assure the Judge there is no reason to hold the case open.

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• If the husband and wife know that the husband could not possibly be the father of the baby, they should stipulate to this fact in the divorce decree.  The court can then make findings rebutting the legal presumption that the husband is the father and “disestablish paternity” in the divorce decree.
• The parties can give the court stipulated findings of fact that contain all information needed to make a child support order.
• The parties could bring a post decree motion to establish paternity, support and parental rights of the child to the court for filing on the day of the divorce decree, file the motion on the day of their final hearing, and set the first hearing date to occur in front of the same judge a few weeks after the child’s due date.  If either of the parties wants genetic testing, they could agree to the manner in which the genetic testing will be done.  If the parties use a private service for the testing, they could have the results before they attend their first hearing.
  

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You might wonder how courts can just decide to hold a divorce case open for many months against the parties’ wishes.  First, domestic courts have broad discretion.  They cannot just do anything they want, but they can do a lot.

Second, even if a party were to try to take the issue up the court of appeals, babies develop faster than appellate courts make decisions.  By the time your case was heard in the court of appeals, the baby would be born, rendering the issue on appeal moot.

Third, even if somehow the court of appeals agreed to hear your case quickly, I’ll say it again:  domestic courts have a lot of discretion in Ohio.  They are probably going to be allowed to do what they think is best in this case.

An Ohio family law attorney can help you decide what is the best course of action in your case.

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DISCLAIMER – Read it, it’s important!

Larry J. Kasper, CPA, CVA , CBA is appearing as a Guest Blogger on our site.  He does not work for the Law Offices of Virginia C. Cornwell, and is not being paid to write this article.

Ohio Court of Appeals Affirms and Settles Business Valuation Issue

Hissa v Hissa, 2010 WL 2637905 (Ohio. July 1, 2010)

This case in Domestic Relations involved a divorce that had been litigated for 10 years.  One of the disputes revolved around the valuation of the husband’s orthopedic practice.  In particular,  the valuation of the receivables was disputed.  Both experts used the fair market value standard and both placed great emphasis on the value of the receivables.

The husband valued the receivables using records from 1999.  The wife’s expert used the value of receivables in 1998.  The husband claimed that the wife’s expert did not use the most recent financial information.  However, according to the court, the husband did not provide the most recent receivable information to the wife, nor did the husband have his expert testify, instead relying on an affidavit authenticating the contents of the report.  The Appeals Court also noted discrepancies in the 1999 records and the differences in information he provided to the two experts, and used this to support it’s finding that the Wife’s expert opinion was more credible.

In general, the trial Court found the husband’s expert report less credible and the Appeals Court found no abuse in relying on the wife’s expert’s testimony and report.

Traditionally, valuations are performed at a particular time and as of a valuation date.  This case really emphasizes the importance of the two sides agreeing on a common valuation date.  Had they agreed that 1998 was the valuation date, the issue of timely data, and discrepancies would never have occurred.  The case also shows how the court’s perceived failure to disclose can backfire on the party who has the information advantage, normally the owner spouse.

Finally, the exceptional period in delay from filing to final trial, points out the cost of multiple valuations which can be avoided with a fixed valuation date.  Experts are not usually required to update their reports except at an additional cost.    Dating the valuation as close to the divorce as possible can avoid the cost of updating the report, but may not reflect the valuation realities of the marital assets.

The relevant date is when the parties effectively terminated the marriage, either by separate living arrangements, or by filing for separation or divorce.  This approach acknowledges that divorces sometimes take time, but the delay in the court decision should not affect the value of the marital property at the time of divorce.  This approach would eliminate the cost of updating the report since any updates would be irrelevant, baring unusual changes in circumstances.  If there were unusual circumstances, the effect could be introduced at trial without a complete revaluation.

Larry J. Kasper, CPA, CVA, CBA is the author of the popular CBA seminar, “Tax Aspects of Divorce” and the award winning book, Business Valuations: Advanced Topics.  He is a valuation expert and also reviews reports prepared by other experts to identify strengths, weaknesses, inconsistencies and problems with valuation reports.

There is a lot of fuss and fanfare about psychological evaluations in family law.  The most common reason we hear for requesting a psychological evaluation in Ohio family law cases (divorce, custody, visitation, shared parenting), is, “I think my ex is bipolar and I want custody of my children.”  Many clients want to have a psychological evaluation performed in their cases, but what happens in those evaluations is a big mystery to them.

When the purpose of the psychological evaluation is to determine which parent is more suitable to parent children (a Child Custody Evaluation), there are guidelines that an evaluator must use.  On February 21, 2009, the American Psychological Association revised their “Guidelines for Child Custody Evaluations in Divorce Proceedings”.  They are now known as the “Guidelines for Child Custody Evaluations in Family Law Proceedings“, an acknowledgment to the fact that the definition of family in America is changing, and psychological evaluations are no longer used only in divorce.

The new guidelines can be seen here: http://www.apa.org/practice/guidelines/child-custody.pdf.  Contrary to what most parents believe, the purpose of a psychological evaluation is not to see if either parent has a mental health diagnosis.  The Psychologist’s contact with the parents is unlikely to be sufficient for the Psychologist to actually make a diagnosis.  At best, they may be able to observe characteristics which might be “consistent with” a certain diagnosis or disorder.

If the purpose of the examination is not to make a diagnosis, then what is it?  In a nutshell, the purpose is of the psychological evaluation, or child custody evaluation, is:

1. Where possible, to answer the referral question that was set out in the Court’s order which required one or both parents, and the Child, to participate in the evaluation; and
2. To determine the psychological best interests of the Child.  Where appropriate, the Psychologist can make a recommendation as to which parent is better equipped to meet the psychological needs of the Child.

10 Things to Discuss with Your Attorney

Sometimes the Court will choose the evaluator, and sometimes the Court will allow the parties or attorneys to choose or have input regarding which psychologist will perform the evaluation.  In that case, here are 10 important things to discuss with your attorney:

1. How much will the psychological evaluation cost?
2. Who will pay for the psychological evaluation?
3. Does this Expert generally prepare a written report?  If so, does the Expert generally prepare the report on time, or request multiple extensions of time to prepare the report?  If you don’t want your case to drag on, is this the Expert for you?
4. When this Expert prepares a report, does he or she generally make a recommendation to the Court, or avoid making a recommendation to the Court?
5. What does this Expert charge for his or her time in depositions, and for court time?  Is it a higher hourly rate or an expensive flat fee?  If your case goes to trial, you will probably need this Expert to come to court.  Can you afford to pay for that?
6. Has your Attorney worked with this Psychologist before?  If so, what were your Attorney’s impression of his or her work?
7. In your Attorney’s experience, does this Psychologist generally make a recommendation which favors mothers? Or fathers?  If your Attorney’s experience is that a particular psychologist almost always recommends one parent over the other, and that parent is not you,  you should discuss your concerns with your Attorney.
8. If need be, will the Psychologist participate in depositions and testify in court?  Believe it or not, some psychologists who will perform custody evaluations do NOT want to give a deposition or go to court in any way, shape or form.  Although they can be compelled to do so, discuss with your Attorney why you would voluntarily agree to hire an unwilling expert.
9. Is the Expert willing to supply his or her information, notes, etc.  in response to a subpoena, to the extent permissible by law? Does your Attorney know if the Expert has redacted information or notes when his or her records were subpoenaed?  If so, why?  Was there a legal basis for doing so, or was the Expert trying to hide something that should be discoverable?
10. What is the Expert’s working relationship with the Guardian Ad Litem?  Does your Guardian Ad Litem always suggest this Expert?  If so, why? Does the Expert have discussions with the Guardian Ad Litem that he or she does not disclose to your Attorney?

DISCLAIMER – Read it, it’s stuff you need to know!

OHIO CHILD CUSTODY JURISDICTION AND DIVORCE:

What you need to know about The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Subject Matter Jurisdiction

In the previous article we discussed personal jurisdiction, and how you need it if you want someone to pay money.  Subject matter jurisdiction is different.  It can never be waived.  It is one of the ONLY issues that can be raised on appeal for the first time.  Why is it so important to divorce and custody cases?  Because one state, and one state only, has subject matter jurisdiction to make child custody orders under the UCCJEA.  Either a state has it, or it does not, and clever little tricks like trying to file court papers first or serve someone while they are in a state will NOT give a state subject matter jurisdiction.  It is one of the few areas in Ohio Family Law where the Trial Court does NOT have broad discretion, and the law is clear.  The Court of Appeals will actually get involved to stop a trial court from exercising subject matter jurisdiction improperly.

Why is child custody so different?  Because there is a federal law about child custody.  For the most part, the federal government leaves custody issues to the state, and only steps in on matters which effect the nation as a whole.  There is a federal law called the Parental Kidnapping Prevention Act that was designed to keep parents from taking the children from their home, moving to another state that they would like to live in and filing court papers in the new state to obtain jurisdiction.  The Parental Kidnapping Prevention Act (PKPA) gives clear instructions regarding which state has jurisdiction over child custody matters.  The PKPA says that ONLY courts with proper jurisdiction under the PKPA can make orders regarding custody that have to be obeyed outside of that state.  In legalese, only states that have jurisdiction under the PKPA can make custody orders which are entitled to “full faith and credit” in all other states.

Ohio, like most states in the U.S., has adopted the UCCJEA.  The UCCJEA is a treatise, or a scholarly writing, that has been made part of the law in the states that have adopted it.  To understand the UCCJEA in Ohio, you must look at the statutes in the Ohio Revised Code that made the UCCJEA the law in Ohio.  The UCCJEA was adopted in Ohio to bring Ohio custody law in compliance with the PKPA.  In a nutshell, both the UCCJEA and the PKPA require:

• 1) generally, initial custody determinations must be made in the State where the Child has lived for the 6 months immediately before the filing of the court paperwork (home state jurisdiction);
• 2) once a custody order is made by a state with proper jurisdiction under the UCCJEA, then that state has continuing exclusive jurisdiction (that state keeps jurisdiction unless both parents and all the Children leave that state); and
• 3) any state can exercise emergency jurisdiction, but that emergency jurisdiction only lasts as long as the emergency, and then the State with continuing exclusive jurisdiction (if a custody order already exists from that state) or home state jurisdiction (if no custody order is made yet in the home state) will assume jurisdiction.  Emergency jurisdiction is temporary, and dragging out the court proceedings over the alleged emergency for six months or more won’t change anything.

Now, if you really think about it, both the PKPA and the UCCJEA were made because of all the things people used to do to try to give a state jurisdiction that it shouldn’t have.  These laws both contemplate and defeat “custody grab” scenarios such as:

• leaving one state and filing court papers shortly after arriving in a new state (haven’t lived in the new state six months)
• filing “emergency jurisdiction” motions and then hoping that keeping the case in court six months will keep jurisdiction in the wrong state (if a custody or divorce/custody or similar case has been filed the Child’s home state, the case WILL end up back in that home state.
• trying to lure the other parent into the new state to serve them with paperwork (can’t get subject matter jurisdiction this way)
• filing papers in the wrong state in the hopes the other parent cannot afford the airfare to appear (Ohio law can require the parent filing in Ohio to pay travel expenses for the other parent to come fight it)
• Hiding the Child for six months or kidnapping the Child
• filing a case citing the “general jurisdiction” of the Juvenile Court over a child “who is not a ward of another court of this state”.  Read the statute closely – that statute presumes that Ohio already has subject matter jurisdiction over custody under the UCCJEA.  In addition, Ohio Revised Code 3127.15(B) clearly and unequivocally states: Division (A) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

To learn more, see our other articles on the UCCJEA.

The situations ARE enough to give Ohio personal jurisdiction over spouse 2 (to order money payments such as alimony), and in rem jurisdiction to end the marriage:

Unique Aspects of Professional Practice Valuations in Divorce

By: Heather Deskins, CPA/ABV/CFF, CFE, CVA

Managing Member of P.D. Eye Forensics, LLC

Valuing a professional practice in a divorce setting has its own set of issues.  These issues include understanding the characteristics of a professional practice, the special financial statement adjustments to consider and issues in valuing goodwill.  Of course, each industry is different and there are certainly additional issues that can be addressed; however, this article will focus on several major valuation issues.

What makes a Professional Practice Unique?

Professional practices, such as medical, dental, accounting, legal, and architectural/engineering firms, have certain characteristics that distinguish them from other small businesses and make them unique:

1. They involve providing a service versus a product.
2. There is a level of trust and respect between the professional and the client.
3. The professional often relies on referrals to obtain business.
4. A specific educational degree is usually required by the professions regulatory body.
5. The professional holds a license from a governmental or regulatory agency and/or is certified by a professional organization.
6. Successful professional practices typically have a high intangible value and a low tangible value.

Valuing a professional practice is far different than valuing, say a manufacturing business.  Since professional practices focus on selling a service, they typically have little value in actual tangible assets (i.e., inventory, machinery & equipment) but have greater value and dependence on their earning capacity.  Some important factors to consider in valuing a professional practice include the following:

• Location: Is the practice located in an urban, high growth area or in a rural, declining market?
• Referral sources: Is there a large referral base or is the practice reliant on one or a few referral sources?
• Reputation: What is the professional’s reputation?
• Age of Professional: Is the professional young and energetic or on the verge of retirement?
• Employees: Are they dedicated and trained or on the verge of leaving?
• Work habits: Does the practitioner delegate staff and, as a result,  have a light work load ?  Does the practitioner work excessively?

In addition to reviewing these and other non-financial issues, various financial issues need to be addressed that also impact the fair market value of a professional practice.  Fair market value is defined as follows:

The price at which the property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, and both parties have reasonable knowledge of the relevant facts.[i]

The financial issues include adjusting the financial statements to market values (versus recorded book values) and valuing the goodwill of the practice.

Normalizing Adjustments

Normalizing adjustments are made to the income statement and balance sheet to bring the financial statements to an economic reality.  Typically, a professional practice prepares its financial statements on the cash-basis, meaning that whenever cash is received or paid out, it is then recorded on the books.  Therefore, cash-basis financial statements may not include accounts receivable, accounts payable, accrued vacation pay or accrued taxes on the balance sheet.  To bring the balance sheet to a more economic reality or to true market values, these types of accounts should be included.

Balance Sheet

Determining the accounts receivable in a medical practice can be somewhat challenging because the amount the medical practice bills is not necessarily what they expect to be paid.  This is because the medical practice bills their normal rates to the patient’s insurance provider and the insurance provider has a predetermined amount they will pay for services.  When the medical practice receives payment from the insurance provider for services, the medical practice writes-off the difference as uncollectible.   Therefore, the normalizing adjustment to accounts receivable should only included the amount that is determined to be collectible, which can be a challenging process.

A specific normalizing adjustment specific to practices that bill by the hour, like accountants and lawyers, is their work-in-process (WIP) or unbilled accounts receivable.  This is considered an asset of the practice and should be considered.  The value of WIP may be an estimate as it is difficult to determine the exact amount of WIP on a particular valuation date; however, it is important to understand the practice’s billing procedures in estimating the amount.

Office equipment can be a valuable asset for certain professional practices.  A dental practice would have far greater value in equipment than a mental health professional.  Depending on the age and condition of the equipment, it may be necessary to have a professional equipment appraiser value the necessary equipment in order to adjust the value to market levels.

In addition to adjusting assets on the balance sheet, liabilities should also be considered.  Any unreported liabilities such as accounts payable, accrued liabilities, long-term liabilities and contingent liabilities, should be included on the balance sheet.

Income Statement

One of the most controversial adjustments made to the income statement is to Owners’ Compensation.  When a business owner has control to set his or her own compensation, the level of compensation paid may not be what the current market is paying.  Reviewing the owners’ responsibilities, education and experience will help determine an adequate market compensation.

When valuing a business during a divorce proceeding, it is especially important to be consistent in using the same compensation of the business owner that is used in the business valuation and the compensation used in determining child and/or spousal support.  If a higher income is used in determining spousal support than what is used in valuing the business, the concept of double-dipping has occurred.  This is a topic for another day.

Goodwill

As stated previously, professional practices typically have little value in actual tangible assets (i.e., inventory, machinery & equipment) but have greater value and dependence on their earning capacity, which creates goodwill. Goodwill in a professional practice can be broken down into enterprise (or practice) goodwill or personal (or professional goodwill).

Enterprise goodwill is the value of earnings or cash flow directly attributable to attributes of the enterprise that results in earnings from consumers that return because of the enterprise, in earnings from new consumers who seek out the enterprise, and in earnings from referrals made to the enterprise.[ii]

Personal goodwill is the value of earnings or cash flow attributable to attributes of the individual that results in earnings from consumers that return because of the individual, in earnings from new customers who seek out the individual, and in earnings from referrals made to the individual.[iii]

Enterprise goodwill is typically transferable upon the sale of the practice, while personal goodwill is typically not transferable.  The question then arises, “is personal goodwill a martial asset?”

In the recent Ohio Appeals court case, Banchefsky v. Banchefsky, 2010 WL 3527578 (Ohio App.) (Sept. 9, 2010)[iv], the business owner sold his dental practice during the divorce and the divorce court limited personal goodwill to the value of the non-compete, which was $15,000 as his separate, non-divisible property.[v]

Heather Deskins CPA/ABV/CFF, CFE, CVA is appearing as a Guest Blogger on our site.  She does not work for the Law Offices of Virginia C. Cornwell, and is not being paid to write this article.

[ii] Business Valuation Update, Still Hunting: In search of Consistent, Functional Definition for Personal Goodwill, David Wood, CPA/ABV. CVA, CFFA, April 2010.

[iii] Ibid.

[iv] Please note that the author does not provide any legal advice, and the case citation provided in this article is for illustration, general informational, and discussion purposes only.

[v] Business Valuation Update, December 2010.

Other Resources:

Pratt, Shannon P., Robert F Reilly, Robert P. Schweihs. Valuing Small Businesses & Professional Practices. 3^rd ed.

New York: McGraw-Hill, 1998

This is the 11th installment in a series by Virginia Cornwell, a Columbus Ohio Divorce Attorney and Ohio State Bar Association Certified Family Relations Specialist.  Virginia is one of approximate 100 attorneys in Ohio to have received this honor.  This article is about the process and options for ending your marriage in Ohio, and about Ohio divorce laws.

The other articles in the series can be seen here:

OHIO DIVORCE JURISDICTION

Jurisdiction is a complicated issue.  Actually, it’s a whole bunch of issues all jumbled together.  There is personal jurisdiction, subject matter jurisdiction, and then there is in rem jurisdiction.  If that weren’t complicated enough, there’s also a similar issued called venue.   Before you determine Venue, you have to figure out the proper jurisdiction.

There are many things that are relevant to where you should file your divorce, such as:

• Whether one or both spouses live in Ohio, and how long they have lived there?
• Which Ohio County each spouse lives in, and how long have they lived there?
• If one or both spouses are are absent from Ohio but still have contacts with Ohio, what is the nature and extent of your contacts?
• Whether either husband or wife is in the military
• Whether you have children
• Whether you want the court to make orders regarding support, real property or personal property, or just to grant a divorce?
• Do you want a divorce, dissolution, annulment or legal separation?

IN REM JURISDICTION FOR OHIO DIVORCE

In Rem is a latin term.  When used in the divorce context, it refers to the court’s jurisdiction over the marital status.  So a court may have in rem jurisdiction to grant a divorce, but no personal jurisdiction over one of the parties, their money and their property, and/or no subject matter jurisdiction over the parties’ children.  In that case, the court could ONLY make orders that the parties are divorced.  Everything else (child support, spousal support, custody, property division, etc.) would remain in as it is, with no orders until somebody files something to get those orders in the proper jurisdiction.

Why would you want to file a divorce in a court that can only end the marriage and not make any orders regarding child support, custody and property?  Actually, there are lots of reasons.

1. The first and most obvious would be that a person wants a divorce and does not know where their spouse is.  If you have LOOKED for your spouse (yes, that means contacting the inlaws if you have their phone number or e-mail), tried several methods to find them and been unsuccessful, you can serve your spouse with divorce papers by publication in the newspaper.  You will have to file an affidavit with the court telling them all the methods you used to try to locate your spouse, and what the results were.  Once publication is completed, this is “good service” but ONLY for ending the marriage.
2. Another reason would be that you and your spouse don’t have any money, property or children to divide, so ending the marriage is the only thing you care about.
3. A third reason would be that even though you DO have money, property or children with your spouse, you have tried your best to serve your spouse through other methods (mail, sheriff, process server), and you have not been able to do so.  If you are not sure that you have your spouse’s correct address, you MAY be able to serve your spouse by publication and go forward with the divorce.

In addition to the other installments in this Divorce in Ohio Series (see links at top of the page), you may also find the following topics, which relate to divorce, to be helpful.

Adultery, Annulment, Alimony (Spousal Support), Best Interest of the Child, Child Custody, Child Custody Jurisdiction, Child Support (deviation), Child Support (how much), Child Support (how to pay), Child Support (lower), Child Support (myths), Child Support (resources), Child Support (sign up),Contempt, Dissolution, Divorce Basics, Divorce Myths, Foreclosure Mediation, Grandparents, Guardian ad Litem, House, How Long Your Divorce May Last, International Abduction,Legal Separation, Mediation, Moving, Packet of Forms vs. Getting a Lawyer, Prenuptial Agreements (Antenuptial Agreements), Shared Parenting,Temporary Orders, Temporary Orders Affidavits, Where to File for Divorce

DISCLAIMER – Read it, it’s stuff you need to know!

This is the 10th installment in a series by Virginia Cornwell, a Columbus Ohio Divorce Lawyer and an Ohio State Bar Association Certified Family Relations Specialist.  Virginia is one of approximately 100 attorneys in Ohio to have received this honor.  This series is about the process and options for ending your marriage in Ohio, and about Ohio divorce laws.

Some of the other articles in the series can be seen here:

Divorce has its share of dirty tricks, maybe more than its share of dirty tricks.  This article is part 2 of our a list of 10 Dirty Divorce Tricks. When we say “dirty”, that’s not a good thing.  Dirty is not meant to be another word for clever.

6.  NOT PAYING THE GUARDIAN AD LITEM.  In every family law case, there is one party who wants a guardian ad litem on the case more than the other.  A guardian ad litem has a lot of influence over the court’s decision regarding custody and visitation, shared parenting, and all matters regarding the children of the marriage.  Usually there is at least one parent who resents the appointment of a Guardian ad Litem.  The Guardian ad LItem does not usually begin his or her work until their initial deposit has been paid.  Many times the person who does not want the guardian ad litem will not pay their court-ordered share of the guardian fees in the hopes that it will make the guardian go away.

7.  FIRING YOUR LAWYER RIGHT BEFORE TRIAL AND THEN ASKING FOR A CONTINUANCE.  This is something that courts see a lot and appear to have tired of.  Some courts will allow the continuance, but others will refuse and will tell the person who just fired their law to proceed with trial and call their first witness.

8.  WASTE MONTHS FIGHTING A VALID PRENUPTIAL AGREEMENT, OR SEPARATION AGREEMENT. There’s a couple of apps for that too, but that’s another long detailed article for another day.  People who read list of 10 articles want their info short and sweet.

9.  DESTROYING, SELLING, HIDING OR TRANSFERRING PROPERTY. There are apps for that too. Temporary restraining orders, contempt, jail time, financial misconduct, distributive awards, awards of attorney fees,  lump sum spousal support (which can be enforced against retirement accounts), and constructive trusts, to name a few.

10.  FALSE ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE OR WORSE. Of all the dirty divorce tricks, this one is particularly loathsome in the eyes of courts.  When the court finds that these allegations have been falsely made, the damage to the accuser’s case is immeasurable.  Thereafter they have little or no credibility with the court.

BONUS DIRTY TRICK:  INTERFERING WITH A SPOUSE’S EMPLOYMENT In particularly nasty cases, some spouses take a “scorched earth” policy.  If they can’t have you, they want to ruin EVERYTHING in your life, starting with your livelihood.  If your spouse is under a temporary restraining order not to harass you, this would be something that could lead to a finding of contempt of court.  In addition, if someone loses their job or a promotion because of the actions of their spouse, the most obvious way to address it would be to reduce the child support or spousal support, if any, that was paid for by the former job.

Adultery, Annulment, Alimony (Spousal Support), Best Interest of the Child, Child Custody, Child Custody Jurisdiction, Child Support (deviation), Child Support (how much), Child Support (how to pay), Child Support (lower), Child Support (myths), Child Support (resources), Child Support (sign up),Contempt, Dissolution, Divorce Basics, Divorce Myths, Foreclosure Mediation, Grandparents, Guardian ad Litem, House, How Long Your Divorce May Last, International Abduction,Legal Separation, Mediation, Moving, Packet of Forms vs. Getting a Lawyer, Prenuptial Agreements (Antenuptial Agreements), Shared Parenting,Temporary Orders, Temporary Orders Affidavits, Where to File for Divorce

DISCLAIMER – READ IT, IT’S STUFF YOU NEED TO KNOW.

This is the 9th installment in a series by Virginia Cornwell, a Columbus Ohio Divorce Attorney and Ohio State Bar Association Certified Family Relations Specialist.  Virginia is one of approximate 100 attorneys in Ohio to have received this honor.  This article is about the process and options for ending your marriage in Ohio, and about Ohio divorce laws.

The other articles in the series can be seen here:

DIRTY DIVORCE TRICKS

Divorce has its share of dirty tricks, maybe more than its share of dirty tricks.  This article, combined with part 10 of our series will discuss 10 dirty tricks to look out for.  When we say “dirty”, that’s not a good thing.  Dirty is not meant to be another word for clever.

1. DELAY.  A time honored passive agressive tactic that is also an expensive tactic when it comes to divorce.  Generally, time is on the side of only one spouse in a family law case.  Usually, the person with the most power over a particular issue benefits from delay.  This person will often go to great lengths to make the divorce last longer.  The reasons are to numerous to count, but topping the list are fear of what the future holds, financial motivations , control issues, prolonging living in the marital residence, unresolved issues about the end of the marriage and avoiding accountability.  Regardless of the reason for delay, multiple court appearances will increase the cost you pay to your lawyer, because you pay them by the hour.
2. IT’S FREE TO LIE.  IT’S EXPENSIVE TO PROVE THE TRUTH. Sometimes in divorce one spouse will take a “throw it against the wall and see if it sticks” approach to the demise of the marriage, especially when that person has no lawyer.  Lawyers are officers of the court and cannot knowingly submit false information to the court, nor can the lawyer knowingly allow their client to give false testimony.  However, when one party is pro se (presenting their case to the court with no lawyer) that party sometimes believes they are made of teflon – they can say anything they want and there will be no consequence if the statements are false.  You don’t have to seek proof for every allegation your spouse makes.  If your divorce case goes to trial, the Judge or Magistrate listens to the evidence put on by both parties and decides who is the most credible.  But it sure helps to have proof.  You and your lawyer should decide what is worth pursuing and what should be ignored.
3. PARENTAL ALIENATION (OFTEN CALLED “BRAINWASHING”). This is one of the oldest and ugliest of the dirty divorce tricks.  Although parental alienation has not yet made its way into the arena of psychology and psychiatry as an official diagnosis, it happens all the time and courts know it.  This is particularly prevalent when one part wants the divorce and one party is angry about being “left behind”, but parental alienation rears its ugly head for a lot of different reasons.
4. THE SHELL GAME. In order for each party to receive his or her fair share of the marital property, the parties have to make a full disclosure about the nature and extent of their assets and liabilities.  Sometimes, one party to a divorce, or both, does not exchange the documentation for the other side to determine what is fair.  Sometimes one side in the case sits back and lets the other side do all the work, or at least hopes that they will do all the work.  Fortunately, in Ohio, the trend is turning around and courts are starting to make attorney fee awards for failure to comply with discovery.  However, some people still think that the attorney fee awards they get hit with won’t be worse than sharing the money from whatever they are hiding. There’s an app for that, it’s called Civil Rule 37.  In layman’s terms it says “Okay smarty, you don’t want to tell us what you have, then for trial purposes I’ll put on an order telling YOU what you have to split up, and it’s all marital.”  And where do you suppose the court is going to get that number?  You guessed it, from the spouse that complies with discovery.
5. TRYING TO CUT OFF ACCESS TO THE MARITAL ASSETS AND FUNDS. Don’t even try to carbon date this one, it’s old.  Really old.  As dirty tricks go, this one’s a fossil, but it still has a sharp edge.  You know why it’s old?  Unfortunately, because a lot of the time it works.  One spouse plans for divorce and leaves the other totally unprepared.  If your spouse was controlling or sneaky during the marriage, that is how they’re going to be during the divorce.  Cutting off access to your assets unfortunately makes it difficult for you to hire a lawyer.  Lawyers have families too, and they can’t sacrifice their family’s well being for yours.  They own a business and can’t keep representing clients who can’t pay them.  What’s the lesson?  Ignorance is not bliss.  Know what you have, where you have it, and if your access to it can be cut off by your spouse at any time.  If your spouse is the breadwinner, and you have no funds or assets under your control, you are at great risk if he or she decides to leave you.

Adultery, Annulment, Alimony (Spousal Support), Best Interest of the Child, Child Custody, Child Custody Jurisdiction, Child Support (deviation), Child Support (how much), Child Support (how to pay), Child Support (lower), Child Support (myths), Child Support (resources), Child Support (sign up),Contempt, Dissolution, Divorce Basics, Divorce Myths, Foreclosure Mediation, Grandparents, Guardian ad Litem, House, How Long Your Divorce May Last, International Abduction,Legal Separation, Mediation, Moving, Packet of Forms vs. Getting a Lawyer, Prenuptial Agreements (Antenuptial Agreements), Shared Parenting,Temporary Orders, Temporary Orders Affidavits, Where to File for Divorce

DISCLAIMER – READ IT, IT’S STUFF YOU NEED TO KNOW.