This week’s post is published under My Shingle. Here’s the link:
This week’s post is published under My Shingle. Here’s the link:
Divorce encourages shenanigans. A common shenanigan is to recast history so that certain events are slanted more favorably to your side. Such tactics usually enrage the other party, making a costly trial more likely. Sometimes, a trial is just unavoidable.
In the recent case of Bass v. Bass, 2014-Ohio-2667, both parties wanted the marital home. For a variety of reasons, the trial court awarded the home to the wife. The husband complained that the court erred because the wife got to enjoy improvements to the house, including a swimming pool and a gazebo, that he financed through a loan from his son. The husband wanted the wife to re-pay one-half of the loan to his son.
Both the trial court and appeals court sided with the wife. An examination of the facts revealed that:
Husband argued that the trial court erred in finding that the money from his son was a gift. The Court of Appeals disagreed, stating that the trial court did not in fact find that the son’s financing was a gift; rather, conflicting evidence showed that the husband failed to prove that a loan to his son existed. Therefore, the wife received the house, along with the swimming pool and gazebo, without any obligation to pay anything to her step-son.
Is this fair? Of course not. The end result is that the son paid for a swimming pool and gazebo for his step-mother. The poor husband did not get the house he wanted and no doubt had to move to a hot, humid climate without a swimming pool in sight.
Not so fast, however. The evidence also showed that husband had tax liability of more than $400,000 and had served prison time for welfare fraud. The trial court found his testimony “less than credible” and that it was not likely that he had the means to qualify for a loan to buy-out the wife’s interest in the marital home. With that background, the trial court probably thought he was just pulling another financial shenanigan in a new venue–this time, divorce court.
Neither party received an award of attorney fees from the other. The divorce process no doubt let the husband down twice. As far as the wife, she had to endure two separate court cases. At least she could console herself by sipping a frothy drink beside her free swimming pool.
The parents of 16-year-old Alan divorced and entered into a shared parenting arrangement with an alternating week-to-week schedule. This lasted for five months. Mother then filed for full custody, asking the court to terminate the shared parenting plan and grant Father the age specific standard order of visitation for Warren County, Ohio. For children in Alan’s age bracket, this standard visitation order says:
TEENAGERS—AGE 16 UNTIL 18: Parenting time for children in this age bracket shall be fixed between the child and the non-residential parent. Parenting time shall not be limited other than as the child and the non-residential parent choose.
The court approved Mother’s motions, cut father’s parenting time to the standard order, and ordered counseling between Alan and Father. Father appealed, arguing that the standard order denied him his fundamental right to raise his child.
The court interviewed Alan as to his wishes and concerns on at least two occasions. Alan insisted he did not want to see his father, that he wanted to live full-time with mother, and that nothing could ever change his mind. Alan refused to see Father on approximately half of the ordered times and refused most counseling sessions. The court found that he was sufficiently mature to have his wishes considered in determining his best interests.
Mother and Father used different parenting styles with Alan. Mother used the “discussion” method with Alan because she did not like to argue with him. Father acted as the disciplinarian, imposing direct consequences.
Alan did not participate in sports, extracurricular activities or hold a part-time job. He went to school, hung out with friends and played video games.
The relationship between Alan and his Father was undoubtedly strained. Some of the examples of conflict considered by the court include:
The Ohio Twelfth District Court of Appeals found that the standard order did not violate Father’s Constitutional right to raise his child. Because the trial court ordered Father and Alan into counseling, the visitation schedule was “narrowly tailored to promote the compelling government interest of insuring that the best interests of children are observed in the allocation of parental rights and responsibilities.” The court found that Father’s own parenting style caused his strained relationship with Alan. The court further found that the standard order only set forth that the custodial parent was not the decider in visitation concerns with a teenager aged 16-18. The court stated that Father could file in Juvenile Court to enforce the Domestic Relations standard order that included counseling; that he could request an order requiring the residential parent to take the child to counseling with the non-residential parent; or the Father could request the court to establish a definite schedule. Because of these options, the majority opinion held that Alan did not have to right to control the parenting time.
Justice Hendrickson concurred in part and dissented in part. He noted that Alan was not very mature since he had shown a tendency to lie, to risk getting his girlfriend pregnant, and to play video games instead of doing homework. Further, he found that there was not a sufficiently compelling government interest that would justify a limitation on Father’s parenting time rights because there was absolutely no evidence that time with Father would be harmful in any way to Alan. Interestingly, he found that it was not in Alan’s best interest to allow him to be an “integral part of the visitation decision-making process.” Essentially, because there was no set schedule, the dissent believes that Alan got to hold his Father hostage by refusing to visit and refusing to go to counseling.
Father argued for the first time on appeal that the standard order violated O.R.C. 3109.051(A) because it failed to provide a “specific schedule of parenting time” for the non-residential parent. Father never asked the court to modify visitation—the court stated that “remarkably, Father did not seek set visitation or to present additional evidence relating to this issue on remand.” Had Father done so, he probably would have received a more helpful order. However, because Alan was allowed to essentially veto time with his Father, the Father would have been in the same position.
Everybody thinks they know how to raise children; teenagers, not-so-much. When your teenager shuts you out, this decision upholds your right to negotiate directly with your teenager about when and how to visit. If your teenager is unreasonable, you have a legal remedy: file to modify; file in Juvenile Court; or file for counseling.
Reasonable minds agree that teenagers should not be “driving the bus” when it comes to visitation. The pivotal issue here is whether you believe the majority opinion that this standard order does not grant the teenager veto power, or the dissenting opinion that this standard order effectively does just that.
I side with the dissent. The standard order could and should go one step further: address what should automatically happen in the event of a flat refusal by a teenager. What I find “remarkable” here is that a Father disciplining his son by taking away video games and not bowing to his demands for the latest clothing style is considered unorthodox in today’s society.
As it is written, the standard order is useless because the typical legal remedies are not helpful with teenagers for one overriding reason: all of this legal wrangling ends at age 18. By the time a parent litigates a parenting time issue about a sixteen year old, the whole thing will be moot. A parent can easily lose a teenager during this delay.
Back in the days before attorney advertising ruined the legal profession, white-guys in their forties from designer law schools dominated the practice. Sought after and deferred to, the mere whisper of their waspish names carried clout. If one of these notorious attorneys agreed take your case, you accepted whatever terms he laid down. Pedigree mattered.
Those were golden times. Tort reform had not been born; attorneys were scarce; and legal practice offered prestige, security and the good life. What’s not to like about that?
The problem began slowly, with the admission of women and minorities to law schools in record numbers. The problem grew as the public learned of lawyer abuses, including sexual favors in lieu of fees, shoddy representation and outright theft of client funds. The problem exploded with attorney advertising. Suddenly, potential clients could compare fees, results and personalities. Suddenly, the public could make an informed decision and choose their favorite candidate. Suddenly, the spoiled and haughty had to learn to compete with new, less favorable rules.
Old Dogs in New Terrain
To their credit, many of the spoiled and haughty caught on and moved on. Some, though, are still holding out, decades after the first of several waves of change to hit the legal industry. Some are such die hards that they will never give up the golden days, despite their lack of effectiveness for their clients. Like Nadia Comaneci, who finally grew too fat for the balance beam, these lawyers just keep at it. They’re has-beens.
Has-Been Attorneys can be difficult to spot at first. Here are their most telling characteristics:
That Tricky Matter of Attorney Age
Not all old attorneys are has-beens, but the risk increases exponentially with every year they work past 75. Not all attorneys who are descendants of the spoiled and haughty are entitled brats, but the odds are stacked that they are. Young attorneys are not has-beens, but some are never-shoulds, a topic for another post. Women attorneys can be has-beens, but they generally are not, especially if they are mothers.
It is common sense that you want an attorney who knows the law, can get along with people if he needs to, and fits within the bell-shaped curve of current American culture. Fortunately, you now have more information available about potential attorneys than ever so you have many, many choices. Unfortunately, you also have many, many types to avoid and has-been attorneys are plentiful and difficult to detect until it’s too late.
If you hear your attorney lamenting too much about Vietnam, you may have a history buff, or you may be headed for trouble. Let the buyer beware.
Many people ask me if they should hire a private investigator for their family law case. Here are the top three things to consider when deciding if the cost is worth the return.
No fault divorce has eliminated the need for surveillance in most cases. In Ohio, adultery is almost never the grounds for divorce unless one party does not answer or appear. Private investigators now have the most use in parenting cases.
Two examples of a good use of private investigators are to prove alcohol abuse or child neglect such as leaving children home alone. It may be useful to have a private investigator conduct public records searches. The worst possible use of a private investigator is simply to “tail” the other party with no specific instructions about what to look for. Most private investigators are happy to drive around at an hourly rate looking for anything useful. I have never recommended such an open-ended arrangement.
Discovery is the usual way to get information in a civil case. Discovery includes an exchange of documents, identification of accounts and depositions where a party must answer questions about just about anything under oath. Social media, cell phone records, loan applications, leases and utility accounts can point the way to a trough of tasty tidbits. If the case is truly headed for trial, nothing can replace witness interviews. These can usually be done by a paralegal for less cost than a private investigator. At some point, the lawyer handling the trial will want to speak directly with witnesses. It is important to do this task as few times as possible.
If the choice boils down to a private investigator or using home-made surveillance, such as taps on telephones and rigged cameras at home, the best choice is always the private investigator.
In parenting cases, it is important to consider the image you are giving to the judge. Cases involving private investigators are usually the cases most hotly contested and the perception can easily be given that a client wants to win at any cost. Additionally, private investigators are not used as often as they were in the ’70s. The presence of a private investigator may signal to the other side that the lawyer is caught in past practices and is not otherwise current.
I have had exactly one case is more than twenty years where the use of a private investigator revealed critical information. The issue was parenting time with a father accused of alcohol abuse. We successfully had a private investigator film the father purchasing alcohol, drinking the alcohol, all while driving with the seven-year-old in the car. One view of the tape was all it took to settle the case for supervised parenting. I have used this particular story and this particular investigator ever since.
It seems like you have really accomplished something when you sic a private investigator on your spouse. to uncover dirt. In reality, it is probably a huge waste of time and money. If it’s the thought that counts, though, it may just be worth it.
I ask fathers right off the bat if they spank their children. If they say yes, I tell them to knock it off. Most accept my advice. Whenever I write anything against spanking, I get flooded by bible quotes and stories about how a “good lickin’” never did any kid any harm. The thought process is straightforward: I was spanked; I turned out okay, so I’ll spank my kids.
Where I practice law (Ohio), spanking is legal provided that it is “proper and reasonable.” I don’t care if it’s legal –Fathers in divorce and custody cases should never spank their children. Here are the top three reasons why.
Courts are “Psychologicalized”
Blame it on Oprah, but psychology is a cornerstone of American culture. Family courts have relied on the opinions of psychological experts for decades and that reliance is only increasing. The psychological community is against spanking. The American Academy of Pediatrics is against spanking. Oprah and Dr. Phil are against spanking.
Even in states like Ohio where spanking is legal, fathers who spank are starting off at a disadvantage: Ohio corporal punishment must be “proper and reasonable,” and what “proper and reasonable” means is whatever a Judge says is means on any given day. The legal decisions on what is proper and reasonable are conflicting and confusing. It all depends upon the circumstances, which may (or may not) include the child’s age and behavior, the place and severity of the punishment and even the child and parent’s demeanor during the punishment. If a parent over steps, there are serious criminal and civil consequences, including domestic violence orders on behalf of the child.
Why start having to prove that how you spank is “proper and reasonable” when you already have to overcome negative stereotypes, the stakes are high and the cost of litigation costs are higher still? It’s just not worth it.
Men are Vulnerable
Divorce and custody cases are some of the meanest in the legal industry. Some mothers (not all but some) will accuse the father of violence, rape and child abuse at the drop of a hat to ruin his relationship with the children or his life in general. Fathers belong to a class of people (men) who commit most of the violent crime in this country and there is usually a family component to that violence. Court use extreme caution in protecting children. Men are stronger than women and will be the first suspect if any bruises or marks are found on the child. A father who spanks, especially with a belt or paddle, will be in the horrible position of proving that his actions were reasonable and proper to the family law court, as well as also dealing with whatever additional legal cases the mother files.
I have never seen a father who regularly spanks his children end up with custody.
It’s Bad for Your Children
The scientific evidence is clear. Spanking does not change a child’s behavior in the long-term. Not only that, the scientific evidence is clear that children who are spanked are more prone to mental health problems and have worse relationships with the spanker. These are facts that many parents do not want to accept. Children whose parents are divorcing or fighting over custody are already facing many challenges. I have never heard anybody deny this reality. Why make it worse by sticking to an outdated, ineffective parenting method during the worst time in your child’s life?
One More Thought
Some fathers really are diehards and sincerely believe that it is their duty to spank their children. To these fathers, I say that, just while your legal case is happening, let your kids be brats and don’t spank. Once your rights as a father are protected, you are free to use whatever discipline method that is legal in your state.
I have never had a father go back to spanking after stopping during his legal case.
Copyright 2014. All Rights Reserved. Anne Catherine Harvey LLC.
Spousal privilege confuses a lot of smart people. One form of legal privilege is the testimonial privilege which prevents certain witnesses from testifying about things they know. Familiar examples are the attorney-client privilege, the doctor-patient privilege, and the priest-penitent privilege. The privilege can only be asserted by the client, patient or penitent, and never by the attorney, doctor or priest. The law does not favor privilege because it excludes evidence; as such, courts “narrowly construe” privilege, which means its technicalities are strictly followed. Spousal privilege only applies to testimony in court.
Section 2945.42 of the Ohio Revised Code provides that a witness may not testify against his spouse unless the case involves personal injury by either spouse against the other. So, unless the spouses are suing each other for bodily injury, or have “waived’ (given up) the privilege, spouses may not testify against one another if the non-testifying person properly asserts the privilege.
Spousal privilege has far-reaching implications. Spouses routinely testify against each other in family law cases; by filing claims against each other, they are deemed to have waived (given up) the spousal privilege because they have filed court actions against each other. Nevertheless, spousal privilege can still be critical in family law cases.
Successful Assertion of Spousal Privilege in a Custody Case
Recently, I represented the mother in a custody case and I called her husband as a witness. The father’s attorney asked him what his wife (the mother/my client) had told him about how long she left the child alone after school. I objected and asserted the spousal privilege. The father’s attorney rolled his eyes and laughed. The Magistrate adjourned, researched the issue and found that I was right. The mother was married to the witness and what she told him is protected by the spousal privilege.
The father’s attorney then lost his momentum on cross-examination and never recovered. Had he read the statute since the bar exam, he would have attempted to prove that the mother had given up the spousal privilege by making her statements in the known presence or hearing of another person. Had he asked the witness in his earlier deposition before trial whether he had told anyone else what his wife had told him, he may have been able to introduce the statements by a third-party. The spousal privilege only stops a spouse from testifying, not from running his mouth outside of court in a way that could be admissible. As a result of all this wrangling, everything my client told her husband about the case was excluded.
Most family law cases have cross claims that kill spousal privilege. Perhaps when I represent the next Defendant I could withdraw our counterclaim at the last minute and then assert the privilege when the Plaintiff attempts to introduce anything the Defendant said. With the right case and the consent of the client, fun times could be had by all.
Copyright 2014. All Rights Reserved. Anne Catherine Harvey LLC
Clients often hire the wrong lawyer. One of the big reasons clients hire the wrong lawyer is because they find a list of stock questions to ask during their first appointment and insist on limiting the first appointment to their script. They base what can be a critical decision on stock information, hire a lawyer who has not provided anything insightful, and are later disappointed with the representation.
Stock questions and answers are a waste of time. Relying upon stock questions and answers is dangerous.
Here are five scripted questions clients ask and the reasons why they’re a waste of time.
Do you have any special training or certification in family law and divorce that distinguishes you as a “divorce specialist? This is all over the internet for free. If it’s not, your answer is, no.
How many years have you been handling divorce and family law cases? See above.
How many years have you been practicing in Ohio? See above.
Do you have courtroom experience? This is contained in every court’s county clerk web system. For free.
How much will a divorce (or custody case) cost & how long will it take. Impossible to know, but it depends upon many legal and personal factors, blah blah blah.
Some scripts from the internet differ a little, but they almost always contain predictable questions. Here are still more stock questions I get all the time and the reasons why they’re a waste of time.
Are you a good attorney? Yes. Just ask my mother.
How many cases do you win? None. Divorce is damage control.
Why did you become a divorce lawyer? I like to help people? It pays well? I get to work indoors?
How much of your practice is devoted to family law? Google, please.
Do you practice in Montgomery County (or any of Ohio’s other 87 counties)? Google me before you call, please. You would not have gotten an appointment if I do not practice in your county.
All of these types of questions contain the same flaw: the answers tell you absolutely nothing about what the representation will be like, whether we will be able to work together, or whether our approaches are compatible. The purpose of an initial consultation is for me to see what your legal issues involve and for you to see if the two of us can reasonably become a team. The goal is to gain insight into the lawyer, your case and family law.
When I last hired a lawyer, I didn’t ask any questions at all. Naturally, as you would expect, this did not work well. I’ve given some thought to open ended questions that will engage the lawyer and client immediately. Here are some examples, and the very short version of my answers.
How do you keep up with the changes in the law? I have the Ohio State Bar Association app on my phone and it updates cases from across Ohio every weekday. I read it before I get out of bed. I am not kidding. The more interesting way I keep up with the changes and trends is social media, where I subscribe to pages that I change frequently. I also read the Dayton Daily News, the Wall Street Journal & the Huffington Post. The best way I keep up is by talking to other lawyers, on the phone, over the internet and even, sometimes, in person.
What are your clients’ lives like after divorce? It is unusual for their lives to be devastated long-term because of my representation. As the emotions subside over time, they usually do not suffer setbacks by discovering overlooked joint accounts, missed assets, or retirement debacles. If a parenting issue resulted in disappointment, there is usually a salvage plan. My clients’ lives after divorce are what they make them, without fallout from the representation (generally).
How do you get along with my spouse’s lawyer? I get along with most people, including lawyers. I do not get along with some, or simply do not like, others, but I can effectively deal with them because it is my job. There have been a few who present either a professional or personal issue for me that I tell my client about. It is ultimately up to the two of us to decide whether the representation can be effective.
What parts of my case involve law that is in flux? This is a great question that I’ve never been asked. Much of family law is settled, but not all; some issues (cohabitation’s effect on spousal support comes to mind) could change soon. Any change can impact timing and strategy and should be discussed.
Will we need to prove any specific facts in my case? We always have to provide an itemization of assets and liabilities, the terms of agreements, jurisdiction, grounds and venue, as well as the basic background in child cases. Beyond that, specific facts can be critical in domestic violence, custody, business valuations and spousal support cases.
What is the worst thing I could do in my case? The specifics will vary, but this is a great question because it indicates that the client is willing to take responsibility for his own behavior in the case and has sense enough to plan ahead.
What is the best thing I can do for my case? See above.
I have never had a first meeting limited just to stock questions, but almost every first meeting will have at least one or two. Some of this is to be expected as two strangers begin to interact about deeply personal matters. The most effective client meetings involve impromptu give-and-take; a list of questions prepared by an unknown person is a quick way to make the interview stilted and unproductive. A couple unusual questions can ignite the rapport between lawyer and client that will help make the whole thing helpful and lead to an effective relationship.
Copyright 2014. All rights reserved. Anne Catherine Harvey LLC.
In addition to the usual trappings of a regular public library, a law library offers services to its members such as free internet, heavy law books for the technological hold-outs, and meeting rooms. The Dayton Law Library, located on the 5th Floor of the Dayton-Montgomery County Courthouse, 41 North Perry Street, Dayton, Ohio, (just beyond the Second District Court of Appeals) provides a conference room that I have come to appreciate for reasons other than as a pit stop between cases or a place for leisurely research and writing tasks.
Depositions are a part of many civil cases. In a divorce matter, a deposition requires an estranged husband and wife, each of their attorneys, a court reporter, and possibly an outside witness, to sit together, often for hours, in the same room. The opposing attorney questions the other side’s witness under oath about the facts of the case.
Suffice it to say that tensions can escalate. Suffice it to say that attorneys are control freaks. Further suffice it to say that who ever owns the office containing the conference room where these joyous activities takes place starts with a very real, or at least perceived, advantage.
In my salad days, back when I worked for the Air Force, I would routinely travel cross-country or beyond to conduct depositions. I learned how to walk into the “hostile territory” of the contractor’s office for the simple reason that the contractor was never required to travel to the Air Force offices in Fairborn Ohio. Sometimes things got argumentative, but for the most part everyone behaved well. Of course, the fact that nobody had any of their own money, or the future of their family, at stake may have helped keep the peace.
Domestic relations depositions can be wild. When I was first starting out on my own, I made a convenient young female target. Opposing counsel would call me names, disrupt my questions, instruct their clients not to answer questions, and sigh, moan and sputter loudly to distract me. I had a couple of nose-to-nose shouting matches. I had a lawyer refuse to produce his client after he agreed to because I had not filed a “formal” notice of deposition. Overall, it reminded me of roller-derby.
As I got older and more experienced, things got a little easier. Certain attorneys, though, are chronic offenders and the drama they create in depositions is a lifestyle choice they’ve consciously made. The state bar has recognized this reality and sends us all off to school every two years to study “professionalism.” Of course the hard-core offenders are unfazed. Working under these conditions takes its toll. I sometimes refuse cases based only upon who represents the other side.
One day this year my brain made a startling connection. I routinely tell my clients to meet with their spouses at Panera Bread or Bob Evan’s or some such place for two reasons. First, people behave better in public places. They could be arrested for disorderly conduct if they behaved in public the same as some of them behave at home. Second, there is no time limit at those restaurants. They can sit for hours and quietly conduct their business.
Voila! Depositions are not limited to either lawyers’ office. Neutral territory would put everyone on an equal playing field. Lawyers are going to act better in public for the same reason as everyone else–it’s more daunting to make an ass of yourself where people can judge you than inside your privately owned property. Bullies love secrecy.
The choice of place was a little more difficult, because restaurants charge money to guarantee any level of privacy. The law library offers all that we need: neutral territory, a public yet private place, and no cover charge. There is a gigantic conference table, picture windows showing the sprawling metro view of Dayton, and plenty of spiffy oak chairs with arm rests.
The resistance I have met from other lawyers to this simple arrangement been astounding. I have been accused of being the perpetrator of confrontations in depositions. I have been accused of “dragging” a down-town attorney all the way to the court building where he has walked to from his office every day for the past twenty years. I had one lawyer actually pull the books to research the issue–not surprisingly, he found no controlling precedent on the burning societal issue of where lawyers should conduct depositions.
I remember a funny story. A federal judge on a particular case had pages of motions and legal memoranda from two sets of lawyers about who got to host the depositions. This genius of a man ordered the lawyers to conduct a rousing game of “rock scissors paper” in the courtroom, on the record, in the presence of their clients, the winner to decide. Those lawyers reportedly complied, went home and then promptly settled the case. Word got around, and that judge never had to order another pair of legal combatants to play that game.
Asking for neutral public territory gives me credibility (at least in my own mind) against the accusations of the legal bullies in southwest Ohio. While reflecting on this whole topic, I realized something obvious: it’s not about control of the conference room. It’s actually about some lawyers simply being too good for the Dayton law library.
Copyright 2014. All rights reserved. Anne Catherine Harvey LLC
Fear can devour divorce clients. Sometimes fear is so sharp that a person delays the inevitable. Unfortunately, fear during a divorce is normal and unavoidable. In a few circumstances, what clients perceive as huge barriers in their cases actually turn out far smaller than they imagined going in.
Many clients first meet with me concerned that their case will be complicated just because it has lasted upwards of thirty years. In reality, long-term marriages, where the partners start out together with clothing, wedding gifts, and starter cars, are easier to end than shorter marriages where the parties are more likely to be on their second (or third) divorce and they started off with property and debts. Usually a longer marriage means that the parties’ children are emancipated by reason of age, so there are no issues of custody or child support. A longer marriage also means that, unless there are inheritances, personal injury settlements, or gifts, then the property and debts are probably going to be considered “marital.” Under Ohio law, an equal division of marital property and debts is presumed to be fair. If all the property and debts are marital, it is merely a matter of itemizing and valuing the property for an equal division. Long-term marriages tend to bring a host of emotional issues. When a person has been married longer than they were ever single, the transition to a divorce can be very traumatic. Most people in this situation, however, have an innate toughness and recover quickly. Again, when the common children are emancipated, it is easier to live separate lives without the constant challenge of co-parenting while divorced. So, terminating a long-term marriage usually causes more emotional issues than legal issues.
Not surprisingly, imprisonment often leads to divorce. Ohio law specifically provides that “imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint” is grounds for divorce. The fact of imprisonment is usually easy to corroborate and service of process can be done to the party in care of the warden of the institution.
The complexities of “prison divorce” revolve around child issues. The mere fact of imprisonment does not mean a party will never again see their children. The fact of imprisonment greatly diminishes a party’s ability to pay child support. In fact, Ohio law now provides that income will not be imputed to a parent who is:
“incarcerated or institutionalized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order when the obligee or a child who is the subject of the support order is a victim of the offense.”
In the usual circumstance, the child support obligation will be set at close to nothing during the time of imprisonment. And, the other parent is usually not surprised and is happy simply to attend a short hearing without the presence of their imprisoned spouse.
Most divorce documents contain language such as “gross neglect of duty,” “extreme cruelty,” and my spouse will “molest and annoy” me unless restrained by order of this court. We field many calls of panic over this language when people are served with divorce.
In reality, the language is boilerplate and taken directly from the statute for grounds and the requirements for a temporary restraining order. I routinely reassure clients that the language is on every lawyer’s computer in town and that we will file the “mirror image” of what their spouse filed.
Incompatibility is the basis for almost all Ohio divorces. The only purpose of a restraining order is to keep the parties in the same position as they were in before the filing. In this instance, “molest” in this contest is an outdated legal term that has nothing to do with sexual abuse.
Divorce is rough, but usually for reasons other than what clients expect in the beginning. At least in the circumstances outlined above, I usually can relieve the immediate terror of what is taking place.
Copyright 2014. All rights reserved. Anne Catherine Harvey LLC