Ohio Father Law Perspectives

Ohio Laws Affecting Married, Divorced & Unmarried Fathers

Archive for the tag “Anne Catherine Harvey LLC”

How to Nail Your Meeting with a New Lawyer

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Target Your Questions to What’s Important

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.

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All You Need is Insight

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.

Just Ask Me Anything.

Just Ask Me Anything.

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.

Why I Love Family Law Depositions at the Dayton Law Library

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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.

Litigation is War

Litigation is War

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.

Dayton Law Library

Dayton Law Library

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.

Not me!

Copyright 2014. All rights reserved.  Anne Catherine Harvey LLC

Happy Library Patron

Happy Library Patron

BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

shutterstock fear_175790252 [Converted]BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

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.

Long-Term Marriages

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.

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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.

Boilerplate Language

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.

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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

So You Think You Know About marriage?

So You Think You Know  About Marriage?

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Americans lag behind most developed countries in literacy, problem-solving & math.  These deficiencies do not greatly impact my divorce practice because most of us can divide by two or at least use a calculator to divide large numbers.  I am amazed instead by the surprise, shock & dismay when I meet with new clients and they see, for the very first time, exactly what it means to be married.

Here’s a very short list:

If you’re married, you are responsible for the support & maintenance of your spouse, regardless of your gender. This means you can be liable for health care costs if your spouse becomes disabled, even if you’re living apart and haven’t seen each other in years.

If you’re married, you and your spouse are equal business partners.  This means that your spouse is entitled to half of your retirement, even if he never worked a day during the marriage.

If you’re married, you are liable for half of the debts accumulated during the marriage, with few exceptions.  Ohio is not a title state.  This means that the “stuff of life,” such as gasoline, Christmas gifts, vacations & groceries, are divisible by a Domestic Relations Court, even if the credit card is only in one spouse’s name.

If you’re married, your money is your spouse’s money–you have your hands in each others’ respective wallets.  Your spouse is assumed to have contributed to all the income earned during the marriage, even if he was not gainfully employed outside the home.

If you’re married, and inherit your mother’s house, and pay the mortgage & taxes and make improvements, you just gave your spouse an interest in your inheritance that will be difficult to value.

If you’re married, after 10 years you can collect social security as a “divorced spouse” based upon the higher of your income or your spouse’s income.

If you’re married, your spouse has an interest in your hobbies, such as collectibles, musical instruments & perhaps even jewelry.

If you’re married, your spouse has an interest in any businesses you establish, even if they do absolutely nothing to support it and whine and nag about it.

If you’re married, and your spouse refuses to cooperate in your divorce, you can be in for a very long and expensive haul.

Finally, if you’re married, there is a statutory limit on writing your spouse out of your will.    He can always “elect against the will” and receive his statutory share.

Divorce is hardly unusual.  The Center for Disease Control & Prevention reports that :

“[t]he probability of a first marriage ending in separation or divorce within 5 years is 20 percent, but the probability of a premarital cohabitation breaking up within 5 years is 49 percent. After 10 years, the probability of a first marriage ending is 33 percent.”

I would think by now that more people would be aware of the financial impact of marriage.  From what I encounter in my office, the word on the street is limited to talk of wedding destinations, dress styles and sex. After getting the marriage license, most couples never give any of the “technicalities” of marriage a second thought.

A divorce face is every bit as ugly as a wedding face is beautiful.  There needs to be just a little less glitter at the beginning so that a divorce, if it occurs, will not be quite so devastating.

“Not all prisons have bars” Amanda Hocking, Torn

Relocation with a minor child is a heart-breaker.  Just when the newly divorced parents have gotten used to the parenting schedule, the back-and-forth, and the reality of not seeing their child every day, somebody gets transferred.  Or somebody has a new love interest.  Or somebody wants to fulfill their life-long dream of living in sunny California.

                                     Can I Move with My Child? Can She Move My Child Away?

There is an entire body of law surrounding when a parent can move with a child.  If the new place is merely across the street, all that has to happen is to file a notice of new address with the court and the child support agency.   If the new place is fairly close, say around 50 miles, then the moving person will at least initially be stuck with most of the drive back and forth.  Dayton to Columbus does not change the every other weekend arrangement.  Dayton to L.A., however, changes everything for everyone.

Mothers often ask me if they can move to wherever, for whatever reason, usually far away, often for a new military husband.  I tell them that they can move anywhere they can afford to live because this is America and anybody can live anywhere.  If they want to take the child with them, however, it’s another story.

If mom is the custodial parent, the mere act of moving away does not constitute a “change of circumstances.”  In order to stop litigation and provide stability to children, Ohio law requires the parent requesting a custody change to prove that a change of circumstances has occurred.  The change must be substantial and unknown at the time of the last order.  A change of circumstance must first be proven before the court will start to think about what is in the child’s best interest.  If the other parent, usually the dad, decides to contest the move, a custody battle usually follows.

Judges call custody decisions agonizing.  Parents call custody battles hell.  The recent case of In re M.P., 2013-Ohio-3939, illustrates this point perfectly.  Pam and Rodney were divorced with a son (“Johnny”) and Pam had custody.  A year later, Pam and Rodney had a full trial on whether Pam’s plan to move constituted a change of circumstances.  Nothing changed because Pam decided not to move, after all, with her new boyfriend to Florida, 1200 miles away.  The following year she moved to Florida anyway, took Johnny with her and enrolled him in year round school.  Rodney filed for custody.

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After a second full custody trial, the Court eventually required Johnny to return home and granted custody to Rodney.  The Court held that an out of state move, along with other circumstances, could constitute a substantial change of circumstances.   The other circumstances in this case included the fact that both sets of grandparents lived near Rodney in Ohio; that Johnny had friends in Ohio he had known since his birth; that Pam’s new boyfriend was volatile and altercations had taken place; and the distance and year round school all but eliminated regular parenting time between Johnny and Rodney.

It is hard to imagine a situation where an out of  state move does not affect other circumstances that the non-moving parent can develop to keep the child at home.  In Brown v. Brown, 2013-Ohio-3456, Holli and Troy divorced and Holli took custody of their three boys.  A year later, she wanted to move from Champaign County, Ohio to South Carolina for a new job and to be closer to her parents.  A custody battle followed.

All three boys had close bonds with their immediate and extended family.  Interestingly, the Court found that the fact that Holli had been the primary caregiver was not the most important factor to consider.  In the previous case,  In Re M.P., the Court noted that Pam had been Johnny’s primary caregiver, but that could only be considered in the initial custody determination (who gets custody in the divorce), and not in a later request to change of custody.  The Brown court found that it was impossible to imagine how the children could be better adjusted to their friends and family in Champaign County and the only advantage to a move to South Carolina was a longer sports season because of the milder climate.  The Court kept the boys in Ohio and awarded custody to their father.

 TAKE AWAY FROM ALL THIS     

What is the take-away from these recent cases?  I was happy to learn that there is an expiration date to the advantage to being the primary caregiver.  Fathers are frequently beat over the head with the argument that the mother has provided most of the care, so therefore she is the best parent for custody.  While this still has heavy weight during a divorce custody battle, it cannot be considered in a change of custody after divorce.

Both of these cases had good father facts.  All of the children were older, both fathers were hands-on, and the all the children were thriving in Ohio.

The longer a child lives in Ohio, the more likely it is that he will stay.  The built-in advantage to the primary caretaker dissipates with time.  It is costly and agonizing to contest a relocation, but relocation out of state has more far-reaching (pun intended) impact upon the parent-child relationship than who has custody in the same town.

Copyright 2014. All Rights Reserved.  Anne Catherine Harvey LLC

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