01.10.2016
Joseph Lanter
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If you've begun thinking about ending your marriage, chances are that you've discovered that there are two primary ways to terminate a marriage in Ohio:  Divorce and Dissolution.  (For purposes of this blog post, we'll avoid the topic of Annulment and save that for a future post.)  Bearing in mind that a legal separation does not, in fact, terminate the marriage, you've really only got two different roads to travel down. There are several differences between the two, and we'll highlight them here: Grounds - To be successful in a Complaint for Divorce, the filing party must be able to prove one of the 11 Causes for Divorce as identified by Ohio law.  While parties frequently agree on the cause for divorce (usually being Incompatibility), in some cases there needs to be extensive litigation regarding the basis of a divorce.  With a dissolution there is no need to specify the reason why the marriage is being terminated.  Generally, a dissolution can be considered a "no-fault divorce" as both spouses present a joint request to the Court to "dissolve" their marriage. Allocation of Parental Rights and Responsibilities - Simply put, in a dissolution, the spouses must agree to a Plan for Parenting.  Such a plan must identify whether or not there is "Shared Parenting" or if sole legal custody is given to one parent, and must identify a residential parent for school purposes.  The Plan must also include a schedule for parenting time given to the non-residential parent.  Any plan submitted to the Court must be found to be in the best interests of the child(ren) before it is adopted by the Court.  With a dissolution, the parents will agree in advance to this Plan and will attach it to the Petition for Dissolution, and they must further agree that it is in the child(ren)'s best interest.  In a divorce, the allocation of parental rights and responsibilities is often the largest source of conflict for the divorcing parties.  The Court can issue temporary orders for parenting in divorce cases, and can order that spouses attend mediation or a family evaluation specialist who will make a recommendation to the Court.  Often times in more contentious divorce cases, the Court will appoint a Guardian ad Litem to represent the child(ren)'s best interests.  With both a divorce and a dissolution, the Court may require both parties to attend a Parenting Education Seminar prior to final hearing. Support - In both a divorce case and a dissolution, in order for the Court to terminate a marriage, the Court must make a ruling as it pertains to both child support if there are children of the marriage, and/or spousal support (if appropriate under Ohio law).  In a divorce case, not only will the Court make an ultimate finding regarding a permanent order for support, the Court can also consider requests for temporary support (both child and spousal) while the divorce is pending.  When spouses are seeking a dissolution, they must come to the Court having already agreed as to all matters of support.  Your attorney can assist with the calculation of child support and working through the factors to determine if spousal support is appropriate, but you and your spouse must be in agreement about those matters of support.  Furthermore, with a dissolution there will be no orders of temporary support.  Property Division - Much like issues of support, in order to terminate a marriage there has to be a finding by the Court that spouses have divided their property fairly and equitably.  With a divorce, the Court may be called upon to decide those questions of property division at a trial, and will consider evidence from both spouses about how assets and debts should be distributed.  In a dissolution, the spouses are required to agree on a full division of assets and debts and must include that written agreement with their Petition for Dissolution. Final Hearing - In order for a dissolution to be granted, most Courts in Ohio require the attendance of both parties at a final hearing.  This is required so the Court can be sure that both spouses are still in agreement with the terms submitted at the time the Petition was filed (not less than 30 days prior to final hearing).  With a divorce, the Court has the ability to grant a divorce in the absence of the Defendant, and your attorney can instruct you as to how that can occur.  In the event a divorce is no longer contested and both spouses have signed agreements to allocate parental rights and responsibilities, make appropriate orders for support, and which include a fair and equitable division of assets and debts, the final hearing will look awfully similar to a hearing on a dissolution.  To assist our clients, you will be well prepared for any final hearing and we will thoroughly review with you the questions you can expect. If you are considering the termination of your marriage, it is crucial for you to have a good understanding of the different methods of marriage termination in Ohio.  If possible, you should be communicating your concerns with your spouse and you should seek the assistance of an experienced family law attorney.
For many considering a divorce, it is not uncommon for there to be some confusion about how long a marriage lasts in the eyes of the Court.  Generally it is easy to identify when a marriage begins:  the wedding day.  But what date is used to mark the end of a marriage? First, it's important to discuss briefly why the duration of a marriage matters in a divorce proceeding.  In Ohio, there are many things decided when a marriage is terminated by divorce.  Notwithstanding child custody-related issues (which are normally not affected by the duration of marriage), Courts need to ensure that marital property has been divided and that spousal support (also known as alimony or maintenance) is considered and awarded if appropriate. Ohio law states that "During the marriage" means either: 1.The period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation; or 2. If the court determines that the use of either or both of the dates specified in this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, "during the marriage" means the period of time between those dates selected and specified by the court. Let's consider the following scenario:  Jack and Jill were married on June 1, 1995.  On June 1, 2010 Jack moved out and into an apartment at the top of the hill.  On June 1, 2015 Jill filed for divorce and on June 1, 2016, the divorce went to final hearing. How long is the marriage of Jack and Jill?  If we use the date of final hearing, their marriage is 21 years long, but if we use the date they separated, the marriage is only 15 years long.  If, for instance, it is necessary for Jack and Jill to divide Jack's 401(k) earned during the marriage (part of the standard property division in any divorce where retirement assets have been earned), Jill will almost certainly want the duration of the marriage to be the full 21 years, because Jack will have earned more retirement assets and she would be entitled to an interest in a larger sum of money.  Conversely, if the duration is marriage is shortened to the date of separation, Jill will be drawing from a smaller pot of retirement funds. Courts have ruled that if the Court determines that using the date of final hearing wouldn't be fair and that a "de facto" (actual, or in fact) termination of the marriage occurred at an earlier time, the Court can select dates that it considers to be fair to decide issues of marital property and support. The de facto termination of marriage must be clear and be bilateral, not unilateral.  The unilateral decision of one spouse to leave the marital home does not, in and of itself, mean there has been a de facto termination of marriage.  To decide whether or not a de facto termination of marriage date is fair, the Court will look at several factors including: (1) Did the parties separate on less than friendly terms? (2) Did the parties believe the marriage ended prior to final hearing? (3) Did either party cohabit with another person during the separation? (4) Were the parties intimately involved during the separation? (5) Did the parties live as husband and wife during the separation? (6) Did the parties maintain separate residences? (7) Did the parties maintain separate bank accounts or were the parties financially intertwined? (8) Did either party attempt reconciliation? (9) Did either party retain counsel? and (10) Did the parties attend social functions together or vacation together? Regarding spousal support, most courts in Ohio consider the length of marriage when making a determination, and this notion of de facto termination can affect spousal support as well.  Ultimately, if there is going to be or has been a separation of married persons, it is crucial to speak with an attorney familiar with these concepts who can help provide some guidance.
01.08.2016
Joseph Lanter
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If you, like many of our clients, have been charged with your first criminal offense, there's a good chance you have no idea what to expect.  Because any criminal charge is serious, it's important to remember that you have the opportunity to have a lawyer, and having an attorney assist you through the criminal process is an absolute necessity. Let's assume for this article that if you've been arrested you posted bond and are no longer in jail or you've received a summons to appear in court and haven't been arrested.  (If you're in jail, the top priority will be to work on getting you out of jail as quickly as possible - and we'll discuss that in a future post.) At your first appearance in Court, called ARRAIGNMENT, you'll be advised of the charge(s) against you, their range of punishment and you'll be given an opportunity to enter an initial plea in the case.  We strongly encourage anyone to consult with an attorney before entering a guilty plea at your first hearing.  To watch a very helpful video about the arraignment process and your rights produced by one of the local Municipal Courts, click here.  Unless it's a very minor offense (like some traffic matters), you'll want to have an opportunity to have an attorney review all of the police reports and interview witnesses, in a process called DISCOVERY.  So once you know you've been charged with a crime, your focus should be on hiring an attorney.  If you cannot afford one, you'll have the option to apply for a court-appointed attorney or a public defender.  (And take note that Attorney Joe Lanter is regularly appointed by courts to represent people who qualify.) During the discovery process, your attorney will discuss your case with the prosecuting attorney, and they will often discuss resolving your case with a PLEA BARGAIN that will frequently involve a reduction of the original charge to a lesser offense.  Your attorney should discuss thoroughly with you all of the terms of any plea bargain and you should fully understand those terms before entering any plea bargain in front of the judge. Of course, the decision to accept any plea bargain remains only with you - as a criminal defendant it is solely your decision whether or not to accept a plea bargain or proceed to trial.  The TRIAL will occur after discovery has been completed and can be in front of only the judge (called a "bench trial") or in front of jury.  Your attorney should discuss with you the pros and cons of both kinds of trial to make sure you make an educated decision.  At the trial, the prosecuting attorney has the responsibility of presenting evidence that will prove your guilt beyond a reasonable doubt - which is no small task.  Your attorney can challenge all of the prosecution's witnesses and evidence and you will have the opportunity to present evidence of your own, though you are not required to do so.  At the conclusion of the trial, the judge or jury will issue a verdict (guilty or not guilty). If you've accepted a plea bargain or you've been found guilty, you'll proceed to the final step of the criminal process:  SENTENCING.  Depending on the crime, you may either be facing incarceration in jail or the Ohio Department of Corrections, a fine, a term of probation, restitution (paying back money to the victim of the crime), or some combination thereof.  Your attorney will have the opportunity to argue mitigating factors on your behalf and you will also have the opportunity to speak to the judge (if you choose).  Make sure you understand each and every component of your sentence. The criminal process can be very scary and it's crucial that you have an advocate by your side who can assist you through every step.

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