Divorce Basics–A short primer

What is the difference between a divorce and a dissolution of marriage? Divorce and annulment?

Dissolution in Ohio is simply an uncontested, non-adversarial divorce.  With divorce versus annulment, in a divorce the marriage is coming to an end.  In an annulment, the marriage is treated as if it never existed.

What is the difference between a divorce and a separation?

A divorce ends the marriage.  A legal separation takes many legally-enforceable steps you would take with a divorce—division of property, determination of child support, custody of children, division of debts, etc.–without ending the marriage.

What is required to file for divorce in Ohio?

To file for a divorce in Ohio, you need to reside in the state for at least 6 months prior to filing.  You must have lived in the county where you are filing for 90 days.  If you file for dissolution, at least one spouse has to have lived in Ohio for at least 6 months.  If you live in Ohio and your spouse lives in another state, you can still file for divorce in Ohio.

Can same-sex couples get divorced in Ohio?

Yes.  Since the United States Supreme Court’s decision in Obergefell v. Hodges, marriage and divorce rights are granted to same-sex couples.

How are a divorcing couples’ assets and debts split in a divorce?

Ohio splits marital property according to rules of equitable distribution.  “Equitable” might be construed as “fair,” versus an equal division or distribution.  If one spouse has gambled away significant assets, then the court might distribute more assets to the victim spouse, instead of dividing what assets remain in an equal manner.

What is the difference between “marital property” versus “separate” property?

Marital property includes assets acquired during the marriage.  Assets that are not marital property are considered non-marital property, or separate property.  However, some assets acquired during marriage can be considered “separate property” such as gifts and inheritances, property identified as separate property in a prenuptial or post-nuptial agreement, income derived by separate assets, among others.

If you want to discuss separation, dissolution or divorce in Ohio, contact me at julie@juliemillslaw.com.


Special Education: Should I file a state complaint?

Eligible students with disabilities are entitled to special education and related services under the federal Individuals with Disabilities Education Act (IDEA).  If you believe your child is not receiving the special education and related services he or she is entitled to under federal law, one option available to you is to file a state complaint.  In my state of Ohio, the complaint would be filed with the Ohio Department of Education.  But…should you choose this option?

Filing a state complaint for a school’s violation of your child’s rights under the IDEA is an opportunity to resolve an issue without resorting to a formal due process hearing, or federal court complaint.  The school can be required to remedy the situation in various ways, such as paying for evaluations, reimbursing various costs, etc.

However, examine the rights you might be forfeiting by filing a state complaint.  Pat Howey, a parent advocate since 1986, cautions parents against filing a complaint with the state.  She states that if the claim was about a service, states will rarely require schools to provide that service.  Instead, the state will order that the school and parents have an IEP meeting to make further determinations.  Parents sometimes applaud “winning another IEP meeting” but Howey reminds parents that they have the right to convene IEP meetings at almost any time anyway, and have not really gained anything.

More importantly, in my opinion, is the effect a state complaint might have on a subsequent due process hearing.  (Click here for an explanation of the difference between a state complaint and a due process hearing.)  If parents file a state complaint on a matter, and do not receive the desired outcome, it is unlikely a hearing officer in a due process hearing will disagree with the findings from the state complaint. It is more likely the hearing officer with defer to the agency’s findings.

If you believe that a due process hearing might become your best option, engage in thorough research before filing a state complaint.  Better yet, consult with a parent advocate or special education attorney.

Contact me at julie@juliemillslaw.com for questions about special education state complaints and due process hearings, and for referrals to Ohio parent advocates and special education attorneys.

Disabled loved ones? Avoid this inheritance mistake

A real-life fact pattern with a client was that Grandma and Grandpa wanted to provide something in their wills to provide for their two grandsons who are disabled.  They decided they were going to leave them the farm.  The thought was not that their grandsons would live on and run the farm, but that it would be sold after their deaths and the proceeds would go to their grandsons who were both disabled.  Grandma and Grandpa had very good intentions, particularly since just the land alone had a fair market value of close to $10,000 an acre.  Great, right?  No.

This blog post is for families that include a loved one with a disability.  It is for parents, certainly, but also for extended family who choose to provide a bequest (personal property) or devise (real property, such as house and land) for a disabled family member.  The good intentions of family members in leaving money or property to a person with a disability might do more harm than good.

First, it is almost never recommended to leave an inheritance to a person with a disability unless there is a special needs trust for that person in place (I include Ohio’s “wholly discretionary trust” when I use the term “special needs trust”).  People with disabilities often receive benefits such as Medicaid, or Social Security Income, that could be jeopardized.

Second, the need for such a trust to be in place is the subject of this blog post—the critical mistake I’ve encountered with clients is that they have a special needs trust plan, but it has a certain type of special needs trust that only takes effect at death, called a testamentary trust.  There are trusts that are in existence now and are not funded until death, but that is not a testamentary trust.  To the contrary, with a testamentary trust, the trust itself actually comes into existence at death.  (Most of the situations that I have seen involve testamentary “supplemental services” trusts.)  If testamentary special needs trusts are valid and enforceable, what is the problem?  The problem is the real-life scenario in the top paragraph.

The last of the Grandma-Grandpa unit dies and leaves the 10-acre farmhouse and farm to disabled grandsons “Johnny and Joey.”  However, Johnny and Joey’s parents are still alive, and have a testamentary supplemental services trust (special needs trust), where the special needs trust does not come into existence until Johnny and Joey’s parents die.  In this scenario, there is no special needs trust in existence now, when it is needed.

Except in rare circumstances, I prepare stand-alone special needs trusts that are in existence immediately after they are executed (signed and witnessed).  If the boys’ parents or grandparents had a trust prepared that was already in existence, Grandma and Grandpa’s inheritance could have been left to the boys’ trusts, as well as  inheritances from others.  Because parents might not be the only people who choose to leave an inheritance for a person with a disability, their testamentary special needs trust is not the recommended choice in special needs planning.

If you have questions or would like to begin estate planning with a disabled loved-one in mind, email me at julie@juliemillslaw.com.

When should I update my estate plan?

An estate plan consists of a last will and testament, possibly a trust, along with additional documents necessary for situations involving incapacity or death.  Additional documents can include a financial power of attorney, advance directives (living will for end-of-life decision making, and a healthcare power of attorney), and a funeral declaration, among other documents.

You should review your estate plan every five years to see that it still reflects your wishes.  However, if any of the following occur, then you should review your estate plan sooner:

Marriage: if you get married, or particularly if you get re-married, you need to review your estate plan.  If you are married and die without a will, state laws of “intestacy” (dying without a will) might not result in a distribution of your assets as you would want.  Furthermore, divorce and re-marriage do not automatically remove your ex-spouse from existing documents.

Children (birth, adoption or marriage):  the critical reason for reviewing an estate plan after you add a child to the family is to name a guardian who will care for your child should you (and your spouse, if married) die.  This is not a decision that should be left to a judge you do not know.  Another reason is to direct assets to provide for your child if you are gone.

Divorce: many states have laws that treat ex-spouses as having “predeceased” their divorced spouse in certain situations with some estate planning methods.  It is best to not assume that such a law will pertain to your documents. Part of your divorce or dissolution journey should include an estate plan that removes your ex from your documents.

Death of a spouse: if a spouse dies, you want to be certain that you have successors listed in estate planning documents, and you want to update deeds and titles to property.  For example, if you have a financial power of attorney and your spouse is the only person you named to serve as agent, you will need to update this document with the names of others.  If you owned property jointly with your spouse, you will need to remove your spouse’s name if you intend to convey that property (you’ll need to have a new deed prepared to your home).

Change in assets:  when you acquire assets, you should ensure that your estate plan addresses where those assets will go upon your death.  If you have 8 acres that your two children will inherit and plan to divide equally, and then acquire 5 more acres, who will inherit the 5 acres if you do not specify it in your estate plan?

Relocation:  most estate plan documents are valid in other states if you move, as long as the documents were executed properly in the state where you lived when they were prepared.  There are special considerations in some instances, however, when you move.  For example, if you move from a community property state to a common law property state, or vice versa, then you should definitely have your current estate plan reviewed by an attorney in your new state.  Additionally, bond might be required for out of state executors and others, so you might consider choosing in-state people to serve in these fiduciary roles.

Change in status of guardian, trustee or executor:  did the person you named as the guardian of your child die?  Move to Europe?  Become incapacitated?  The same consideration is valid for an executor or trustee.  If yes, consider reviewing your documents to remove them and replace with alternatives.  Perhaps after you named your cousin to serve as the guardian of your three children, she has had four children—would she be able to care for seven children?  After you named your brother to serve as guardian of your child, he started a career where he travels more than he is home—would that be a suitable situation for your child?

Your estate plan reflects your wishes for the way everything will be handled at your death, and designates certain people to carry out those wishes.  Both the plan, and the people designated in the plan, should be current.

Contact me at julie@juliemillslaw.com to discuss reviewing and updating your estate plan.

When your child with special needs turns 18…

The law presumes that once a child turns 18 (age of majority in most states; check your state law), that child is now an adult who can make legally-binding decisions about his or her health, finances, life.  For these decisions to be legally binding, the person must be competent to understand what they are doing, the effects of the decisions they’re making.  For some adults with special needs, they do not have the capacity to understand what they’re signing, to what they are agreeing, nor the effects of their decisions.

Many parents of a child with special needs are surprised to learn that once their child turns 18 (age of majority), the parents do not have most of the legal authority that they had when the child was a minor.  For example, the parent of an 18 year-old disabled son or daughter cannot access their adult child’s confidential medical records or receive medical information.  If their adult child is unable to make competent health, finance or life decisions, then some form of guardianship should be considered so that parents can continue to care for their child as they have for most of the child’s life.

“My child turns 18 soon.  Where do I start?”

Your first decision will be to determine whether your child needs a guardian.  Not every person with a disability needs a guardian, even someone with cognitive or intellectual disabilities.  Parents know their child best, but consider this list when deciding whether—and what type of—a guardian is needed:

  • Will your child seek medical care if he is sick or injured?
  • Does your child understand medical instructions, take medicine properly, understand medical advice?
  • Can she provide accurate information about her condition to medical personnel?
  • Does your child have a basic understanding of finances? Would he know how to manage a bank account, pay bills, follow a basic budget?
  • Can she count money, make change, and safeguard her money?
  • Would your child be able to apply for benefits, or be able to locate a person who can help apply for benefits or services?
  • Is she able to advocate for herself with agencies providing benefits and services, and understand the care and benefits that are needed?
  • Can he purchase what is needed for clothing, food, shelter (get to a store, know what to buy)?
  • Does he understand the significance of signing documents?
  • Can she make decisions about work, living arrangements, school?
  • Is he able to make decisions about personal safety, including locking doors, not talking with strangers, staying in safe areas?
  • Does he know how to call 911, or summon help in an emergency?

This list is not exhaustive, and the inability to do some of the above might not signal the need for a complete guardianship but, instead, perhaps a limited form of guardianship, which is discussed below.

“My child needs a guardian.  Now what?”

There are several forms of guardianship to consider.  Most courts want the least restrictive alternative to be chosen, because guardianship can severely limit the “ward’s” ability to make decisions for himself or herself.

Guardianship is a state issue, and state guardianship laws and terms vary.  In Ohio there are three forms of guardianship: guardian of the person (controls where the ward lives, works, attends school, etc.), guardianship of the estate (handles the finances of the ward), and guardianship of the person and estate (handles both personal affairs and finances of the ward).

There are alternatives to guardianship, such as conservatorship (help a competent but disabled person with finances), joint and survivorship bank accounts, representative payees who are designated people to accept payments from agencies, and independent living centers that assist people with disabilities in a wide array of areas.

“Pursuing guardianship.”

Guardianship is obtained by having an interested person petition the court for guardianship.  You must show why the disabled adult needs a guardian, and why the court should appoint you.  You must follow stringent recordkeeping requirements.  Proving to the court that the person is incompetent requires an affidavit from a doctor. Oftentimes supporting documentation can be included, such as school records.  The court will schedule a hearing before a judge where the petitioner will show why guardianship is needed, and why the petitioner should be appointed.

Search guardianship laws, procedures and standards for your state if you are considering guardianship.

For more information on guardianship for a special needs adult in Ohio, email me at julie@juliemillslaw.com.



Divorce: Do you need an attorney?

Do you need an attorney when getting a divorce?

Because I’m an attorney, stating “yes” might make me appear self-serving.  The short answer to whether you need an attorney if you are getting a divorce is “it depends” (the classic attorney answer).   I’ll narrow my answer further: “yes” you should have an attorney unless a few factors apply to your marriage.

Divorce is an overwhelming time.  Whether you initiate the divorce, want the divorce or not, people are generally filled with anxiety and fear over the divorce process, finances and their future, with good reason.  Add to that worrying about children if you have them, and this time is the worst time to be handling your own divorce, or making major life changes and decisions on your own.  For these reasons, I believe that the majority of divorcing people should have a divorce attorney.  If children are involved, having an attorney is critical.

Before discussing why you should have a divorce attorney, I want to discuss situations when you might not need one.  After all, many people have gone through a divorce without an attorney.  These factors might make representing yourself more of an option:

  • There are no children of the marriage;
  • There is no real estate and few assets from the marriage; and
  • Your marriage was short (5 years or less).

Negate all of the listed factors above, if:

  • There are children of the marriage;
  • There is real estate, significant assets including retirement plans and pensions;
  • Your spouse has retained counsel; and
  • Your divorce is contested.

There are so many reasons you should have an attorney that are often overlooked.  One overlooked reason is taxes.  Taking the income of one household and splitting it in two has many tax implications and can be very complicated.  Another reason is identifying assets.  Finding and dividing assets equitably requires the experience of a lawyer, unless you know how to divide a pension via a QDRO.  Custody and child support also require the experience of an attorney.

If you do decide to hire an attorney, bring your last tax return and retirement plan documents to the first meeting.  Bring a list of your assets and liabilities.  Know what services the attorney’s fee covers, as many do not include deed preparation or QDRO preparation.  Have questions prepared.

Divorce is very stressful.  I recommend hiring an attorney unless you are certain, after reading the factors listed, that you do not need one.

If you want to discuss your divorce, please contact me at julie@juliemillslaw.com.

Happy *World Adoption Day*! #WorldAdoptionDay

Not flesh of my flesh, nor bone of my bone, but miraculously still my own.  Never forget for a single minute, you didn’t grow under my heart but in it. — Fleur Conkling Heyliger
Happy “World Adoption Day“!  One of the best steps to take once you adopt a child is to make sure you have an estate plan in place to secure your child’s future.  You need, at least, a last will and testament naming someone to serve as guardian if something happened to you.  A trust that can provide for your child’s education and well-being should be considered.
Under Ohio law, as with most states, children who were adopted are considered legally no different than children who were born to the parent or parents.  They inherit under the statutes of descent and distribution and other laws without regard to being adopted.  Ohio has a special interest in adoption thanks to Wendy’s founder Dave Thomas and his foundation, the Dave Thomas Foundation for Adoption, which finds adoptive families for children waiting in foster homes.
Congratulations to all families touched by adoption.  #worldadoptionday