Divorce–special considerations for when a child has special needs

Divorce with a special needs child–the special considerations that need addressed by divorcing parents, their attorneys, and courts could fill a book.  This much-shorter blog post will try to shed light on why this topic requires more careful attention.

Divorce is a difficult and painful process for everyone involved.  Parents must work out arrangements for custody, visitation, and child support.  Standard child support “tables” or calculations, and general “parenting plans” spelling out visitation, guide most divorcing parents in making their decisions.

“Standard” or “general” guidelines, tables and plans are to be assessed carefully, however, when the divorcing parties have a child with special needs.  A typical child support calculation, or standard visitation schedule, might be completely inappropriate for situations where a child has disabilities.  Why?

Visitation often includes alternating weeks, or weekends, where a child goes back and forth between parents’ homes.  For a child on the autism spectrum, for example, such a disruption in routine might be unbearable and ultimately unworkable.  Or, if a child with a disability requires durable medical equipment that cannot be transported, one parent might have to visit their child where the equipment is located—in his or her ex-spouse’s home.  The child’s interests must come first, and in these situations, working out visitation can be tricky.

Child support for a child on varying medicines, therapies and treatment programs that might not be covered by insurance cannot be calculated by standard tables.   Child support payments might need to be made to a special needs trust to avoid disqualifying the child from receiving means-tested benefits (typically, Medicaid).

Spousal support for a parent who gives up his or her career to care for a disabled child—a full-time job—takes on special consideration.  Division of retirement and marital assets must account for the parent who forfeited his or her earnings potential and social security credits to serve as caregiver for a disabled child.

This post mentions only a few of the myriad of issues that are presented with divorcing parents who have a child with a disability.  Parents, their attorneys, and courts need to assess what special needs exist, how to address what is needed, and how to incorporate those needs into visitation, custody, and child support.

If you are considering divorce and have a child with special needs, feel free to contact me with any questions at julie@juliemillslaw.com.

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Home-based food business in Ohio–how to do it legally

I love practicing law, but if I had the recipe for my friend’s grapefruit marmalade, or family member’s pepper butter, I’d be very busy making these items and making a lot of money selling them with my home-based food business.  If you want to make food items to sell, what are the rules?

Many people make goods to sell at their local farmer’s market.  This has spawned the “cottage food” industry—making food to sell at local venues.  The first thing to keep in mind is that, if you want to ship food outside of your state, you typically need to meet more requirements (licenses, inspections, labeling, etc.) than what is required under cottage food industry regulations, because these regulations pertain to making specific items typically from a home kitchen, and selling locally.

Let’s assume, then, that you want to make food items in your kitchen and sell them at your local farmer’s market.  I will also assume you reside in Ohio, the state where I practice law.  (If you reside elsewhere, be certain to check your state’s requirements for home-based food business.)  Ask yourself the following questions to determine whether you need licensed, and what other requirements you might need.

  1. Is your product included in the “cottage food” list? These are non-potentially hazardous food items listed specifically in Ohio Administrative Code Section 901:3-20-04:
  • Non-potentially hazardous bakery products (such as cookies, breads, brownies, cakes, and fruit pies)
  • Jams
  • Jellies
  • Candy (including no-bake cookies, chocolate covered pretzels or similar chocolate covered non-perishable items)
  • Fruit butters
  • Granola, granola bars, granola bars dipped in candy
  • Popcorn, flavored popcorn, kettle corn, popcorn balls, caramel corn (does not include un-popped popping corn)
  • Unfilled, baked donuts
  • Waffle cones
  • Pizzelles
  • Dry cereal and nut snack mixes with seasonings
  • Roasted coffee, whole beans or ground
  • Dry baking mixes in a jar (for making items like breads and cookies)
  • Dry herbs and herb blends
  • Dry seasoning blends (such as dry barbeque rubs and seafood boils)
  • Dry tea blends
  • Flavored honey produced by a beekeeper, if a minimum of 75% of the honey is from the beekeeper’s own hives;
  • Fruit chutneys;
  • Maple sugar produced by a maple syrup processor, if at least 75% of the sap used to make the maple syrup is collected directly from trees by the processor;
  • Waffle cones dipped in candy;
  • Dry soup mixes containing commercially dried vegetables, beans, grains, and seasonings.

If your food product is specifically included in this list, it is a “cottage food” and you do not need a license to sell it.  On the packaging, however, you must state that the product is “home produced.”  (Click here for more labeling and packaging information.)

  1. Is your food product not a cottage food? Then you need licenses and possibly a home inspection.
  • If you are making foods considered potentially hazardous, then you need to comply with Ohio’s regulations for “home bakeries.” Potentially-hazardous foods include baked goods that need refrigerated, such as cheesecakes, filled doughnuts, cream and custard pies.  You will need licenses (Ohio Department of Agriculture, and local health department) and a home inspection, but you can sell outside of Ohio.
  • Certain foods require production in licensed facilities, or in canneries. These include salsas, BBQ sauces, canned vegetables, frozen foods and homemade hummus, which must be produced in a licensed facility.  In fact, salsas, BBQ sauces, and canned vegetables must be produced in a licensed cannery.

For more information on home-based food businesses in Ohio, visit the Ohio Department of Agriculture’s websiteContact me at julie@juliemillslaw.com to discuss starting your own home-based food business.

 

 

Surviving family, and the aftermath when a hoarder dies

Grieving is difficult after a family member passes away.  Wrapping up the deceased’s affairs can add stress to grief, particularly if the person who died was a hoarder.  A home that should take a month or two to clear out might take a year or more to empty.  Hoarding is a mental condition related to anxiety, and to obsessive-compulsive disorder, and unfortunately is often left untreated.  This article provides a good description of the situation faced by surviving family when a loved one who was a hoarder dies.

Want to start a small business? Keep it simple

I am so energized by entrepreneurs.  Someone who decides to take an idea or a desire to do or provide something, start their own business and risk so much, then work hard to turn the business into something that will provide for him- or herself, and maybe a family…I enjoy providing as much as I can for clients who ask for my assistance in realizing these goals.

Starting your own small business can be daunting.  While it does take time, energy and money, all three of these requirements can be kept simple, minimal.  Many would-be business owners get completely bogged down over-researching and over-planning the start-up of their business.  Unless you plan to court investors or venture capitalists, then keeping it simple might be the recommended plan for starting your small business.

  1. Write a one-page business plan. Business plans help you formulate your vision and communicate your plan with others.  I’ve seen people omit this step altogether, or become mired in creating an unnecessarily in-depth plan.  You need a business plan for yourself to stay on track, plan goals and develop a financial budget, so I do not recommend skipping this step.
    • What is your mission (why does your business exist)?
    • What are your goals or objectives that will help you accomplish your mission?
    • What steps will you take to meet your objectives?
  2. Develop a budget. Keep start-up costs as low as possible.  How much money will you need to get up and running?  Take that number and add 20% to account for things you hadn’t anticipated.  How long can you run your business before you need to turn a profit?
  3. Select a business entity. Should you form a limited liability company (LLC)? Partnership?  C-corporation?  Elect s-corporation status?  Operate as a sole proprietor, without forming a business entity?  In some states, filing fees for forming an entity are steep.  Consequently, some articles recommend operating as a “sole proprietor” (no separate business entity) for a few months until you can afford incorporation filing fees.  Ohio’s incorporation filing fees are not steep (generally under $200), and the personal exposure risk in operating as a sole proprietor is too great to justify not incorporating if you are starting a business in Ohio.
  4. Operate as a business.
    • Open bank accounts in the name of the business and keep business money completely separate from personal money.
    • Get letterhead and business cards.
    • Sign all business-related matters as “John Doe, President” or whatever title you choose.  Signing just your name might subject you to making a personal guarantee.
    • Get an employee identification number (EIN) even if you do not have employees—you might need it for IRS or other matters.
    • Get a website.

If you want more information on starting a small business, researching the Small Business Administration website, and your state’s Secretary of State’s website, are good places to start.

If you would like to discuss starting your own small business, please contact me at julie@juliemillslaw.com, or via my office’s Facebook page at https://www.facebook.com/juliemillslaw/. 

 

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.