Cuyahoga County Domestic Relations Court new Local Rule 18

The Cuyahoga County Domestic Relations Court just revised their local rule for standard parenting time guidelines.  Of important note, the standard parenting time schedule for the non-residential parent when there is no agreement is expanded to every other weekend from Friday until Monday morning; and the midweek parenting time is expanded from just dinner to overnight.  The new Local Rule 18 also takes into account that summer vacation is becoming shorter and shorter for school age children.  The default summer vacation parenting time each parent is now four weeks, reduced from six weeks for the non-residential parent.

The Court also adopted guidelines for families where the parents live a great distance apart.  The Long Distance parenting time guidelines are new for the Cuyahoga County Domestic Relations Court and provide age-appropriate guidelines for families where the parents live more than 200 miles apart.

Each family is unique and the standard guidelines may not be the best parenting time schedule for your family. Local Rule 18 provides a rubric for families to ensure children have continuing contact with both parents while taking into account the varying ages of children and their respective developmental needs. 

For more information on this topic, or assistance with your Family Law needs contact Joseph Stafford at 216.241.1074 or www.StaffordLawCompany,com

Financial Misconduct: Only against a spouse, not a third party?

            From a recent decision by the Eleventh District Court of Appeals (which includes Ashtabula, Geauga, Lake, Portage and Trumbull Counties), a court cannot find that a third party to litigation committed financial misconduct, only a spouse.  Moreover, the court found that a third party cannot be held liable for the financial misconduct of a spouse, in the absence of fraud, illegality, or the necessary claim plead by the offended party.

            In Willoughby v. Willoughby, 11^th Dist. Trumbull No. 2012-T-0095, 2014-Ohio-743, the husband sold his dental practice for $75,000 to his then partner, just months prior to the divorce filing.  The trial court determined this was less than fair market value.  The wife joined the partner and the dental practice as third parties.  The court found that the actual value of the practice at the time of the sale was $330,488, and that the former partner had been unjustly enriched by the husband’s financial misconduct, and therefore owed the marital estate $255,488 ($330,488 less the $75,000 purchase price).

            The court of appeals ultimately held “[t]here is no provision in the law that requires a purchaser, in the absence of fraud, to pay an increased price for a marital asset based on the financial misconduct of one of the spouses.”  Important to the court of appeals decision is the sale of the husband’s practice to the former partner was by a written contract; there was no finding of fraud or illegality by the trial court; and the wife’s complaint against the former partner and the dental practice failed to specifically plead unjust enrichment.  

It appears that without presenting the appropriate legal claims, at least one court of appeals is not willing to extend the financial misconduct statute, R.C. 3105.171(E) against a third party.  With the benefit of hindsight, it is mandatory to plead all alternate theories in your requests for relief.  Failure to do so may result in a reversal on appeal.  A domestic relations court is a court of equity, not just law.  Including a theory of an equitable interest retained by one of the spouses, or the marital estate, may help bridge the gap. 

The Willoughby decision is available on the Supreme Court of Ohio’s website at http://www.sconet.state.oh.us/rod/docs/pdf/11/2014/2014-ohio-743.pdf.

            For more information regarding these issues, and the process involved, please contact Joseph Stafford at Stafford Law Co., L.P.A. (216) 241-1074; or  http://staffordlawcompany.com.         

Dependency Exemptions for Children in a Divorce Situation

Given that next month is the federal income tax returns filing deadline, it important to understand how the IRS treats the dependency exemptions for children in a divorced situation.  The default provision is for the parent with whom the child lived for the greater number of nights during the year to be entitled to claim the dependency exemption for the minor child(ren).  The other parent is referred to as the non-custodial parent and generally cannot claim the exemption.

However, many divorce decrees allocate the dependency exemption pursuant to either the court’s findings or the parties’ agreement.  If, as part of your divorce, you enter into an agreement with your former spouse which allows the non-custodial parent to claim the minor child, it will be honored by the IRS.

Often times, divorced parents agree to alternate claiming the child so that one parent claims the child as a dependent in odd numbered years and the other in even numbered years. If the divorcing couple has more than one child, then one parent could claim some while the other parent claims the others.

It is important to refer to your divorce decree to avoid unwanted penalties and/or contempt proceedings by accidentally or inadvertently claiming a child when the dependency exemption has not been allocated to you.  

For further information regarding this topic or any other legal needs you may have, contact Joseph Stafford at 216-241-1074 or info@stafford-stafford.com

Is “Double Dipping” Permitted In Ohio

            In domestic relations cases, where one or both of the parties own a business interest, it is generally necessary to establish a value for the business.  The valuation serves two purposes, allowing first for an equitable division of assets (Ohio law provides that the court’s division of assets is to be equitable, not equal).  And if there is an income stream for the business, the second purpose is to determine appropriate spousal and/or child support.  However, where the two are so intermingled, the concept of “double dipping” becomes an issue.

            The concept of double dipping may occur when the same income stream which is used to provide a value to the business for purposes of division of assets, is also used to calculate the amount of spousal or child support.

            Although each case will certainly depend upon its own unique facts, the seminal case arguing that this concept constitutes impermissible double dipping is Heller v. Heller (June 30, 2008), Franklin App., 2008-Ohio-3296.  In Heller the trial court’s order provided the wife one-half of the husband’s business interest, ordered husband to pay spousal support to wife in the amount of $8,000 per month, plus additional spousal support based upon husband’s future payments of additional income or profits from the business.  The issue in Heller was the “additional” spousal support which was derived from a percentage of future distributions by the business to the husband.  The issue was not the underlying or traditional spousal support order, which was based upon the husband’s yearly income. 

Other Ohio courts of appeals have rejected the “double dipping” argument.  In Hutta v. Hutta, 177 Ohio App.3d 414 (Stark County 2008), the court stated “the *421 income generated by the business interests retained by appellee pursuant to the division of marital assets needed to be evaluated and considered by the trial court in determining the appropriate amount of spousal support, along with the remaining 18(C) factors.”  Similarly, the Hutta court ruled “the double-dipping argument advanced by appellee and adopted by the trial court was rejected by this court in Bagnola v. Bagnola, Stark County App. No. 2003-CA-00120, 2003-Ohio-5916, 2003 WL 22501764 (basing division of marital assets on business valuations that were based on husband's earned income from three businesses, while also basing award of spousal support on same earned income, did not result in improper “double dipping” for wife).”

Another argument against the “double-dipping” theory, is found in the First District of Ohio Court of Appeals, in Kahn v. Kahn (1987), 42 Ohio App.3d  61.  In Kahn, the court of appeals determined that the goodwill value associated with a medical practice did not duplicate the future earnings available to the spouse for purposes of prospective support (“Therefore, a court may consider both future earnings capacity and professional goodwill without being accused of considering exactly the same assets twice.”)

For more information regarding this issue and the process involved, please contact Joseph Stafford at Stafford Law Co., L.P.A. (216) 241-1074; or http://staffordlawcompany.com.     

Online Interactions During Divorce Proceedings

It is increasing popular for people to share a lot of very personal information on Twitter, Facebook and other social media outlets.  Often times individuals in divorce proceedings share their divorce frustrations with family and friends via social media.  Unfortunately, the sharing of such information can have many unintentional consequences that can be used against them in the divorce litigation.  Divorce attorneys regularly experience social media conflicts that get out of hand during divorce procedures, which can lead to expensive new lawsuits.

It is highly recommended to divorcing individuals to immediately deactivate their Facebook, Twitter, Instagram, Vine, or whatever other online social media.  Often, even texting and email can lead to unwarranted skirmishes and increased frustration and drama during divorce matters.  Clients are urged to refrain from inflammatory texting and emails and should approach their communication with their soon-to-be ex-spouse in a more business like fashion.  Today’s instant access to so many online outlets greatly increases the likelihood of making a “virtual boo-boo” that can cost you big time.  It is for these reasons that client’s should heed the advice and shut down, deactivate and otherwise minimize their online interactions during their divorce proceedings.

 For more information or help with any of your Family Law needs, contact Joseph Stafford at 216-241-1074 or e-mail info@stafford-stafford.com