If you have suffered harm as a result of an accident or injury, you may be entitled to receive economic recovery from those who are at fault. What you can recover will depend upon the kind of damages you experienced because of the accident or injury -- both during and after the incident. In some cases, your family members may also be entitled to recover, to the extent that your injury affected their relationship with you.

To get an idea of the types of damages for which legal recovery is possible, browse the following glossary, which defines almost every type of legal compensation available to a plaintiff in a personal injury case. Remember that an experienced attorney will explain your options, and will work to ensure that you receive all compensation to which you are entitled under the law.

Disfigurement. When an accident or injury has left a person deformed or disfigured, e.g., by scars or other permanent effects on personal appearance, the injured person (the "plaintiff") may be able to collect damages for any mental suffering that arises due to awareness of the disfigurement. These damages are sometimes included as an element of other types of damages, such as mental anguish.

Future medical expenses. This type of recovery is permitted if the plaintiff proves that he or she will need continued medical care as a result of the accident or injury. The proof must be sufficient for the jury to make an approximate estimate of the cost, i.e. through the medical opinion of a treating doctor.

General damages. Compensation for harm that ordinarily results from wrongful conduct, such as physical and mental pain, and loss of enjoyment of life after an accident or injury. These damages cannot be proved with any clear specificity, but are awarded based on the fact that they normally follow from an accident or injury.

Household services . The cost of hiring somebody to do things around the house while the plaintiff is recuperating from an accident or injury, provided that the expense would not have been incurred had the plaintiff not been injured. These kinds of damages are sometimes included as part of medical expenses.

Loss of consortium. Deprivation of the benefits of married life after an accident or injury -- affection, solace, comfort, companionship, society, help and assistance, and sexual relations between spouses. Usually the uninjured spouse makes the claim and his or her financial recovery will depend on whether the injured spouse recovers any damages. In some cases, the injured person will make the claim as well. A value is placed on this loss by considering the couple's individual life expectancies, whether the marriage was stable, how much care and companionship was bestowed upon the uninjured spouse (or vice versa), and the extent to which the benefits of married life have been lost.

Loss of consortium of a child. Parents may be able to recover damages when their child is injured, and the injuries are severe enough that they interfere with the normal relationship between parents and their children.

Loss of enjoyment of life. A diminished ability to enjoy the day-to-day pleasures of life, "loss of enjoyment" is usually an item of general damages, meaning there is no precise way to place a monetary value on it. Some states treat it as a form of pain and suffering, others treat it as a distinct kind of damage in an accident or injury case.

Loss of society and companionship. In wrongful death cases, loss of society and companionship damages represent the positive benefits flowing from the love, comfort, companionship, and closeness that the plaintiff(s) (immediate family members) would have enjoyed had the decedent lived. A jury considers evidence that a harmonious relationship existed between the plaintiff and the decedent, their living arrangements, common interests and activities, and whether the decedent and plaintiff were separated for extended periods. See "loss of consortium" and "loss of consortium of a child."

Lost earning capacity . After an accident or injury, these damages may be recovered if the plaintiff proves that his or her ability to earn money in the future has been impaired or diminished by the injuries. Factors that help determine whether an award should be made include the plaintiff's age, health, life expectancy, occupation, talents, skill, experience, and training. Past earnings are a factor in determining the appropriate amount of compensation for lost earning capacity, but the claim really focuses on what might have been earned were it not for the accident or injury.

Lost wages. These damages represent the amount of money a plaintiff would have earned -- from the time of the injury to the date of settlement or judgment. An unemployed person may be permitted to recover lost wages if he or she can prove what could have been earned during the same period.

Medical expenses. Bills and expenses for medical services such as doctors, hospital stays, emergency room treatment, ambulance fees, and nursing services. A plaintiff must show that the expenses are related to medical conditions resulting from his or her injury. The total amount of medical expenses is sometimes used as a rough guide to decide whether the overall award of damages is reasonable. Note that the cost of a medical examination for purposes of litigation is not ordinarily recoverable as a medical expense.

Medical surveillance. The cost of monitoring plaintiff's medical condition after the plaintiff was exposed to a hazardous substance, so that any illness or injury might be detected early.

Mental anguish. Any mental suffering or emotional distress associated with an accident or injury, including fright, terror, apprehension, nervousness, anxiety, worry, humiliation, mortification, feeling of lost dignity, embarrassment, grief, and shock.

Pain and suffering. An award for past and future physical pain in connection with an accident or injury. To place a monetary value on pain and suffering, the jury considers the nature of the injury, the certainty of future pain, its severity, and how long the plaintiff is likely to be in pain. Some states allow the jury to assume that if a bodily injury has occurred there has been some pain and suffering, and some require that the plaintiff be conscious for some time period during the injury.

Permanent disability . These damages are best proved by medical testimony, and ordinarily a doctor must examine a plaintiff claiming permanent disability. Some courts have held that permanent disability damages can include not only disabilities that are objectively determined, but also disabilities that the plaintiff subjectively perceives.

Present cash value. The current value of projected future earnings; the amount that, if invested wisely, will over time produce the amount the plaintiff would have earned had he or she not been injured.

Special damages. This is a general category of damages that covers all monetary losses, including medical expenses after an accident or injury. Recovery requires detailed proof that the losses were sustained, and a showing of how much money was involved

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

What are my rights if the police approach me and ask me questions?

Suppose you are outside your home or in a public place when the police arrive and begin to ask questions. Law enforcement officers have a duty to protect the community they serve, its citizens and their property. The law gives police certain powers to help them perform that duty.

 

They have the power to approach persons and ask them questions. Simply because you are approached and questioned by the police does not mean you are suspected of having committed a crime. All citizens are encouraged to cooperate with the police to see that those who break the law are brought to justice, and the police rely on law-abiding citizens to do so. But you are not required to incriminate yourself. YOU MAY REFUSE TO ANSWER ANY QUESTION IF THE ANSWER WOULD TEND TO INCRIMINATE YOU.

If the police "stop" me and ask me questions?

Suppose you are walking down a street when a police officer confronts you and announces: "Stop. I need to ask you some questions." A person is "stopped" when an officer uses enough force, or a show of authority, to make a reasonable person feel he or she is not free to leave. In this example, the officer called out for you to stop, and may have used his or her authority to make you do so. If the officer pulled out a weapon or used a threatening tone of voice, it would be even clearer that a stop has taken place. Because the officer is interfering with your liberty to move about, he or she should first have a reasonable suspicion that you have been involved in a crime. This suspicion would need to be supported later (if the matter should wind up in a court) by the officer's reference to specific facts prompting such a suspicion.

The police do not have to tell you that you are a suspect or that they intend to arrest you, but if they use force or a show of authority to keep you from leaving, it is likely they consider you a suspect. They may consider you a suspect even if you were the person who called the police. If they read or tell you your Miranda rights, they suspect you have committed a crime.

Just as when an officer merely approaches and questions you, you have the right, if you are stopped, to refuse to answer any questions if the answer would tend to incriminate you. Also, if you are only being stopped, you can refuse to allow an officer to search your person.

Further, anything you say can be used as evidence against you. Sometimes people think that what they are saying won't incriminate them, when in fact, what they say provides a link in a chain of information that could incriminate them.

Even if you believe the officer has no grounds to stop and question you, do not argue with or resist the police. Arguing or resisting the police will not help you; it may increase your chances that the police will arrest you and bring criminal charges against you. It probably also will give them grounds to bring even more criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged. Once officers no longer have grounds to detain you, they should tell you that you are free to go before asking if they can search you or your car.

If I am arrested?

An arrest is different from a stop. A stop involves brief questioning in the place where you were detained. If the officer wishes to hold you for a longer period of time, or decides to take you elsewhere, such as to the police station, he or she is no longer just stopping you, but is arresting you. Because an arrest deprives you of your freedom of movement for an even longer period of time than a stop, the law limits the instances when arrests can be made.

When can I be arrested?

1. You may be arrested by a police officer who personally saw you violate any state statute, city ordinance or federal law. The law may be a serious crime (a felony) or a lesser offense (a misdemeanor). The important thing is that the officer sees the violation.

If the charge is a minor misdemeanor in which only a fine is the possible penalty (not time in jail), the officer may not arrest you and take you into custody unless you fail to give your name, refuse to sign the citation, or have previously failed to appear in court or pay a fine on a similar offense.

2. You may be arrested for a felony, even if the police officer did not personally see you commit the felony, so long as the officer had probable cause to believe you committed the crime. Later, the court system (not the police) will determine if the officer's belief was reasonable and if you are guilty or innocent.

3. You may be arrested when there is a warrant for your arrest, whether or not you are aware of the warrant. The police cannot cancel an existing warrant. They must serve it and arrest the person named on the warrant.

An arrest warrant is a legal document, issued by a judge or a clerk of the courts, directing the police or the sheriff to arrest you and take you into custody. This document does not have to be on any particular form. The arresting officer is not required to have the warrant in hand at the time you are arrested. The officer must show the warrant to you within a reasonable time after you are arrested and give you a copy. If the officer fails to do so, tell your attorney later.

Even if you believe the officer has no grounds to arrest you, do not argue with or resist the police. You have no right to argue about why you are being arrested or about your guilt or innocence at the time of the arrest. Arguing or resisting the police will not help you. It will mean the police can bring additional criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged.

• Again, do not argue with the police.
• Never resist your arrest. Do not run away.
• Never resist the arrest of another person.

What are my rights if I am arrested?

1. If an officer wants to ask you questions other than your name and address, he or she must advise you that you have a right not to answer the questions.

2. You have the right to be told why you are being arrested and the nature of the charges against you (the crime for which you are being arrested). If you are arrested on a warrant, you have the right to see the warrant within a reasonable time after your arrest, to read it and make certain your name appears on it, and to see the charge against you.

3. You have the right to be told your constitutional rights (commonly called Miranda rights) before you are questioned—not before you are arrested. These constitutional Miranda rights are:

• The right to remain silent and not answer any questions at all;
• The right to know that if you waive (give up) your right to remain silent and do answer questions, the police can use your answers against you in a court to get you convicted;
• Even if you begin to answer questions, you have the right to stop answering questions at any time and to speak with an attorney;
• You have the right to speak privately with an attorney before you answer any questions or sign anything;
• If you cannot afford an attorney and if the crime for which you have been arrested has jail time as a possible penalty, you have a right to have an attorney appointed for you to represent you at no cost to you before being questioned, and to have that attorney present with you during any questioning to which you may later agree to submit.
  
  Remember, you cannot be penalized for refusing to answer an officer's questions. If you try to cooperate by answering questions while you are being held in police custody, you may create difficulties for your lawyer in defending you later on. ALWAYS SPEAK TO A LAWYER.

4. You also have the following rights:

• The right to contact, by telephone or otherwise, a responsible person, to tell him or her you have been arrested and what the charges are. You are not limited to one telephone call if more calls are needed to contact someone.
• The right to refuse any physical or chemical test (such as a polygraph "lie detector," breathalyzer, intoxilizer, field sobriety tests or physical performance tests such as walking a straight line or making other movements, the look-at-the-pen test, or mental ability tests like reciting the alphabet or doing math), until you can talk to your lawyer.
• The right to have your attorney present at any line-up or other identification procedure in which you are viewed by possible eyewitnesses to a crime.
• The right to reasonable bail or bond to secure your release from jail unless you are charged with a capital crime. Usually a judge sets the bail or conditions of your release. If you are charged with a misdemeanor, and if no judge is available, the police may, at police headquarters, accept bail in accordance with rules established by the judge.
• The right to be brought before a court as soon as is reasonably practicable after your arrest, so that you can request a preliminary hearing to test the basis of your arrest and/or trial to determine your guilt or innocence.

If I am arrested, what will the police do?

If you are arrested, the police will search you for weapons, handcuff you, transport you to jail, and photograph and fingerprint you for identification.

If you are not under arrest or if police do not have a search warrant (a court order allowing them to search), the police may ask you to allow them to search your car, your home and/or your other possessions. YOU CAN REFUSE TO CONSENT TO THESE SEARCHES.

You have a right to be free from unreasonable searches and seizures; most of the searches for which an officer might ask your consent would require the officer to first obtain a warrant from a judge, unless you consent and give up this right.

Only a judge can decide whether the search is proper before that search is conducted. There is no penalty for exercising your right to have the judge decide whether to allow the search. Your refusal to consent to a search cannot be used against you.

If you are uncertain about how to respond to any request made by an officer, assert your right to counsel and discuss it with your attorney first before taking further action on the officer's request.

Do's and don'ts during arrests and custody

Do not argue with the police. You cannot talk your way out of being investigated, arrested or prosecuted. Do not try. Any explanation you give the police may give them more information than they already have, so it's often wise to save your explanation and defenses for court.

If you have been arrested, the police believe you committed a crime. Their job is to investigate and gather evidence. Telling the police your side without a lawyer present is usually a bad idea, even if you believe you have done nothing wrong. Only your attorney and the judge have the power legally to make things easier/better for you.

Always pay very close attention to what happens when you first encounter the police and afterwards. Try to memorize who was there to see and hear what happened. Sometimes the court needs to look into what happened to you while you were in custody. It will help you if you can later fully inform your counsel about these events, so be observant.

Do not tell your family and friends all about it or ask non-lawyers for legal advice. It is possible, if not probable, that they may be ordered to appear at trial to repeat what you said.

Rely on your lawyer to advise and defend you no matter what you did or did not do. Legal ethics rules prohibit your attorney from disclosing without your permission any information you give him or her during the attorney-client relationship. However, your attorney may disclose your intention to commit a crime and the information necessary to prevent the crime. Also, your attorney has an ethical duty to keep you from offering testimony that he or she knows is not true.

What are my rights in court?

Within 72 hours after your arrest, the judge must:

1. Tell you the crime of which you are accused and explain it to you if you do not understand it.

2. Give you a copy of the written complaint against you if you do not have one already.

3. Give you a continuance (more time) to get an attorney, or appoint one for you if there is a possibility you could go to jail if convicted and you can't afford to pay an attorney to help you.

4. Tell you the nature and effect of the pleas you may enter and what will happen if you enter them. You may enter a plea of not guilty, no contest or guilty.

• Not guilty means you do not give up any of your rights, including the right to a trial. If you are in doubt, plead not guilty.
• No contest means you admit the facts in the complaint are true, but you deny guilt. The judge may find you guilty or not guilty. (A no contest plea cannot later be used against you in a civil lawsuit for money damages. If someone sues you over the incident, he or she will have to prove you were at fault and violated the law.)
  
  
  Most no contest pleas result in a guilty finding unless the arresting officer has cited you under the wrong statute or ordinance, or if the arresting officer's written statement of facts fails to sufficiently support the charge.
• Guilty means you admit the crime(s) of which you are accused and waive (give up) your right to a trial at which the prosecution would have to prove you guilty beyond a reasonable doubt. You also give up your right to remain silent. The judge may sentence you immediately or at a later hearing. A guilty plea can later be used to prove you were at fault in a civil lawsuit. A guilty plea to a charge can also lay the basis for a harsher punishment if you are later convicted of another offense.

You are entitled to have a record made by a court reporter or tape recorder of what has happened in the courtroom. Then, if a question later arises, you have evidence of what happened when you were in court.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

In Ohio, it is unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:

• The driver's ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or
• The driver is intoxicated at a level above established DUI standards, such as blood-alcohol concentration (BAC) of. .08.

Field Sobriety and Chemical Tests

When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a "field sobriety" test on the driver, and may ask for his or her consent to some form of chemical test for intoxication.

Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person's physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer's use of the "horizontal gaze nystagmus" (eye and penlight) test.

Chemical tests can be conducted during the vehicle stop, using a Breathalyzer that measures a driver's blood-alcohol concentration (BAC), or at a hospital, where urine and blood tests can be performed. Many states allow a driver suspected of DUI to choose which type of chemical test is administered.

Refusing a Chemical Test: "Implied Consent" Laws

Ohio has an "implied consent" law that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to DUI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver's license, usually for six months to a year. Often, license sanctions for test refusal are more harsh than those imposed after DUI test failure.

“Per Se" and "Zero Tolerance" DUI Laws

All states have DUI laws that deem "per se intoxicated" any driver with a blood-alcohol concentration (BAC) above a set limit. In Ohio, this means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.

Keep in mind that a driver may still be arrested and convicted for DUI without proof of "per se" intoxication, when other evidence of impaired driving is shown. For example, a driver with a .06 BAC level can be found guilty of DUI if an arresting law enforcement officer testifies that he observed the driver's vehicle swerving badly, and that the driver exhibited both slurred speech and severe inattention during questioning after a vehicle stop.

DUI Convictions: Criminal Penalties

A DUI conviction may carry criminal penalties including fines, jail time, probation, and community service. Some state laws impose certain minimum penalties for first-time offenses, then designate increased penalties for each offense thereafter. Severity of criminal penalties will vary according to the circumstances of the offense, including:

• Whether the driver has a history of DUI violations;
• Whether the driver was operating a commercial vehicle at the time of the DUI;
• Whether the DUI violation occurred while there was a child in the vehicle;
• Whether the DUI violation occurred simultaneously with another dangerous moving violation, such as reckless driving;
• Whether the DUI violation involved a car accident in which property damage occurred;
• Whether the DUI violation involved a car accident in which another person was injured or killed; and
• Whether the driver was under the legal drinking age at the time of the DUI violation.

DUI Arrest and Conviction: Driving Privilege Penalties

In addition to potential criminal penalties, a DUI arrest or conviction will have an immediate negative impact on driving privileges.

Ohio law allows the BMV to immediately suspend the driver's license of any person operating a vehicle with a BAC above the state limit for intoxication, or any driver who refuses to submit to BAC testing. The driver's vehicle may also be confiscated or impounded, and the DUI offender will likely incur significant administrative costs. This loss of driving privileges can normally occur even before a DUI conviction. A DUI arrestee to obtain a temporary license and request an administrative hearing at which he or she may argue against license suspension, or for restoration of limited driving privileges.

As with criminal penalties, the impact of a DUI arrest or conviction on driving privileges will vary according to the driver's history of DUI violations and the severity of the offense. An increasingly popular DUI penalty, especially for repeat offenders, is mandatory installation of an "ignition interlock" device on the offender's vehicle. This breath-testing device measures the vehicle operator's BAC, and will prevent operation of the vehicle if more than a minimum amount of alcohol is detected, such as BAC level of .02. Where this punishment is utilized, most states require the DUI offender to pay costs of installation, rental, and maintenance of the ignition interlock device. Rental fees alone can amount to as much as three dollars per day, so a DUI offender's expenses can add up quickly when an ignition interlock device is required.

Plea Bargains in DUI Cases

Due to recent law enforcement trends that focus on preventing DUI by penalizing offenders harshly, most district attorney offices refuse to negotiate plea bargains in DUI cases. This is especially true if evidence of the violation is strong.. However, in rare cases a DUI charge may be reduced to a lesser offense like reckless driving or an "open beverage" violation.

Getting an Attorney's Help in a DUI Case

If you or a loved one are arrested for DUI, you may need the assistance of an experienced DUI defense lawyer. Unlike civil law cases, in which money or property may be at stake, people charged with DUI may face jail time and driver's license revocation. A skilled attorney who specializes in defending DUI cases will evaluate all the evidence, including the procedure and results of any field sobriety and chemical tests, to ensure that your legal rights are protected.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

What is a will?

A will is a document that provides for the way in which a person's probate property will be distributed upon death. To be valid, it must meet certain formal requirements as provided by the laws of the state involved.

Who may make a will?

A person who makes a will in Ohio must be free from improper influences, must be at least 18 years old and must be of sound mind.

How is a will made?

With limited exceptions, a will must be written and signed. A will must be witnessed by at least two persons in a special manner provided by law, and it must be executed in strict accordance with the law. The easiest way to ensure that these conditions are met legally is to have the signing of the will supervised by an attorney.

May a will be changed?

A will may be changed as often as the person who wrote it wishes. Changes are frequently made by the simple device of an addition called a codicil. Changes in circumstances after a will has been made, such as tax law changes, marriage, birth of children, divorce or even a substantial change in the nature or amount of a person's estate, may raise questions about the adequacy of that will. All changes in circumstances require a careful analysis and reconsideration of all the provisions of a will and may make it advisable to change the will to reflect the new situation. However, changes should not be made without the assistance and advice of a lawyer to ensure changes will be legally valid and will not adversely affect other portions of the will.

How long does a will last?

A will is effective as long as it is not revoked. A will is most often revoked by the execution of a new will or codicil replacing the old, or when the person who made the will destroys it with the intent of revoking it.

Does a will increase probate expense?

No. It costs no more to administer an estate when a decedent leaves a will than when there is no will. Often it will cost less. When there is a will, the executor distributes the estate to the parties named in it. When there is no will, the probate court must determine who the legal heirs are and then distribute the estate to them. In either case, administration under the supervision of the probate court is necessary.

A will may reduce expenses of administration in a number of ways. A will can reduce taxes and expenses by taking advantage of the charitable or marital deduction provisions of federal and Ohio estate tax laws. In many situations, a will also can avoid the payment of a bond for the executor by so providing in the will. These examples illustrate that a will can save money for you and your family if it is drafted by a lawyer who is trained in this area of the law.

How large an estate is necessary to justify a will?

Everyone who owns any real or personal property should have a will regardless of the present amount of the estate. Remember that a will provides for the way that a person's probate property will be distributed upon death, regardless of size and value.  Further, estates grow in value almost unnoticed through the repayment of mortgages, appreciation of stocks and other investments, inheritances from relatives, and other sources.

May a person dispose of property in any way by making a will?

Yes. However, Ohio law gives a surviving spouse and minor children certain rights over property that cannot be defeated by a will. Talk to a lawyer about these rights.

What happens to property held in the names of both husband and wife?

Property held in the names of both husband and wife may not automatically pass to the survivor upon the death of one of them. However, there are some forms of ownership in which property does pass to the survivor automatically. Sometimes it is to your advantage to hold property in this manner. Other times it can be disadvantageous. An attorney can advise you as to the type of property that can be held in joint tenancy, or in other ways that avoid probate, and the advantages that you might gain. For more information on ways to avoid probate, you should speak to a lawyer.

Does a will let me avoid estate taxes and other 'death' taxes?

Whether or not there will be an estate tax depends primarily upon the value of a person's estate. Deductions also are available for debts, expenses of administration, or distributions to a surviving spouse or charity. However, a properly drafted will might reduce the amount of taxes that have to be paid. Wills written without consideration of recent federal tax laws should be re-examined in light of tax law changes. An estate-planning lawyer is skilled not only in the laws of wills and property, but also must be familiar with both state and federal estate tax laws.

What happens if I do not make a will?

When a person dies without a will, or dies intestate, as the law calls it, the property of the deceased is distributed to your nearest family members according to a formula fixed by law. In other words, if you do not make a will, you do not have any say about how your property will be distributed.

In Ohio, for example, if a husband dies without a will, leaving two or more minor children, and the surviving wife is not the natural or adoptive parent of any of the children, the wife would take a fixed sum of money ($20,000) and one-third of the remainder of the estate. The widow or other suitable person would need to be appointed guardian of the children by the probate court and would need to give the court a surety bond. When each child reaches age 18, his or her share of the guardianship estate would be required to be made fully available to the child, regardless of his or her maturity level. Such proceedings can be expensive and can create legal problems that might have been avoided had the husband made a will.

Who will manage my estate?

 
If you make a will, you may name the person you want to manage the administration of your estate (the executor). If you do not make a will, the probate court will appoint someone (the administrator), whom you may or may not know, to handle your estate.

Can life insurance take the place of a will?

No. Life insurance is only one kind of property that a person might own. If a life insurance policy is payable to an individual, the will of the insured has no effect on the disposition of the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by a will; however, this would subject the proceeds to possible Ohio estate tax, depending on the size of the estate. The careful person will have a lawyer and a life insurance counselor work together on a life insurance program, particularly in the area of estate planning.

Who should draft a will?

No sensible person would engage "just anyone" to fill teeth, take out an appendix, or adjust a sensitive and complicated instrument. The person who wants these services performed with a minimum of risk to self and property will engage a trained professional person.

The drafting of a will requires professional judgment. A lawyer can help you avoid pitfalls and choose the course best suited for your situation.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

The following information applies to most tenants who pay rent for a place to live, although there are exceptions (including, for example, those who pay rent to live in nursing homes, hotels and motels, and university-owned student rentals).  Also, there is a different landlord-tenant law that applies to those who live in a manufactured or mobile home park.

What are my rights as a tenant?

A tenant is any person who occupies or possesses the residential property of another under a rental agreement.

As long as you, the tenant, do what the rental agreement and/or the law requires you to do, you have the right of exclusive possession of the property until the lease expires.

• You have the right to complain to a government agency about your landlord's violation of housing laws or regulations that affect health and safety.
• You have the right to complain to your landlord if he or she fails to perform any legal duties.  If you complain and the landlord retaliates against you by increasing rent, decreasing services or seeking to evict you for taking such action, the landlord has violated the law.  There are legal remedies to stop or punish retaliation.
• You have the right to join with other tenants to bargain with your landlord about the terms of the rental agreement.
• You have the right to know the name and address of the owner of your residential premises and that of the owner's agent, if there is one.  This information must appear either in your written lease or be given to you in writing at the beginning of your tenancy if the rental agreement is oral.
• You have a right of privacy, which the landlord must respect.  The landlord may enter your apartment after reasonable notice (at least 24 hours) for certain legitimate reasons and in certain emergency situations.
• If the landlord has received a written complaint from you about the premises, you have the right to have repairs made within 30 days or less (depending on the severity of the housing conditions) for conditions that significantly affect health and safety.  In the case of actual emergency, your repairs can be required to be made immediately.  If the landlord fails to make repairs within a reasonable time (not more than 30 days), you, as a tenant, may have a right to escrow your rent, get a court order for repairs to be made, or ask the court to reduce your rent.  You also may terminate the rental agreement and move out.
  
  
  Escrowing your rent means withholding your next monthly rental payment and depositing it with the clerk of the municipal or county court in the county where you reside.  However, if your rent is due on the first of the month and you give your landlord the written complaint notice on the 15th of the month, you still will have to pay rent to the landlord on the first of the following month.  You can only escrow your rent after having waited the full 30 days (unless there is an emergency such as lack of heat in the winter or lack of water).
  Warning: If you do not follow the proper escrow procedure, you can be evicted.
• If you receive written notice when you move in that the landlord owns three or fewer dwelling units, you cannot use the escrow method of depositing rent money with the court.  You may not use the remedies of termination or rent deposit if you are not current in your rental payments.
• Your furnishings or possessions may not be seized by the landlord for the purpose of recovering rent payments.

What are my obligations as a tenant?

As a tenant, you must meet the following obligations:

• Comply with the standards of all housing laws that materially affect health and safety.
• Refrain from and prevent family, friends or guests from damaging the rental premises.
• Keep the premises safe and sanitary.
• Keep plumbing fixtures in the dwelling unit as clean as their condition permits.
• Dispose of all garbage in a safe and sanitary manner.
• Operate all electrical and plumbing fixtures properly.
• When the rental agreement requires appliances to be maintained by the tenant, maintain in good order all appliances provided by the landlord.
• Cause no disturbance and forbid family, friends and guests to disturb your neighbors.
• Allow your landlord reasonable access (upon 24 hours notice) to the premises to inspect, make repairs, or show the property to prospective buyers or renters.  In cases in which you agree, in emergencies, or if the landlord needs to deliver large parcels, 24 hours' notice is not required.
• See that controlled substances (such as drugs) are not illegally used on the property.

The tenant cannot change any of these legal duties.  However, the landlord may agree to assume responsibility for fulfilling any of these tenant duties.

What are my rights as a landlord?

If you own rental property and permit another to use, occupy or possess your residential premises for a period in return for money or something of value, you are a landlord.

• You, as a landlord, can rent your property for any amount you desire.  Unless you have a lease (written or oral) that provides for a fixed rent for the term of the lease, you can increase rents in any amount, upon giving adequate notice.
• Subject to the provisions of Ohio's Fair Housing Act, you may rent to anyone you wish and establish any conditions and terms in a rental contract that do not conflict with state law.  You may, in fact, refuse to rent to anyone, provided you do not discriminate against a tenant because of the tenant's race, color, religion, ancestry, sex, national origin, handicap or family status.
• You may evict the tenant for nonpayment of rent, or for breaking any significant conditions that you have agreed on.  Written notice of the intent to file an eviction action must be given to the tenant before you file such an action in court.  For nonpayment and some other reasons, the notice must be given at least three days before the eviction is filed or the court will dismiss the case.  In other cases, you must give the tenant 30 days to correct the violation before you can begin an eviction action.  Don't count the day the notice is given, and wait until after the third day.
• You may notify the tenant in writing if you wish to secure the tenant's compliance with obligations under the law.
• After reasonable notice to the tenant, you have the right to enter the dwelling unit to inspect, repair, make improvement or supply services, or show new tenants the property.
• You have the right to have your property returned to you in as good a condition as it was when the tenant took possession, except for ordinary wear and tear.

What are my obligations as a landlord?

The landlord has certain obligations whether or not they are written into a rental agreement.  You, as landlord, cannot change them or require the tenant to assume them, and the tenant cannot agree to excuse or waive your performance of these obligations under any circumstances.

As a landlord, you must do the following:

• Comply with all the standards of housing and health codes that significantly affect health and safety.
• Make all repairs and keep the rental premises in a livable condition.
• Keep all common areas of the premises in a safe and sanitary condition.
• Maintain in good working condition all electrical, plumbing, heating and air conditioning systems and fixtures and/or appliances that you have supplied or are required to supply.
• When you own four or more units in the same building, provide and maintain trash receptacles and remove all trash.
• Supply running water, reasonable amounts of hot water and reasonable heat at all times.  The tenant may be required to pay any or all utility bills for his or her unit (apartment or house).  
• Terminate the lease of a tenant illegally using or permitting the use of controlled substances on the property.
• Not abuse your right to enter the property for legitimate reasons; if this right is abused, you have invaded the tenant's privacy.
• Not attempt to evict a tenant without a court order by changing the locks, terminating utility service or removing the tenant's belongings.

A landlord may be liable to a person who is injured in an area the landlord controls or as a result of failure to maintain and repair certain basic items as required by law or the lease.  If there is a written rental agreement, you, as a landlord, are required to give the tenant your name and address and the name and address of your agent, if any.  If there is an oral rental agreement, you are required to furnish the same information in writing to the tenant when the tenant moves in.

What is a rental agreement?

A rental agreement or lease is a written or an oral contract between persons.  A properly written agreement will eliminate most of the misunderstandings and problems that commonly arise between a landlord and a tenant.  A written rental agreement benefits and protects both parties, and is a good way to do business.  Your written agreement may create a tenancy from week to week, month to month or year to year.  For your protection, either as a landlord or as a tenant, it is usually wise to specify the exact manner in which the rental agreement may be terminated. If there is no written lease, the landlord or the tenant may end a week-to-week tenancy by giving the other party at least seven days notice before the day of termination.  Both parties may end a month-to-month tenancy by giving the other party at least one month's notice before the end of the current monthly term.

A landlord may not limit or escape responsibility liability by using contract clauses in a rental agreement signed by the tenant.  If such a clause appears in any rental agreement, it cannot be used against the tenant.

Ordinarily, a rental agreement is prepared by the landlord.  For this reason, any doubtful or confusing terms are decided against the landlord and in favor of the tenant.

Under Ohio law, both tenants and landlords may recover damages and, in a few situations, reasonable attorneys' fees, for the unlawful act of the other party.

How do I get back my security deposit?

 
When a tenant moves out at the end of a rental agreement, there are certain rules for both the tenant and the landlord to follow.

The tenant should give the landlord the key and leave the premises in as good a condition as they were when the tenant moved in.  This requires the tenant to leave the premises as he or she found them, and make any repairs needed to restore the premises to that condition.  The tenant is not responsible for ordinary wear and tear on the premises.

After the tenant moves out, any of the tenant's money or property that the landlord holds as a security deposit can be applied to back rent or to damages the landlord has suffered as a result of the tenant's actions.  The landlord must return the balance to the tenant, whether or not the tenant leaves a new or forwarding address.  (It is the tenant's responsibility, however, to collect the money if no forwarding address is provided.)

Assuming the tenant gives the landlord a new or forwarding address within 30 days after leaving, the landlord must return to the tenant within 30 days all money remaining after lawful deductions.  If the landlord does not return the money owed by that time, a court can order him or her to pay the tenant twice the money owed plus attorney fees.

Who owns what?

In general, unless otherwise agreed, "fixtures" belong to the landlord.  Fixtures include parts of the building such as sinks, furnaces, water heaters and other equipment that is either built-in or fastened to the property.  Obviously, anything a tenant brings onto the premises that does not become a fixture, belongs to the tenant and may be removed by the tenant at the termination of the lease.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

Ohio law provides three ways for a husband and wife to end or alter their marital relationship: legal separation, divorce and dissolution of marriage. To obtain a dissolution or divorce, you must live in Ohio for at least six months before filing. There is no residency requirement for persons seeking a legal separation. The terms visitation and companionship, once used to describe parental rights, now describe the rights of non-parents. Parent time allocation and parenting time now refer to the time parents spend with their children.

What is a legal separation?

This is a civil lawsuit that does not legally end a marriage, but allows the court to issue orders concerning property division, spousal support, allocation of parental rights and responsibilities, child support and parent time allocation for any minor children. The parties remain married, but live separately. When a court grants a legal separation, each party must follow the court's specific orders.

What is a dissolution of marriage?

A dissolution of marriage is an action where the parties mutually agree to terminate their marriage. Neither party has to prove grounds to end a marriage by dissolution. This action is only started after the husband and wife have reached a separation agreement regarding all property, spousal support and any child issues. After jointly filing a Petition for Dissolution, the parties must wait at least 30 days before the court will hear their case. The case must be heard within 90 days of filing. At the hearing, the court will review the separation agreement, ask about the assets and liabilities and any parenting issues, and determine whether the parties understand and are satisfied with the settlement. If the court is satisfied that the agreement is fair, the parties agree and desire to end their marriage, the court will grant a dissolution and order the separation agreement into effect.

What is a divorce?

Divorce is a civil lawsuit to end a marriage. It arises when the husband and wife cannot resolve their problems, and are asking the court to make the final decision and issue orders concerning property, support and children.

A divorce is started by one spouse, the plaintiff, who files a complaint with the clerk of court. In this initial complaint, the plaintiff must select, and eventually prove, the appropriate statutory grounds. Discuss with your attorney why you believe your spouse's behavior justifies the filing of the lawsuit.

The clerk of court serves the other spouse, the defendant, a copy of the complaint and a summons by certified mail, hand delivery, or by leaving it at the defendant's residence with a person over age 18. If the defendant's residence is not known, a legal notice may be printed in a newspaper. However, differences in the law make this method less effective.

Within 28 days after the defendant has been served, the defendant must file an answer in response to the complaint. The defendant also may file a counterclaim requesting a divorce, by stating the grounds the defendant believes are applicable. The plaintiff files a reply in response to the counterclaim.

Most suits are eventually settled by agreement between the parties. When this occurs, a separation agreement is prepared, signed by the parties and submitted to the court for approval. When approved, the agreement is made effective by a court journal entry.

If the parties cannot agree to resolve one or more of their disputed issues, the disputes are presented to the court. The court will review the parties' evidence and make its decision based on Ohio law.

How is property divided after a marriage is ended?

Ohio statutes define marital and separate property. Marital property is property acquired during the marriage, including real estate, personal property or intangible property such as stocks and bonds, bank accounts and retirement plans. Marital property also may include increases in the value of separate property due to either spouse's work effort, labor or contribution of marital money to the increase in the property's value. Separate property includes all real, personal and intangible property from an inheritance; property owned before the marriage; income or appreciation from separate property not resulting from the labor or substantial effort of either party during the marriage; a gift after the marriage date that is proved to be made to only one spouse; and an award for personal injury, except any part of the award that compensates for lost wages occurring during the marriage, or medical bills from the injury paid with marital funds.

By applying the statutory rules and appropriate case law, the court determines what is and what is not marital property. The marital property is to be divided equally, unless the court explains in writing why an equal division would not be fair. In making the award, the court must apply the eight specific factors listed in the statute and any other factor it finds relevant and equitable.

The court also has the authority to make a distributive award from separate property of either party to the other to achieve a fair result. When a party has engaged in financial misconduct such as hiding property, dissipating money or funds, or disposing of funds fraudulently, the court may make an award out of the separate property of the offending spouse or make a greater award of marital property to compensate the other party.

What is spousal support?

Changes in Ohio law have substituted the term spousal support for what used to be called alimony. Spousal support is awarded to help sustain a spouse after a property division has been awarded. The court may consider 13 specific factors in making an award. Some of these factors are the ages, earning ability and health of the parties, the length of the marriage, and the standard of living during the marriage. The court also may consider any other relevant factors.

How are parental rights and responsibilities allocated?

Formerly, Ohio courts usually granted custody of the children to one party or the other. Now, the court allocates the parental rights and responsibilities between the parties based on the best interests of the children who are not yet age 18 or have not graduated from high school. Shared parenting is often preferred for allocating these rights and responsibilities. If a plan for the children's care is submitted by one or both parties, the court may adopt the plan and grant shared parenting. However, if the court finds the proposed plan is not in the best interest of the children, it can request amendment of the plan or deny shared parenting altogether. If no plan is submitted, the court cannot award shared parenting and will allocate the parental responsibilities to one of the parents, naming that parent as the child's residential parent and legal custodian. 

At either or both of the parties' request, the court must talk with a child about his or her wishes concerning parenting arrangements. The court is not bound by the child's wishes and concerns in these matters; it is only one factor to be considered. Other factors taken into account include the child's mental, emotional and psychological development; the interaction of the child with other significant persons; and the adjustment to the school, community and home. The court also may consider factors concerning the ability of a party to be a custodial parent, such as whether support has been paid, parenting time has been allowed or any abuse has occurred. If one of the parents intends to leave the state permanently, the court also may consider this as a factor.

How are parenting time rights determined?

In every case involving children, the court orders a specific schedule for parenting time allocation to the parents. The primary consideration is the best interest of the children. Ohio statutes provide many factors to be considered in making the determination. Each Ohio county must have a standard parenting time order. These standard parenting time orders can be changed to meet individual children's needs. In appropriate cases, the court also may award companionship rights to persons other than the parents, but only if a parent is not suitable to have custody.

What are temporary orders?

The court may issue temporary orders to be in effect while the case is pending and before the final decision. The person seeking temporary orders files a motion with the court for such things as the use of the marital residence, allocation of parental rights, support of minor children, spousal support and assignment of responsibility to pay marital debts (such as the house or rental payments, car payments, insurance, utilities, finance companies and charge accounts). These temporary orders are not necessarily what the court will award as a final order when the case is resolved.

Restraining orders restrict or prohibit one or both of the spouses or others from certain behavior and activity. Restraining orders may be granted prohibiting harassment or abuse of the other spouse or to prohibit one or both spouses from transferring or disposing of marital funds or assets.

All temporary orders and restraining orders may be modified by the court on formal request, if appropriate. Temporary orders, unless modified, usually remain in effect and are enforceable from the time the court approves the order until the final action is granted.

How is child support determined?

Ohio law requires that the amount of child support must be determined by a certain procedure. The law sets basic support schedules that must be used to determine the proper amount of child support, based on the number of children and the combined gross income of the parents, as well as other factors and/or credits. The support schedules are based on the average cost of raising children in households across a wide range of incomes.

To determine the appropriate amount of child support, the court calculates each parent's gross income. The gross incomes are combined and the total is used to locate the proper amount on the basic support chart. Any spousal support paid is added to the income of the recipient and deducted from the income of the payor to arrive at gross income. Costs of medical insurance and necessary child care are factored in, and the resulting child support obligation is divided according to the percentages of each party's income to their total combined annual income.

The amount of support determined by these calculations is presumed appropriate. The court has discretion, in certain circumstances, to deviate from the basic support tables where applying basic support would be inequitable. The court also will issue orders for the children's medical needs, including insurance. Child support must be paid to the designated support enforcement agency, which usually orders the employer to deduct that amount from wages.

What are my responsibilities as a client?

Because you have established a relationship with a lawyer who will present your demands and requests to the court, you have responsibilities to your attorney as a client. Rely on your attorney's experience in this area to guide you through the process, and do what your attorney asks you to do.

Clearly communicate to your attorney your wishes and priorities. Do not force your attorney to guess.

Be open and truthful with your attorney. If evidence later establishes that you have been untruthful or have lied to the court, the court may penalize you. Your communications with your attorney are confidential. Your attorney will not reveal embarrassing or harmful information that you may have disclosed, but by knowing all the facts, your attorney can help you plan how best to correct or minimize harmful information. If you do not disclose important facts to your attorney, you are not being truthful. Surprises in court will leave you and your attorney dissatisfied and at a disadvantage in resolving your legal matter.

How are parental rights and responsibilities divided?

The current terms used for the time parents spend with their children are parenting period and parenting time. These terms apply to both shared parenting and to the allocation of parental rights and responsibility to one parent (formerly known as sole custody).

Procedures for dividing parental rights and responsibilities now emphasize the rights of the child to be loved, protected and supported, while maintaining relationships with each of the parents, despite difficulties the parents may have with each other.

Every parent has certain rights and responsibilities for the care of the children by virtue of being a parent. When parents divorce, these rights and responsibilities are even more important. The court's role is to ensure that the "best interest" of the children is protected. Therefore, the parental rights and responsibilities are expressly allocated to the parents.

A court has two basic options in allocating parental rights and responsibilities: adopting a plan for shared parenting (formerly called joint custody), or naming one parent the residential parent and legal custodian. At times, when the parents' disagreement is considerable, the court may seek additional information and guidance from a guardian ad litem (a neutral person appointed by the court to protect the children's best interest), court investigators or social workers, and, if either parent requests it, by interviewing the children.

In shared parenting, the parents "share" the parental rights and responsibilities according to a shared parenting plan. One or both parties will submit a proposed plan to the court; the division of the children's time between the parents need not be equal. The court reviews the plan(s) to determine if it is in the children's best interest. The court may then adopt the plan, ask the parties to amend the plan and adopt it as amended, or reject the plan. The parties may revise the plan to address the court's objections, or the court may reject shared parenting completely and name one parent the residential parent and legal custodian.

Naming one parent the residential parent and legal custodian does not exclude the other parent from all parental rights and responsibilities. Nonresidential parents have numerous rights, including regular parenting periods, involvement in the children's school activities, access to the children's school records, and notification before a residential parent moves to a new residence with the children. Nonresidential parents usually are responsible for supporting their children by paying child support and a share of the medical expenses. The parent who has the most cost-effective health coverage will be ordered to carry the children's health insurance.

What are some general guidelines to keep in mind?

1. Recognize that divorce or separation is a highly emotional experience. Allow yourself and your children time for adjustment.
2. Assure children that they are not to blame for the break-up and that you still love them. Children, especially young ones, often feel they have done something wrong and believe family problems are their fault.
    

3. Continuing anger or bitterness toward your former partner can injure children far more than the divorce or separation itself. Refrain from criticizing the other parent. Such remarks are not only about your former spouse, but about someone your children love.

4. Do not force or encourage your children to take sides. To do so builds frustration, guilt and resentment.

5.   Do not upset children's routines too abruptly. Help children ease into their new routines as smoothly as possible.

6.   Limit your consumption of alcohol and do not use recreational drugs before or during your time with your children.

7.            Occasionally, nonresidential parents who are hurt or angry or feel they are no longer needed ask why they should make the effort to be with their children. The answer is simple. Your children still need both parents.
 

8.            Divorce or separation often leads to financial pressures on both parents and sacrifices must often be made by everyone. Be honest with your children when talking about these matters, and be sure any discussions are free of accusations against the other parent.

9.            Marriage breakdown is always hard on the children. They may not always talk about the way they feel or realize what this will mean to them. Parents need to be direct in telling children what is happening, and why, in a simple way that is appropriate to each child's age. Do not lead children to feel that they must never talk or even think about what they know is taking place.

10. The guilt parents may feel about the marriage breakdown need not interfere with discipline and correction of their children. The discipline that was necessary when both parents were present in the home is no less important when parents no longer live together. Children will be less likely to play parents against each other when rules are consistent. Do not attempt to buy your children's favor by special treatment or by making promises you know you cannot keep. The roles of stepparents with regard to discipline must also be clear to children, parents and stepparents.

What are some visitation guidelines to follow?

It is important to maintain frequent contact between the children and the nonresidential parent. Maintaining contact helps decrease children's feelings of rejection or guilt for the divorce and their fear that they may never see the other parent again. Each court is required to have a standard or model parenting schedule in situations where parents cannot agree. Contact your local court to obtain guidelines. A schedule may be necessary, particularly in situations where a parent has relocated outside the state.

From time to time, you may need to adjust your schedule. If the children have made plans that conflict with the schedule, parents need to work out the problem together in a responsible way. The behavior of parents greatly influences their children's emotional adjustment. The residential parent must not deliberately and repeatedly create conflicts.

Should a scheduled visitation need to be cancelled or delayed, inform the other parent as soon as possible and give the children a full explanation. If the nonresidential parent does not notify the residential parent, and is later than allowed by their official agreement, his or her parenting period should be considered forfeited.

The time shared should be pleasant not only for the children but for the parents. Visitation should help children maintain a positive relationship with the nonresidential parent. It is important that neither parent verbally or physically attack the other in the children's presence.

The children should be available and ready at the expected time. It is up to the residential parent to prepare the children physically and emotionally, just as it is the responsibility of the parent providing transportation to be on time. Courtesy in communicating any problems will avoid confusion, disappointment and anger on the part of children and adults.

Parenting periods provide time for parents and children to be with each other, enjoy each other and maintain positive relationships. Having other people participate may dilute the parent-child experience during the time together, so time spent with others—even stepfamily members, grandparents or other relatives—should be balanced. Children need the nonresidential parent's time and undivided attention as often as possible.

Nonresidential parents may be unsure as to what they might plan in the way of activities for their children, particularly if the children are young. Parents' involvement with their children is the most important factor. Giving of yourself—teaching, talking and playing—is more important than spending money.

Time parents share with their children should not be used to check on each other. Children must not be prodded for this kind of information or used as spies. Often in a child's mind, the parents hate each other. Therefore, if children do anything to please one parent, they may feel the other parent will dislike them. They feel they have already lost one parent and are afraid of losing the other. So it is important that parents show mutual respect and teach their children to love and respect both mother and father.

Children need parents to strive for agreement in decisions pertaining to their needs. This is especially important concerning discipline and correction, so parents do not undermine each other's efforts.

If you are the residential parent, furnish the nonresidential parent with copies of all the children's school performance reports. Nonresidential parents may also contact the children's schools for this information as well as for information regarding the children's extracurricular school activities. Participation by both parents in school activities, such as parent-teacher conferences, is also important.

The residential parent is responsible for providing clothing and personal effects that the children require while they are with the nonresidential parent. Ordinarily the nonresidential parent does not maintain a wardrobe for the children at his or her residence. These items are to be returned with the children or as soon as possible after a visit.

It is important to understand that rights to support and rights to parenting time are separate. If the nonresidential parent falls behind in support payments, parenting time must not be denied. If the residential parent is improperly withholding the children, the nonresidential parent must continue with support. Consult your attorney on these matters. Failure to pay support and interfering with parenting time are detrimental to your children's welfare and interfere with their rights. Keep in mind that these decisions may place you in contempt of court and make you liable to a jail sentence.

Where can I get help?

The allocation of parental rights and responsibilities is only the beginning of the family's new lifestyle. The children and their parents must adjust to many changes, and it is important for parents to focus on their children's needs throughout this process. Many counties offer parent education seminars for divorcing families, and some counties require such a seminar for all divorcing parents. These programs provide insight into the different ways children react to their parents' divorce and suggest ideas for helping them deal with the changes.

If you need marriage and/or family counseling before, during or after divorce, sources to contact for help in finding a marriage and family counselor include your attorney, governmental services, your family doctor, and your religious or spiritual advisor.

Many courts use family mediators who are trained to assist parents after divorce or separation. Mediators can help parents resolve disagreements concerning their children and cooperate in the care of the children.

Choose a counselor as you would a doctor or lawyer. Ask about credentials, training and years in practice.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

Child Support – The Basics

Child support is the financial contribution one parent makes to another for the support of their children. Child support may be ordered in divorces, dissolutions, legal separations and actions to establish paternity. It is ordered by the court or established by agreement of the parties in an amount that should allow the child to enjoy the standard of living he or she would have enjoyed had the parents remained married.

Who pays child support?

In general, the “non-residential” parent pays child support to the “residential” parent (the parent with whom the child lives). In shared parenting plans, the amount of support may be reduced according to the amount of time the child spends in each parent’s home, if there is a near-equal division of that time.

How is child support calculated?

Child support is calculated according to a formula written into state law. That formula combines the father’s and mother’s gross income. Each parent is allowed certain gross income deductions, including the sum oflocal income tax actually paid, any child or spousal support order for other children or former spouses, and the value of a federal dependency exemption for each biological or adopted dependent of his or her household (not including the dependent(s) for whom child support has been ordered).

For example, assuming it were the tax year 2004 and you had a child by a new marriage and a non-residential child from a previous marriage, you would deduct $3100 from your gross income before calculating support for the child of your earlier marriage. If you also had been ordered to pay spousal support to your former spouse, the annual sum of the spousal support would be deducted from your gross income and added to your former spouse’s income.

The total of both parents’ adjusted gross income is applied to a chart, which identifies the amount of support required to raise children in the parents’ income category. The paying parent pays his or her pro-rated share of that charted amount. For example, if Mom earns $10,000 (gross salary) per year, and Dad earns $30,000 (gross), the combined gross income is $40,000. For one child, the 2005 charted amount is approximately $6,500 of child support per year. If Dad were paying support, he would pay $4,875 per year, or 75 percent of the charted amount, because he earned 75 percent of the total combined parental income.

What about day care expenses or health insurance costs?

Factored into the charted amount of child support is the cost of work-related day care expense and major medical insurance coverage for the child. Thus, if the charted amount is $4,000 child support per year, but Mom also pays $1,500 per year in day care to go to work (after her day care tax credit), and Dad also pays $500 per year for medical insurance to cover the child, the total child support cost is $6,000 per year. It is this total cost of the child’s health insurance coverage that is divided between the parents according to each parent’s relative share of their combined income.

The court typically will order one or both parents to carry health coverage, if available at reasonable cost. If no affordable coverage is available, then parents will be ordered to share in some way the costs of health care. Uncovered medical costs are usually ordered to be paid according to the pro-rated shares of the parents’ income, after the residential parent pays the first $100 per year.

If I pay child support, do I automatically get to claim the child on my tax return?

Though federal tax law provides the dependency exemption to the custodial parent, state courts have the power to allocate the exemption to the non-custodial parent if it will result in a net tax saving that will benefit the child.

How long does child support last?

Child support is payable until the child reaches the age of 18, or until he or she graduates from high school, whichever is later. If, however, a child is no longer attending high school and is not living with or dependent upon a parent (i.e., is married or otherwise emancipated), then child support may end before age 18. If a child is over 18 years of age and still attends high school, support will continue until the child has completed high school, up to age 19, unless otherwise ordered or agreed.

Special rules apply to handicapped children who will not be expected to be self-sufficient by the age of 18. If a child is handicapped, child support can be ordered to be paid well beyond the child’s 18^th birthday. The duration will depend upon the child’s capacity for independence.

The court’s jurisdiction to order child support ends at age 18, with the exception of handicapped children and those still in high school after age 18. This is true even when a child over 18 is entirely dependent on parents while attending college. If, however, parents agree in their divorce decree to support a child beyond the age of 18 (to pay for college, for example), then the court can enforce that agreement.

For children born out of wedlock, the same rules described above apply.  Support generally is due from the date of birth to the date of “emancipation” (age 18 or independence), but is ordered only after the fatherhood of the child is legally determined.

What happens if the court orders support and it isn’t paid?

All support orders must be paid. Payment can be made in one of three ways. Most common is the “withholding order,” in which the wages or bank account of the person owing support is “garnished,” meaning child support is taken directly from a paycheck or bank account. Self-employed persons must post cash bonds that may be used if the payor misses a payment. (The payee is paid from the bond, and the payor must then reimburse the bond fund.) A “seek work” order is used for unemployed parents. If a parent is not working when the child support order is issued by the court, then that parent must regularly report what he or she is doing to find work, and any income received or job obtained.

Any person involved in a support order has a support officer at the Child Support Enforcement Agency (CSEA). Without cost, the CSEA officer will attempt to enforce a support order by filing contempt motions on behalf of the payee and by garnishing wages or bank accounts of the person owing support.

The CSEA can take certain income sources to meet past due support. For example, any tax refund, company bonus or similar lump sum of money received by a delinquent payor can be taken to pay overdue child support. Also, the law now has enforcement provisions so that the renewal of certain licenses (such as recreational, professional or drivers’ licenses) may be denied or suspended if a license-holder is delinquent in paying child support.

Can parenting time be denied if a parent doesn’t pay support?

No! A parent who deliberately denies court-ordered parenting time rights may be considered in contempt of court, which is punishable by a jail sentence, a fine, imposition of attorney fees, and court costs. Also, if the parent who is denied parenting time seeks a change of custody, the custodial parent’s deliberate withholding of parenting time may be an important factor to the court in deciding who will receive custody. Depriving a parent of time spent with a child is not a way to get legal help in collecting child support.

Can support be stopped if a parent denies parenting time?

No! Just as a custodial parent may not deliberately disobey court-ordered parenting time to try to collect child support from a non-paying parent, the non-custodial parent also may not willfully disobey a child support order. A person who withholds support payments also may be considered in contempt of court. In addition, if the parent who withholds child support seeks custody, the deliberate non-payment of support may become an important factor in deciding that issue. The law provides remedies for denial or interference with parenting time. Depriving a child of support is not one of them.

Can support be modified?

Support may be modified if circumstances change (e.g., there is an involuntary loss of employment, military call-up, the birth of a new child or a disability determination). Either parent may request a modification by contacting an attorney or the CSEA of the county in which the support order was issued.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

What is probate? 

Probate is a legal proceeding to administer certain kinds of property (called probate property) owned by someone who has died (the decedent), and to see that claims, expenses and taxes are properly paid, and that the remaining estate is distributed to those entitled to receive it under the decedent's will or Ohio law.  Probate property is all property titled in the decedent's name alone.  It is distributed only under the decedent's will or according to Ohio law.  A probate proceeding takes place in the probate court of the county where the deceased property owner lived.  If the deceased also owned real estate in another state, additional proceedings may be necessary in that state.

What property is not included in probate?

Property that is not probate property, and therefore is not addressed in any probate proceeding, includes:  property held by the decedent and another as joint tenants with right of survivorship; property held in a trust; accounts that are payable on death (POD) or will transfer on death (TOD) to a named beneficiary; and insurance or retirement benefits that are payable to a named beneficiary.

Property that must be included in probate and property that is subject to estate taxes are two different matters.  Even if property is not included in probate, it still may be subject to federal or Ohio estate taxes.

Why is probate necessary?

Probate is necessary to give the executor or administrator legal authority to deal with the decedent's probate assets.  The executor or administrator has the authority and duty to take control of and safeguard the assets of the decedent's estate.  Probate then provides a process for the payment of outstanding debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs. 

What does probate involve?

Probating an estate requires the appointment of a person to conduct the administration of the estate. If there is a will, this person usually is named in the will and is called an executor. If there is no will or no person is named in the will, this person is appointed by the probate court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.

The executor or administrator takes care of the following tasks:

caring for all property of the decedent;

receiving payments due the estate, including interest, dividends and other income;

collecting debts, claims and notes due the decedent;

determining the names, ages, addresses and degree of relationship of all heirs;

determining the names, ages and addresses of all beneficiaries, if there is a will;

investigating the validity of all claims against the estate and paying all outstanding obligations including federal, state and local estate and income taxes;

planning for federal and state taxes and preparing and filing estate tax returns when required;

carrying out the instructions of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.

The probate court judge supervises the work of the executor or administrator. These actions require the preparation and filing of numerous legal documents, the provision of notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of final income tax returns and possibly gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding, and discharge of the executor or administrator by the probate court. Because of the complexity of these procedures, the assistance of an attorney usually is needed.

If the total value of all property in the decedent's individual name is $35,000 or less, the estate can be relieved from some of these administrative requirements. Where the decedent's spouse is entitled to receive all of the estate's assets, the amount that can be relieved from formal administration is increased to $100,000.

How much does probate cost?

The costs assessed by the probate court are based on a schedule of charges established by law for each type of document filed in the court. Costs typically are about $200. Attorney fees charged for handling matters of the estate must, in most cases, be approved by the court and typically are based on an hourly rate for the actual services performed by the attorney. The executor or administrator is paid a fee set by Ohio law based on a percentage of the value of the estate assets administered.

How long does probate take?

A small estate that does not require the filing of an Ohio estate tax return often can be settled within six months of the appointment of the executor or administrator. However, if an Ohio or a federal estate tax return is required, the administration of the estate can last more than a year. (Estate taxes are not due until nine months after the decedent's death.) If there is an audit of an estate tax return, the administration can take an additional year or more, and an executor or administrator cannot safely distribute all of the estate assets until released from personal liability for estate taxes. An extraordinary administration involving a contested will or complicated tax litigation may take several years to complete. Claims against the estate may be made up to six months from the date of death.  However, in many cases, distributions of most or all estate assets do not necessarily have to wait until all probate matters have been completed.

Do I need a will?

A properly drawn will assures you that, upon your death, your property will be distributed as you intended. It is important that you review your will periodically with your attorney in order to keep it up to date. A will is also the mechanism for choosing the executor and commonly provides for the nomination of a guardian where there are minor children. A will also can dispense with the requirement of a surety bond, which an administrator might otherwise have to pay.

Wills must be filed in the probate court upon death. The law provides penalties for the withholding or destruction of a will.

If you do not make a will, your property will be distributed according to the Ohio Statute of Descent and Distribution.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

Living Trusts – The Basics

What is a living trust?

A trust exists when one person (often called the grantor or the settlor) gives property to another person (called the trustee) to hold and manage for one or more other persons (called the beneficiaries).  A living trust simply describes a trust that the grantor can amend (change) or revoke (cancel).  Through the terms of the living trust, the grantor keeps all the benefits of any property placed into it for the rest of his or her life.  The grantor also can be the trusteee, but the grantor's spouse or a trust company also often serves as trustee.  A living trust can be funded with any prpperty such as bank and brokerage accounts, stocks and bonds, a  home and other real estate.  Some living trusts may  not be funded initially, but rather at a later time or at the grantor's death.  An attorney can help advise when a trust should be funded and with what property.  The terms of a trust are described in writing in a document often called the declaration of trust or trust agreement.  This document is signed by both the grantor and the trustee.

What is the purpose of a living trust?

A living trust may have many purposes.  A purpose often given for living trusts is to avoid probate.  It is true that property owned by a living trust will not be probate property and subject to the jurisdiction of the probate court after the grantor dies.  However, people usually establish trusts to protect property for their families and to avoid or reduce potential estate taxes.  Avoiding probate often is secondary to achieving these more direct goals.


Is use of a living trust the only way to avoid probate?

No.  There are several other ways to avoid probate. For example, if you own assets jointly with one or more others who have rights of survivorship, those assets will pass by law to the survivor(s) when you die, and not be subject to probate.  However, you should be careful before creating a joint account, because the joint tenant will have rights in the joint property as soon as you create the account.  Payable-on-death (POD) bank accounts and any assets that are payable to beneficiaries according to a contract (such as proceeds from life insurance policies or pension benefits) will avoid probate, as will transfer-on-death (TOD) deeds for real estate, or transfer-on-death registrations for securities and motor vehicles.  You would be wise to consult with an attorney before structuring your property to avoid probate, because avoiding probate may not always be in your best interests.

Will I save estate taxes with a living trust, compared with a will?

No.  It is a common misconception that you can save on estate tax with a living trust, but not with a will. While you can use a living trust to avoid probate proceedings, this does not mean you will avoid estate taxes.  The assets in your living trust are part of your gross estate for estate tax purposes, just the same as probate assets.  However, when properly written and with advice on the proper ownership of assets during lifetime, both the will and the living trust may include estate tax avoidance techniques that may save substantial tax dollars for your family's benefit.

 

Will having a living trust avoid challenges by my beneficiaries or heirs?

Disgruntled heirs or beneficiaries can challenge the validity of a living trust on legal grounds similar to those available for challenging a will.  It may be alleged that a living trust is invalid because the grantor was incompetent at the time of establishing the trust or was unduly influenced by some person to establish the trust in a particular manner.  Further, although the period for challenging the validity of a will can be limited to three months, there is a longer time period (usually two years) allowed for challenging the validity of a living trust.  The cost of defending the validity of a will, where the executor acts in good faith, is payable from the probate estate.  Similarly, the cost of defending the validity of a trust would be paid from the trust assets.

What are the advantages of a living trust compared to probate?

Compared to probate, there are many differences, but also some similarities in the manner in which property is administered in a living trust following the death of a grantor.  Among the characteristics of administration of a living trust that a person may find desirable are:

Privacy.  The terms of a living trust are contained in a private document, while the terms of a will, including beneficiary designations, become a matter of public record once the will has been filed with the probate court.  In addition, other information filed with the court during the probate process, such as the inventory of assets and the written account of all receipts and disbursements of the estate, also become matters of public record.  The administration of a living trust generally is not made public.

Control.  The absence of any requirements to file a will or any other reports with a court increases the independence and control of the trustee, relative to an executor.

Lower costs.  Some publications make extravagant claims about the extent of the costs of the probate process.  The typical components of cost in the probate process are:

court costs

appraisal fees

executors' commissions

attorney fees

While court costs will vary with the activity in the estate, presently a typical cost range will be $200-$250.  A living trust would not bear these costs.

Appraisal fees typically will be incurred in probate for real property, and may be incurred for property such as expensive artwork and interests in private companies.  A living trust may or may not incur these costs.  In Ohio, if a decedent's gross estate exceeds $338,333, the estate must file an estate tax return.  In order to accurately complete the estate tax returns, it will be necessary to appraise the value of the estate's assets.  Appraisals also can establish the basis of estate property for federal income tax purposes. 

Executors' commissions are set by state law and are based, generally, on a percentage of the value of the assets of the estate.  At present, the commission varies between one and four percent of the value of the assets (combined with the income on those assets) depending on the nature, amount and title of the assets at death.  However, spouses and other family members often act as executors and often waive any commissions.  A trustee of a living trust also is entitled to a "reasonable" fee appropriate to the circumstances.  Again, spouses and other family members who act as trustees often waive any such fees.

An executor may hire an attorney to assist in the administration of a probate estate.  Similarly, a trustee may hire an attorney to assist in the administration of a living trust following the death of the grantor.  If the terms of the living trust do not require the preparation of an inventory or the preparation of accounts, as typically they do not, the attorney fees generally will be lower for services to the trustee because time related to probate filings will not be incurred.  However, the cost of attorney advice and services with regard to income tax and estate tax issues is likely to be equivalent whether provided to the executor of a will or to a trustee.

Speed of transfer.  A trustee could begin making distributions of assets to beneficiaries moments after the death of the grantor.  An executor cannot make distributions until he or she is appointed by the court after the will is admitted to probate, but this appointment generally occurs within days after death and, once appointed, the executor is legally empowered to distribute all the probate assets to the beneficiaries.  However, it is not necessarily prudent for either a trustee or an executor to immediately distribute assets.

An executor may be personally liable for the claims of creditors left unpaid by the estate as well as any unpaid federal and Ohio estate taxes.  Consequently, the executor generally will not make final distribution to the beneficiaries until the executor is satisfied that all valid claims have been paid and all estate taxes have been finally determined and paid.  The trustee of a living trust also may be held personally liable for unpaid estate taxes and, in some circumstances, unpaid creditors.

Avoidance of multiple probate proceedings.  Finally, if homes or other real property are owned in a number of different states, use of a living trust may be especially useful to avoid separate probate proceedings in two or more states.

What are the disadvantages of a living trust compared to probate?

Lifetime effort.  Implementation of a living trust is often more time consuming than establishing a will.  A common defect in implementing a living trust, where the goal is to avoid probate, is the failure to transfer ownership and title of property to the trustee of the living trust.  Simply creating the document will not work; the assets must be re-registered, re-titled or otherwise validly transferred to the trustee of the living trust.  Further, if avoiding probate is an important goal, then the grantor needs to make sure all assets acquired after creation of the living trust are placed into the living trust.  Otherwise, those assets may pass through probate.

Lifetime Costs.  While a living trust may have cost advantages relative to probate following death, a will generally has cost advantages relative to a living trust during an individual's lifetime.  The costs associated with creating a living trust generally are more than those for creating a will.  Also, the need for a will is not eliminated as it often is necessary to dispose of assets at death that may not have been transferred to the living trust during the grantor's lifetime.  In addition, there are costs incurred in properly transferring assets to the living trust during lifetime.  If the trustee is not the grantor or a member of the grantor's family, periodic trustee fees usually will be incurred if the living trust is funded.

Absence of court review.  The administration of a living trust will not be supervised by any court.  While this avoids the paperwork burden and expense imposed by the probate process, persons creating a living trust should consider that the trustee they appoint will not be accountable to a judge for the honest and accurate distribution of assets unless a beneficiary were to bring a lawsuit.

Taxation disadvantages.  The Internal Revenue Code has some provisions that are more beneficial to estates than to trusts, but living trusts can elect to be taxed like an estate for a limited period to eliminate these tax differences.

Will a living trust help me while I am living?

A living trust may provide a structure for the management of a person's assets.  This structure could be particularly useful if the trustee has investment expertise, such as a trust company, or the trustee retains investment counsel.  The asset management function of a living trust can become particularly important if the grantor becomes incompetent or is otherwise incapable of handling financial affairs.  If a living trust is in place, it may not be necessary to have the court appoint a guardian for the grantor's estate.  Even if this becomes necessary, the trustee of the living trust, rather than the court-appointed guardian, would continue to have authority over property owned by the trust.  One way to help reduce the need for a court-appointed guardian is for the grantor to have a durable financial power of attorney.  Through such a document, an individual (called the principal) gives another individual (the attorney-in-fact or agent) the power to manage his or her assets.  For more information about financial powers of attorney, see the Ohio State Bar Association's publication, "What you should know about ... Financial Powers of Attorney."

Will a living trust save income taxes?

No.  The income of the living trust will be taxable to the grantor as if the trust did not exist for income tax purposes.  In most cases, the income from the living trust may be reported under the grantor's Social Security number, and the trust need not obtain a separate taxpayer identification number nor file annual tax returns.

Will a living trust protect my assets against creditors?

Creditors are entitled to reach the assets of a living trust during the grantor's lifetime.  Creditors generally may reach the assets of any trust to the extent that the grantor can enforce his or her own rights to trust assets.  Upon the death of the grantor, it is uncertain under Ohio law whether creditors of the grantor may enforce claims against a living trust.  A surviving spouse may not have elective share (forced inheritance) rights against a living trust as would be available against probate assets.

Can I preserve assets in a living trust and still qualify for Medicaid?

No.  The assets in a living trust are countable resources for purposes of Medicaid qualification.  The assets in the living trust are treated just the same as if they were owned by the grantor.

If I decide a living trust may be right for me, how should I set one up?

If you believe that a living trust may be right for you or if you are not sure if a living trust is right for you, consult with an attorney who is knowledgeable in probate, estate planning and taxation.  After gaining information about you, your family, and your assets, and listening to your goals, your attorney will be able to discuss with you the best ways of achieving your goals and help you decide whether a living trust is best for you.  To achieve the best results, the drafting of a trust agreement requires professional judgment.

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.

Individuals and businesses use bankruptcy as a way to obtain relief from debts owed to creditors.

The United States Constitution authorizes Congress to pass uniform laws on bankruptcy. The Bankruptcy Code (Title 11 of the United States Code) has been amended several times since it was enacted in 1978, most recently with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. While there is no constitutional right to relief from debts, relief granted by the bankruptcy courts is available to the extent Congress provides.

The Bankruptcy Code provides for relief from debts either through a liquidation (Chapter 7) or reorganization (Chapters 11, 12, or 13). This pamphlet discusses some of the issues to consider before filing for bankruptcy and the differences between a liquidation case and a reorganization case. Before making any decision about whether to seek bankruptcy protection, one should consult a qualified bankruptcy lawyer.

What types of bankruptcy relief are available?

Individuals are eligible to file for bankruptcy under Chapter 7, Chapter 11, Chapter 12 or Chapter 13 of the Bankruptcy Code.

Chapter 7 bankruptcy is known as straight liquidation.  In a Chapter 7 case, a trustee (assigned by the U.S. Trustee's Office or chosen by the debtor's creditors) may liquidate, or sell, the debtor's non-exempt assets to pay all or a portion of the debts owed to creditors.  Depending upon where the individual debtor lived before filing bankruptcy, he or she may be entitled to keep--or exempt--some or all of the equity in certain kinds of property.  The kind of property that may qualify for an exemption might be a house, car, boat, or a household item.  Typically, when estimating the amount of money that can be realized from the sale of a particular item, the bankruptcy trustee will subtract what the individual is allowed to keep--the exempt portion--and also will subtract the outstanding amount of any liens or mortgages. 

Unless the money raised from the sale of the property is expected to be greater than these exemptions and any liens or mortgages, the trustee may decide to abandon the item of property to the debtor, meaning that the debtor gets to keep it.  Through this liquidation process, any debts not paid by the trustee (with certain exceptions) will be discharged (eliminated), and creditors cannot force the individual debtor to pay any remaining amount owed.

Chapter 13 bankruptcy, or individual reorganization, is an alternative to Chapter 7 that generally allows an individual to keep his or her property.  The individual filing bankruptcy under Chapter 13 must have regular income and meet certain debt and asset limits.  Effective October 17, 2005 under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, individuals who earn more than the median income in the state where they lived before filing bankruptcy, and who can repay at least $6,000 of their debt over five years, are no longer eligible to have their debts wiped out for a fresh start.

Instead, these individuals must repay their creditors over time and enroll in a financial counseling program.  Under Chapter 13, an individual debtor would submit a plan detailing how all of his or her debts will be paid from disposable monthly income (income after providing for ordinary living expenses) over a period of time of up to five years.  The plan of reoorganization is monitored by a Chapter 13 trustee and supervised by the bankruptcy court.  A Chapter 13 debtor must pay his or her creditors at least as much as they would be paid if the debtor's assets were liquidated in a Chapter 7 case.

Chapter 11 "reorganization" is typically used by corporations or businesses as an alternative to Chapter 7 liquidation.  Since a reorganization under Chapter 11 can be a very expensive process, it is not frequently used by individuals.  In a Chapter 11 reorganization, as in a Chapter 13 reorganization, the business debtor may keep certain property and be required to pay creditors with future earnings according to a reorganization plan.

Chapter 12 is a special reorganization for family farmers.  To qualify, a family farmer must earn most of his or her income from family farming operations.

When is it appropriate to file for bankruptcy?

The decision whether to file for bankruptcy is based upon each debtor's unique situation.  A person considering bankruptcy, whether individually or for a business, should consult with an experienced bankruptcy lawyer who can determine whether such an option should be explored and when it would be most beneficial to file.  Generally speaking, it may be appropriate to file for bankruptcy when an individual is unable to pay his or her debts and regular living expenses or when an individual has property (typically a house or car) that he or she wishes to keep from the reach of creditors.

How would I go about filing for bankruptcy relief?

To initiate a bankruptcy, you would file a petition with the appropriate bankruptcy court.  You would be required to pay a filing fee, unless the requirement is waived by the bankruptcy court.  Depending upon the circumstances, you may be able to pay the filing fee in installments.  In addition to filing a petition, you will need to provide detailed information about all your assets and liabilities on documents called schedules.  These documents must include an accurate list of everything you own, the outstanding amount of the debts you owe to all your creditors, as well as personal information about your employment and whether you have made any transfers of money or property just before you filed for bankruptcy.

After these documents are filed, you would meet with a trustee.  Your creditors would be invited to attend this meeting.  The trustee assigned to your case would check the petition and schedules for accuracy.  Also, the trustee and the creditors might ask you questions about your financial situation.

Can a husband and wife file together for bankruptcy?

Yes; it is possible, but not required.  Spouses can file a joint petition if they both need relief from their creditors.  However, depending on the circumstances, one spouse may file for relief under Chapter 7 or 13 and the other spouse may choose not to file at all or may file his or her own separate bankruptcy case.  When spouses file separately, the assets and liabilities for each spouse will be considered separately by the bankruptcy court.

Can the bankruptcy court refuse to discharge my debts in bankruptcy?

Yes.  Filing a bankruptcy petition does not guarantee that your debts will be discharged.

The bankruptcy court may deny a general discharge of debts if you commit certain acts of misconduct before or after the bankruptcy petition, such as destroying, concealing, or removing assets that might otherwise be used to pay creditors.  Also, a discharge of debts may be denied if you have destroyed or concealed records that show what assets are available to pay creditors.  Finally, the bankruptcy court may deny a general discharge if you have lied under oath during the bankruptcy case, or have refused to answer questions without a good reason.

Aside from acts of misconduct, you will not be granted a general Chapter 7 discharge if you have obtained a discharge in a Chapter 7 case within six years before the date that a second bankruptcy is filed.

Even if a discharge of debts is denied, your assets still may be liquidated in a Chapter 7 case, or you may complete your plan in a Chapter 13 case.  The denial of a discharge does not relieve you from your other obligations under the Bankruptcy Code.

If a general discharge is granted, will I still have to pay any debts?

Yes.  Even if a general discharge is granted, some debts are not discharged in bankruptcy.  Further, the type of bankruptcy affects what debts may be discharged.  Generally, more debts are discharged in Chapter 13 than in Chapter 7.  Congress provided for greater relief under Chapter 13 as an incentive to encourage debtors to repay their debts through a reorganization plan.

Debts that might not be discharged in bankruptcy include taxes assessed within 240 days of the bankruptcy filing.  Certain student loan debts, child or spousal support debts arising from a divorce, criminal fines and debts arising from a DUI, and any debt incurred because a debtor has committed fraud, breached a fiduciary duty as a trustee, or committed a "willful" act causing injury to a creditor, also might not be discharged.  The bankruptcy court ultimately will decide whether these types of debts will be discharged.

How does filing bankruptcy affect my credit?

Filing bankruptcy will be noted on your credit record for up to ten years, but the effect of this notation to a particular creditor may depend on whether a discharge was granted or the case was dismissed, and what type of bankruptcy case it was:  a Chapter 13 reorganization or Chapter 7 liquidation.  Creditors have differing policies regarding the impact on those who have filed bankruptcy.  It is common for individuals who file bankruptcy to have trouble getting a new loan, or they may have to pay a higher rate of interest to secure one. 

This information is general in nature and should not be applied to specific legal problems without first consulting your own attorney.  Please call me to arrange a consultation.