Family Law

Bankruptcy & Divorce, which first?

Bankruptcy and Divorce Lets take the following hypothetical situation: Ryan and Lauren are married but soon to be divorced.  Ryan is planning on moving from the marital residence in Miamisburg, Ohio, to Tennessee with his new girlfriend Jennifer.  Lauren has already...

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Can I Leave the State with my Child?

Often, people want to know whether they can leave the state with their child during or after a divorce.  Like many answers to legal questions, a good attorney will tell the client, "it depends."  Here is a very brief overview of the law and considerations. Prior to...

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Are Gay and Lesbian Couples Disadvantaged When Seeking Custody in Ohio?

Gay and lesbian couples are often concerned that there “non-traditional family” will be a disadvantage in custody decisions. While technically this issue is never to be determinative of custody disputes, lest the Court violate the Equal Protection Clause, many gay and lesbian couples feel that their sexual orientation played a role in the ultimate disposition of the Court. Putting aside potential biases of certain judges, there is at least one case that seems to lend credence to those concerns. In 2008, the Second Appellant District in Clark County decided a case by the name of Pace v. Pace in which the Court specifically stated that a homosexual relationship of a mother caused adverse affects to the minor children and warranted a change of custody from that mother to the father. The facts of that case can be summarized as follows:

Four years after the mother was designated the residential parent of both children, the father filed a motion to modify the allocation of parental rights and responsibilities. The common pleas trial Court granted the father’s motion and awarded him custody. The appellate court held that the common pleas court did not err in finding that a change of circumstances occurred as there was evidence that, as a collateral result of the mother’s relationship with her same-sex partner, both children had experienced personality disorders, and therefore, modification of custody was in the children’s best interest. The court determined that the adverse collateral effects of the mother’s relationship with her partner and the partner’s role in the children’s lives showed little room for improvement in the future.

While the Court was careful to say that it was not basing its decision on the simple fact that the mother was a lesbian, but rather the collateral affects that her relationship had on the children, it should give pause to the gay and lesbian couples fighting for custody. This is something to keep an eye on in the future as more and more gay and lesbian couples fight for custody of one of the partner’s minor children. For more information on this and other issued, talk with John Nicholson, an attorney specializing in, and fighting for, gay and lesbian rights.

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Dividing Pension & Retirement Benefits in Ohio Divorce – Part 1

In the first installment of what is planned to be a series on dividing retirement / pension benefits during a divorce property settlement, we look briefly at the basics of dividing retirement and pension plans between spouses. The parties’ respective retirement benefits is an important consideration when equitably dividing marital property, because, like the marital residence, they it is often the largest marital asset the parties own.

This frequently makes it extremely difficult to offset the amount of money that one spouse stands to receive from his or her respective retirement fund (earned during the marriage) by awarding other marital property to the other spouse. Because courts like to maximize the value of all retirement and pension funds, it is normally preferable to avoid causing the withdrawal of the accrued monies, and leave the fund growing in the name of the working spouse. But, the problem is that sometimes there simply isn’t other marital property to award to the other (non-earning) spouse to compensate that spouse for the portion of the fund that is his or hers . For this reason, valuing and dividing retirement benefits should be one of the first issues contemplated. Now, on to some of the basics:

Is my retirement / pension considered marital property?

Yes. Just as with any other thing of value that is acquired during the marriage, generally retirement benefits accrued during the mariage are considered to be “marital assets” and subject to dividing between the parties. If a spouse is working during the marriage and this results in the accrual of retrirement benefits, the law sees it as if the non-working spouse contributed equally to the creation of those benefits.

Is it true that my spouse is entitled to half of my pension?

No. Not always. Only the portion of the retirement fund that was contributed to or earned during the marriage is considered “marital property” and subject to division between the parties. The portion of the retirement fund that was earned by the working spouse while unmarried is considered that parties’ separate property and the other spouse has no interest in that money. Therefore the first step is to determine what portion of the retirement fund is marital and what portion is separate property.

How do you value the portion of the retirement fund that is considered “marital”?

In determining the portion of a pension or retirement plan that is considered a “marital asset” and subject to division between the parties, the court should calculate the ratio of the number of years the employed-spouse worked during the marriage to the total number of years he or she worked at the qualifying employment to earn the pension. Only the portion of the pension that was earned during the marriage is a marital asset, and the spouse of the employee is only entitled to a proportionate share of the marital asset.

Example – Employed spouse works 25 years to earn a vested pension of $100,000. 10 of these years were worked during the marriage. This equates to a 40% ratio, and only $40,000 of the pension is a martial asset. Because the division of marital property always begins with an equal division, the non-employed spouse would typically be entitled to $20,000 in this scenario.

Are Social Security Benefits Divided?

No. Not directly, anyway. Social security retirement benefits are not considered to be a marital asset that is to be divided when a couple divorces. A court cannot distribute a portion of one spouse’s SS benefits to the other spouse directly. However, the court does consider the SS benefits when making an equitable division of retirement benefits overall – See Smith v. Smith (1993, Franklin Co) 632 N.E.2d 555 (“while not divisible as a marital asset, SS benefits must be considered when equitably dividing pension benefits”).

Are State and federal retirement plans treated differently?

Yes. The law specifically related to state and federal retirement funds will be the subject of a later post. There are specific rules that govern certain public-forms of pensions, such as military pensions and State pension plans and deferred compensation plans. Those forms of retirement benefits are also impacted by specific federal and state statutes that must be consulted.

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Contact Us For A Free Consultation

If you have a personal injury, Social Security, or VA Benefit issue please contact the Law Offices of John T. Nicholson and schedule a free consultation today! Please Call us at 1-800-596-1533 or fill out our contact form by clicking the button below.

Law Offices of John T. Nicholson

Beavercreek

4461 Dayton Xenia Road
Dayton, OH 45432-1805
(937) 432-9775
Map & Directions

Cincinnati

2021 Auburn Ave., Suite 105
Cincinnati, OH 45219
(513) 276-4677
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Columbus

1041 Dublin Rd #103
Columbus, OH 43215
(614) 384-5800
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Franklin

8 Stadia Drive
Franklin, OH 45005
(937) 432-9775
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Kettering

5335 Far Hills Ave., Ste. 108
Kettering, OH 45429
(937) 524-5922
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Piqua

430 N Wayne St
Piqua, OH 45356
(937) 325-8500
Map & Directions

Springfield

150 N Limestone St #217
Springfield, OH 45501
(937) 325-8500
Map & Directions

Trotwood

2541 Shiloh Springs Road
Dayton, OH 45426
(937) 524-5922
Map & Directions

Troy

22 N Market St
Troy, OH 45373
(937) 524-5922
Map & Directions

West Chester

7103 Cincinnati Columbus Rd
Cincinnati, OH 45069
(513) 276-4677
Map & Directions

Mailing Address

P.O. Box 41450
Dayton, OH 45441
FAX: 1-800-801-1205

 

 
 
 
 
 

Beavercreek Office

4461 Dayton Xenia Road
Dayton, OH 45432-1805
(937) 432-9775
Map & Directions

Cincinnati Office

2021 Auburn Ave., Suite 105
Cincinnati, OH 45219
(513) 276-4677
Map & Directions

Columbus Office

1041 Dublin Rd #103
Columbus, OH 43215
(614) 384-5800
Map & Directions

Franklin Office

8 Stadia Drive
Franklin, OH 45005
(937) 432-9775
Map & Directions

Kettering Office

5335 Far Hills Ave., Ste. 108
Kettering, OH 45429
(937) 524-5922
Map & Directions

Piqua Office

430 N Wayne St
Piqua, OH 45356
(937) 325-8500
Map & Directions

Springfield Office

150 N Limestone St #217
Springfield, OH 45501
(937) 325-8500
Map & Directions

Trotwood Office

2541 Shiloh Springs Road
Dayton, OH 45426
(937) 524-5922
Map & Directions

Troy Office

22 N Market St
Troy, OH 45373
(937) 524-5922
Map & Directions

West Chester Office

7103 Cincinnati Columbus Rd
Cincinnati, OH 45069
(513) 276-4677
Map & Directions