Olivia K. Smith, Attorney at Law

Social Media and Divorce: What NOT to do

March 24, 2014Filed Under: Child Custody, Dissolution, Divorce, Misc Advice

Like probably most Americans, I can find myself addicted to social media. With the invent of smart phones, it follows us everywhere, and is an ever-ready source of entertainment almost whenever we would like (Isn’t it cruel that grocery stores don’t have WI-FI?). As you are also aware, social media can also be the source of discontent. Many of our friends and family are not content to only share their positive or productive thoughts, but would rather regurgitate every negative or passive aggressive thought they have ever had to the entire world. This social media promiscuity is further fanned in times of distress, such as ending a marriage. Because so many of us have disregarded friendly advice about such public posting in the past, or if you are unlucky enough not to have friends that call you out on it, here are several things NOT to do on social media during your divorce.

Not Cleaning up Your Profile

Sorry for the double negative there, but it could not be helped. If you are young enough to have had social media during college, you have very likely done what I like to call a Facebook purge. Not only do you unfriend all those people you did not even like in high school, but you start un-tagging yourself from all the photographs where you are (insert your preferred synonym for ‘intoxicated’), or maybe even were engaging in an illegal activity. Undergrads are dumb, and you probably were too at some point. C’est la vie, but that is no reason to keep that stuff up. Character evidence is perfectly admissible when kids are involved, and you do not want anything to mar that beautiful person you are presenting to the judge and guardian. Do not rely on “privacy,” either take it down, or ask that the poster take it down.

Making your Profile look like you are “Super Parent”

This is the other side of the profile coin. Our office does lots of guardian ad litem work, and you can make a pretty good bet, that if someone is involved in a custody dispute, whether private or brought as a result of alleged abuse, neglect, etc., that their profile picture will have their kids in it, and the whole of their pictures will make it seem like they are Mother Theresa 24/7/365. It is wise to clean up any discrediting posts or pictures, but doing this to extremes is obvious and appears disingenuous. The guardian knows you love your children, and no restructuring of your Facebook page is going to make the children’s lives with you seem like Pinterst while with your ex it is Craig’s List.

Posting Negative or Passive-Aggressive Messages or Pictures

Don’t you love when your friends post woe-is-me messages or poems on social media? No, you don’t. Not only is your online venting probably going to lower the number of people who take you seriously, but it will only compound your grief, sorrow, and/or anger. Sharing troubles is for friends, family, clergymen, and bartenders, not social media.

Harassing, Angry, or Otherwise Unpleasant Communications

I saved the best for last. Don’t… do… it… Don’t do it. Criminal attorneys tell their clients they have nothing to say to the police. Family law attorneys tell their clients they have nothing to say to their ex, certainly not on a forum that lasts forever and keeps very good records. Never put anything on social media you are not comfortable with the whole world seeing. That includes “private” messages. This rule extends to third parties as well, like girl/boyfriends and new spouses. It is very likely you are angry, and probably have plenty of reasons to be, but don’t go ruining your divorce arguments by looking like a psychopath on the internet.

Conclusion

We all love social media. It keeps us informed, allows us to stay connected to old friends, and provides us with amusing pictures of animals. However, with the increased ease of communication has come an increased ease to shoot one’s divorce case in the foot. Use good judgment, do not write about the matter online, and keep your cool. It will all be over soon.

Can I Get My Spouse to Pay My Attorney Fees?

April 25, 2013Filed Under: Dissolution, Divorce, Misc Advice

Ohio courts have the authority to mandate that one party pay all or a portion of the other party’s legal fees in a divorce, dissolution, legal separation, or annulment of marriage when the court deems it equitable (fair) to do so. (See Ohio Revised Code 3105.73)

Ok, so when is it fair?

The simple (and somewhat cynical) answer would be whenever the guy or gal in the black robe feels like it. While domestic relations judges and magistrates exercise incredible discretion over when to award attorney’s fees, the legislature and case law have provided several distinct situations where it is appropriate to award all or part of a party’s legal costs.

1. One party has all the money.

In many marriages, one spouse takes care of the money. In the majority of marriages, one spouse is the primary breadwinner. When those two groups overlap, there can be problems when one or both spouses decide to end the marriage. Add the inability of the other spouse to access the marital funds, and there can be a serious problem. This is the most straight forward instance of awarding attorney’s fees. The others are a little more murky.

2. One party has made the divorce take longer or be more difficult than it should.

This is where things get gray. Courts are deeply concerned about what we call in the industry “judicial economy.” Besides wearing sandals in the courtroom, wasting a judge’s time is the absolute best way to earn the ire of the court, especially when it is to the detriment of the other party and costs everybody more money. Judges do not want to give angry spouses or greedy attorneys free reign to drag litigation out forever in an effort to hurt the other spouse or rack up billable hours. Conversely, each party has the right to seek every remedy afforded to them by the law. There is nothing in the revised code that says people have to agree. That is why we have courts.

Another problem in this situation is how much recompense the offended party deserves. Even if one spouse has dragged things out for no justifiable reason, the other spouse is probably not entitled to all of their fees being paid. Ohio judges have been far more likely to only grant a portion of the fees be paid. This portion is usually determined by the offended party showing what the other side did wrong, and how many fees were incurred as a result of that wrongful action. If the side in the right cannot show this causal relationship or calculate the harm suffered, the judge will likely deny any award.

3. Wrongful Actions/Violations of Court Orders

These instances are cousins of the second category, but deserve to be discussed separately. Even more than they expect to be respected, judges expect to be obeyed. If one party intentionally violates the rules of the court, or worse, refuses to abide by a court order, the judge may be inclined to remedy the situation via an award of attorney’s fees. This should not be seen as a vindictive punishment or something deserved by a spouse who unfortunately decided to marry a (insert four letter word). Such awards are rather intended to make sure everyone follows the rules and is as civil as possible. The boys in blue cannot solve every problem, and hitting someone in the pocketbook, especially with bills incurred by their soon to be ex-spouse, can be a particularly persuasive deterrent.

Keep in mind, however, this is an extreme remedy. Courts are unlikely to throw the book at a father who keeps the kids two hours longer than he was supposed to (unless, perhaps if this becomes habitual), or a wife that files her documents late. The best thing you can do is document every instance you believe your spouse or ex-spouse violates an order or is doing something intentionally to hurt you or the court proceedings. Secondly, do not retaliate. This will only make you miserable and weaken your position. Lastly, don’t sweat the small stuff. You are involved in or have gone through a divorce. Some unpleasantness is unfortunately likely. Not only will relative leniency benefit you should you accidentally trip up (especially in the case you share children), but calling your attorney every time you hear about disparaging remarks from your spouse through the grapevine will probably just cost you money.

The bottom line when it comes to an award of attorney’s fees is it is up to the judge. Their decision is law, and appellate courts are reluctant to overturn them. Really, the best thing you can do in these circumstances is remember the Golden Rule. It is as helpful in domestic relations as it was when you first learned it.

Who Gets to Claim the Children on their Taxes during a Divorce/Dissolution?

April 24, 2013Filed Under: Dissolution, Divorce, Property Division, Taxes

Who Gets to Claim the Children on their Taxes during a Divorce/Dissolution?

This is a common problem among my clients, so I thought it would be appropriate to give a general overview on here.

Taxes can be very complicated. It is hard enough to sort out when a child is a child on line X, but not line Y, and when a qualifying dependent qualifies for the purposes of C, but not D. But who actually gets to claim the children in the first place? Like so many other legal questions, the answer is “It depends, and what it probably depends on is the judge.”

In many if not most cases, ex-spouses simply agree on who gets to claim the children. Parents who retain joint legal custody, especially in situations with 50/50 parenting time arrangements, frequently decide to split each year. This can be done by each taking half (in the case of four children, each spouse claims two), or, more commonly, the parents go year by year (Dad claims the children in year 1, Mom in year 2, etc.). The latter is generally more preferable not only because of the legal absurdity of chopping a child in two in the case of an odd number of children, which you cannot do on Ohio or Federal tax returns, but claiming multiple children frequently qualifies parents for a more favorable tax bracket, such as head of household, or qualifies them for additional exemptions or credits, like the Earned Income Tax Credit (EIC), resulting in a net gain for both parents over two years.

The question gets more difficult when the soon to be ex-spouses do not agree. Even in the most amicable dissolutions, I like to inform my client how a judge would likely rule should an agreement not be made, if only for them to better understand what is fair, or more accurately put, what the Ohio legislature and courts believe is fair.

The Ohio Legislature has given the courts a large amount of deference when it comes to divorce/dissolution agreements. However, in regards to claiming dependents, the code uses the word “shall,” a word fairly obscure in Ohio domestic relations statutes (as opposed to “may”). The codes uses “shall” to dictate that when the parties of a divorce or dissolution agree who ought to claim the children as dependents, as in the court “shall designate that parent as the parent who may claim the children.” [See Ohio Revised Code 3119.82] In cases where the parties do not agree, courts may exercise their discretion in determining who may claim the exemptions.

When an Ohio court rules that the residential custodial parent (in the case that there is only one residential and custodial parent) may claim their children for tax purposes, that is likely the end of the business. No additional analysis by the court is mandated by law, and should the ruling be appealed, the appellate court will review the decision on an abuse of discretion standard (really high standard). The court may however award the exemption to a non-residential and non-custodial parent when it rules to do so would be in the child(ren)’s best interest. Factors the courts are to use in determining what is in child(ren)’s best interest include net tax savings between the parents, the relative financial circumstances and needs of the parents/children, the amount of time the children spend with each parent, the eligibility of either or both parents for the EIC, and any other relevant factor. While statute mandates these factors be considered, how to weigh them lies in the discretion of the trial court.

That is domestic relations tax law in a nutshell. Like any other legal determination, the wisest thing to do is retain an appropriately knowledgeable attorney that knows how local judges weigh and are likely rule on each issue. Additionally, it is important to understand that complicated tax issues must be handled by a tax attorney along with your domestic relations attorney. I just hope this article clarified a few common questions my clients frequently have.

Embarrassing Information: What to Tell Your Attorney

March 29, 2013Filed Under: Dissolution, Divorce, Misc Advice, Property Division

Embarrassing Information: What to Tell Your Attorney

Everything. Excuse me. What I actually meant was ABSOLUTELY EVERYTHING. This is one of the biggest mistakes people make when they are going through a legal matter. They think “this is irrelevant” or that “if it is important, they will ask.” Also, the devil’s in the details. Leaving out details, misleading your attorney, or worse, lying to your attorney will do nothing but hurt you down the road.

Domestic Relations law is frequently seen as a messy business. Unfortunately, many parties in these cases (and sometimes even their lawyers) prove that representation true. It can be messy because we are not in the business of drafting patents or protecting corporations, but rather mending and moving lives and families. Keeping secrets from your attorney does not make the process less messy, it just makes you vulnerable. Even if no one in the world knows something except for you, if it could conceivably hurt you, undermine you, or make you look bad, your attorney needs to know it. We are duty bound to keep your secrets except in extraordinary circumstances (like if you were going to hurt someone or were about to defraud the court). Your attorney is on your side. Better put, our side is your side, so be as candid as you can.

Big Things to Tell Your Attorney

1. Assets

Make an inventory of all assets you and your spouse hold together and separately. Note when they were acquired and under what circumstances (purchase, inheritance, lease, etc.) and the date of acquisition. You absolutely must disclose all of your assets and liabilities to your spouse when you are going through a divorce or dissolution. You will eventually testify under oath to the court that you made a full disclosure of these things.

2. Prior Legal Proceedings, Civil and Criminal

If you have been involved in any other legal proceeding, civil or criminal, your attorney really needs to know. Tell when it happened, what happened, and what the outcome of the proceeding was (settlement, damages, convictions, acquittals, etc.). Give the case number if you have it so we can look it up, and if it happened as a juvenile, look up the case as best you can. Your attorney may need your help to get access.

3. Violence, Threats of Violence, or Harassment by You or your Spouse

Interpret this broadly. Hardly any domestic relations matter occurs without at least some form of “violent” or intense contact. This includes shouting matches or particularly heated arguments. It probably means nothing, but we need to know. If you or your spouse has ever hurt one another, even accidentally, tell us. If you have ever threatened or been threatened with violence, even if no one in the world, if there, would have interpreted it as an actual threat (i.e. “to the Moon, Alice!”), tell us. We want you to be ready for anything. Lastly, outline all the contact you have had with your spouse since you began to consider divorce. Cooler heads prevail in domestic relations, but any ugly contact from you or your spouse needs to be known by your attorney.

In conclusion, tell us everything. We are your advocate, and while I can only speak for myself, your attorney will not judge you. Your attorney only wants the most accurate picture possible so they can get you through this in the best position possible.

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Social Media and Divorce: What NOT to do

Can I Get My Spouse to Pay My Attorney Fees?

Who Gets to Claim the Children on their Taxes during a Divorce/Dissolution?

Embarrassing Information: What to Tell Your Attorney

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