Domestic Relations: "What is an annulment?"

Domestic Relations: "What is an annulment?"

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Domestic Relations: "What is the difference between a divorce and a dissolution?"

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Criminal Law: "Can Ohio police conduct a search of my personal property without a warrant?"

Criminal Law: "Can Ohio police conduct a search of my personal property of they don't have a warrant?"

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Criminal Law: "Can I be found guilty of an OVI (or DUI) in Ohio if I only had one drink or was otherwise under the legal limit?"

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Criminal Law: What is the difference between a felony and a misdemeanor in Ohio?


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Keeping Appropriate Records

As I sit in my office this morning I am thinking about what to write for my weekly blog post.  As fate would have it, my book keeper is here this morning going through my receipts and balancing my quickbooks account in order to have my records ready for the end of the year taxes.  As many accountants, financial advisors, and attorneys will tell you, it is really important to keep good records throughout the year.  However, even if you keep good records throughout the year, it is important to have a book keeper, accountant or tax advisor review your records at the end of the year to make sure every thing is in order. 

If you are taking deductions for travel, meals, or office supplies, it is important to keep the receipts for those items and I always make a note on my receipt regarding who I was out to lunch with if it is a marketing or networking lunch. 

If you intend on taking deductions for mileage, it is important to keep a log in which you write down the date, where you went and how many miles it was.  This process is much easier now that we can map out our travel on Google Maps or some other similar program.  You should keep this log readily available to ensure that you add all travel.  I generally update my travel log every week.  I review my calendar to determine where I went that week and this system generally works well.

For more information regarding this and related subjects, please check out www.tibbslawoffice.com.  For answers to common legal questions, check out the firm youtube channel at: www.youtube.com/tibbslawoffice.

"Unintentional Landlord"

Due to the state of the economy, there are many, what I call "unintentional landlords" these days. It is not necessarily a bad thing, I am one myself. My father and I purchased a house in Columbus, Ohio several years ago when I started law school. Our plan was for me to live in the house during law school, do some repairs and light remodeling, and sell it after I graduated. We were banking on the economy improving and it seemed like we had enough time. The economy did improve a little, but not enough. Now I am a property manager and my father is a landlord. There are a lot of people out there just like us. Many people have bought a new home before selling the old one and now are stuck with two mortgages. The only way to stay afloat is to acquire a tenant.

If you find yourself in this situation, you should speak to an attorney early on to make sure you understand the process and your rights and obligations as a landlord. You should have an attorney review your lease and make sure it is sufficient under the circumstances. You should also speak to the attorney about evictions and you should do this before you need to evict a tenant. No one likes evicting but the odds are very great that you will have to evict a tenant at some point.

Many attorneys will do evictions for a flat fee and this usually includes preparing the 3-day notice. Sometimes attorneys will offer a discount if a landlord owns multiple properties (doing more than one eviction at a time is more efficient). The attorney will likely require the flat fee be paid up front along with all filing fees.

The 3-day notice is a very important document and it has to be completed exactly according to the statute or the landlord may have to start the process all over and lose precious time (and time is money). When I am retained for an eviction, I like to prepare the three day notice for my clients so that I can be sure that it is done correctly. If you find yourself delaying hiring an attorney due to cost considerations, this is understandable; however, keep in mind that every day a non-paying tenant stays in your house, you are losing money. It is much more cost efficient to have the eviction done correctly so you can obtain a paying tenant.

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Inventory List

Inventory List

My mom is a barber.  She hears all of the town gossip of Franklin, Ohio.  There isn't usually much going on in Franklin, but recently, a client told her the following story:  This couple came home from work one day and their grill was gone off their deck.  They assumed that their grill had been stolen, so they accepted it and moved on with their life.  Approximately one week later, they went out to their deck to find their grill back in its original position on their deck.  They found a card on top of their deck that said something to the effect of: "Please accept our sincerest apologies, our neighbor told us that we could borrow their grill, and we thought this was theirs.  We found out later that this was not their grill, and we had borrowed the wrong grill.  Please accept these Bengals tickets as our gift to you.  We appologize for the mix-up"  This couple was excited about receiving the Bengals tickets and went to the game the following Sunday.  When they returned home from the game, their entire house was empty.  The contents of their home had all been stolen. 

Recently, I came into contact with the owner of Contents Management, a company that will come out to your home and create a complete inventory of all assets in your home.  Until recently, I was not aware that this type of business existed but apparently there are many companies that provide this service.  A home inventory would be really important for a person facing a scenario such as the one above, but it would also be helpful for anyone that needs to make a claim on their homeowners insurance policy as a result of fire, flood, or other natural disaster.  Other people that could benefit from this service are: estate planning clients, landlords, divorce clients, and small business owners.

If you are interested in having an inventory of your home or business completed, you can contact your homeowner's insurance agent.  It may be possible for your insurance agent to add the cost of the inventory to your monthly premiums.  If your insurance agent is unwilling to provide this service, you should look up local listings for home inventory services.  If you are in the Tri-state area, you may schedule an appointment with Contents Management.  They are a professional, affordable, and confidential inventory business serving clients in the (Cincinnati) Tri-state area (http://www.ahomeinventoryservice.com/ / (513) 505-8929).

If you found this information helpful and would like more information from Tibbs Law Office, LLC, please check out: http://www.tibbslawoffice.com/.  You may also subscribe to the firm Youtube channel at: http://www.youtube.com/tibbslawoffice. 

Small Business: "How is an LLC formed?"

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Creativity within the Legal Profession

Creativity within the Legal Profession:

A seasoned attorney once told me that there is no place for creativity within the legal profession.  This view may explain why many attorneys, even younger ones, embrace the traditional approach to the profession.  You can see traces of the traditional mindset in the attorney's office furniture, marketing, and the way they approach legal representation of their clients.   Their office furniture looks like it is from the 19th century, they are still advertising in the yellow pages, and they talk to their clients in such legal-ease that their clients cannot possibly understand what the attorney is saying.

On the one hand, it is easy to understand the importance of tradition within the profession; our entire legal system is based on tradition and precedence.  On the other hand, attorneys are so concerned about preserving tradition that attorneys now believe that creativity has no place within the profession.  This is a scary thought, especially considering that some of the best representation starts with the most creative ideas.  

I for one, do not believe creativity is dead in the legal profession.  There is room for both tradition and creativity in the court room, in fact, this is how the legal profession has evolved with our changing attitude about morality and justice.  Creativity is why our clients hire us.  It is our job to come up with creative solutions to legal problems.  Sometimes these ideas are "rule-bending" and sometimes these solutions are complicated triangle deals that will solve our client's business and personal problems.

I consider myself a progressive attorney.  I maintain a balance of tradition and modern that I consider to be ideal.  Although it is has become acceptable for female attorneys to wear non-traditional clothing to court, I will only wear a traditional suit to court; however, my office furniture is minimal and modern, I do not advertise in the yellow pages, and I try to explain legal concepts in everyday English.  I am also not willing to give up my creativity in my personal life.  If you find me on Facebook, you will see that my profile picture has been altered by my creativity.  This may be off-putting to some, but I urge clients to accept and expect creativity in the legal profession.

For more examples of how Tibbs Law Office, LLC is leading the march to modern, check out http://www.TibbsLawOffice.com, in addition, you can subscribe to my youtube channel at http://www.youtube.com/TibbsLawOffice.

Small Business: "What is an LLC?"

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Small Business: "What is a promissory note?"

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Legal Overhead Costs

A few weeks ago, I met with another attorney that asked me to join her firm.  This firm was an expense sharing firm which meant that I had two options.  I could join as a partner, which would mean that I would have one flat monthly expense rate for everything the firm provided to me, or I could join as an associate, which meant that I would have to give the firm 40% of my earnings to cover the firm's expenses associated with having me as a member of the firm. 

It was during that meeting that I discovered that a firm's expenses are the biggest factor in deciding what rate to charge clients.  During our conversation, I learned that her firm charges $1800 for a complete estate plan.  I am not sure whether this was for a single person or a couple but regardless, $1800 is a lot of money, considering a couple's estate plan is not much more work than an individual's.  This attorney bragged that her paralegal could finish the estate documents for this complete estate plan in approximately 12 minutes and another attorney in the firm could complete them in 6 minutes.  During this meeting, I found out that I use the same estate planning software that this other firm uses; however, I charge much less for this particular service.

Needless to say, I decided not to join that firm.  That firm was attracted to me because I had clients; however, my clients would not be able to pay their rates, and with the added overhead expenses, I would not be profittable if I continued to charge my client's the rates I charge them now.  I share this experience, not to brag about how much less I charge my clients for this service, but rather to ask clients to look around when they meet with their attorney. 

 If you meet with your attorney and you notice expensive artwork, extavagant furnishings, and many different sets of legal books, or if you find your attorney through expensive full page, color advertising, please understand that you are paying for those things.  It is good to have a nice office, I consider my office to be nice, but you won't find those items in my office.  I do not want my clients to pay for those items, especially, if they are not benefiting from those items.   If you are a client that wants to see those types of material things when meeting with your attorney, then, by all means, choose an attorney that charges more money for his/her services.

For resources that will help you save money with your legal bill, subscribe to my youtube channel at: http://www.youtube.com/TibbsLawOffice or go to http://www.TibbsLawOffice.com.   

Small Business: What is an independent contractor?"

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Small Business: "What are my financial responsibilities for my employees?"

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Small Business: "what records are important for a small business?"

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Small Business: "What is a general Partnership?"

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Mediation and Arbitration

Mediation and Arbitration

I have been getting a lot of questions about arbitration and mediation lately.  There are many differences between arbitration and mediation.  One difference is that arbitration is binding while mediation is essentially an agreement between the parties and is not binding or enforceable unless and until the agreement is made an order of the court. 

In arbitration, a third party or panel made up of several individuals, hears both parties' arguments and makes a binding decision.  Usually, arbirtration is used because there is a clause in a contract requiring it.  It is most often used in a business setting where "thoughts" and "feelings" are not a factor. 

Mediation is usually used in family law matters or matters involving relationships, relatives, and parties that will have to work together after the court case is over.  Mediation is often chosed over a trial in court because there is a general aversion to having decisions mandated by a court.

When parties go into mediation, they are not required to have an attorney; however, attorneys are allowed to be present.  When deciding whether to retain counsel, you should keep in mind a few things:

1) The mediator is not interested in finding a fair solution- the mediatior is interested in finding a solution the parties can agree upon.  You may be thinking: "Well, if the parties agree, then the agreement must be fair."  Not necessarily.  If the power between the parties is not balanced, if one party is more educated, if one party has greater knowledge of their rights, or even if one party is just not able to stand strong when faced by the other party, then the agreement may not be fair.  You must keep in mind that you are in mediation with someone you have an existing relationship with, those patterns of behavior have already been established. 

2) The only way to reduce the risk of having the standards of the relationship dictate the outcome of mediation is to show up to mediation with counsel.  Having an attorney present is important because the guiding force behind any agreement is knowing what the court would do if it were making the decision.  The only way you are going to know what the court would do, is if you have counsel. 

3) Having counsel present is not only going to help you but it will also help the other side.  Once you have the knowledge regarding what a court might do, you are able to make better decisions regarding where to compromise and where to stand your ground.

4) Do not simply ask the other party what he/she wants, you must ask "Why do you want that."  Often times you can satisfy their "why" without giving them what they orginally asked for (this is really important if they are asking for something that you want as well).  You should also use this line of thinking when you are negotiating and asking for certain compromises.  If you can satisfy your "why" without taking something they are going to fight for, both parties will be satisfied.

Small Business: "Do I need any licenses or business permits to start a new business?"

Planning for long term care continued...

Planning for long term care continued...

There are many tools that can be used to prepare for long term care: trusts, insurance, TODs, and gift transfers during a lifetime; however, you must choose the right tools for your specific situation and you must make sure those tools are prepared correctly or you may find yourself paying criminal consequences.  Currently, the medicare lookback period is 5 years; however, it is likely the government will extend it to 7 or 8 years in the near future.

From my experience, financial planners tend to encourage clients to create trusts to avoid medicare rules.  This can be great advice in certain situations; however, the client must keep in mind that if he would like to create a trust to avoid medicare, it must be an irrevocable trust and the trustee must be someone that is not a relative.  Essentially, the government requires that the client give up all control over his assets.  Many people, (especially those with significant assets) will not give up all control over the estate they spent their entire life building.  In some cases, they can't afford to give up all control because they need to have access to the assets in the event that something happens.

Insurance is a decent option.  There does exist a particular type of insurance that will protect your assets in the event that you go into a nursing home.  For instance, if you purchase the coverage for $200,000, the plan will allow you to keep $200,000 in assets (meaning that you have to spend down any assets above that) and then it will cover all other costs of long term care.  This is a great option if you want to be able to maintain control over your assets.  Obviously, the cost will be the monthly premium.  If this is an option you are interested in exploring, please speak to your financial advisor.  If you don't have one, I would be happy to refer you to one.

Another great way to reduce assets for long term care planning is to give away assets.  If you have family members that you trust, you can deed real estate to them, open bank accounts in their names, and make gifts of up to $13,000 per year (without tax conseqneces).  I am always hesitant to recommend that my clients do this.  If you give something away, you must realize that you are doing just that: giving it away.  Once you give away an asset, you must expect that the person will treat it as their own.  If they comply with your wishes then that is great but you should always expect that they won't follow your wishes because legally, they don't have to.  People have a difficult time controlling themselves when money is involved.

No matter which tools you decide to use in order to adequately plan for long term care, you must make sure that your financial advisor and your attorney communicate and work well together.  Neither will be able to adequately advise you if each is not aware of what the other is doing.

Planning for long term care

Planning for longterm care
As the baby boomer generation gets older, there is going to be an increasing need for attorneys that specifically work in the area of estate planning for long term care. This is an area that i have become familiar with and although I wouldn't consider myself quite an expert yet, that is definitely what I am working towards.

I am competent to prepare estate plans for couples with less than 2 million dollars in assets. For clients with a net worth of over 2 million in assets, I work with another attorney who solely focuses in the area of "high end" estate planning.

If you or a loved one is getting to the age of 55 or older, it is time to start seriously considering an exit strategy. There are several questions you need to ask yourself:

1) Are you prepared in the event you need long term care?

2) Are you prepared in the event your spouse needs long term care? (Keeping in mind that medical facilities and nursing homes can come after you for the medical bills of your spouse- see blog posting from September 2, 2011.)

3) Do you have a succession plan for your business?

4) Will members of your family have the ability to pay off the family owned business if something were to happen to you?

5) If you dont have a spouse, children, parents, siblings, or grandparents that are still alive, do you have a will in place that specifies who shall be beneficiares of your estate?

6) Even if you do have the above family members, do you wish your estate to pass in a way different from the laws of intestacy? If so, do you have a will?

If you are unsure about the answers to any of these questions, or if you answered "no" to any of the above questions, I would be happy to discuss your specific needs in a free consultation.

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Probate: "Can there be more than one executor of an estate?"

Probate: "What does it mean when someone dies intestate?"

Probate: "What does it mean when someone dies testate?"

Probate: "Do I need the original will?"

Probate: "What are the duties of an Executor?"

Probate: "Do I need to insure estate assets?"

Probate: "How can I find out if there was a will?"

Probate: "How can someone see the will of a person who has died?"

Probate: "If a person lives out of state, can they still be names as the executor of an estate?"

Debt Collection: Being held liable for another's debt

Debt Collection: Being held liable for another's debt

I just found out that I have been giving out incorrect (or at least incomplete) advice regarding debt within a marriage, so I would like to set the record straight.  I used to tell people that they cannot be held liable for debts of their spouse as long as the spouse acquired that debt in their sole name.  This advice was usually given in an estate planning context- which is why this advice will hold true 95% of the time.  In law, as in life, there is always the other 5%.  As a whole, the statement that "one spouse cannot be held liable for the other's debt" is technically inaccurrate.

A spouse can be held liable for the other's medical bills if the following factors apply:

1) the patient spouse is unable to pay

2) the non-patient spouse is able to pay

If the above factors are shown, the non-patient spouse may be held liable for the patient spouse's medical bills unless the non patient spouse has been abandoned by the other spouse without cause.

As I stated earlier, I usually get asked about this subject in an estate planning context.  Once one spouse passes away,  it is rare for the creditor to collect and here is why:  In Ohio, the creditor's claim must be made against the decedent's estate within 6 months of the death.  If the creditor does not assert its claim within 6 months, the creditor's claim is barred against the estate.  Once the claim is barred against the estate, the above rule applies.

If I am the attorney with a case like this, I would first claim that the non-patient spouse cannot pay, especially now that the spouse has to pay for the cost of burying the other, but I would also claim that the patient spouse abandoned the non-patient spouse without cause (by dying).  I am not sure if this case has been litigated yet, but if not, it will be eventually. 

Even with the above caviat, it is safe to tell clients that as a general rule, they will not be held liable for the debt's of their spouse.  It is always important to seek the advice of an attorney if you find yourself in a situation where people are claiming that you are liable for another's debt.  Creditors (and others) like to tell family members that they will be held liable in an effort to collect.  Just because a creditor tells you this, it does not make it true.  Always seek the advice of a local attorney to address your specific situation.

Probate: "If I am named the executor of a will, do I have to serve?"

Probate: "Does the fiduciary of an estate get paid?"

Probate: "What if the executor of a will fails to perform his or her fiduciary duty?"

Probate: "What if the decedent owned property in more than one state?"

Probate: "What is a bond?"

Probate: "What is an administrator or administratrix?"

Getting divorced for the Second time...from the same person

Getting divorced for the second time...from the same person

Several months ago, I was contacted by a potential client to handle his second divorce from the same person.  This particular client had children that were born (technically, of the first marriage) and this couple had already litigated custody, property, and support issues during the first divorce.

Now I have been contacted to handle a couple's second dissolution, but never a second divorce where issues were actually litigated.  I began doing a little research and I quickly realized that there is practically no information on this topic.  So I decided to provide the information myself.

Someone in this situation is going to have several questions, here are the (Ohio) answers to the questions I had:
1) Are the children, which were born during the first marriage, considered children of the second marriage?  Generally, yes.  Another example of this in a similar situation is where a couple is unmarried, has a child, then gets married, then gets divorced.  Even though the child was born before the marriage, the child is still considered "issue of the marriage."

2) Will issues of child support and custody be re-litigated?  Generally, yes.  At the conclusion of the first divorce, the court issued an order implementing custody and support.  When the parties remarried, that support (and custody) entry ceased to be effective either because the court terminated the original order (the obligor does not have to continue to pay child support if the parties remarry) or because the court issued a new order after the remarriage.  In the second divorce, the court will issue a new child support order that will be based on the current status of the parties' employment.  The court will also issue a new custody order that is likely to be the same as the order issued in the first divorce but may be different.

3) Will the parties relitigate the division of property?  Generally, no.  Any division of property that took place in the original divorce will still stand.  For example, if the court granted the martial residence to one of the parties, that party still gets to keep the home and that decision will not be revisited by the court.  The court will, however, divide any newly acquired property, if the parties have any.

Hopefully, this answers many of the questions you have about this topic.  If you have others, please feel free to comment.

Probate: "What is an executor or executrix?"

Probate: "As a fiduciary, what should I do to prepare for seeing the estate attorney?"

Probate: "How long does the administration of an estate take?"

Probate: "What are the duties of the Executor?"

Spousal Support in Ohio

Spousal Support in Ohio:
One of the least guiding "guidelines" in Ohio is the Ohio Spousal Support Guidelines.  This statute gives Ohioans "factors" that Ohio Courts consider when determining whether spousal support will be granted and if so, how much.  The factors the courts consider are the following:

Quoting Ohio Revised Code § 3105.18. - Award of spousal support; modification.

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(A) As used in this section, "spousal support" means any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is both for sustenance and for support of the spouse or former spouse. "Spousal support" does not include any payment made to a spouse or former spouse, or to a third party for the benefit of a spouse or former spouse, that is made as part of a division or distribution of property or a distributive award under section 3105.171 [3105.17.1] of the Revised Code.

(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 [3105.17.1] of the Revised Code, the court of common pleas may award reasonable spousal support to either party. During the pendency of any divorce, or legal separation proceeding, the court may award reasonable temporary spousal support to either party.

An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court considers equitable.

Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise.

(C) (1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:

(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 [3105.17.1] of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party;

(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and equitable.

(2) In determining whether spousal support is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital income.

(D) In an action brought solely for an order for legal separation under section 3105.17 of the Revised Code, any continuing order for periodic payments of money entered pursuant to this section is subject to further order of the court upon changed circumstances of either party.

(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:

(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(2) In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(F) For purposes of divisions (D) and (E) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses.

(G) If any person required to pay alimony under an order made or modified by a court on or after December 1, 1986, and before January 1, 1991, or any person required to pay spousal support under an order made or modified by a court on or after January 1, 1991, is found in contempt of court for failure to make alimony or spousal support payments under the order, the court that makes the finding, in addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and shall require the person to pay any reasonable attorney's fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.

(H) In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating that party's rights and adequately protecting that party's interests if it does not award reasonable attorney's fees.

 

Determining whether spousal support will be granted is largely within the court's discretion but is generally predictable to an Ohio licensed attorney.  Determining how much spousal support a court might grant in any given situation is much more difficult for the parties to predict.  Ohio has created a helpful child support computation worksheet to predict how much a party will pay or receive in child support; however, no such computation worksheet exists for spousal support (at least not one that is generally accepted or used by the courts).

 

Arguments can and have been made that the Ohio Child Support Computation worksheet produces results that are unfair to one or both of the parties, but at least it is a starting point for determining child support.  I for one would like to see Ohio create a spousal support computation worksheet to be used in all divorce/dissolution cases.  However, until this happens, the parties are left to their own devices.  I have prepared the following guidelines that I hope will help parties determine if spousal support is warranted, and if so, how much.

 

In reviewing these tips, please remember that spousal support was created to help compensate women for their contributions to the household and to make sure, where there is enough income, the state would not be left to pick up the tab for the wife and children.  Obviously things have changed, but try to remember the spirit in which these laws were created.

 

* As a general rule, spousal support may be considered an option if one of the parties has disposable income, which generally means that he/she makes over $55,000 per year or more.

*In addtion, spousal support may be granted if the other party makes approximately half ($27,000 per year) or less than the other party.

* Generally, if the court finds that one party should be granted spousal support, the court will likely grant it in the amount of $500.00 per month or more depending on the parties' income.  Courts generally don't grant spousal support in amounts less than $500.00 per month.  (This may be because the court may think that anything less than $500.00 per month is not really helping or is not a fair assessment of the wife's contributions...)

* remember that contrary to child support, spousal support is considered income for the party receiving it and is tax deductible for the party paying it.  This means that if you are on the receiving end, if you have the option, you should negotiatiate to get more money in child support and less in spousal support.  If you are on the paying end and you have the option, you should negotiate to pay more in spousal support and less in child support.

 

Hopefully, these tips are helpful as you assess your own situtation and prepare for a divorce or dissolution.

Risks and Benefits of Separating before filing for Divorce

I don't know if I have said this before (in written form, of course) but if I have, I am going to say it again: Americans are ready to start spending money again.  I know that the stock market says otherwise, but I can tell the economy is recovering because people are finally pursuing divorce again.  For several months at the end of last year, and for several months at the beginning of this year, couples were separating, but not pursuing divorce.  The domestic relations courts were deserted.

Getting divorced is expensive, not only because both parties have to pay attorney fees but also because prior to the divorce, they had two incomes and only one household.  Once the parties separate, each only has one income available but each has an entire household to support.  

Being separated prior to pursuing a divorce usually makes the divorce/dissolution process easier and less expensive because the separation allows the parties to divide up property and debts that can easily be divided, and by the time the parties are dealing with more difficult decisions, they are no longer angry, they have already moved on and they just want the paperwork to reflect the divisions they have already made.  Separating before pursuing a divorce makes sense for a lot of reasons but I wouldn't recommend it under all circumstances. 

I do not recommend leaving the marital home if the parties have children.  Both parties should seek the advice of an attorney before leaving the martial home when there are children of the marriage.  A parent's right to custody or shared parenting could be affected by leaving the home and this may be avoided by seeking the advice of an attorney before leaving the home.

If the parties don't have children, there isn't much risk in leaving the home; however, seeking the advice of an attorney to discuss your rights in regards to marital property is recommended. 

If you do not have children and your financial situation is improving and you are ready to separate and begin the divorce process, being separated for approximately 6 months should provide an adequate amount of time to cool off from the marriage and allow the parties to negotiate with a calm head.  Often, parties that have separated first are able to pursue a dissolution, which is much more friendly and cost-effective than a divorce.

    

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National "Make a Will" Month

Recently, I have had many clients contact me about making a will; more so than in any other month.  I knew that it was National "Make a Will" month but I did not think that anyone else knew that.  Even if they did, I didn't think that "national -anything-months" actually moved people to action.  I'm beginning to beleive I was wrong about that. 

By making July the National "Make a Will month, "they", whoever "they" are, are reminding us to do something that we all should do.  I am the first to say that not everyone needs a will.  I have had many young professionals ask me if they need a will and depending on the circumstances, the answer is "no."  In fact, I do not have a will myself.  I have no problem telling my clients that they don't need a will because by doing so, I am saving them time and money.  Those young professionals that I have spoken to now have peace of mind knowing that they don't need a will (for now).  The people that I am concerned about are the people that I have not spoken to because only an attorney (and an honest one) can tell you whether you need a will or not, and you don't know until you speak to an attorney. 

One thing that I have done recently to make making a will easier for my clients is that I have purchased fantastic (and expensive) software that makes making a will quicker and easier than ever.  The thing that I love about having this software available to me is that if I meet with a young person today and make their will, once I enter the information into the computer, I do not have to enter that information again.  If that person wants to make changes, I can go to the section where the changes will be made, instead of going through the entire program again.  Because this process is faster, it is also cheaper for my clients.  I have the software downloaded on my computer and when I am finished I am able to go back to my office and review the document to make sure it meets my client's needs.

National "Make a will" month is not necessarily about "making a will" in July but rather reminding all of us to review our will to make sure it will carry out our wishes, which may have changed since last updating.  It is also about reminding everyone to schedule a free consultation with an attorney that can review your personal situation and help you decide whether a will is right for you or whether some other estate planning tools will better fit your needs.  In the meantime, happy will making to you all.

Attorney-Client Relationship

Attorney-clients relationships can be complicated.  It has been said that you aren't an experienced attorney until you have fired at least one client.  If that is true then I am officially an experienced attorney.  There are generally only two reasons that would prompt me to fire a client.  Either 1) there is a conflict, in which case I cannot represent the client without violating the Ohio Rules of Professional Conduct or 2) the client is not following my advice and would be better served by another attorney that he/she trusts. 

If you ever find yourself fired by your attorney, you shouldn't take it personally.  Some people's personalities just don't go well together.  When I meet a client, I do my best to follow my intuition about people and only accept clients that I think I will work well with.  When that system fails, I do my best to work with the client and have been mostly successful in doing so.  In a small number of cases, I have felt as though the client would be better served by another attorney.  I want those clients to realize that although I may no longer work for them, I still have their best interests in mind.  By removing myself from the case, I am trying to help the client move on and find another attorney that will be better suited for that particular case. 

This instance does not occur very often, but when it does, it is most helpful when the client realizes that it is in his/her best interest to find a new attorney that will work well with the client.

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Living Trusts as an Estate Planning tool

A living trust is a trust that is funded with assets which can be amended and/or revoked by the settlor (creator).  A living trust can be used to handle financial affairs while alive and dispose of property after death.  As an attorney, many clients have shown an interest in living trusts because of the fact that they are an alternative to probate court.

Many financial planners and insurance agents (and even some attorneys) have cashed in on the phrase "avoiding probate court" by offering a trust to every client that walks through the door to discuss estate planning.  There is a lot of confusion about what "avoiding probate court" means and many people believe that it means "avoiding estate taxes."  This is incorrect.  Avoiding probate does not mean avoiding taxes, but rather avoiding the process of probate.

The advantages to creating a living trust are that a living trust provides the settlor with greater privacy, lower court costs for the beneficiaries, lower attorney fees for the beneficiaries, lower appraisal fees, lower executor fees (as compared with trustee fees), living trusts often reduce the probability of litigation, and living trusts also offer almost immediate access to the assets after death.

The disadvantages to a living trust are that it is more expensive to create a living trust than a will, living trusts have higher annual expenses than a will, and living trusts require a lifetime of effort to manage and maintain until death.  In addition, living trusts do not protect assets from medicaid rules.

Credit Repair

If you have ever made a large purchase with a boyfriend or girlfriend, you probably know what a nightmare it can turn out to be.  It is an even bigger hassle if the big purchase is a house and the other party doesn't contribute to the payments after the breakup.  If you would like to get married some day, I would not recommend making any large purchases with someone you are not related to or married to; however, just like a lot of advice coming from an attorney: this may be too little too late.

If you purchased a home with someone who is no longer contributing to the payments, there are a few options.  Do not consider foreclosure just because you want closure with the person (believe it or not, clients have suggested this option).  Do not panic.  It is understandable that you want this person to be removed from the loan and title; however, it is not imperative that you act (irrationally) today.  You should not be too concerned about getting them removed from the loan (since this is an obligation and not necessarily a right) unless the person is insisting that they be removed from the loan in exchange for being removed from the title.  You may be able to get the person removed from the loan by refinancing.  If you are unable to refinance due to a low credit score, you should call Credit Smart Solutions owned and operated by Joe Frey, a credit specialilst.  Joe can evaluate your situation in a free consultation and tell you whether he can help and by how much.  Once your credit score has improved and reached the goal score, Joe can put you in contact with a mortgage company that he does business with that should be able to help you refinance.

If you are unable to refinance, you should not panic.  If you sell the home, or otherwise pay off the home, an attorney should be able to prepare a quit claim deed for around $100-$150 to send to your significant other.  If the other party refuses too sign the quit claim deed, the attorney can explain your other options.

Domestic Violence

A topic that has been on my mind recently is domestic violence.  I have had many clients over the past year and a half that have been victims of domestic violence and I know that it is a vicious cycle that is difficult to escape.  In fact, I began working on civil protection order cases because I saw that there was a need for competent attorneys in this area.  Many attorneys will not work on civil protection order cases and that is unfortunate because there is definitely a need for competent attorneys in this area.  

It is easy for an outsider to tell a victim of domestic violence to just leave but it is often much more complicated than that.  The person giving the advice is not in the victim's shoes and more often than not, the perpetrator has spent years positioning him/herself and the victim in such a way that makes it almost impossible for the victim to "just leave."

I do not recommend that victims of domestic violence "just leave."  I recommend that victims of domestic violence prepare a comprehensive plan for removing him/herself from the situation so that the victim can begin a new life without the violence and learn a new way of living so that the violence does not repeat itself.  I recommend that victims leave with a strategy and the resources to help them be successful.  If not, they will not only find themselves in the same or a similar situation in the future, but they could put themselves in more danger by attempting to leave in the first place.

One great resource in Ohio for domestic violence victims is the Ohio Domestic Violence Network.  They are available by telephone: (614) 781-9651 and internet: ODVN.org.  The ODVN is a nonprofit organization and the domestic violence advocate will work with the victim to create a plan for leaving. The advocate will work with the victim through every step of the process of leaving.  ODVN has many great resources for helping the victim succeed after leaving as well.  

One of the best aspects about ODVN is that they have federal funding to help victims get access to legal services that they wouldn't be able to afford otherwise.  ODVN pays attorneys that have been trained through the non profit to help victims get civil protection orders, obtain divorces, keep custody of their children, defend them in criminal cases when the criminal charge was a result of a domestic violence incident and many other services that victims may need.  

I am an attorney that has gone through the ODVN training and I am currently accepting cases through ODVN.  If you or someone you know needs their services, please contact ODVN because they can help.

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Transfer on Death and Probate

I got into probate practice on accident.  It all started when I worked for my previous employer as a law clerk (after I had taken the bar but before I had received my results).  Our firm had received a telephone call from a client/investor.  Our client had an investment property and the person staying in the property had passed away.  Our client needed us to somehow get the property released from administration so that our client could re-rent the property without having to foreclose (actually, you have to open probate to foreclose but that is a long, complicated story.  He definitely did not want to foreclose if he could avoid it).

Since working on that case (and since receiving my license) I have worked on several similar cases, I have administered several estates and now my firm is expanding into estate planning.  A very common question that I am asked (usually from financial advisors) is about retirement accounts and probate.  People want to know the following: if they set up their retirement account to transfer on death to the designated beneficiaries, will the beneficiaries still have to pay "probate fees and taxes" on that money?

If a retirement account is set up to transfer on death, that money is still taken into consideration for federal and state estate tax purposes.  However, setting up the account so that it transfers on death, still keeps a considerable amount of money in the beneficiaries' pockets.  Attorneys fees are generally calculated as a percentage of the probated and non-probated estate.  The percentage paid for non-probated property is much lower than for probated assets because the amount of legal work required to liquidate and distribute non-probated assets is much less.  In addition, the fiduciary of the estate gets paid according to a percentage of the probated and non-probated assets.  By keeping large accounts outside of probate, you are paying less to the attorneys and the fiduciary.

Transfer on death designations keep money in the family in other miscellaneous ways as well.  Less paperwork will be required for filing, which saves the family money because probate courts generally charge per page.  Also, if a bond is required, the bond will cost less.  Bonds are required to be secured for double the amount of the probated assets; the more in probated assets, the more the bond will cost.

Life Insurance and Divorce

Recently, I was contacted by two insurance agents regarding life insurance.  Both insurance agents had similar questions regarding life insurance and divorce.  First, they wanted to know whether courts require child support obligors to obtain and hold life insurance policies for the benefit of the children, in the event that the obligor passes away.  Basically, the answer to this question, as written, is "no."  The insurance agents were taken aback by this.  They were appaulled by the fact that if something happened to the obligor, the parent caring for the children would be left with no support or help. 

While I certainly understand their concern, my response is that many of my clients (and their ex-spouses) can't afford to pay their court ordered child support, let alone an additional insurance premium each month.  If an untimely death occurs, the beneficiaries of the obligor's estate may have a wrongful death suit, which would reduce or eliminate the need for the life insurance policy.   (Of course, the insurance agents could probably come up with a list of the benefits of having the insurance policy in place, despite the above statements.  I'm not saying there aren't any, I just have to keep in mind that my clients have budgets & priorities).

There are many shortfalls of our court system and especially our domestic relations divisions; however, I would not categorize this as a shortcoming of the court system.  If you believe this to be a short coming, it is really a short coming of the attorneys working in the domestic relations court system.  When I am filing a divorce for a client that is asking for custody and child support, the opposing party either has a life insurance policy in place or he/she does not.  If they do have a life insurance policy in place, I usually include in the decree that the party is required to keep the life insurance policy for the benefit of the children until the youngest child turns 18.  When this is included in the decree, the court will generally grant this request.

If the opposing party does not have a life insurance policy, I do not usually address whether he/she wants the other party to be required to obtain one.  Often times, if there is not a policy in place already, that is because there is no money for a policy.  It is not guaranteed that the court will grant the request for the order requiring the other party to obtain a life insurance policy and it may cost more in legal fees to persuade the court that such a provision is necessary.  In addition, as with any provision in the decree, such a provision is only enforceable by contempt of court.  This means that even if the court grants an order requiring that the opposing party obtain a life insurance policy for the benefit of the children, if he/she chooses not to get one, the plaintiff can only enforce it by filing a motion to have the other party held in contempt and by doing so, will incur more legal fees.

My personal opinion regarding insurance is that you can't insure your entire life.  Bad things are going to happen, unexpected tragedies are going to occur, and losses will result.  I personally don't like the idea of paying a premium every month to minimize that damage because there are always going to be aspects of your life that you cannot insure, or that you don't insure (and with my luck, those are the aspects that will be affected when bad things happen).  However, I did appreciate that these insurance agents brought this issue to my attention.  Just because I personally don't beleive in insuring all aspects of my life, it doesn't mean that my clients may not benefit from discussing this issue with a knowledgable professional. 

In the future, I will be discussing life insurance with my divorce clients and hopefully, they will learn and benefit from it, even if they choose not to request that the other party obtain a life insurance policy. 

The Memory of Memorial Day

Like most american families, I have close family members that have served in the military.  Specifically, my grandfather served in the Army when he was in his 20s.  I was lucky enough to have a great-grandmother (my grandfather's mother) who lived until 2002, she died only a few days before my 18th birthday.  My grandmother used to sit around and talk about how my grandfather didn't take his duty to serve very seriously and went AWOL with his brother (also in the military) on several occassions.  I don't remember all of the specifics of the stories she told since it has been almost 10 years since I have heard any of these stories but I do know that there were many and I know that based on the number of times I have probably heard these stories, I should know more details.

On this memorial day, I would like to dedicate this blog to thanking all members of our military for their service.  I'm pretty sure that my grandfather will never read this (I don't even think he has a computer or the internet); however, I'm not thanking him or any other service member because I want any recognition for doing so.  To me, just saying thanks is enough.  If you know any service members, pass my words of thanks along, I am thanking them too.

Why Probate?

I have never met a law student that left law school thinking, "I want to be a probate attorney!"  It just doesn't happen.  Mainly because many other practice areas catch our eye before we even get to that subject in school but also because it just isn't a "sexy" subject.

I got pulled into probate practice by chance.  When I worked for my previous employer, our firm represented investors and banks that owned property where the purchaser/occupant had passed away.  Our client wanted possession of their property back and although there were several ways of achieving this, all options included the participation of the probate court.

In one case, we were contacted by a real estate agent who had already found a buyer for a property where the owner had passed away.  We were able to get the property released from administration within two months and as a result, the sale was completed.  This is why I recommend that every real estate agent make a connection with a good probate attorney.  You never know when your next sale will depend upon being able to get the property released from administration so that you do not miss that sale.  

One of the reasons that I like this area of the law is because the probate process was developed so that all people could maneuver the probate system in order to administer the estate of a loved one and wrap up their affairs without the help of an attorney.  No other practice area is this user-friendly.  I find that because it is more user-friendly than other areas, my clients are much more receptive to my advice and guidance.  Although probate is user-friendly, I would still recommend retaining an attorney in many cases, including cases were real property and motor vehicles need to be transferred or sold and cases where there are over $500,000 in assets.

After helping investors, real estate agents, and banks get back possession of their property, I continued practicing probate and as it turns out, I like it.  I have expanded my probate practice into creating trusts, administering estates, and some estate planning. 

How to say "Thanks"

There have been many instances where a client has retained me to fix something that their prior attorney didn't do right the first time; or even worst, they were their own attorney and they didn't do it right the first time.  If there is one piece of advice I would give all of my potential clients, it is that you should not do it yourself without seeking the advice of an attorney.  Many attorneys will be willing to give you advice on how to do it yourself and then, at least you can contact that attorney to help you if things are not going well in the DIY world. 

When you are preparing to enter into a contract, it is always better to have your attorney look at it.  The attorney will point out where the contract should be more specific to protect you (especially with dates) because there are almost no circumstances under which having a vague contract will protect you better. 

If you find that your attorney did a good job for you, you should refer your attorney to your friends and family members.  I am an attorney that does not have a presence in the phone book and getting referrals is the best "thank you" I can get.  If you know an attorney that has been honest with you and has done a good job informing you of your rights and obligations, you should tell your friends and family members so that they are not left playing eenie meenie miney mo through the endless list of attorneys in the phone book. 

I get all of my clients through face-to-face introductions and referrals from my existing clients (along with a small presence on the internet i.e. this blog).  A yellowpages ad is just too expensive for my taste and I am able to keep busy with my current system.  My personal belief is that if an attorney has to advertise in the phonebook to get clients, that attorney either has such a small niche that it is difficult to find prospective clients, or that attorney's previous clients are not satisfied enough to recommend that attorney to others.

Mother's Day Gift

Perhaps the best gift you can get your mother (and yourself) for Mother's Day is an estate plan.  I tell my clients that it is their responsibility to make sure that their parents have estate plans.  Why?  Because when your parent dies, as the child, you (and your siblings) will have to organize and wrap up their affairs.  You can make your job much easier and you can save a lot of money by making sure that they have a well thought out estate plan. 

Estate planning does not just mean preparing a will.  A good estate attorney will not only prepare a will, but will also help you decide which property should pass outside of probate by way of transfer on death designations and can prepare a living will, power of attorney and health care power of attorney in the event that the testator becomes incompetent or incapacitated. 

Transfer on death designations are viewed as an easy way to save money and time because they give the beneficiaries immediate access to those assets rather than having to wait for a distribution through the probate court; however, transfer on death designations are not right for all people and all property and legal counsel should be sought before filling out any TOD paperwork.

Estate planning can keep family assets in the family in several ways.  You can express your wishes about how your assets should be divided after you are no longer able to make that determination by having a will prepared.  When the decedent's wishes are expressed in a will, family members are less likely to fight over how the assets should be divided.  This will cut down on attorney's fees and court costs that would arise if there were a dispute.  In addition, a testator can ask that the court waive a bond which can be costly depending on how large the estate is.  TOD designations are difficult to contest successfully and any assets transferred by TOD will go to the beneficiaries regardless of whether someone contests the testate or intestate distribution in probate court.

Estate planning will not only make your life easier if the worst should happen, but it will also give your parents peace of mind that they didn't have before; something that every parent deserves.

Royal Prenup

If you are anything like me, you were glued to your television this morning, to catch a glimpse of the royal bride before you headed off to work.  It has been reported that Will and Kate did not sign a prenup before getting married.  Although I would recommend a prenup for many couples (Crystal and Hef), I would not recommend a prenup for Will and Kate.  While prenups are common in the states, they are not nearly as common in Britain.  Although prenups carry some weight, they are not 100% binding in Britain. 

Prenuptuals are all about bargaining power.  Once the royal couple got engaged, the only bargaining power each of them had, was their willingness to walk away from the marriage; something that neither of them were likely to do considering the short length of their engagement and the media coverage surrounding the wedding.  If you aren't willing to walk away, you don't have any power because you will do whatever it takes to get to the wedding day.   Perhaps Will realized that he was already asking Kate to give up her life as she knows it and it would be too much to ask her to decide how much that was worth right now. 

The difference between Will and Kate and the rest of us commoners is this:  Will and Kate are both very wealthy at a young age, whereas the rest of us are not so lucky.  Obtaining a prenup does not usually cross our minds unless we have something to preserve and that does not usually happen until we are older.  Because of their age, Will and Kate are not in a position to negotiate what they may need if they divorce because they do not yet have children and they do not know how much time they are planning for (they do not know how long the marriage may last).

In Ohio, if you do have significant assets that you would like to preserve, you may enter into a prenuptual agreement in contemplation of marriage.  I would generally only suggest a prenup for older couples with significant assets to preserve and who already have children or will not have children. 

To be enforceable, both parties must fully disclose their financial picture, and the agreement must be entered into without coercion by either party.  Each party should seek separate counsel to advise them on their rights when contemplating a prenuptual agreement.  And remember, you only have as much power as your willingness to walk away.

LLC Formation

If you are considering forming an LLC, there are many steps you have to take.  You have to check to see if your business name is available, you have to fill out the Articles of Organization, and then you have to send the completed form, along with the filing fee to the Secretary of State.  I often tell my friends and family that this is something they can do on their own if they wish to save money; however, when I form an LLC for a client, my services include much more than just filling out a form and filing it. 

If you retain me to form your next LLC, I will check to see if your business name is available for you.  I will fill out the Articles of Organization form and prepare more complete Articles of Organization to be filed with the Secretary of State form.  My Articles will include the names and addresses of the owners as well as the percentage of ownership of each.  This is advisable because the form that is provided does not have a space regarding the identity and address of the owners.  So basically, if you do not supplement the provided form, anyone can come along and claim that he is the owner of your LLC and no one would know the difference.  Some clients choose to opt out of this offered service and that is fine too.

Clients that are forming an LLC usually need a Federal Tax ID number.  I obtain my client's federal tax ID number as part of the LLC formation service.  I do this because it allows my client to begin operating his/her LLC sooner than if the client has to obtain it his/her self.

I offer to serve as the statutory agent for my LLC clients.  This means that if the LLC ever gets sued or served with other important legal documents, those documents will come to my firm, rather than the members of the LLC.  This will help protect the LLC in the case that the LLC runs into legal issues.  I can help guide you through the process and provide expertise if necessary.

Clients that are setting up an LLC with more than one member usually need an Operating Agreement which outlines the terms of their relationship to the company and with each other.  I provide my LLC clients with an operating agreement for a small additional fee.  An operating agreement is a dense and often complicated contract; however it could save business or personal relationships if the business goes downhill.  I recommend an Operating Agreement to any LLC with more than one member.

Some popular legal form websites encourage people to expedite their LLC application.  I do NOT recommend expediting your application because in my experience, it is a waste of money.  Once you send in your application, the Secretary files it and then sends you the business recording information that you need to open a bank account.  What people do not know is that once the application is filed, you can access that information via the internet, even if you have not received that information in the mail.  Expediting your application does not get your application filed noticably quicker than the regular filing.  If you file your application without expediting it, it should only take a few days before you can access your certificate online.

The Tax Holiday

With taxes due in exactly one week, procrastinators everywhere are scrambling to finish their taxes so as to avoid the IRS radar.  My initial advice is to not wait until the week before taxes are due before starting them.  However, we are a busy society and if you find that you are a procrastinator, that advice is too little too late.  As an attorney, many of my family members have asked me if I do taxes.  The truth is that I was never very good at numbers and I dread doing my taxes more than the average person.  Being an attorney and having some knowledge of the tax laws, you would think that I would be willing to endure that torture in order to avoid paying an accountant.  The truth is that the process and anticipation is too painful. This year, I hired an accountant to do my taxes.

It is not that I don't know how to fill out a 1040, its just that my taxes are no longer that simple and even if they were, I don't enjoy filling out a 1040.  My disdain for doing my own taxes is such that I encourage our government to change the income based tax system to something less citizen-accountant driven.  The only problem with that kind of extensive overhaul is that it would put all accountants out of business, which might be counter-productive.

Although attorneys are capable of doing your taxes, an attorney is not necessarily going to do a better job than an accountant, and the attorney is probably going to charge more.  If you do have an attorney complete your taxes, my advice is to choose an attorney that generally does transactional work, rather than litigation.  Transactional attorneys are generally more comfortable working with numbers and litigation attorneys work more often with the written word.  Find an attorney that you know has done yours or someone else's taxes in the past.  Although you won't find me doing individual taxes for clients, other attorneys market that practice area and are good at it.  Remember: Just because your attorney agrees to do the work, does not mean that your attorney is good at it or has experience doing it.  It is your job to check credentials, if you don't, you may find yourself in an expensive, intrusive, & exhausting audit.

April Fool's

I was never much of a prankster on April Fool's Day.  Don't get me wrong, I enjoy a practical joke as much as the next person.  Its just that April first sneaks up on me so quickly, and good practical jokes come in one of two ways: they are either carefully planned out to perfection, or they just fall into your lap in a way that could not have been planned and unfold perfectly by coincidence.  I was never very good at creating practical joke plots just for the sake of the first of April but for those that can pull it off, I have some advice. 

Through marriage last year, I inherited a family full of April Fool's jokesters and I wanted to provide some practical advice that may prevent a fun joke from turning into major legal trouble.

According to the law, if you intend your actions, you are responsible for the consequences, regardless of whether you intended or could have foreseen those consequences.  If your joke does not go as planned, you may be responsible for damage to personal property or injury to a person.

My advice is to save your practical jokes for your close friends and family members at home and opt not to participate in April Fool's jokes at work.  If you save your pranks for home, you will avoid the potential for getting fired and from having to continue to work with someone that doesn't think you are funny.  Things are more likely to go awry when there are many people involved and the more people involved, the more humiliated the subject will feel.  If something does go wrong, your friends and family members will be more forgiving and will be less humiliated.

If you do choose to participate at work, do not set up scenarios where someone could get hurt or property could get damaged.  Most importantly, consider all possible consequences of your actions.  By doing so, you can avoid becoming a fool of April Fool's.

Communicate about Communication

While in law school, I completed an externship in the Ethics Department of the Columbus Bar Association.  That department was created to handle complaints of attorney misconduct.  The complaints that we received fell into one of two categories: 1) complaints about an attorney's lack of communication with his clients 2) all other complaints.  By far, the complaint we saw most often resulted from an attorney's lack of communication.  Now that I am a practicing attorney, I can tell you that there are several reasons why an attorney does not communicate as often as the client may like.
1. Attorney fees are high and most attorneys bill hourly.  Some attorneys do not communicate as often as a client may like because the attorney believes she is doing the client a favor by trying to keep the client's bill as low as possible.  If you would like to communicate with your attorney more, you should tell her; just be aware that your monthly bill may be a little higher than it was in the past.
2. Sometimes there isn't anything happening in the case and there is nothing to report.  If you prefer that your attorney communicate with you at some regular interval regardless of progress, you should tell your attorney how often you would like to hear from him.  The other option is to just check in with your attorney at those regular intervals to see if anything new has come up in your case.
3) Your retainer may be exhausted.  If you remedy this problem by replenishing your retainer, you should  have very little difficulty getting in contact with your attorney thereafter.  You must be careful following this rule, but in general, the more matters an attorney has to take to make a living, the less time the attorney will have to give you personal attention.  If you feel that your matter will require a lot of the attorney's attention, you should find an attorney that has the time, and more than likely, that attorney will charge higher rates.

There are many plausible reasons why an attorney does not communicate as often as clients like; however, the lack of communication can rise to an unacceptable level.  If you have called your attorney and left 3 or more messages over a week period and you have not received a telephone call (or any communication) back,  (with the exception of a vacation that the attorney gave advanced notice of) it is my opinion that your attorney's lack of communication has risen to a level that is unacceptable and I would advise you to begin a search for a new attorney.

Juvenile Court

Because many attorneys do not work in the juvenile courts, it is something I get asked about often.  Juvenile court is very different from common pleas and municipal court.  I got interested in working in the juvenile court when I was working on my Masters degree at Xavier University.  It was at Xavier that I learned that juvenile courts were developed to deal with the unique issues of juveniles and to help give children a second chance when they mess up.  Unfortunately, juvenile courts have morphed into something very different since their creation.

Many clients contact me regarding their son or daughter's case.  Often times, the parent is not satisfied with the advice they are getting from the court appointed counsel.  I do my best to explain the following:

1) If your son or daughter is charged with a "crime" in juvenile court it is called either "delinquency" or "unruly."
2) Your child basically has two choices.  They can admit the allegations in the complaint, or they can deny the allegations in the complaint.
3) If your child admits the allegations, the case automatically goes to disposition and the child is "sentenced."  Depending on the allegation, sentencing may include probation, writing a letter of apology, time in detention, house arrest, community service, and many other options, all at the discretion of the Magistrate or Judge.
4) If your child denies the allegations, the court sets the case for a trial.  At trial, the court will determine whether the juvenile is responsible for the alleged acts.  Unfortunately, if your child denies the allegations but then is found responsible for the acts, the fact that your child denied the allegations may be used against your child when it comes time for disposition (although not overtly).

Many parents admit to me that their child committed the act alleged; however, they do not feel their child should admit to the allegations because of the repercussions later in life.  I would agree with this approach 99% of the time for adults; however not necessarily with juveniles in juvenile court. 

The juvenile should certainly ask for counsel to be appointed.  Once appointed, counsel can solicit plea offers; however, plea bargains are not offered as often in juvenile court as they are in common pleas court and they do not have quite the same effect in juvenile court.  The reason pleas are not offered as often is because the child does not get "charged" unless the prosecutor has a solid case.  The reason pleas do not have the same effect as in common pleas or municipal court is because in those courts, the crime of conviction often dictates the perameters of sentencing that the Judge can order.  In juvenile court, the Judge has a lot of discretion because sentencing guidelines in juvenile court do not exist.  Even if the child admits the allegations, he/she will still be given the opportunity to make a statement and provide mitigating arguments, which is often all the child wants.

While it is never a bad idea to get a second opinion in your case, if your court appointed counsel is asking your child to admit the allegation in a juvenile court case, this is probably not the result of laziness or incompetence.  You should ask the child's attorney what other options you have, assuming that your child committed the alleged act.  You will likely see that your other options aren't great.

If your child vehemently denies the allegation, you must decide whether you believe him/her.  Hiring counsel and going to trial is only a good option if your child really didn't commit the alleged act (and not just that they deny doing it, but that they in fact didn't do it) and that is something that you probably don't know for sure, unless you were there when the incident occurred.