Phyllis G. Bossin Co., L.P.A.

Ohio to Finally Allow Prenuptial Agreements

2023-02-13T19:39:52Z

Until January 2023, Ohio was only one of 2 states that did not permit parties to enter into postnuptial agreements, the other state being Iowa. While Ohio has long permitted prenuptial agreements, prior to the passage of SB 210, there was a specific statute in Ohio stating that couples, once married, could not enter agreements to alter their legal rights and responsibilities unless it was pursuant to marriage termination proceedings.

This has changed with the passage of SB 210, which will be codified primarily in ORC § 3103.05 and ORC § 3103.06(A) and go into effect March 31, 2023. Couples may now make agreements that affect their property after the date of their marriage. What does this mean and why might someone want a postnuptial agreement?

There are many reasons that a couple might choose to enter into a postnuptial agreement:

To alter the terms of a prenuptial agreement. After marriage, the parties’ circumstances may change, and they might wish to alter the terms of their prenuptial agreement. For example, the parties might have children. Although the postnuptial agreement cannot address custody or child support arrangements, the couple might view their financial positions differently with the birth of children and decide that a new arrangement better represents their interests. Or, one of the people might have inherited significant wealth, which could change how the parties view the division of their assets upon death or divorce.
The couple may not have had a prenuptial agreement but decide after the marriage that they wish to plan for how their estate will be divided in the event of death or divorce.
The parties may enter into a written agreement for the division of their assets and the provisions for support intending to terminate their marriage but decide not to do so but wish to be bound by the terms of the agreement.
The parties wish to separate physically and financially but not terminate the marriage.
The parties have contemplated divorce but reconcile with the understanding that certain financial conditions will be addressed.

As with any contract, a postnuptial agreement must be entered into freely and without fraud, duress or coercion. Each party must make a full disclosure to the other of all assets, liabilities and income. The parties should each have legal representation in the drafting and execution of a prenuptial agreement.

What you need to know about the American Rescue Plan of 2021

2022-10-03T07:17:53Z

As a result of the COVID-19 pandemic, Congress passed, and the President signed into law, the American Rescue Plan of 2021. This new law provides for increased tax benefits for families for 2021 only. The law increases the Child Credit from $2000 per child to $3000 per child. This is a significant increase. Until this year, a child had to be under the age of 17 to qualify. However, for 2021 the age is 18. Additionally, for children under the age of 6, the credit can be an additional $600 for a total of $3600 per child. Another significant change is that, for 2021, the credit is refundable for people who don’t have enough income to qualify for the credit. Previously, the credit was not refundable if a person’s income was less than $2500. In 2021, even if you don’t owe any taxes, you will receive the credit. For example, if you were entitled to a credit of $8000, you will receive an $8000 payment from the government even if you owe no taxes. The phase out for eligibility to claim this credit is changed for 2021. People eligible for the child credit will receive the payment now rather than having to wait until they file their 2021 taxes in 2022. There are also phase outs for these increased benefits. The additional $1000 per child (plus $600 per child for children under the age of 6) begin to phase out at $75,000 for a single taxpayer, $112,500 for Head of Household and $150,000 for married filing jointly. The phase out for the existing benefit ($2000 per child) starts phasing out at $200,000 for a single taxpayer and $400,000 for married filing jointly. These additional benefits should provide some much-needed relief to people who have seen financial difficulty and hardship as a result of COVID-19.

How far does physician-patient privilege extend in custody and spousal support cases?

2022-10-03T07:18:03Z

Generally, physician-patient privilege refers to rules that prevent doctors from testifying about communications with patients that occur during treatment. The protections offered by this privilege vary from state to state and jurisdiction to jurisdiction. In Ohio, physician-patient privilege is codified by R.C. 2317(B) and the same privilege is extended to psychologists by R.C. 4732.19. A recent opinion by The Ohio Supreme Court, Torres Friedenberg v. Friedenberg, Slip Opinion No. 2020-Ohio-3345, clarifies how this privilege applies in child custody and spousal support cases. One of the notable exceptions to this privilege under Ohio law can occur when a patient files a civil action, including a divorce or custody action, but simply triggering the exception is not enough to implicitly waive all physician-patient privilege. Even where the exception applies, testimony is limited to communications that are relevant to the issues before the court. However, in child custody and spousal support cases, the mental and physical status of the parties are always relevant issues that the court is required to consider when making its determination because these are factors that a court must consider by statute. Friedenberg has made clear that it is not necessary for a party to independently raise specific concerns regarding mental or physical status. What does this mean? In effect, by seeking child custody or spousal support, a party has waived physician-patient privilege for all records relevant to their mental or physical health. While that might sound ominous, it’s important to remember that “relevance” is still an important touchstone: Friedenberg also makes it clear that disputes regarding relevance should be resolved by an in camera examination of the records in question by the trial court, meaning that the judge should review them before they are released to opposing counsel or used in a proceeding.

Divorce During COVID-19

2022-10-03T07:18:11Z

Being at home with a spouse during a stay-at-home order can exacerbate an already fragile marital situation. Everyone is experiencing high levels of stress and anxiety. Some people are losing their jobs and others are struggling to simultaneously work while caring for children all day. Our lives have all changed, perhaps permanently. And yet, marital problems still exist, and the need for people to divorce also exists. You can still file for divorce. The courts are open to accept new filings. Temporary orders for support are being made, which can include orders for how household expenses are to be paid if you are still living with your spouse. Restraining orders prohibiting the transfer and disposal of assets are still being granted as a matter of course. You can also begin the process of working outside the court system to reach resolution. It is critical to assess the situation in the home when making the decision about whether to file at a time like this. What will your spouse’s reaction be? Will you be safe? Do you have a safety plan in place? Are your children safe? Do you have access to funds or is your spouse controlling access to money? You should communicate with a family law attorney to help you decide when and what to file. All attorneys are working remotely and will be able to meet with you by phone or videoconference. If necessary, you can have this conversation from your car to ensure privacy and safety. It will be important that you gather all financial information to the extent that you are able to do so while living with your spouse. It will also be important to ensure that your passwords are changed and that you are disconnected from any cloud accounts that you share with your spouse. Make sure that all your communications are absolutely private and not showing up on other devices – your children’s iPads because you share a cloud account, for example. This would also be a good time to speak with a therapist to assist you in the process of moving forward. Therapists are conducting sessions through HIPAA-compliant platforms to ensure privacy and confidentiality. While you and your counsel may decide that now is not the time to move forward, you can still be putting the pieces in place so that you will be prepared when the time is right.

Update: Domestic Violence and COVID-19

2022-10-03T07:18:19Z

I have previously written about the inevitable spike in domestic violence and child abuse cases resulting from the stay-at-home orders, which, of course, are absolutely necessary to stop the spread of the novel coronavirus. In some places, calls to police and domestic violence hotlines and shelters are up at least 30%. Some municipalities are reporting increases in calls of almost 50%. The situation is so bad worldwide that the United Nations has called for urgent action to combat the worldwide surge in domestic violence cases. These cases include child abuse. Tragically, some of these cases result in homicide of spouses and often children. What is deceiving in terms of statistics of crimes of violence against women and children is that they are significantly underreported at this time. Prior to the pandemic, victims could flee, initiate a safety plan and leave the home. However, it is difficult now for victims to be able to even call for help, as they are trapped in the house with their abusers. This dangerous situation is likely to continue for quite some time. When children are not in school, there is nobody to notice telltale signs of child abuse. Likewise, if a spouse is not able to go to work, that person is less likely to have someone to whom to report the abuse. The Hamilton County Prosecutor’s office has launched a Crimes of Violence Against Women and Children Unit. This is a much-needed unit. It will be investigating acts of domestic violence. Domestic violence shelters are still open and taking people in. The Courts are all holding hearings on Civil Protection Orders on a daily basis. If you are a victim of domestic violence, people are here to help you. Victims can call 855-OH-CHILD (642-4453). Or text Women Helping Women at 513-421-4420.

Stay-At-Home Orders and Domestic Violence

2022-10-03T07:18:34Z

I previously posted on March 25 about the increased risk during this period of stay-at-home orders to victims of domestic violence. There is now significant data showing a marked increase in the number of domestic violence cases worldwide. The New York Times wrote about this recently. Multiple news outlets have written about this crisis, including the New York Times and NBC news among others. https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html https://www.nbcnews.com/news/us-news/police-see-rise-domestic-violence-calls-amid-coronavirus-lockdown-n1176151 The situation worldwide is so dire that the United Nations has called for urgent action to combat the worldwide surge in domestic violence cases. Many believe that governments should have been more prepared for this obvious by-product of the COVID-19 pandemic, with people being shut in together over long periods of time combined often with people who have lost their jobs, are frightened, worried, experiencing great stress and possibly drinking. Cincinnati is also experiencing an increased volume in the number of cases being reported. The YWCA is now housing victims around the city in hotels. While stressed for resources, the hotline is always up and running. The hotline number is 513-421-4420. https://www.wcpo.com/news/coronavirus/number-of-domestic-violence-hotline-calls-on-the-rise-since-self-isolation-period-started Of course, domestic violence is not limited to spouses. It extends to children, with many people being extremely concerned about the inevitable rise of child abuse, including child sexual abuse, under the stay-at-home orders. People are now home all day with children, sometimes multiple children, with parents now having to home school their children while also trying to work remotely, if they are employed. This situation is causing great stress. In an opinion piece written in the New York Times, a pediatrician expresses his concerns about this increase, pointing out that often it is teachers or school counselors who observe that a child is being abused and that teacher often reports the abuse to authorities. With children out of school, those extra eyes are not available to protect children who are victims of abuse. https://www.nytimes.com/2020/04/07/opinion/coronavirus-child-abuse.html The courts are open to obtain Domestic Violence Civil Protection Orders. If you live in Hamilton County, the Domestic Relations Court is located at 800 Broadway in downtown. Also, if you have been abused and called the police, your spouse or partner may be charged with criminal domestic violence, in which case you can seek a Temporary Protection Order through the criminal court.

Retirement Law Changes Under CARES

2022-10-03T07:18:41Z

The CARES Act (Coronavirus Aid, Relief, and Economic Security Act) includes very important changes to the law regarding withdrawals from retirement plans and accounts. Because so many Americans need immediate access to cash during this crisis, the rules about withdrawing funds from qualified retirement plans and IRAs have changed. Starting on January 1 of this year and continuing through the end of the year, “qualified individuals” may withdraw up to $100,000 from their plans or accounts. This means a total of this amount across all accounts, not $100,000 from each account. In order for an employee to be able to withdraw these funds, the Plan must adopt a provision permitting the withdrawal. The Plan then has until 2022 to formally amend its plan documents. An employer is not required to adopt these provisions. It is up to the individual Plan These distributions will not be subject to the 10% early distribution penalty that would normally apply to any withdrawals prior to age 59 ½. The withdrawals will also not be subject to the automatic 20% withholding of taxes from withdrawals. Instead, withholding of 10% will apply unless the participant or account holder opts to have no withholding at all. The withdrawn amounts can be repaid to the Plan or account within three years from the withdrawal. The amount withdrawn will be taxed over a three-year period unless paid back. You are a qualifying individual if you have been diagnosed with COVID-19 or your spouse has been diagnosed. You are also a qualified individual is your income has suffered negative financial consequences related to employment because of the virus. If you have been laid off, furloughed, had reduced work hours, had your business close or your employer’s business close, or if you have no ability to have child care and thus must stay home, you are a qualified individual. Other factors that may be identified later. Additionally, the rules about retirement plan loans have changed. If your retirement plan offers loans (or will now begin to offer loans), the maximum loan amount taken within 180 days of the enactment of CARES is now the lesser of $100,000 or 100% of the Plan balance. Additionally, there are new rules regarding the repayment of these loans. Again, the Plan must adopt a provision permitting these changes and the Plan has until 2022 to amend the Plan. Like the withdrawals, these provisions are optional for the Plan. Finally, the requirement to take Required Minimum Distributions from an account or Plan have been waived for 2020. This is the only provision of the CARES act that doesn’t require any Plan changes. Please check with your employer as to whether your employer-sponsored Plan will adopt a provision permitting the withdrawals. If you have an IRA, you will be able to take advantage of these provisions immediately. All the above provisions will provide a safety net for many people who otherwise have no access to funds during this crisis. If you qualify, do not hesitate to take advantage of these new emergency provisions. For more information, please see the attached article from Tri-State Plan Administration, Inc. (TPA), which contains additional information about loan repayment, minimum distributions from Plans, etc.

Stock options and restricted stock

2022-10-03T07:18:49Z

Highly compensated employees are often the recipients of either stock options or restricted stock awards. Many companies are now awarding restricted stock rather than options. Stock options give the employee the right to purchase stock are a certain price (“strike price”) in the future but creates no current ownership interest. There is a vesting schedule such that the stock and an expiration date for the exercise of the options. Restricted stock is stock that the employee owns but is restricted in terms of when it will vest and can be sold. The tax consequences of each of these assets is different. Both restricted stock and stock options can be marital assets if they were awarded or granted during the marriage; however, they cannot be transferred or assigned. Therefore, the employee-spouse must hold the non-employee spouse’s share of the options or stock in what attorneys call a “constructive trust,” meaning that the employee-spouse will still own them but hold them for the benefit of the non-employee spouse. This arrangement is fairly complicated and involves keeping the parties entangled for many years into the future. There are methods to value these assets and to offset them against other assets. Understanding the vesting schedules, values and tax consequences of the stock options and restricted stock is very important for counsel representing each of the spouses. These assets can have significant value or, if the company is doing poorly, little or no value. They will be an important part of understanding the marital estate and an essential component of settlement negotiations or litigation.

New Child Support Laws: Automatic Adjustments and Discretionary Deviations

2022-10-03T07:18:57Z

Tax laws are not the only thing changing in 2019. HB 366, which goes into effect on March 28, 2019, is dramatically changing the child support laws in Ohio. Shockingly, Ohio’s current child support laws have not been updated since 1992. The changes are much needed, as the current economic tables used to determine support obligations contain data from 1980-1986. Obviously, since then, family structures and economics have changed immensely. Although Ohio’s current child support laws desperately needed updating, some of the provisions are controversial. Two such controversial provisions are the automatic parenting time adjustments and discretionary deviations. As a background, courts typically require parties to utilize a child support worksheet to assist in making child support determinations. Parties must input background information about the children’s ages, the parents’ incomes, etc. Regardless of the amount of support the child worksheet shows as being appropriate, the parties can make deviations in certain circumstances. However, under the new law, an automatic adjustment, which consists of a 10% child support credit, will be given to the obligor with “standard” parenting time that includes 90 overnights or more. In other words, 10% of the obligor’s child support obligation will remain in his or her hands if he or she has 90 overnights or more. Additionally, courts “shall consider” whether to grant a deviation (based on overnight parenting time) when the obligor has 147 overnights or more. Courts are required to issue “findings of fact” if they choose to not grant a deviation beyond the 10% adjustment already given to that parent. Therefore, the decision of whether to grant a deviation and the amount is entirely discretionary for the court. The issue of automatic adjustments and required findings of fact for discretionary deviations is brand new for Ohio. Because there are huge financial benefits for the obligor to have more overnights, it is likely that litigation over parenting time schedules will become even more contentious. Fortunately, these automatic adjustments and deviations can be removed by the court if a parent fails to exercise their parenting time. Sources: https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA132-HB-366 DISCLAIMER: THE CONTENT OF THIS WEBSITE IS INTENDED AS ATTORNEY ADVERTISING. THE ATTORNEYS OF PHYLLIS G. BOSSIN & ASSOCIATES, L.P.A. ARE LICENSED TO PRACTICE LAW IN THE STATES OF OHIO AND KENTUCKY. THIS BLOG DOES NOT PROVIDE LEGAL ADVICE, NOR SHOULD ITS CONTENT BE CONSIDERED AS LEGAL ADVICE. VIEWING THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE READER AND PHYLLIS G. BOSSIN & ASSOCIATES, L.P.A. OR ANY OF ITS ATTORNEYS.

Starting the Process

2022-10-03T07:19:05Z

Making the choice to terminate one’s marriage is life changing. It is generally the decision of only one of the parties, leaving the other party angry, confused and frightened. The first, and sometimes most difficult step, is to retain an attorney. It is essential to engage counsel that is highly experienced in the practice of family law, preferably an attorney whose practice is limited to this very complicated and ever-changing area of law. How does one go about determining which lawyer to hire? People get recommendations from their friends, family, co-workers, therapists and from the internet. It is not unusual to interview two or three attorneys. Once a party is satisfied with the qualifications of the attorney, the next question is whether the attorney is a good match for them. It is important for a client to have confidence in the skill level of his or her attorney, but it is crucial for the client to feel that the relationship is a good fit. This means that the attorney and the potential client have been able to connect with one another and have a meaningful exchange at the first consultation. A party should feel comfortable that he or she will be heard and that the attorney will be available and accessible and listen to the client’s concerns. The attorney-client relationship is of critical importance going through the divorce process and all clients deserve to have an open and honest relationship with his or her counsel. The attorney will discuss with the client all of the various options of how to terminate the marriage. These options will include doing the case using the collaborative law model (see website for explanation of this model), retaining a mediator to assist in settlement, engaging an arbitrator to resolve some or all of the issues or handing the case through the court system. The facts of each case are different, and the attorney and client will work through the best process for that person’s case. Having an attorney that clients know is on their side can ease the difficulty of a very painful and confusing process.