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Archive for July, 2015

Long Term Care Insurance’s Role in Medicaid Planning

Many seniors will be faced with the need for long-term care. The costs of long-term care can be devastating to the spouse living at home, depleting the savings accumulated over a lifetime in just a few years. Medicare only fully covers 20 days of skilled nursing care after a three day stay in a hospital. After the first 20 days, Medicare pays only a small part of the skilled nursing bill for another 80 days. Medicare pays for hospice services such as counseling and pain management medications, but not for hospice room and board. As you can see, Medicare benefits run out quickly, resulting in a shift to Medicaid. However, Medicaid limits how much one can keep and still qualify for benefits. Because Medicaid is a program to provide health care to the poor, one must be poor to qualify.   (more…)

What Is Extradition?

What is extradition? Extradition is a procedure where a person in one state is surrendered to another state in connection with separate criminal proceedings. Usually, that person has fled the state to avoid prosecution, sentencing or incarceration. A person who flees prosecution or sentencing is called a fugitive.   One the fugitive is arrested, he or she can either request a hearing to contest the extradition or can waive the right to this hearing. If the fugitive waives the right to a hearing, he or she will be available for return to the state that issued the warrant. (more…)

Divorce And Dissolution

How do divorce and dissolution differ from one another? A dissolution is an agreement to terminate the marriage, with an agreement on how to divide their assets and debts, as well as agreement on child custody, child support, parenting time and spousal support. In order to have a dissolution, the parties must agree on all of the issues. Paperwork is filed and the matter is resolved in a single hearing. The dissolution process is usually completed within two to three months after filing.   When the parties cannot agree on all of the issues, but wish to terminate the marriage, they must do so with a divorce. One of the eleven grounds for divorce must be alleged. Incompatibility cannot be proven, but must be agreed upon by both parties in order to be used as a ground for divorce. Divorce usually consists of temporary orders hearings, case management hearings, pre-trial hearings, and final hearings (trials). The final hearing does not usually occur until at least nine months after filing and sometimes well over one year after filing.   (more…)

What Is Mediation?

What is mediation? Mediation is a process in which two or more parties negotiate a voluntary agreement with the help of a mediator. The mediator facilitates communication between the parties. Statements made during mediation are protected under Ohio’s Uniform Mediation Act (UMA) as set forth in Ohio Revised Code 2710.01-2710.10 (R.C. 2710.01-2710.10). This privilege gives one the ability to stop other people from revealing what was said at a mediation. Does this mean everything said in a mediation is protected by privilege? No. The following topics are not protected by privilege under the UMA: discussions disclosing abuse or neglect of children and abuse or neglect of the elderly; plans to commit crimes; threats of violence; whether a mediation occurred; and signed settlement agreements. Mediators are neutral third parties who assist the parties with issue identification and problem solving. The mediator will usually meet with each side separately, but some mediation sessions are held with all the parties present face-to-face. Mediation is a useful tool used in several areas of the law, including civil cases, child custody cases, divorces, foreclosures, and abuse, neglect and dependency cases. If the parties do not reach an agreement, the mediator may schedule a follow-up session or may report to the court that an agreement was not reached.   (more…)

When Can Grandparents Take Custody Of A Child?

When can grandparents take custody of a child? A nonparent can be awarded custody of a minor child if the court makes a finding of parental unsuitability. Parental unsuitability can be determined if the "parent abandoned the child; contractually relinquished custody of the child; that the parent has become totally incapable of supporting or caring for the child; or that an award of custody to the parent would be detrimental to the child.” Parents who are suitable persons have a paramount right to the custody of their minor children.   In other words, parents have a right to care for and raise their children. In order to infringe on that right, someone must first demonstrate that the parent is unsuitable, commonly known as unfit parents. A typical case of parental unsuitability is when the parents leave the children with the grandparents and disappear for a long period of time. In such an instance, the grandparent will likely be able to prove parental unsuitability and may be able to obtain custody of the children.   (more…)

Can Something Be Done To Keep Me Out Of Jail?

When people accused of a crime come into my office, they often ask “can something be done to keep me out of jail?” More specifically, many clients ask if I can promise to keep them out of jail. I guess I am a little too honest. I do not make that promise. Does that mean I cannot do the job? No, it means I do not lie to people. I can promise to defend you with the knowledge and ability that I have accumulated for over twenty-one years of practicing law.   If someone is charged with a fourth or fifth degree felony, Ohio law basically tells the judge to give the person probation (technically called community control) unless there are some specific reasons not to do so. Does that usually mean that the person stays out of jail? Possibly, but the judge may decide to give a short jail sentence. Many of these felonies may qualify for diversion or intervention in lieu of a conviction. However, there may be technical problems with getting into an intervention in lieu of a conviction program and the prosecutor could decide that he or she does not want to offer diversion for a particular case. What if you do not like the terms of the diversion? Perhaps, you feel like the victim is inflating the losses and making you pay much more than they ever lost. You could take it to trial, and try to get your case reduced to a misdemeanor by a jury of your peers. Because the judge cannot send you to prison on a misdemeanor, you got this thing beaten, huh? Not so fast. That judge can still send you to jail on a misdemeanor conviction, especially if he or she thinks the actions that they heard during trial demand a response. Some crimes have minimum sentences. For example, DUIs have minimum sentences starting at three days in jail. Firearm specifications have at least a one year minimum prison term, often triggering a separate and consecutive prison term for the main felony charge.   (more…)

Can You Lie To The Police?

Can you lie to the police? No. You have the right to remain silent, not to lie, especially if that lie is designed to mislead the police. Then, the lie is considered obstruction of justice or obstruction of official business.   Obstructing justice is defined in Ohio Revised Code 2921.32 (R.C. 2921.32). It is a crime to attempt to hinder the discovery, apprehension, conviction or punishment of a person who has committed a crime. This can include lying or misleading the police, harboring or hiding the accused person, or helping the accused person evade the police. It can also include the use of bribery or intimidation. If the crime committed by the person aided is a misdemeanor, obstructing justice is a misdemeanor of the same degree. For example, if the aided person committed assault, a first degree misdemeanor, obstructing justice would be a first degree misdemeanor. If the crime committed by the person aided is a third, fourth or fifth degree felony, other potential penalties are specified under R.C. 2921.32.   Obstructing official business is defined in Ohio Revised Code 2921.31 (R.C. 2921.31), making it illegal to prevent, obstruct or delay a police officer or other public official in the performance of his or her official duties. (more…)

Filing Tax Returns During A Pending Divorce

In my practice, I frequently confront the question of filing tax returns during a pending divorce, whether they should file an individual or joint return and what they should do with the refund. The other issue is whether the parties should file an individual or joint return.   Filing tax returns during a pending divorce depends on the situation. First, in the vast majority of divorces, there are restraining orders prohibiting the parties from disposing of assets and possibly even filing tax returns in the absence of a court order or mutual agreement. Therefore, going off on one’s own, filing an individual tax return and keeping the refund could be grounds for contempt.   (more…)

Cheap Criminal Defense Attorney

My office receives a lot of phone calls asking what I charge for a criminal defense or DUI defense.  Some of these prospective clients are looking for a cheap criminal defense attorney or a cheap DUI attorney.  Some are just trying to get an idea of the range of criminal attorney fees.  We happily give them our fee and tell them what we do for that fee.  However, it is really difficult to really show them all that we do for that fee.  While we have a competitive fee, we are not the lowest fee.  We do not want to be the lowest fee because of the loss of professionalism and service that would likely occur if we were to charge such a low fee.

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Prosecutorial Misconduct

What is prosecutorial misconduct?  Improper remarks during trial, failure to disclose exculpatory evidence and knowing use of perjured testimony are just a few examples.  Sometimes, a prosecutor’s misconduct amounts to grounds for reversible error under Ohio Revised Code 2945.79 (R.C. 2945.79).   What comments can give rise to prosecutorial misconduct?  The following examples are remarks that can deprive the defendant of a fair trial:  
  1. Adversely commenting on a defendant’s failure to testify at trial.
  2. Use of a defendant’s silence before or after arrest as substantive evidence of guilt.
  3. Unfair or derogatory personal references to defense counsel during trial.
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Can A Person Waive The Right To Remain Silent?

Can a person waive the right to remain silent?  The Fifth Amendment to the United States Constitution guarantees the right to remain silent, often referred to as “pleading the fifth.”  Ohio also guarantees this right in Article 1, Section 10 of the Ohio Constitution.   In the United States Supreme Court’s landmark decision in Miranda v. Arizona, 384 U.S. 436 (1966), the court said that the following warnings must be given prior to a custodial interrogation:   (more…)

Police Took The Suspect Into Custody

What does it mean when someone says that the police took the suspect into custody?  There are a number of factors that courts use to determine whether a person is in custody.  Why is this important?  Miranda warnings must be given if a suspect is questioned while in custody.  If the warnings are not given, the suspect’s answers cannot be used at trial.   The factors as set forth by the United States Supreme Court in Rhode Island v. Innis, 446 U.S. 291 (1980), are as follows:
  1. Did the person feel free to leave at that location (home vs. police station);
  2. Was the person a suspect at the time the questioning began;
  3. Was the person’s freedom to leave restricted in any way;
  4. Was the person handcuffed or told he or she was under arrest;
  5. Were threats made during the questioning;
  6. Was the person physically intimidated during the questioning;
  7. Did the police verbally dominate the questioning;
  8. What was the person’s purpose for being at the place the questioning took place;
  9. Were neutral parties present at any point during the questioning;
  10. Did the police try to overpower, trick or coerce the person into making a statement.
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What Jail Time Credit Will Be Applied?

One question that frequently arises at sentencing is what jail time credit will be applied?  Time spent in confinement can be credited against a sentence.  Confinement includes jail and community based correctional facility (CBCF).  Treatment can count if the defendant was confined there.  In order to get credit, the person had to be in custody for the case that is proceeding to sentencing.  In other words, the person cannot get credit for time served on another charge or other case.   (more…)

Can I Go To Jail For Defaulting On A Payday Loan?

Some payday lenders threaten to call the police if the check bounces, prompting one to ask, “can I go to jail for defaulting on a payday loan?”   A payday loan is usually a small loan with a postdated check as collateral for the loan.  The due date is usually the date of the person’s next paycheck.  Payday loans carry a high interest rate, often more than 300%.  If one borrows $300 on March 1 and has to pay $330 back on March 15, it may not seem like much.  However, ten percent over two weeks is equivalent to 260% over a year.  If someone repeatedly took out this same loan for a full year, that person would pay 260% interest on $300, which amounts to paying the $300 back, plus $780 in interest.   (more…)

What Is A Municipal Court In Ohio?

Ohio has over 100 municipal courts, including some of our local courts:  Wadsworth Municipal Court, Medina Municipal Court, Wayne County Municipal Court, Barberton Municipal Court, Akron Municipal Court, and Stow Municipal Court.  So, what is a municipal court in Ohio?   (more…)

Ohio Outlaws Debtors’ Prison

The Ohio Supreme Court has ordered Ohio courts to stop reviving debtors’ prison.  In other words, Ohio outlaws debtors’ prison.  In February 2014, the high court indicated that it would not tolerate the court’s imprisoning people who could not afford to pay fines and costs.   What is debtors’ prison?   (more…)

Minimum Amount Of Child Support

Is there a minimum amount of child support that a court must order?  Yes, there is.  Courts usually order guideline support, which is the amount of support calculated under the child support guidelines.  However, Ohio Revised Code 3119.06 (R.C. 3119.06) requires the court to order a minimum child support order of $50 per month.  If the person is not working and receiving needs-based assistance, then, while the arrearages accrue, the obligation to pay child support is suspended as long as the person is complying with a seek-work order.   Even though the statute says that is the lowest amount, is it?  No.  Ohio law also allows the court to order one to pay less than $50 per month or not require any child support if the parent ordered to pay has a medically verified or documented physical or mental disability or institutionalization for mental illness.   (more…)

Courts Impute Income For Child Support

Courts impute income for child support.  This means that the court will determine that you should make a certain amount of income even if you do not.  How does the court do that?  The court considers employment history, education, physical and mental disabilities, availability of employment in the area, typical wages in the area, skills and training, whether the person has the ability to earn the imputed income, the age and special needs of the child, and experience in the field.  Basically, the court will impute income if a parent voluntarily reduces income or loses a job.  If the income loss or reduction was involuntary and the person cannot easily obtain another job at the same income level, then the court may accept the person’s current income level for child support purposes.   (more…)

Bankruptcy Is Constitutional

Did you know that bankruptcy is mentioned in the United States Constitution?  In other words, bankruptcy is constitutional.  The United States Constitution states:  “[The Congress shall have Power] to establish . . . uniform laws on the subject of Bankruptcies throughout the United States.”  Look it up!  U.S. Constitution, Art. I, Section 8, clause 4.   The Framers wanted to ensure that there would be a uniform system of bankruptcy so that one state would not put someone in debtor’s prison for a debt that was discharged in another state.   (more…)