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Posts tagged "Divorce"

Business Income In Ohio Child Support and Divorce

One of the more difficult tasks in calculating child support and spousal support for Ohio divorce and child custody is calculating and determining business income.  Business income in Ohio child support and divorce is complex and filled with pitfalls.  It can be frustrating to watch the opposing parent reduce his or her income significantly through business expenses.  Does this mean that the opposing parent’s income can be reduced from $120,000 in gross receipts down to a net profit of $30,000, simply because he or she claimed $90,000 in business expenses?  Not necessarily.

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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…)

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…)

What Do Those Words In My Child Support Order Mean?

There are a lot of technical terms in a child support order that can lead a parent to ask, “What do those words in my child support order mean?”   Ohio Revised Code 3119.01 (R.C. 3119.01) defines a substantial number of these terms.  Lets take a look at some of the terms.   Obligee means the person who is entitled to receive the support payments under a support order.   Obligor means the person who is required to pay support under a support order.   Extraordinary medical expenses means any uninsured medical expenses incurred for a child during a calendar year that exceed one hundred dollars.   (more…)

What Factors Does A Court Use To Decide Child Custody?

What factors does a court use to decide child custody and parenting time?  The following from Ohio Revised Code 3109.051 (R.C. 3109.051) sets forth the factors:  
  1. The prior interaction and interrelationships of the child with the child’s parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not the parent, sibling, or relative of the child;
  2. The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person’s residence and the distance between that person’s residence and the child’s residence;
  3. The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;
  4. The age of the child;
  5. The child’s adjustment to home, school, and community;
  6. If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to the parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
  7. The health and safety of the child;
  8. The amount of time that will be available for the child to spend with siblings;
  9. The mental and physical health of all parties;
  10. Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of the person to reschedule missed visitation;
  11. In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
  12. In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or neglected child; whether the person, in a case in which a child has been adjudicated an abused child or neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;
  13. Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s rights to parenting time in accordance with an order of the court;
  14. Whether either parent has established a residence or is planning to establish a residence outside this state;
  15. In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents, as expressed by them to the court;
  16. Any other factor in the best interest of the child.
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Regaining Custody Of Your Children

The United States Supreme Court and the Ohio Supreme Court have repeatedly said that the “right of parents to raise their children has been deemed basic and essential, protected by due process of law.”  While a parent does not lose this right when the other parent is awarded custody of the children, this right does not help much when the noncustodial parent tries to regain custody of his or her children.   Ohio law also creates a hurdle, stating that modification of custody will not occur unless a change in circumstances of the child or child’s residential parent occurs.  If there was a shared parenting decree, the change in circumstances can occur with either parent.  The modification must also be in the best interests of the child, and: (1) the residential parent agrees to a change; (2) the child, with consent of the residential parent or of both parents in shared parenting, has been integrated into the family of the person seeking to become the residential parent; or (3) the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.   (more…)

Can I Record My Child’s Wishes?

One may ask, “Can I record my child’s wishes?”  The answer is no.  Ohio Revised Code 3109.04 (R.C. 3109.04) specifically prohibits the court from considering such evidence:   “No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child’s wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child.  No court, in determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child’s wishes and concerns regarding those matters.”   (more…)

Child Support Deviation

When does a court consider a child support deviation?  Normally, child support follows a specific formula as set forth in Ohio Revised Code 3119.021 (R.C. 3119.021).  However, a court may deviate from the usual amount of child support if the court determines guideline child support would be unjust, or inappropriate, or not in the best interests of the child.   Ohio Revised Code 3119.23 (R.C. 3119.23) sets forth a number of reasons for a court to deviate from the guideline child support amount:   (more…)

Parental Rights

I often get asked what parental rights parents have when they are married, unmarried or have a child support order in place.  These are the common questions and the answers to those questions.   What is a putative father?   A putative father is a man who may be a child’s biological father but who is not married to the child’s mother at the time the child is born or who has not established paternity of the child in a court or administrative hearing.   Does a putative father have parental rights?   (more…)

What Is Separate Property In Divorce?

Daniel F. GIgiano, Attorney at Law, Wadsworth, OhioWhat is separate property in divorce?  It is property that the spouse gets to keep without it being subject to an equitable division by the divorce court.
First, we should look at what is marital property under Ohio law.  The Ohio law defining marital property is found in Ohio Revised Code 3105.171 (R.C. 3105.171).  Marital property is:
  1. All property currently owned by either or both parties or acquired by either or both of the parties during the marriage; and
  2. All property interest that either or both parties currently holds acquired by either or both of the spouses during the marriage;
  3. Active income, which is all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage;
  4. Anything that is not separate property.
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When Does Spousal Support End?

Daniel F. Gigiano, Wadsworth OhioWhen does spousal support end?  Even when spousal support is determined as lifetime spousal support, it is not necessarily forever.
There are four ways in which an order for spousal support may terminate:
  1. Spousal support may terminate on a specified date;
  2. Spousal support may terminate upon the occurrence of a specified event;
  3. The domestic relations court may terminate spousal support pursuant to its continuing jurisdiction if a change of circumstances has occurred that supports termination of spousal support;
  4. Spousal support may terminate as a matter of law upon remarriage of the recipient spouse or the death of either party.
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What Does The IRS Consider To Be Spousal Support?

Daniel F. GIgiano, Attorney at Law, Wadsworth, OhioWhat does the IRS consider to be spousal support?  A divorce decree labels payments as spousal support, maintenance, or alimony.  Does that mean that the payments are considered to be alimony by the IRS?  Not necessarily.  Why does this matter?  It matters because qualifying spousal alimony payments are deductible by the payer and included in the recipient’s income.
In Ohio, alimony is called spousal support.  For purposes of this article, we will use the Ohio term.  In order for a payment to qualify as spousal support by the IRS, all of the following requirements must be met: (more…)

How Does A Court Decide Spousal Support?

How does a court decide spousal support?  The court considers a list of factors set forth in Ohio Revised Code 3105.18 (R.C. 3015.18):
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Dividing A Business In Divorce

This article will address dividing a business in divorce.  Usually, a qualified expert witness will be needed to provide evidence of the valuation of a business.  The expert looks at various factors, such as the history of the business, risk involved in the particular business, among other factors. Utilizing such factors, the expert determines the fair market value of the business.  The parties will have to decide if they want to agree on a single expert or if they wish to hire their own experts.  With the price of a business evaluation expert being $10,000 or more, this is no small decision.  Factors that may be considered in whether to share an expert include: whether the business-owning spouse is likely to disclose all assets and liabilities of the business, including receivables; whether the business-owning spouse had a history of keeping thorough and reliable records; and how well the non-business owning spouse knows the business. (more…)

Testimonials And Reviews of Daniel Gigiano

Testimonials and reviews come from hard work and know-how.  In looking at testimonials, one should look for signs that the attorney will fight for you and will take the time to do some of the little things that may need done in the case.
Daniel Gigiano is an attorney who cares about getting justice for his clients, as well as looking out for their well-being. This culture of going the extra mile had its roots back in the days when he was an assistant prosecutor.  While working in the juvenile division, word got around that Attorney Gigiano not only ran a tight ship and was a bulldog in the courtroom, but he also took the extra time with the people involved in the cases, as well as opposing counsel.  Word traveled quickly, as the people involved and his peers spoke highly of his work.  Attorney Gigiano was promoted to supervisor where he managed a large caseload.  He continued to receive compliments for his willingness to give his time to people and ensure justice. (more…)

Property Division In Divorce

This article will discuss property division in divorce.  What is property?  Property can be real property, otherwise known as real estate.  Property can also be personal property, which includes cash, financial and retirement accounts, vehicles, and household goods.
Under Ohio Revised Code 3105.171 (R.C. 3105.171), there are nine factors that govern only the division of property: (more…)

Dividing Retirement Benefits In Divorce

How do you go about dividing retirement benefits in divorce?  First, the domestic relations court must determine who is entitled to what portion of retirement benefits.  Retirement benefits accumulated during the marriage are marital assets, and must be divided as part of an equitable division of property.  Equitable division means a fair division of property. (more…)

Who Is Entitled To A Child’s School Records?

Who is entitled to a child’s school records?  Under Ohio law, both parents have the right to access their child’s school records.  The schools generally recognize the right of the legal custodian and residential parent’s access to school records.  However, some schools may not always recognize the non-residential parent’s right to access their child’s records.  If this problem arises, the legal custody papers usually contain language stating that both parents have the right to have access to their child’s school records. (more…)

Notice of Intent to Relocate

What is a notice of intent to relocate?  It is a provision that is most likely tucked away within an order allocating parental rights and responsibilities, including divorce decrees, dissolution decrees, and legal custody orders.  It is a provision that is often overlooked.  If a residential parent moves, that parent must notify the court when he or she moves.  If one parent does not know where the other parent lives, they may become anxious about where their children are during that other parent’s parenting time.  This could lead to one parent employing various methods to respond.  Such methods may include methods that may not be permissible, such as withholding visitation.  That parent may also decide to call the police or file a motion in court to have custody changed, all because that parent simply did not know where their children were at during the other parent’s parenting time. (more…)

Medina County Legal Custody Attorney

What does a Medina County legal custody attorney do?  In Ohio, it is usually a request from the court to “allocate parental rights and responsibilities” or when modifying an existing custody order, “reallocate parental rights and responsibilities.”  If a parent is granted custody in a divorce, dissolution, annulment, legal separation or parentage case, that parent is named the residential parent and legal custodian of the child.  If shared parenting is granted, both parents are the residential parents, but one will be the residential parent for school purposes, which means the child will go to school in the district in which that parent resides.  Shared parenting does not necessarily mean equal time or support, but simply means that both parents share equal responsibilities. (more…)

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