Family and Divorce

For more than 25 years, Artz, Dewhirst & Wheeler, LLP has been committed to providing clients a legal home with a full range of services that will meet most people’s needs. The area of Domestic/Family Law is no exception. Attorney Thomas J. Addesa has a Specialty Certification in Family Law through the Ohio State Bar Association.

Tom can provide advice and representation for clients in matters involving:

UPDATE ON SAME-SEX MARRIAGE IN OHIO (April 16, 2014)

 (Henry, et al v. Himes, et al, Case No 1:14-cv-12)

On Monday, April 14, 2014  Judge Timothy Black, District Judge for the United States District Court, Southern District of Ohio, Western Division, ruled that Ohio’s marriage amendment and laws that prohibit the recognition of same-sex marriages performed in states or jurisdictions that allow them, is unconstitutional.  The Judge indicated that he was inclined to stay a portion of his ruling but gave the parties an opportunity to weigh in on that issue.

 On Wednesday, April 16, 2014 Judge Black stayed his ruling EXCEPT as to the specific plaintiffs in the case.  This means that as to the children of the specific couples in the original case, the State must record birth certificates with both spouses’ names as legal parents, unless the Sixth Circuit Court of Appeals grants another stay as to that part of the ruling.  It is unclear whether Judge Black’s ruling on the stay means that it will immediately apply regarding only the birth certificates of the expectant couples’ children in the case, or whether it will apply to all birth certificates for the children of all same-sex married couples.  The stay of the remainder of Judge Black’s decision means that, until the Court of Appeals rules (or potentially the U.S. Supreme Court rules on this or a case with similar facts) otherwise, the State of Ohio will still be able to deny recognition of same-sex marriages performed in states or jurisdictions that allow it.

 For same-sex couples who live in Ohio and who have children or plan to have children, there are still other options that they can pursue to protect their children from being separated from either parent.  Options include completing shared custody agreements adopted as Court Orders, and considering out-of-state processes that would involve obtaining a legal Order establishing both parties as legal parents.   The best option for a given couple depends on their circumstances and their goals.  Couples contemplating starting a family may wish to consider scheduling a consultation with Attorney Thomas J. Addesa at the law firm Artz, Dewhirst & Wheeler, LLP.  Tom has had a specialty certification in family law through the Ohio State Bar Association since 2005 and has focused on family law issues since 1998.

For those same-sex couples who were married in states or jurisdictions that allow it but who wish to obtain a legal divorce, Attorney Thomas J. Addesa has had success in obtaining judicial Decrees of Divorce for those couples.  Attorneys are not allowed to provide legal advice to both spouses, but if you are married to a person of the same sex and wish to legally end your marriage, you should contact Tom for a consultation.

Divorce/Dissolution

In order for a marriage to legally end in Ohio, the parties must obtain a judgment from the court. There are several options available, depending on the individual circumstances. Divorces may be granted on a contested or an uncontested basis. Dissolution of marriage is available for couples who agree that they are incompatible and who voluntarily sign a Separation Agreement and other legal documents. Annulment may be an option for some couples and can result in a legal determination that the marriage had no force or effect. There are a variety of requirements that the couple must meet to successfully obtain a court judgment legally ending their marriage. It is important to seek legal advice about the circumstances of your marriage from an attorney with experience in this area of the law.

Domestic Partnership

Domestic partnership agreements generally are used to clarify legal rights and responsibilities when the parties are not legally married. These agreements can be made between opposite or same sex partners. They tend to make provision for how the parties will share ownership of certain property and what methods the parties will use to separate property and debt if they should decide to dissolve their partnership. They are often used in conjunction with related documents such as Health Care Powers of Attorney, Living Wills, Wills, etc. Domestic partnership agreements can greatly decrease uncertainty and potential future litigation by making decisions concerning important matters while the parties are on good terms and in an intact relationship.

LGBT Family Issues

There are a variety of “family” issues affecting those in the LGBT community. Many who identify as LGBT may have been legally married to an opposite sex partner and may need to legally end that marriage. Some may have married one another in a State that allows same-sex marriage and may be seeking to legally end that marriage. Others may wish to start a family. There are specific steps that these couples should consider taking prior to starting the legal process to achieve these ends. Unfortunately, these issues can still be a legal mine field in Ohio and it’s important for the couple to consult with an attorney who has experience dealing with family issues for LGBT individuals.

Gay Divorce

If you married your same-sex partner in a State that recognizes same-sex marriage, and now you need to legally end the marriage, there are options available to obtain a divorce in Ohio.  Some attorneys may believe it’s not possible to obtain a gay/lesbian divorce in Ohio, but attorney Thomas Addesa has successfully obtained Divorce Decrees for lesbian and gay individuals who married their domestic partner.  Contact Mr. Addesa for a consultation.

Parenting & Adoption

Adopting or fostering children can be a wonderful way to start or grow a family. In Ohio, single individuals and married couples may adopt. Step parents may also adopt in certain circumstances. And in some cases, adopting an adult may also be allowed. Adoption can be done through a private adoption agency, through Children Services Agencies, and by direct arrangements with birth parents. Although couples who are not legally married in Ohio cannot both adopt the same child, there are other legal measures (such as “co-parenting or shared custody”) that can be utilized to insure that both parties have an enforceable right to share the legal custody of minor children. Below are some helpful links related to adoption and foster care:

Custody & Child Support

In Ohio, the legal custody of minor children depends on the specific circumstances of the parents. When the parents are married at the time of birth, neither parent has a superior right to the custody of minor children. When a child is born to an unwed mother, the birth mother is the only person with the legal right to the physical custody of the child. This is true until the father seeks and obtains an order from the Juvenile Court spelling out his rights and responsibilities. In general, parents make decisions for their children. When they do not agree on what is best for their children, then either or both can seek an Order from the Juvenile or Domestic Court which will address such things as whether shared parenting is appropriate; what the parenting schedule should be; holiday schedules; decision-making for the children; and child support. An order for child support may be obtained either through the County Child Support Enforcement Agency or in the context of a case pending in court. There is a specific child support worksheet that must be completed in order to determine what the presumed amount of support would be given the specific circumstances of the parties. The parents involved may also have the right to claim that the standard amount of child support listed in the worksheet is not the correct amount for their circumstances. An assessment of all of these considerations should be made only after consultation with an attorney experienced with handling these issues. The following is a link to the Franklin County Child Support Enforcement Agency:
http://support.franklincountyohio.gov/

Post Decree Matters

“Post Decree” refers to matters that arise after a Juvenile or Domestic Court has issued specific Orders. In divorce or dissolution cases, this can include matters related to parental rights and responsibilities, child support, and other provisions contained in the final Decree /Order. In these cases, the Court retains the jurisdiction to enforce its prior Orders. If either party believes that the other has failed to fulfill his/her responsibilities as specified in the Decree/Order, the aggrieved party may file motions with the Court to address these issues and to potentially obtain a decision holding the other party in contempt of court. Any provisions related to minor children may also be changed at a future date if there has been a change in circumstances since the last Order/Decree was issued. Whether and to what extent it is wise to return to Court is a decision that should be made only after consultation with an attorney who has experience dealing with family law matters.

Visitation & Paternity

The term “visitation” is no longer used in Ohio in parental rights cases. In cases between parents, “parenting time” is the term that is used in the relevant statutes. “Visitation” is still used in cases involving grandparents who are seeking a court Order for visitation with their grandchildren. Parents can seek court Orders determining their right to parenting time regardless of whether they were married to the other parent and they may seek to modify previously issued Orders when circumstances have changed. Grandparents may also petition a Court for a specific Order allowing them to have visitation with their grandchildren.

Surrogacy & Co-Parenting

The term “surrogacy” refers to the process where a woman agrees to gestate and carry a child for another individual or couple. Surrogacy can take a variety of forms. In traditional surrogacy cases, the surrogate’s own egg is used and is combined with the sperm of an anonymous donor or with the Intended Father. This type of surrogacy is becoming less common. It is now more common that an egg from an anonymous donor is used so as to eliminate any biological connection to the surrogate. The Supreme Court of Ohio has ruled that contracts for gestational surrogacy are, as a general rule, not against public policy and are enforceable in Ohio. In order to insure various legal protections, it is necessary to have a completed and signed agreement between the gestational surrogate and the intended parent(s) prior to pregnancy. These contracts are complex and those contemplating surrogacy should be very cautious and should never attempt such an arrangement without being represented by an attorney with experience in these cases.
“Co-parenting” or shared custody refers to sharing the custody of minor children. It is often used in the context of same-sex couples who have decided to start a family together. But, it can also refer to a similar arrangement between opposite-sex couples. Since Ohio Law does not allow “second-parent” adoptions, unmarried couples must use the co-parenting or shared custody process in order to obtain a legal determination that both parties have enforceable rights with respect to their children. One of the key points to remember is that the parties should sign the necessary documents and consult with attorneys before the adoption or birth takes place. It is possible to obtain an order for shared custody after adoption or birth, but it can be an expensive and uncertain proposition if the legal parent refuses to consent to an order for shared custody. The parents involved should obtain legal advice before starting their family.

Prenuptial Agreements & Planning

“Prenuptial or Antenuptial” Agreements are written agreements made prior to marriage that specify the rights and responsibilities of the parties with respect to property, spousal support (alimony), rights of inheritance, and other rights and responsibilities that flow from the marital relationship. Generally, prenuptial agreements are enforceable but there are several factors that must be present in order for a court to enforce the agreement at a later date. The parties must provide full disclosure to one another of all of their assets and debts. They must each have a reasonable opportunity to read the agreement and to consult with an attorney. The Agreement must be signed prior to marriage. Generally, agreements signed after marriage purporting to change or affect marital rights and responsibilities are not enforceable. A prenuptial agreement can address virtually any right or responsibility imposed as a matter of law by virtue of the marital relationship, including spousal support. In some cases, the passage of time or a significant and unforeseen change in the circumstances of the parties could affect the enforceability of an otherwise valid prenuptial agreement. A thoughtfully prepared prenuptial agreement can provide significant protection for the parties, particularly when there is a large difference between the parties’ incomes and assets. Couples contemplating marriage should consult with attorneys atleast a few months prior to their wedding date if either have an interest in completing a prenuptial agreement.

Divorce Mediation

Tom is also available to act as a mediator in these (and other) areas, and he is an Adjunct Professor with Capital University Law School, teaching the Divorce and Family Mediation Course offered at the Law School.