Divorce During Pendency: Living Separately or Living Together?

Posted on September 27, 2014, by Anne Shale

Should Couples Live Separately Or Together Through A Divorce Or Dissolution? – List Of Factors Crucial In Each Case

divorce pendencyThe parties agree the marriage is not working; the decision is made by one of the parties to initiate a divorce proceeding.  Do the parties live separately or together during the pendency of a divorce?  There are many factors to be considered:

Finances:  If there is adequate income available to cover the living expenses of two (2) households, it is probably easier and less emotionally draining to live separate and apart while the divorce is taking place.  This arrangement allows each party to experience what it feels like to live alone and to take care of one’s home or apartment without the physical assistance or presence of the other party.  If the money or income is not sufficient to pay for two (2) households, some parties will elect to move in with a relative or friend.

Children:  If there is a child or children, both parties may want to remain in the marital residence or apartment especially if each party is seeking “custody” of the minor child or children.  Even though “abandonment” is not recognized as a cause of action in the State of Ohio, the perception remains that if Husband/Father or Wife/Mother vacates the marital residence, he or she is “abandoning” the other spouse and the child or children of the marriage. And, if either party moves from the residence, there is a perception that the vacating party is not interested in keeping the marital property.  That perception could be unfounded as the party moving from the home may be doing so to avoid the occurrence of domestic violence.  Again, if a party chooses to relocate from the marital residence or apartment, that party is not “abandoning” the family and is not relinquishing rights to later re-occupy the home or apartment.

Domestic Violence: If one party is physically abusive and/or places the other party in fear of serious imminent harm, the offending party may be ordered by the Court to vacate the marital property.  Unfortunately, this cause of action can be used successfully by either party (but usually the Wife/Mother) to get an advantage in a custody dispute.  I remind my clients to walk away if they are being antagonized or provoked into a confrontation or altercation.  Take a walk, visit a neighbor, or take the children to a park or playground to give time for “cooling off” to take place.

Relationship of the Parties:  If there is anger, extreme hurt and/or disappointment between the parties, it may not be possible for them to remain under the same roof.  On the other hand, if the parties are reasonable and respectful of one another, it may be tolerable to remain together during the divorce process.  If the decision is made to remain together in the marital residence or apartment, there are some basic issues to be addressed:

  • Bedrooms:  Are there enough bedrooms or living spaces for the parties to have separate sleeping quarters?  It would obviously be more difficult for two parties to remain together in a one-bedroom apartment than to remain together in a three (3) to four (4) bedroom home.
  • Bathrooms:  Are there enough bathrooms to permit each party to have privacy and space while preparing for work outside the home or preparing for the day within the home?  If there is only one (1) bathroom, a schedule may have to be established so that each party can prepare for bedtime and getting up and ready the next morning.
  • Paying the Household Bills:  The Courts are interested in having the parties maintain the status quo.  How were the household bills paid in the past? The parties should continue to pay for the mortgage or rent, taxes, and monthly utilities/expenses as they have done in recent months or years.  If the parties cannot resolve this particular issue, one of the parties may file a Motion to Modify Temporary Support Order or to initiate a Temporary Support Order.
  • Children:  Whether the parties remain in the same residence or apartment or whether they decide to live separately, they should work together to establish a parenting time schedule for the benefit of the minor child or children.  A starting point is to study and examine the Standard Order of Parenting Time for the relevant county wherein the parties reside.  Then, some fine tuning may be in order depending upon the work schedule or schedules of the parties.  For example, firemen and healthcare professionals often have difficulty exercising parenting time on alternate weekends as they may have to work on weekends and evening or night shifts.  The parties may have to cooperate with one another to develop or establish a parenting plan that will accommodate each party’s work schedule.

My Own Dilemma:  During the Fall of 1992, I faced the same dilemma I am addressing with this article.  My former spouse and I had sold our marital residence; and, I had purchased a landominium in Beavercreek, Ohio.  He was waiting to relocate with his employer at the time.  We decided that we could live together during the divorce proceeding.  After all, the home had an adequate number of bedrooms and bathrooms so privacy was ensured without having a schedule. We had no minor children so there were no issues with “custody” or parenting time schedules. There was no issue regarding domestic violence and we were as “reasonable” as we could be under the circumstances.  But, after two to three months, this living arrangement became untenable for me.  Why? Because I was still preparing the evening meal as I had done for many, many years.  But, I was becoming irritable and resentful when my former Husband chose to stay “out and about” after work rather than come home to eat our evening meal.  In hindsight, I wanted to “stay married” and he clearly had “moved on”!  Solution: I told him the living arrangement was no longer comfortable or “okay” with me and I gave him a reasonable time to move from my home.

Residency During Divorce Pendency Conclusion

In conclusion, when a couple is in the process of a divorce or a dissolution, the issue of where the parties shall live during the pendency of the proceeding is an issue that must be addressed taking into consideration the factors discussed herein.  Each case is fact-specific and there is no one solution for all cases.  Anyone facing this dilemma should discuss housing options/alternatives with their counsel, therapist, family members, and trusted friends. Talking with an experienced family law and divorce attorney is imperative.  The ramifications of living together or separately vary considerably based on the facts of each situation.  Don’t make a mistake. Get professional advice before making this major decision.


Beta Marriage Concept – A Trial Union for 2 Years?

Posted on September 20, 2014, by Robert L. Mues

Can Beta Marriage Avoid A Complicated Divorce?

beta marriage ohioTime magazine recently published an article discussing the concept of a “beta marriage” and millennials.  For those unfamiliar with the word “Beta” let me explain.  In the tech world, the word “beta” is often affiliated with a trial period, in other words, it’s something that’s tested before it’s released or finalized.  For example, when a video game company is nearing the release of a new video game, they’ll often release a “beta version” to a select few individuals.  This version is played and enjoyed as if it were a full released video game.  Instead, what is really going on is the developers are collecting information, analyzing all types of data, and fixing various bugs that may not have been discovered prior to the beta.

In other words, a beta is a test run designed to fix errors.  After a beta has ran its course (often a predefined period of time) the beta is closed.  Following the beta, the developers can choose whether or not they’ll release the game or not or if they’ll continue to develop and fix the kinks they became aware of during the beta period.

This concept has become a mainstay in our new generation of technology first E-version of living.  It was only a matter of time before tech savvy millennials transitioned this idea from the tech world into the real world.  “Beta marriages” have now become a thing.

A “beta marriage” is similar to the video game version, except it’s a marriage.  Instead of “game developers” you have two individuals, and instead of a video game, you have a marriage.  What happens next is almost identical to the video game version.

Two individuals decide they want to be married.  Instead of becoming married right off the bat, they form a type of union that is essentially temporary.  This union redefines the “forever” and “until death do us part” concept in most wedding vows.

This relationship will last for a predetermined amount of time, similar to that of a beta test.  After this time period has run its course, the couple will decide to either finalize their union (marriage), or to dissolve it and follow other routes. “This is a generation that is used to this idea that everything is in beta, that life is a work in progress, so the idea of a beta marriage makes sense,” said the study’s author, Melissa Lavigne-Delville. “It’s not that they’re entirely noncommittal, it’s just that they’re nimble and open to change.”

In other words, the couple is performing a “test run” on their marriage.  They’re living together, sharing income, and doing everything a married couple does, but only for a short period of time.  After this period of time, they’ll analyze their relationship and decide whether or not they’ll continue, or whether it’ll dissolve.  The study showed that fifty-three percent of millennials surveyed thought marriage vows should be renewable; with nearly forty percent saying they believed the “till death do us part” vow should be abolished.

Is Beta Marriage A Lack Of Commitment?

Some may laud this as a step in the right direction by avoiding divorce and the mess that it brings.  Others will say that this isn’t a “beta” test at all, but just a lack of commitment.  Both sides seem to have a valid argument.  In my opinion, if the couples decide this and are both comfortable with what it entails, then there should be no problem.  Individuals have been creating pre-nuptials and deciding what to do if a marriage breaks down for years, but this method takes more of a joint venture approach, with both individuals deciding how to weather an often complicated endeavor instead of just planning for its failure.  A crazy concept? Maybe not. Mexico City lawmakers proposed  (unsuccessfully) a “renewable” marriage concept recently, whereby couples could simply renew or dissolve their unions after a period of two years.  As a divorce lawyer, reading more about the “beta marriage concept and the opinions of millennials about the institution of marriage is really quite interesting!


Divorce Assets In Ohio – Survivorship Benefits For Spouse

Posted on September 13, 2014, by Joseph E. Balmer

What Happens in Ohio if a Divorcee Dies Before Transferring Property or Assets as Divorce Court Ordered?

How Assets are to be Divided After the Passing of a Spouse During the Divorce Decree

divorce assets ohioThe question was recently  posed to me as to what happens if, after a valid and enforceable Decree of Divorce, Dissolution or Legal Separation is filed, one of the spouses or ex-spouses dies before the division of assets can be fully completed.  Does the ex-spouse or spouse still retain an interest in an asset that has been released by the Court Order?  Two possible scenarios may arise, and each will be addressed separately.

Husband Passes First:

Let’s address the situation when the husband passes first.  What about those assets in which wife released or no longer had any interest, yet she remains either a beneficiary or a joint survivorship owner when husband dies?  By operation of law, you would think that those assets would pass to her regardless of the Court Decree, but a quick look to Ohio statutory law helps answer this question.  With respect to joint and survivorship real property, Ohio Revised Code specifically states that if a husband and wife own real estate  as joint tenants with rights of survivorship and the marriage is terminated, the title immediately ceases to become a survivorship tenancy and becomes a tenancy in common.i  Thus, husband’s interest, by law, does not pass to his ex-wife.  Instead it passes to his heirs or under his last will and testament.

What about assets that had the ex-wife as a beneficiary?  Ohio Revised Code section 5815.33 provides guidance.   The code defines “beneficiary” as a beneficiary of a life insurance policy, an annuity, a payable on death account, an individual retirement plan, an employer death benefit plan, or another right to death benefits arising under a contract.ii  The code states that unless one of two exceptions apply: if a spouse designates the other spouse as beneficiary and if the spouse who made the designation is divorced, obtains a dissolution or has the marriage annulled from the other spouse, the other spouse is then deemed to have predeceased the designating spouse, and the designation is revoked as a result of the termination of marriage.iii  The statutory exceptions are if the designation provides otherwise or if the two parties later remarry, then the designation remains.  Another exception was created by case law.  In a recent Ohio Supreme Court case, the court held that the O.R.C. § 5815.33 does not apply to an insurance policy in existence prior to May 31, 1990, the date the legislation was initially enacted.iv

Constructive Trusts:

What happens if husband dies before certain assets, of which ex-wife does have an ownership interest pursuant to the final decree, are transferred to the ex-wife?  Case law addresses this dilemma and the theory of constructive trusts.  In Bryson v. Maxwell, the court addressed this issue with respect to an insurance policy and stated as follow:

Generally, upon an insured’s death, “the named beneficiary is entitled to the proceeds of the policy.”v  However, this Court has recognized that under limited circumstances “an individual with a superior equitable right, by virtue of a divorce decree or separation agreement, may divest the named beneficiary of that right.”vi If, by clear and convincing evidence, a challenge establishes a superseding equitable right to the proceeds, courts are required to impose a constructive trust to “…ensure that the insurance proceeds are paid to those who were to be named beneficiaries of an insurance policy by the terms of a separation agreement embodied in a divorce decree…”vii

Clear and convincing does not mean clear and unequivocal.viii  It is an intermediate evidence standard, “more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.”ix  This theory was most recently applied earlier this year when the Ohio Court of Appeals imposed a constructive trust over the proceeds of an ERISA controlled life insurance policy for the benefit of the decedent’s children even though they weren’t named as beneficiaries on the policy.  ERISA required that the proceeds be paid to the ex-spouse under ERISA  rules, but the court ruled that the ex-spouse had to hold the proceeds in a constructive trust for the deceased’s children.x  One could apply the theory of constructive trusts to any asset with beneficiary designations.

This issue was also addressed by the Second Appellate Court, of the Court of Appeals in Montgomery County, Ohio, when the Court of Appeals reversed the trial court, and held that a constructive trust arose by operation of law with regards to STRS funds held by the surviving spouse, and that the ex-spouse had a beneficial interest in those funds.  By making this ruling, the court distinguished Cosby v. Cosby, (6 Ohio St. 3d 228, 2002-Ohio-4170).  In Cosby, a divorce decree provided that upon the husband’s retirement, the ex-wife would receive 40 percent of the husband’s STRS fund.  No provision for survivorship was made.  The husband never retired from STRS and continued working until he died.  As a result, the surviving spouse qualified as the statutory beneficiary and the ex-wife received nothing.  The Supreme Court held that the divorce decree was unambiguous and triggered only by Husband’s retirement. The Supreme Court noted that benefits do not vest until STRS grants retirement and cannot pay benefits until retirement.  In this case no beneficiary was designated, so the surviving spouse was statutorily entitled to the benefits. Id.

Conclusion:

Although there may be unusual situations which have not yet been addressed by the Ohio legislature or the courts, both have tried to take the appropriate steps to effectuate the terms of the Court Ordered Decrees of Divorce, Dissolution, Separation or Annulment and ensure that the parties’ wishes, contractual agreement and orders of the Court are carried out even if one of them dies before the terms can be fully completed. As you can tell, these situations are complex and involve the interplay of both probate and domestic relations law.  If you are involved in trying to determine how assets are to be divided after the passing of a spouse, be sure to contact an experienced divorce or probate attorney conversant with these often “sticky” cases as soon as possible.

Click here for endnotes.


Military Divorce Rate Climbs – Are Multiple Deployments at Fault?

Posted on September 6, 2014, by Robert L. Mues

Recent Study Reveals Increased Length In Deployments Will Increase The Risk Of Military Divorce

military divorce ohioA recent study conducted by the RAND Corporation with the Department of Defense sponsorship found that increased length in deployments will increase the risk of divorce.  The study goes into detail regarding marriages originating prior to and after the September 11, 2001, attacks.  The study found that couples who married prior to the attacks and had one of the spouses deployed to Iraq or Afghanistan were over 20% more likely to divorce than couples who married after the September 11 attacks.  The researchers conducting this study believed that this was likely due to the fact that couples who married after the attacks were better equipped to deal with the challenges of war.

Another study conducted in 2011 found that military divorce rates overall had an uptick from what they had been in the past.  This study found that from 2000-2011 the enlisted military divorce rate increased drastically from 2.9% to 4.2%, edging out the civilian rate of divorce.  Click here to read this study. A San Diego divorce attorney opined that the increased rate is caused most likely by the low age of most military members and the lack of emotional maturity needed to deal with long-term separation.

In 2012, military divorce did take a slight downward turn, lowering in every category except in female members of the Marine Corp, which remained very high (~9%).  Military Chaplains have recognized a standing problem in the divorce rates among military members and have offered some explanations that they believe may be causing the still (even with the downturn) increased rate. They believe that since the combat deployment numbers are scaling down many military members are staying at home now, placing them into an often unknown civilian lifestyle.  Chaplain members have stated their desire to delve deeper into the issues and offer counseling to help change the course of divorce rates among military members.

The informative graphic below illustrates a plethora of information from the 1995-2011 year regarding military divorces illustrating the uptick in numbers.

Military Divorce Statistsics Infographic

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Our Dayton, Ohio, law firm represents many military members and their spouses in divorce actions in great part due to our proximity to Wright-Patterson Air Force Base.  If you are having marital issues, it is prudent to consider consulting with an experienced family law attorney. In our experience, multiple deployments have created huge stresses in military marriages. A very sad reality often unrecognized by society!

Here are also a few other military divorce links which might be of interest:


An Interview with Michael Newsom, Fatherhood Coordinator for the Montgomery County Child Support Enforcement Agency

Posted on August 30, 2014, by Anne Shale

Michael Newsom Montgomery County Child Support Enforcement Agency

Let us first look at some important statistics published by the National Fatherhood Initiative.

The Effects of Father Absence in the Home of Minor Children:

Children of Father-Absent homes are:

  • Five times more likely to live in poverty.
  • Three times more likely to fail in school.
  • Two times more likely to develop emotional or behavioral problems.
  • Two times more likely to abuse drugs.
  • Two times more likely to be abused and neglected.
  • Two times more likely to become involved in crime.
  • Three times more likely to commit suicide.

Compare the facts with children having Father’s involved in their lives:

  • Better cognitive (“knowing and perceiving”) outcomes.
  • Higher self-esteem and less depression as teenagers.
  • Higher grades, test scores, and overall academic achievement.
  • Lower levels of drug and alcohol use.
  • Higher levels of empathy and other pro-social behavior.

I recently had the opportunity to interview Michael Newsom, an employee of the Montgomery County Child Support Enforcement Agency (“CSEA”).  Historically, Michael (“Mike”) commenced employment with the CSEA in November of 2000 as a Supervisor at the Agency’s Call Center.  He later became an Intake Unit Supervisor and in November of 2010, he became the Fatherhood Coordinator with the Agency.  An alternate title for Mike is that he is the Social Program Coordinator for the CSEA.

What Activities or Tasks Does Mike Do or Perform as the Fatherhood Coordinator for the CSEA?

Community Outreach: Mike meets with interested persons and parties at high schools, Sinclair Community College, churches, and organizations such as Marriage Works, and WATCHDOGS/Dads of Great Students (“DOGS”).   His mission and purpose is to educate young men and women about the important role that Fathers play in the lives of their children and of the necessity to increase involvement of Fathers in the lives of their children.

Involvement with Montgomery County Office of Ex-Offender Re-Entry:  This is a program initiated by Judge Walter Rice and Commissioner Deborah Lieberman.  It is a program intended to assist ex-offenders in finding employment opportunities so that they have the ability to have an income in order to pay child support obligations.  It is recognized that ex-felons, be they men or women, have difficulty in finding employment due to their criminal records.  This program is designed to work with employers who are willing to overlook criminal records and be actively involved in employing those persons who have paid their debt(s) to society.

Speaking Engagements:  Mike is a frequent invited speaker to community agencies such as the following:

  • Sinclair Community College.
  • Dayton Correctional Institute (“DCI”).
  • Churches within the community.
  • Probation Youth of the Juvenile Court (Montgomery County).
  • Seek Work Program.
  • Marriage Works.

I asked Mike what he liked most about his position of employment.  He responded with “the ability to be able to help the clients!”  I then asked him about what he liked the least about his position of employment.   He responded with “the persons who show no empathy toward their children and their needs.”

When I asked Mike if he could ask for money or grants for this program, what would he seek?  He would ask for grants of money with which to do research to see if the present programs are producing changes in parenting outcomes.

In my interview with Michael Newsom, I found him to be friendly and engaging and I found him to be most interested and involved with his goal—to improve parenting outcomes for Fathers in Montgomery County, Ohio and to have all Fathers of minor children be more engaged in the lives of their minor children.  Mike is an employee dedicated to his mission and it is a worthy one indeed.

Additional Resources:


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Phone (937) 293-2141, Fax: (937) 293-0914, Email: mues@hcmmlaw.com

Ohio Family Law and Divorce Attorney : Robert L. Mues, the Managing Partner of , Holzfaster, Cecil, McKnight & Mues, LPA, provides professional legal services relating to all aspects of domestic relations and family law, including divorce, dissolution, custody, parenting time, child and spousal support, paternity and interstate matters throughout Southwest Ohio from the cities of Dayton, Oakwood, Kettering, Centerville, Springfield, Troy, Xenia, Beavercreek, Springboro and Lebanon to the counties of Montgomery, Greene, Clark and Warren.

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