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Marital vs. Non-marital Property

Marital vs. Non-marital Property
When dividing property in a divorce, it is important to understand the difference between marital and non-marital property.

What is Marital Property?

Typically, property acquired during the marriage is marital property, including any wages earned during the course of the marriage. It may include the marital home if it is acquired during the marriage, as well as any retirement or investment accounts developed during the marriage—regardless of which spouse earns the money in the accounts.

What is Non-marital Property?

There are several categories of non-marital property. First, property acquired prior to the marriage is likely non-marital property. For example, if one of the parties owned a home that the parties use as a residence, some of the value of that property may be considered non-marital.

Retirement benefits may also be non-marital. If a party was employed prior to the marriage and earned retirement benefits prior to the marriage some or all of those benefits may be non-marital.

A family heirloom, such as grandmother’s engagement ring, owned by one party prior to the marriage, is non-marital property.

A vacation home may be non-marital property depending on how and when the property was acquired. Property may be passed down through a family and may be viewed as an inheritance.

Inheritances

An inheritance received by one spouse is a non-marital asset. This is true even if the inheritance is received during the marriage. This is one of the few assets acquired during a marriage that is considered non-marital property. This is true regardless of the form of the inheritance, real property, cash, stocks, or other property. However, whether an inheritance remains non-marital property depends on certain facts.

Co-mingling Assets

It is possible that assets that are originally considered non-marital assets lose that categorization when they are deposited with marital assets. This is known as co-mingling assets. If you want to preserve non-marital assets as non-marital, those assets must be kept completely separate. For example, keep any financial assets that are non-marital in a completely separate account. Do not deposit marital funds in that account.

Determining Property Division

Determining property division can be complicated in any divorce. Determining marital versus non-marital property requires the application of a complex formula. This requires the employment of a qualified, experienced family law attorney in Cincinnati. The law office of Zachary D. Smith, LLC has the experience and expertise to assist you in your divorce. For further information or to schedule a consultation please contact ZDS Law at (513) 275-1164 or visit www.ZDSLaw.com.

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Avoiding Financial Mistakes in Divorce

Leading family law attorney in Cincinnati
Divorce brings with it tremendous emotional and financial consequences. There are steps everyone can take to help minimize the negative financial consequences of a divorce.

Hire an Experienced, Qualified Attorney

Attorneys are expensive, but this is not the time to practice law on your own. Even experienced attorneys hire a family law attorney for their divorce. A qualified, experienced family law attorney will guide you through a complicated process. Your future financial and family situation depends on what happens in your divorce.

Get a Professional Appraisal of the Family Home

For many married couples, the family home is their most valuable asset. When going through a divorce, it is important the parties know the actual value of the home. One of the parties may want to maintain the family home. Or it may be necessary to sell the home. The parties need to know how best to proceed from an educated point of view. Understanding the value of the home (not just what is owed on it) informs the parties when negotiating the distributions of other assets.

Do Not Give Up Retirement Benefits Easily

Sometimes a party is tempted to give up retirement benefits in exchange for short term gain. During a divorce, retirement can seem like a distant prospect. That can make it easy to trade retirement benefits away. Consider how much time you have before retirement. Do you have enough time to rebuild retirement savings? When do you want to retire? Consider your standard of living upon retirement. Do you hope to move south? Will downsizing help pay the bills? These factors should be considered while negotiating your divorce settlement.

Consider Your Priorities

Tell your attorney what is most important to you. Some parties value the family home, some retirement benefits, some custody of the children, and some the family cabin. Your attorney needs this information. Negotiation is crucial in a divorce settlement. To effectively negotiate on your behalf, your attorney needs to know what your priorities are.

Consider Mediation

Mediation involves a third party neutral. The mediator works with both parties and their attorneys to attempt to resolve any or all issues in the divorce. Mediation is not binding. It is an inexpensive alternative to protracted litigation. Mediation resolves some or all of the issues in a divorce much more inexpensively than litigation.

If you are considering divorce, you need an advocate working for you to protect your interests. At Zachary D. Smith, LLC, we focus exclusively on family law. Zachary D. Smith is trained as a family law mediator, serves on the Executive Committee of the Cincinnati Academy of Collaborative Professionals, and has experience litigating cases other methods of case resolution fail. To schedule an appointment with a leading family law attorney in Cincinnati, contact Zachary D. Smith at (513) 275-1164 or visit www.ZDSLaw.com for further information.

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Understanding Gray Divorce

Family law attorney
What is a “gray divorce”? A gray divorce is the term for a couple over the age of 50 getting divorced. “Gray” is a reference to gray hair. While the overall divorce rate has been consistent, divorce among older couples is on the rise. Why is this?

Why are Older Couples Getting Divorced?

Four common themes present themselves in gray divorce:

  • An unwillingness to settle;
  • Different expectations about retirement;
  • Having nothing in common; and
  • Disagreements about money.

An Unwillingness to Settle

People are living longer than ever. As a result, parties are less inclined to tolerate a bad marriage. Spouses know that they have time to meet someone new. More and more people are deciding they don’t need to settle for a mediocre marriage.

Different Expectations

Different people have different expectations about aging. Sometimes spouses disagree about retirement. One party may just want to stay home and enjoy the grandchildren. The other party may want to go on cruises and see the world. This incompatibility can lead to a divorce late in life, after retirement.

Growing Apart

Sometimes couples simply grow apart. After the children are gone, they realize they have little in common. In addition, after retirement, couples have more time to spend together. This may result in a realization that they no longer want to spend time with each other.

Money Disagreements

The parties may disagree on how to spend money. After retirement, the parties are likely living on a fixed income. One party may be more free spending while the other is a more conservative spender. This can result in serious tension and ultimately divorce.

What are the Potential Issues in a Gray Divorce?

Gray divorces present unique challenges requiring an experienced, qualified family law attorney.
The parties need to determine the value of non-marital and marital property. For example, if one party had a job prior to the marriage, how much of their pension is marital property? Did one of the parties own the home prior to the marriage? What about other retirement assets? In a gray divorce, it is difficult for a party to make up lost retirement benefits. If one of the parties received an inheritance, this can be a complicating factor. Generally, the inheritance is nonmarital property. However, if the assets are co-mingled with marital assets, the inheritance may become marital property.

If You are Considering Divorce

Gray divorces present their own unique challenges and Zachary D. Smith has the experience necessary to handle the special issues present in a gray divorce. For further information or to schedule a consultation with a reputable family law attorney in Cincinnati please contact the office of Zachary D. Smith, LLC at (513) 275-1164 or visit www.ZDSLaw.com.

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Parent Teacher Conferences After Divorce

Parent Teacher Conferences After Divorce
Fall is upon us and parent teacher conferences are right around the corner. If this is your first conference after the divorce, or if you didn’t find your last experience satisfying, now is the time to start thinking about how you and your ex will handle parent teacher conferences. Here are some approaches to consider.

Set Ground Rules

You know your past communication patterns with your ex. Consider these when planning how you will approach parent teacher conferences.

Joint Conferences

In the best world, both of you will attend the conference together. The focus will remain on the child, the child’s progress in school, and any concerns the teacher may have about your child. Attending conferences together sends a message to both the teacher and the child that you present a unified front when it comes to the child.

One Parent Conferences

It is not uncommon for one parent to value conferences more than the other. In this case, it might make sense for only one parent to attend conferences. Of course, the information gleaned from the meeting should be passed on to the other parent.

Put Technology to Good Use

If you are both interested in attending conferences, but just can’t be in the same room, consider the benefits of technology. Having one parent attend the conferences in person, while the other is on cell phone, Skype, or some other communication may be a good fit for some parents.

Conferences with Both Parents Separately

Some schools (and some teachers) are willing and able to handle meeting with each parent separately. This requires additional time and not all schools will accommodate this. If this seems like the best option for you, it is a good idea to contact the school ahead of time to make sure they are willing to follow this approach.
Of course, if there is a restraining order or no contact order, joint conferences are usually not an option, unless an exception for this has been carved out within the order. In this case, make sure the school knows about the order when requesting separate conferences.

Follow Up

Whether the conference is attended by one or both parents, it is a good idea to set aside some time to discuss what you both learned about your child, their progress, and their needs going forward.

Having an experienced divorce attorney in Cincinnati on your side during a divorce can assist you in navigating the waters of co-parenting after divorce. For further information or to schedule a consultation, contact the law office of Zachary D. Smith, LLC at (513) 275-1164 or visit www.ZDSLaw.com.

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Why You Should Consider a Legal Separation

Legal Separation
Not all couples live happily ever after. However, just because a couple decides not to continue living together does not necessarily mean a divorce is imminent. In fact, there can be advantages to long term separation for some couples.

Financial Benefits to Remaining Married

Many married couples enjoy the benefit of health insurance from one party’s employer. Divorce almost always ends the health insurance benefit for the spouse. Remaining legally married may extend coverage for the spouse as well as the children of the marriage.

Pension benefits and social security benefits tend to increase over time. Extending the length of the marriage may provide an advantage later, by allowing the benefits to maximize.

Delaying divorce finalization may also be in the parties’ best interests when real estate is involved. The family home is typically a couple’s biggest asset. If the real estate market is in a slump, the parties may benefit by delaying the completion of the divorce and the sale of the home until the market is more favorable. Additionally, retaining the family home allows for the children to remain in a place that is familiar during a time of upheaval.

Non-Financial Benefits of Long Term Separation

Some couples believe remaining married is easier on their children. Others feel there are social benefits to remaining legally married. Some couples remain married for religious or cultural reasons. Finally, some couples separate but are uncertain whether divorce is right for them. A legal separation allows the parties to define roles and obligations of each, while keeping the marriage intact.

Why You Should Consider Hiring a Lawyer to Assist in Separation

A separation occurs when the parties decide to either not live together any longer, or to live their own separate lives under the same roof. A legal separation, on the other hand, protects the parties by entering into a legal and binding contract. This contract addresses the same sorts of issues a divorce filing addresses, including custody of the children, any child support obligations, and the like.

For further information or schedule a consultation with attorney Zachary D. Smith, LLC to discuss the benefits a legal separation might have for you and your family please call (513) 275-1164 or visit www.ZDSLaw.com toady.

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Why Choosing Dissolution of Marriage Might be the Best Solution

Dissolution of Marriage

No one gets married planning to divorce. However, divorce is the natural end to many marriages. If you are thinking about a divorce, you may be wondering if divorce is right for you. There are a number of situations where a divorce may be the best choice. Below are a few of them.

When you no longer recognize yourself

Every couple changes during the course of a relationship – both together and separately. However, sometimes, one partner to the marriage may find over time they have changed so significantly they no longer recognize themselves. Typically, these changes occur incrementally. However, there can be a cumulative effect wherein one person looks up and realizes they no longer recognize who they are.

When you are no longer happy

Another indication divorce may be the best choice, is when you find yourself being unhappy far more frequently then when you find yourself being happy. No one is happy all the time. However, when you find you spend more of your life feeling miserable then you spend feeling happy, or even okay about your situation, divorce may be the best choice. Other indicators of your unhappiness may include you find yourself dreading the sound of your spouse’s key in the door. Perhaps you find yourself looking forward to business trips away. Perhaps you engage in fantasies about their demise, due to sickness or an accident. These are all clues you should consider significant changes.

For the children

Traditionally, it was believed divorce was bad for children. However, new studies have established children thrive when their environments are filled with love and happiness. Many couples live stressful lives prior to a divorce. The stress is naturally passed on to the children. Rather than subjecting children to the strife that comes with couples that are extremely unhappy with each other, divorce may be a better outcome.

Modeling appropriate behavior

It is important that you model healthy and appropriate behavior for your children. This includes being in relationships that are happy and thriving, and leaving relationships which are negative, or maybe dragging you down. Taking care of yourself teaches your children to take care of themselves.

You find yourself reading blogs on divorce

If you’re reading this it’s possible that you are considering filing for divorce, or perhaps your spouse has already filed for divorce. You find yourself spending time on the Internet looking for reasons why divorce maybe appropriate. If you think divorce is appropriate to the extent you are seeking confirmation, that maybe all you need to know.

If you are considering divorce, you need a qualified< a href="http://zdslaw.com/dissolution.html"> dissolution attorney in Cincinnati such as Zachary D. Smith, LLC. Zachary D. Smith is highly experienced and trained family law mediator who rest assured will represent you in the best possible way for a successful outcome. For further information or to schedule a consultation please contact Zachary D. Smith at (513) 275-1164 or visit www.ZDSLaw.com.

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How to Address the Division of Marital Property

The Division of Marital Property

Methods of dividing property

There are three ways property can be divided during a divorce case:

  • The parties can agree to the division of property;
  • The attorneys for the parties can negotiate a settlement; or
  • A judge can decide which property is granted to each party to the divorce.

Identifying marital and non-marital property

The first step to dividing marital property is identifying which property is “marital property.” As a general rule, marital property is property acquired during the marriage. So, for example, if one party enters the marriage with full ownership rights to their great-grandmothers china, the china is considered non-marital property and remains with the original owner. If the parties purchase a home during the course of the marriage, this is likely considered marital property. Of course, there are legal exceptions.

As a starting point, make a list of all property, indicating whether you believe it is marital or non-marital. The list includes everything you both own, including the following:

  • The family home;
  • Any vacation homes (don’t forget the timeshare!);
  • Stocks;
  • Bonds;
  • Retirement accounts;
  • Savings accounts;
  • Money market accounts;
  • Cars; and
  • household items.

It is a good idea to maintain a list, some couples prefer a spreadsheet, identifying all household items and other items of property.

Dividing the small stuff

As almost overwhelming as it may feel, start in a single room. Identify every object in the room including the artwork, furniture, items in drawers, etc. At the completion of the house, the list will include such mundane items as dishes, towels, and sheets, etc. as well as valuable art, rugs, and family photos. Each item must be identified and divided between the divorcing couple. Even if you find you can’t agree on everything, it is a good idea to start by agreeing on the things that make the most sense to you as a couple. For example, if one party is going to stay in the family home, it might make sense for the party to also retain the lion share of furniture. On the other hand, the party may wish to start fresh and would prefer new furniture for their new life.

There’s no right way to divide marital property. Some couples preferred to divide marital property using a round-robin system where each party takes a turn claiming various pieces of property. Other parties preferred to attempt an equal distribution of property by assigning a monetary value to each item and then “going shopping.” Still other couples find it is easy to identify and divide certain property, while finding other property more challenging to divide. In this situation, it is best to identify and divide as much property as possible – leaving the rest to the lawyers to attempt to negotiate. Any property which cannot be negotiated may be subject to a judicial determination.

Divorce lawyers generally agreed the worst approach to dividing property is to leave it to the courts. In no situation does each party get exactly what they want, however leaving the decisions to the judge can almost certainly guarantee a disastrous apportionment of property.

If you are considering divorce

If you are considering a divorce, contact the highly reputable and experienced divorce attorney in Cincinnati, Zachary D. Smith, LLC. Zachary D. Smith has the experience needed for a successful outcome. Contact us today to discuss your case at (513) 275-1164 or for further information please visit www.ZDSLaw.com.

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Divorce Planning: A Basic Checklist

Divorce Attorney in Cincinnati
If you are planning a divorce, your divorce attorney needs certain information to assist you in the process. While each case is different, the most common documents are briefly discussed below. These are documents your divorce attorney should have at or prior to your first meeting.

Prenuptial Agreements

Prenuptial agreements, also referred to as premarital agreements, can dictate child custody arrangements, division of property, and other matters. Whether or not the prenuptial agreement is valid requires legal analysis. If you have a prenuptial agreement, or you think you might have something that constitutes a prenuptial agreement, be sure to provide a copy of this to your family law attorney as early as practicable.

Court Documents

If you or your spouse has filed for a civil protection order, a restraining order, a harassment order, or criminal charges have been filed, plan to provide a copy of any documents relating to this. This includes any temporary orders. These documents may be relevant regardless of whether the court granted the request. Consequently, your lawyer should be made aware of this part of your relationship.

A List of Assets

“Assets” are items of property that have value. Obviously, your home and your cars have value. Similarly, the contents of your home have value. From Great Grandma Esther’s china to the tools in the garage, each item has some financial value. Some may also have sentimental value, which your lawyer should also be aware of, but in listing assets, try to keep dollar amounts realistic.

Additional assets include your savings accounts, stocks, bonds, and any ownership interest you may have in a business. Also consider retirement accounts including deferred compensation accounts, 401(k)s, 403(b)s, and IRAs.

Marital Assets vs. Non-Marital Assets

While making the list, take the time to note how and when items were acquired. The difference between marital and non-marital assets is the basis for an article of its own in the coming weeks. Suffice it to say, whether property is legally subject to the divorce is based in large part on whether the property was acquired as marital property or non-marital property.

Documentation in Support of Child Support or Alimony Payments

To determine the appropriate amount of child support or alimony, the following documents are helpful:

  • Personal tax returns;
  • Business tax returns;
  • 1099s;
  • Pay stubs;
  • W-2s; and
  • Bank statements.

The family budget can also provide your lawyer with insight about regular expenses.

A List of All Debts

Finally, all debts should be detailed. This includes debts in the names of both parties, as well as debts in the name of either party individually.
Divorce requires considerable planning. Having an experienced and highly reputable divorce attorney in Cincinnati can assist you by navigating successfully through a divorce. To schedule a consultation please contact the law office of Zachary D. Smith, LLC at (513)275-1164 or visit www.ZDSLaw.com for further information.

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Developing a Long-Distance Parenting Plan

Family Law Attorney Cincinnati

Parenting is one of the most rewarding, and toughest jobs. Long distance parenting presents additional challenges. Developing a long-distance parenting plan is critical to maintaining a relationship with your children when one parent lives far away. Sometimes, the distance is anticipated in the divorce decree. Other times, a change in circumstances, such as a new job or family demands, leads to a move after the divorce.

Essentials to Long Distance Parenting Plans

Anticipating Variables

There are several keys to a successful parenting plan when distance separates families. First, parenting plans should be as detailed as possible. Misunderstandings are minimized when contingencies and alternate circumstances are anticipated and dealt with in advance. While many parents maneuver the challenges of long distance parenting without ever relying on the details of the written parenting plan, having the written plan in place is additional insurance which provides guidance and helps avoid conflict.

Monthly Visitation Options

In this day and age, creative parenting plans can account for distances in ways prior generations never considered. Monthly visits may occur at the child’s location, the parent’s location, a mutually agreed upon neutral location between the two, or at another agreed upon location, such as at a grandparent’s house. Additional time between parent and child, including video conferencing, email contact, and text messaging, in addition to a schedule of phone calls should be a regular part of a child’s visitation.

Travel Plans

In all cases, but particularly for families visiting over long distances, travel plans are an essential part of any parenting plan. Topics include the following:

  • Which parent is responsible for making travel arrangements;
  • Whether the child is old enough to travel alone;
  • Appropriate options for travel – including train, bus, and air, as well as by car;
  • What are acceptable “arrival locations” (for example, if the child is traveling to Southern California, are San Diego, Santa Ana, and Los Angeles all acceptable? Two of the three? Only one?)
  • The party paying for the travel; and
  • Contingency plans should weather impact travel.

If you need a long-distance parenting plan, either as part of your divorce planning, or post-divorce, Zachary D. Smith, LLC, leading divorce attorney in Cincinnati offers insight and experience to serve you and your family for a successful outcome. To schedule a consultation please contact Zachary D. Smith, LLC at (513)275-1164 or visit www.ZDSLaw.com for further information.

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Understanding Prenuptial Agreements

Prenuptial Agreements

Prenuptial agreements (sometimes referred to as a “prenup” or a premarital agreement) may be one of the most misunderstood concepts in family law. A prenuptial agreement is a legally binding contract between two parties—entered into before a marriage—defining the intentions of the parties regarding division of property, debts, and responsibilities in the event of divorce or death of one of the parties.

Prenuptial Agreements and Divorce

Many people think discussing and planning for the possibility of a divorce before marriage is bound to doom the marriage. However, discussing assets and debts before the marriage may actually strengthen the relationship. This discussion forces couples to consider both their own views, and their partner’s views about money, property, and other tangible assets. Additionally, prenuptial agreements address what happens in the event of the death of one of the parties. Any marriage which doesn’t end in divorce will, eventually, end in death. Prenuptial agreements protect the parties and their wishes.

Who Needs a Prenuptial Agreement

Some people think prenuptial agreements are only for the very wealthy. While it is a good idea for very wealthy people to have prenuptial agreements, many others would also benefit from such agreements. People who should consider a prenuptial agreement include:

  • Business owners;
  • Property owners;
  • People with more than $50,000 in assets;
  • People who have retirement benefits, stock options, profit sharing, and/or deferred compensation accounts from their employer;
  • Those who make (or who are expected to make) over $70,000 per year;
  • Those who wish to pass on certain property or assets, such as a treasured family heirloom, to someone other than their spouse.

Prenuptial Agreements and Adult Children

More people are marrying for a second time. Many of those couples have adult children. A prenuptial agreement allows couples to identify and agree upon property and assets which will go to the adult children. Without a prenuptial agreement, and in the absence of a will, ordinary rights of inheritance may result in the property going to the spouse, rather than the adult children.

Prenuptial Agreements and Family Businesses

When a family owns a business, a prenuptial agreement can clearly delineate what will happen to the business in the event of divorce or death of the party. A prenuptial agreement provides families peace of mind, because it can remove the family business from divorce negotiations, should the parties later divorce. Additionally, in the case of death, the prenuptial agreement can dictate such terms as whether the spouse becomes part owner of the business, the adult children of the deceased become owners of the shares, whether the family business simply belongs to the remaining family members, or some other scenario.

Reasons to Discuss a Prenuptial Agreement

If you are getting married, it is a good idea to meet with a qualified family law attorney in Cincinnati to discuss your prenuptial agreement needs. Zachary D. Smith dedicates his practice to family law issues. A problem solver who thinks outside the box and will help you set the legal foundation of your marriage the right way. For further information or to schedule an appointment please contact Zachary D. Smith, LLC at (513) 275-1164 or visit www.ZDSLaw.com.

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