If you and your spouse are unable to divide your property via a Separation Agreement in a Dissolution of Marriage or Settlement Agreement in a Divorce proceeding, the Court will need to do it for you.  In order divide your property, the Court will go through the following steps.

First, the Court will determine which property is separate property and which is marital property.

Separate property means any of the following: an inheritance received by a spouse during the marriage; any property acquired by a spouse prior to the date of marriage; passive income and appreciation acquired from separate property by one spouse during the marriage; property acquired by a spouse after a decree of legal separation; property excluded by a valid antenuptial (also known as prenuptial) agreement; compensation to a spouse for personal injury (with the exception for loss of marital earnings and compensation for expenses paid from marital assets); any gift made after the date of marriage that is proven to have been given to only one spouse.  Moreover, in order to be awarded a spouse’s separation property, he or she must be able to trace the property to its separate source.

Marital property means any of the following: any property owned by either or both of the spouses that was acquired during the course of the marriage unless it falls into one of the categories of separate property; all income and appreciation on separate property that occurred during the marriage as a result of labor, money, or in-kind contributions.

Once the Court has determined which property is marital and which is separate, the Court will divide the property equitably between the spouses. Usually this means an equal division of marital property and an award of the separate property to its respective owner.  However, if the Court determines this would not be an equitable outcome, it can divide the marital property in an unequal fashion and award a spouse’s separate property to the other spouse.  

The Court must consider a number of factors when making the property division including: the duration of the marriage; the assets and liabilities of the spouses; the desirability of awarding the family home or the right to reside there for a reasonable period of time to the spouse with custody of the children; the liquidity of the property to be distributed; the economic desirability of retaining intact an asset or an interest in an asset; the tax consequences of the property division; the costs of sale, if it is necessary that an asset be sold; any retirement benefits of the spouses; any other factor that the court finds to be relevant and equitable.

One reason why the Court may decide to award a spouse’s separate property to the other spouse is if it determines that a division of the marital property would be impractical or burdensome.  Another reason the Court may award separate property to the other spouse or award a greater than equal amount of marital property would be if a spouse engaged in financial misconduct, like dissipating, destroying, concealing, not disclosing or fraudulently disposing of assets.

As you can see, there is no sure thing in terms of property division in a divorce.  Although the presumption is that separate property will be awarded to its separate owner and marital property will be divided equally, there is a lot of room within Ohio law for the Court to order otherwise.  In addition, in order to be awarded separate property, you have to be able to show that it is separate by tracing it to its separate source.  For these reasons, it is wise to be represented by an attorney.
Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Divorce Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Domestic Relations; Family Law; Divorce; Alimony; Marital Agreements; Marital Property Distribution; Marital Property Law; Marital Property Settlements; Matrimonial Law; No Fault Divorce; Qualified Domestic Relations Orders (QDROs); Restraining Orders; Uncontested Divorce

Under Ohio law, there are certain individuals that you are required to financially support and cannot abandon.  Those people are your spouse, your child who is under age 18 or handicapped child under age 21, and your aged or infirm parents or adoptive parents who lack the ability or financial means to support themselves.  Failure to provide support is a crime and a misdemeanor of the first degree.  However, although this law has been in effect since 1974, I could not find a case where it was used to prosecute an adult child for not providing financial support for an aging parent. 

So why the lack of enforcement? Beyond the fact that our jails are over-crowded enough as it is, is the fact that with skyrocketing health care costs, it simply isn’t feasible to require adult children to cover the cost of their parent’s astronomical long-term care costs.

According to the 2010 Market Survey of Long-Term Care Costs conducted by Metlife, the annual cost of a semi-private room in a Cleveland area nursing home was $75,190 and a private room was $87,600.

Moreover, counter to popular belief, Medicare will not cover prolonged nursing home care. Medicare Part A provides limited coverage for skilled nursing care if certain requirements are met.   However, even if your level of care meets Medicare’s eligibility requirements, Medicare Part A only covers the cost of a skilled nursing facility for up to 20 days, with the possibility of an additional 80 days on a co-payment basis. 

Again, according to Metlife, which based their statistics on the Centers for Disease Control and Prevention, the average nursing home stay is 2.4 years.  Moreover, most nursing home stays are not covered by Medicare at all, as most nursing home residents do not require skilled nursing care, which is a prerequisite to Medicare Part A coverage. 

Since Medicare will not cover the costs of long-term care, and 70% of people over 65 will need long term care during their lifetimes, many people will need to turn to Medicaid.

Medicaid is a health insurance program funded with state and federal money, administered by the Ohio Department of Job and Family Services.  For those who qualify, Medicaid covers the cost of long-term care. 

And thankfully for adult children all over Ohio and the United Stated, Medicaid does not required adult children to support their aging parents.  Under federal law, states like Ohio, who administer the program, are prohibited from looking at the finances of an applicant’s adult children when determining eligibility.  Hence, you will not be required by Medicaid to contribute to your aging parent’s long term medical costs.

Please keep in mind, though, that because Medicaid’s resource limit is so low (currently $1,500) without proper planning, your parents will have to deplete all their resources before they can qualify. There are many planning opportunities available in order to not only preserve as much of your parents’ savings as possible but also to improve the financial situation of your parents’ spouse, should they need long term care.  A Medicaid Planning attorney can help you explore your Medicaid planning options. 

So what do you think, should adult children be required to help support their aging parents? Please post your thoughts.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Medicaid Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

In Ohio, if a person dies without a valid will and the deceased had probate property (see http://www.randallperla.com/blog/what-is-probate-property-and-why-do-i-need-it-for-my-will-to-operate/), the Probate Court in the county where the person died will need to appoint an Administrator.

When determining who should be appointed Administrator of an estate, the Court will go through candidates in order of priority.  First, the surviving spouse, if a resident of the state of Ohio.  Second, the next of kin of the deceased, if a resident of the state of Ohio. If there is no spouse or next of kin able to serve, or if they neglect to apply with the Probate Court for the position within a reasonable time, they lose their priority, and the Court will appoint a suitable person who is an Ohio state resident.

In order to be appointed administrator, an application must be filed with the Probate Court which contains the name and address of the surviving spouse and next of kin, if known by the applicant, as well as a general statement as to what property is in the estate and its probable value as well as a statement of the debts owed by the deceased to the applicant. If there are others who have priority to administer the estate ahead of the applicant, the individuals with priority will have to sign waivers or will be served by Probate Court to determine whether they would like the position.  If there there are multiple next of kin who wish to serve as Administrator, a Hearing may be necessary to determine which candidate will be appointed.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Probate Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Probate property is property that does not have a mechanism to transfer ownership at death.  Examples of mechanisms to transfer ownership at death are beneficiary designations or a transfer on death designation affidavit. 

Examples of probate property are bank accounts without beneficiary designations, automobiles titled in one person’s name, houses titled in one person’s name and without a transfer on death designation affidavit, household items, family heirlooms, etc.

A Will only dictates the transfer of probate property.  A Will has no bearing on non-probate property.

For example: Andy executes a Will stating that all his property is to go to his two sons, Bob and Calvin evenly.  Andy owns an IRA in which he designated his son, Bob, as beneficiary, several bank accounts jointly with his son, Bob, a house titled soley in Andy’s name, cash under Andy’s mattress, antique watch, and a car title in Andy’s name alone. When Andy dies, how will the property be distributed?

First, one must determine which is probate property and which is not.  First, the non-probate property.

Andy’s non-probate property are the IRA and bank accounts. This property will go 100% to Bob, as he was designated beneficiary.

Andy’s probate property are his house, cash under his mattress, antique watch, and the car. This property will be distributed in accordance with Andy’s Will, 50% to Bob and 50% to Calvin.

This outcome may be counter to Andy’s true wishes.  Many times older individuals will own a bank account jointly with one of their children so that the child can help them pay bills.  What they often don’t realize is that those accounts are usually survivorship accounts, which means when they die, all the contents of the bank account will automatically be the property of the one child, rather than shared by all their children, as they put in their Will. 

Take Away Lesson- Be aware of what property is probate and what is not and know that only your probate property will be distributed in accordance with your Will. 

If you have any questions about how your Will will operate on event of your death, talk to an attorney.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Probate Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

 What are your biggest fears as you face aging? The following are 3 widespread aging fears that you may be struggling with:

1.  Running out of money.

2.  Becoming a burden to your family.

3.  Losing control of your life, ie. being forced to move into a nursing home.

What can you do to quash these fears?

Step One is to take stock of your situation.

1.  Finances- Take a piece of paper or spreadsheet and list your assets, debts, and income.

2.  Health- Do you have any current health problems or, given your family history, do you have any health expectations?

3.  Goals- What lifestyle do you envision? If your health declined, do you see yourself receiving care at home, living with a relative, entering a facility, etc.?

Step Two is to seek counsel and make a plan.

Sometimes it takes a village.  You may wish to seek out a financial advisor to assist you in meeting your financial goals.  If your health is declining, you may wish to seek out a care coordinator to explore your care options.  You should also consider seeing an attorney. An attorney can ensure that you have basic estate planning documents in place like a will, health care and financial powers of attorney and can also advise you whether it is in your interest to engage in additional planning. Maybe a trust is right for you. Maybe you should be engaging in long term care planning.  You won’t know until you have explored your options and sought out competent counsel.

Long term care planning can be a particularly valuable method to ensuring peace of mind.  The goal of long term care planning hits right at the fears listed above.  Long term care planning looks at your available resources, your health and your preferences for health care and crafts a plan to avoid becoming a burden to your family or losing control of your care environment.

Step Three is to not let denial, apathy or laziness prevent you from getting started.

It’s no secret that no one likes getting older or the new challenges that come with aging.  But if we’re lucky we all reach are golden years.  Make sure that your seniority is spent how you want it to be. 

So what are your greatest aging fears and what have you done to quash them? Please share below.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Long Term Care Planning Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com