Hummel Law, LLC

In Ohio, if you don’t have a will when you pass away, all of your property is distributed according to Ohio Revised Code 2105.06.  

In Ohio, if you are unmarried and want to leave property to a partner or anyone unrelated to you, you have to have a will.  If you don’t have a will, your property will go to your children or to your next closest relative(s), and your partner won’t receive anything.  If you owned real estate in your name only, and your partner is living in the house, without a deed that transfers the property to your partner, the real estate goes through probate and to your relatives.

Making a will is a simple step you can take to be sure that your property is distributed the way that you want it after your death.

If you don’t have a will, under Ohio law, your property passes as follows:

If there is no surviving spouse, all of your property goes to your children or their lineal descendants (if your child doesn’t survive you, his/her share goes to that child’s children.)

If you were married and your spouse survives you, all of your property goes to your spouse, unless you have a child from a previous relationship (or a child that you adopted but your spouse did not).  In that case, your spouse receives the first $20,000 plus one-half of the balance of the estate, and the rest goes to that child or his/her lineal descendants.

If you had more than one child from a previous relationship (or children that you adopted but your spouse did not), the first $60,000 goes to your spouse if your spouse is the parent of one, but not all, of the children, and one-third of the balance of the estate also goes to the spouse, with the rest divided equally among the children or their lineal descendants.

If you had more than one child from a previous relationship (or children that you adopted but your spouse did not), and your spouse is not the natural parent of any of the children, the first $20,000 goes to your spouse, plus one-third of the balance of the estate, with the rest divided equally among the children or their lineal descendants.

If there are no children or lineal descendants of the children, all of your property goes to the surviving spouse.  

If there is no spouse and no children (or lineal descendants of the children), the property goes to your surviving parent or parents.

If there is no spouse, no children (or lineal descendants of the children), and no surviving parent, the property goes to your brothers and sisters (or their lineal descendants).

If there is no spouse, no children (or lineal descendants), no surviving parent, and no siblings (or lineal descendants), one-half of the property goes to your paternal grandparents, and one-half to the maternal grandparents.  If one set of grandparents is not living, their share goes to their lineal descendants.  If that set of grandparents has no lineal descendants, their share goes to the living grandparents or their lineal descendants.

If there are no next of kin, the property goes to your stepchildren or their lineal descendants. 

If there are no stepchildren (or their lineal descendants), the property goes to the state.

A fixed fee in a divorce (or dissolution) is a fee paid to an attorney that covers all services listed in the agreement.

Many family law attorneys require a retainer up front, bill hourly, and get paid from the retainer balance.  If the retainer balance is used, they require you to make another retainer deposit or to pay the bills on a monthly basis.

With a fixed fee arrangement, you do not make additional fee payments unless the matter changes significantly (from a dissolution to a divorce, for example). 

The benefits of a fixed fee:

You know what your legal fees will be.

You can contact me without worrying about the “meter running.”

You can make informed cost/benefit decisions, because you know what the cost will be if you reach an agreement or if your case proceeds to litigation.

You feel comfortable providing all of the information I need to represent you.

The amount of the fixed fee depends on the facts of your case.  The fee is lower for a dissolution than for a divorce.  Whether there are minor children, substantial assets, or a business are some of the factors that affect the amount of a fixed fee.  Once we discuss those things, you will have a clear idea of what your legal fees will be.

There are several important differences between a divorce and dissolution, including cost, time, and who makes the decisions.  Ending a marriage is one of the most stressful things you can go through, even when you’re ready for a change.  If you get some information about how the process works and what your options are, you can feel confident about the decisions you are making, which should help reduce your stress level.  

Dissolution:

A dissolution is an action where both spouses agree to end the marriage, and the spouses agree on all issues related to dividing property, support, and parenting issues.  A Separation Agreement is prepared and filed with the Court along with a petition for dissolution and a Parenting Plan.

The dissolution paperwork is often prepared by an attorney for one spouse, and the other spouse may not retain an attorney at all.  It’s a good idea to at least have an attorney review dissolution paperwork to make sure that the agreement is fair to both parties and that everyone understands what they are agreeing to.

The Court will hold a hearing on the dissolution between 30 and 90 days after the action is filed with the Court.  Both spouses must be present at the final hearing, and the Court must find that they disclosed all of their assets and debts, that they voluntarily entered into the agreement, that they understand the terms and that they want to end their marriage.  

The Court doesn’t get involved until the agreement is made, so a dissolution typically costs less in attorney fees and the marriage ends more quickly.  The outcome is controlled by the parties, because the paperwork is prepared and signed before the Court even sees it.

Divorce:

A divorce is a lawsuit to end the marriage that either spouse files with the Court.  People file for divorce if they are unable to communicate well, if they can’t reach an agreement, if the other spouse is not available to appear at a dissolution hearing, and for other reasons.  

The divorce complaint (and other documents) are served upon the other spouse by sheriff, certified mail, or a process server.  The other spouse has 28 days to file an answer with the Court responding to the complaint.  Most divorces are settled without going to trial.  The proposed agreement is signed by both spouses and submitted to the Court.  The Court sets a hearing, and if the agreement is approved by the Court, a Judgment Entry is signed by the Court and the agreement is ordered into effect.

If the spouses cannot agree on all of the issues, a trial is held.  The trial is held before a Magistrate or a Judge, and there is no jury.  The Court reviews the evidence and makes a decision based on Ohio law.

Whether the divorce case gets settled before trial or not, divorce usually results in higher attorney fees because the Court may require certain documents to be prepared and filed, and the Court may schedule one or more hearings before the trial.  The parties lose control over the outcome and the Court may issue orders that neither party wants.  A divorce takes longer, which can be very difficult for the parties to deal with because they want to move forward with their lives.

You should consult with an attorney about your situation to decide whether divorce or dissolution is the best option for you. Many family law attorneys offer a free consultation so that you can see whether you will feel comfortable working together.  

You had a contractor come in and do some work on your house as part of an insurance claim.  The work wasn’t done correctly and the contractor doesn’t want to fix the problem.  Now he’s presenting a bill and demanding to get paid.  You try to talking to the insurance company, but they aren’t interested in getting involved.  It’s been awhile, and now your contractor starts threatening to file a mechanic’s lien against your property.  How do you protect yourself?

Mechanic’s liens are tricky.  If the contractor doesn’t include the proper information or files the lien too late, it may be invalid.  That doesn’t mean that you’re off the hook.  Even if the contractor can’t get a lien against your property, he can still sue you personally for the amount owed to him.  

If you feel like the contractor did shoddy work, you should gather as much evidence as you can to support your case.  Take pictures, have another experienced contractor or home inspector look at the work to see whether it was done correctly, and get an estimate to fix the mistakes the contractor made.  

If the contractor didn’t do the work in a “workmanlike manner” (which basically means in the way that other contractors in the area would have done it), you may be able to fight the lien or at least reduce the amount owed to the contractor.  The contractor only has 60 days after completing work on a residential project to the file the lien with the county recorder’s office.  The contractor must serve the lien upon the property owner within 30 days from the date it was filed with the recorder.  

If a contractor is threatening to file a lien against your property, you should consult a lawyer as soon as possible to discuss your options.  

Contact me at [email protected] from more information.

If you signed your estate planning documents several years ago, you should review everything to be sure that the documents still reflect your wishes.  There are several reasons to update your will, including the following:

You want to change the executor (the person who works with the probate court to handle your estate);

You need to change beneficiaries or add a beneficiary;

You want a specific item to go to a specific person.

Though your will can be updated using a codicil (a supplement changing or adding to a will), that’s not usually a good idea.  A codicil must be signed in the presence of two witnesses, just like a will.  The Court may have a difficult time figuring out whether you intended for the codicil to replace part of your old will or add to it. The codicil would need to be longer than a sentence or two.  It is easier and clearer to create a new will that contains your changes or additions.

If your Living Will and Health Care Power of Attorney were signed in another state, it’s a good idea to sign an Ohio Living Will and Health Care Power of Attorney so that there is no question that Ohio health care providers know what your wishes are and feel comfortable following them.  

Even if you signed your Living Will and Health Care Power of Attorney in Ohio, if it’s been a few years, the forms have changed recently.  For example, the current Ohio form allows your agent to access your medical records immediately if you choose that option.  The form also allows you to designate your agent as your guardian if that becomes necessary.

Karen Hummel is an attorney at Hummel Law, LLC which is located in Chardon.  Ms. Hummel practices in the areas of estate planning, domestic relations (divorce, dissolution, and custody), juvenile law, personal injury, and Social Security Disability. More information can be found online at www.karenhummellaw.com.  If you have a question that you would like to have answered in a future column, please send it to [email protected].  

There are a few different options for storing your estate planning documents.  These are the most common:

Keep the originals in a fireproof box or fireproof filing cabinet at your home;

File your original will with your county probate court (there is a small fee for this, and you will need to store any other documents in another location);

Leave the originals with your attorney (you should receive a copy of all of the documents for your records)

Give a copy of your Health Care Power of Attorney and Living Will to your doctor and your local hospital.

Wherever you decide to store your estate planning documents, you should let your executor (and your agents for a durable Power of Attorney or for the Health Care Power of Attorney or Living Will) know where the documents are located.  If you change the location, be sure to let your executor know.

Do not keep any original estate planning documents in a safe deposit box, because the box may be sealed once the bank is notified of your death, and there will be a delay before the documents can be accessed.

You can use an Emergency Medical Information Kit to store important health information (Health Care Power of Attorney, DNR, allergies, current medications, etc.) so that it is easy for emergency personnel to find.  These kits can be purchased online or in most stores, and may come with a decal to put on your front door so that emergency personnel know where to look. There are also websites, such as www.vialoflife.com, which provide free decals and forms to list important medical information.

Karen Hummel is an attorney at Hummel Law, LLC which is located in Chardon.  Ms. Hummel practices in the areas of estate planning, domestic relations (divorce, dissolution, and custody), juvenile law, personal injury, and Social Security Disability. More information can be found online at www.karenhummellaw.com.  If you have a question that you would like to have answered in a future column, please send it to [email protected].  

Report the Claim

            If you are involved in a car accident, report the claim to your insurance company even if the accident is not your fault.  If the other driver is at fault, but doesn’t have enough insurance coverage to pay for your medical bills and the damage to your vehicle (or doesn’t have insurance at all), your uninsured/underinsured motorist coverage will be needed.

Keep Track of Any Medical Treatment You Receive

            Some car insurance companies will pay your medical bills as they are incurred, but other companies will wait until your medical treatment has been completed before any of the bills are paid.  Your medical bills may also be paid by your health insurance or by your car insurance MedPay coverage.  If the bills are paid by your insurance companies, they will expect to be paid back out of any funds you receive from settlement or from a trial.

Attorneys

            You will receive many attorney advertisements after you are involved in a car accident.  If you choose to have an attorney represent you, you should ask questions about what the attorney’s fee will be, and if the fee increases if the case goes to trial.  The attorney should also tell you what costs will be deducted from your settlement, such as the cost of medical records, reports, and trial costs.  Be sure that you feel comfortable with the attorney, and find out whether you will be speaking directly with the attorney, or with the support staff as your case proceeds.  You want someone that will answer your questions and give you honest opinions about the value of your case and what you can expect.

Settlement Process

            Settlement discussions can’t begin until your medical treatment is completed.  Most attorneys will order copies of the police report, and copies of your medical records and medical bills.  You will also need to provide copies of any other bills that were the result of the accident, such as a bill for hiring someone to do yardwork for you because you were injured.  The process takes time, because some providers respond more quickly than others, and several different billing companies may handle medical billing for a single emergency room visit.  An ER visit can result in separate bills for the facility, ER doctor, radiology, and pharmacy.

            All of the information is presented to the other driver’s insurance company along with a settlement demand letter.  The demand letter is a starting point, and your attorney should discuss how the negotiation process works.  You should receive updates on the status of your case, and you should feel comfortable contacting your attorney to find out what the next steps will be.

            Your attorney is required to present all settlement offers to you, and should discuss any counter-offers before making them.  Your attorney should ask what you hope to recover from the case and let you know if your expectations are reasonable.

            If settlement is not possible, your attorney should talk with you about preparing for trial, and give you an idea of the additional costs that you can expect as a result.  Some cases are settled after a complaint is filed with the Court but before the trial is completed.

For More Information:

            If you were involved in a car accident that was not your fault and you would like to talk with an attorney who will talk with you about your case without pressuring you to sign anything, call me.  We can have a conversation about your case, and you can learn more about your options without enduring marketing gimmicks.

Having the Court decide how much time the kids spend with each parent is not ideal.  The Court doesn’t know you or your family, and may come up with an arrangement that is not what you expected.  It is best if the parents are able to talk to each other and work out a Shared Parenting Plan that they submit to the Court for approval. The parents will need to deal with each other on some level at least until their kids turn eighteen.

In some situations, the parents can’t agree on a schedule, or there are allegations that the other parent is unsuitable.  In those cases, the Court may appoint a Guardian Ad Litem (GAL), or one of the parents may request that a GAL be appointed.  The Court may consider the testimony of the parents, the GAL report, and the testimony of other witnesses.

The Court must also consider the best interest of the child.  The best interest factors are included in Ohio Revised Code Section 3109.04(F).  The Court must consider the following factors (there are other factors not listed here):

The wishes of the child’s parents regarding the child’s care;

The wishes and concerns of the child (if the child is interviewed by the Court);

The child’s interaction and relationship with parents, siblings, and other people;

The child’s adjustment to home, school, and community;

The mental and physical health of all people involved;

The parent more likely to honor and facilitate court-approved parenting time or visitation rights;

Whether either parent has failed to make child support payments;

Whether either parent or a member of that parent’s household has pled guilty or been convicted of domestic violence, sexually oriented offenses, or abuse or neglect of a child;

Whether the parent has continuously and willfully denied the other parent’s right to parenting time in accordance with a Court order;

Whether either parent has established a residence outside the state (or is planning to do so);

The recommendation of the GAL, if one has been appointed;

Special or unusual needs of the child;

Disparity in income between the parties or households;

Benefits the parent receives from remarriage or sharing living expenses with another person.

We don’t know which factors the Court will believe are more relevant in a particular case, so it’s impossible to know how the Court will rule when it comes to custody and parenting time issues. The uncertainty of a court decision is why it is best if the parents can work out a schedule by themselves, through mediation, or through their attorneys.

Karen Hummel is an attorney at Hummel Law, LLC which recently moved to Chardon.  Ms. Hummel practices in the areas of estate planning, domestic relations (divorce, dissolution, and custody), juvenile law, personal injury, and Social Security Disability. More information can be found online at www.karenhummellaw.com.  If you have a question that you would like to have answered in a future column, please send it to [email protected].  

You may have heard horror stories about probate and you are wondering whether a trust is necessary.  Probate is usually not as bad as people expect. However, a trust may be appropriate for other reasons for some people.  

Benefits of a trust:

A trust avoids probate and keeps the details of your finances and gifts to beneficiaries private.  

A trust allows for administration of the trust property immediately after death, without waiting for the probate court to appoint someone as executor of your estate. 

A trust can help a surviving spouse who may be inexperienced or incapable of handling finances manage and invest money if there is a large estate.

A trust allows for someone to step in and help manage assets if you are not able to do it yourself.

Disadvantages of a trust:

It is more expensive to have a trust prepared than it is to have a will prepared.

All of the assets need to be re-registered or re-titled so that they are transferred into the trust.  

Any assets acquired after the trust is formed need to be placed into the trust, or they may go through probate.

A will is still needed to take care of any assets that have not been transferred into the trust.

There is less court supervision, and if the trustee does not do his/her job, a beneficiary would have to file a lawsuit.

You should also know:

A trust does not save on taxes.  

A trust does not protect assets from creditors while you are living. 

Assets in a living trust are counted as resources for Medicaid qualification purposes.

If you are thinking about creating a trust, you should talk with an attorney to determine whether a trust will fit your needs.

Karen Hummel is an attorney at Hummel Law, LLC which recently moved to Chardon.  Ms. Hummel practices in the areas of estate planning, domestic relations (divorce, dissolution, and custody), juvenile law, personal injury, and Social Security Disability. More information can be found online at www.karenhummellaw.com.  If you have a question that you would like to have answered in a future column, please send it to [email protected].

Under Ohio law, a court can grant a grandparent visitation if the grandparent files a motion, the court finds that the grandparent has an interest in the children’s welfare, and the court finds that the visitation is in the children’s best interest. The court must consider the parent’s wishes and several other factors such as the grandparent’s prior relationship with the child, the child’s age, and the health and safety of the child.  While the divorce is pending or after the divorce has been granted, you can file a motion asking the court to let you intervene in the divorce case and requesting a visitation schedule.  If the court issues an order granting you visitation and your son’s ex-wife still refuses to let you see your grandchild, you can file a contempt motion asking the court to find her in contempt for failing to follow a court order.

In cases where the parents were never married, the grandparent can file a complaint for visitation in juvenile court.  A grandparent can also file a complaint in juvenile court if their child is deceased and the other parent is refusing to let them see their grandchild.

If the parents are still married and they are refusing to let you see your grandchild, the court will not order visitation because according to case law, parents have a fundamental interest in the care, custody and control of their children.

If you are involved in a car accident that is someone else's fault, you may not understand why you may have to pay your health insurance company and your auto insurance company back for the claims they paid on your behalf.  Basically, subrogation is a way to ensure that the debt is paid by the person who is at fault.  

If your insurance company paid claims on your behalf, the company may be reimbursed directly by the other driver's insurance company, or they may be paid from funds recovered from the other driver's insurance company.  

There are a couple of reasons why it makes sense to have your health insurance company pay your medical bills, even if it means you will have to pay them back later.  First, getting an accident claim resolved can take a long time. It may be a year or more before the claim gets settled, or even longer if a lawsuit is filed.  If your medical bills aren't paid, those bills may get sent to collections agencies.  Second, health insurance companies don't pay the full amount of your medical bills.  They have an agreement with the provider that they will pay less than the full bill.  This helps you because you will only need to pay back the amount that was actually sent to the provider, not the full bill.  

In some cases, your health insurance may refuse to pay claims related to an auto accident, or you may have a high deductible, so you still owe money to doctors for treatment from the accident even after insurance pays.  In those situations, it may be possible to negotiate with the provider to pay a reduced amount if you are paying it in a lump sum.

Karen Hummel is an attorney in Chardon, Ohio.  For more information or to schedule an appointment, visit www.karenhummellaw.com, or like us on Facebook at https://www.facebook.com/karenhummellaw.

You have the right to refuse to answer policequestions, except in some situations, you may be required to provide your name, address and birth date.  You have to clearly indicate to the police officer that you do not want to talk to them.

One reason to remain silent is that if the police don’t have enough facts for probable cause, you would not be arrested and detained.  However, your answers could give the police the information they need for probable cause.

If you are arrested, the police have to tell you why you are being arrested and what the charges are.  The police have to read you your constitutional rights, which are the rights you may be familiar with from movies or television: you have the right to remain silent, if you answer questions the answers can be used against you in court, you have the right to stop answering questions at any point and talk to an attorney, you have the right to speak to an attorney before you talk to the police or sign anything, and an attorney can be provided at no cost if you can’t afford one and the crime you are charged with could result in jail time.  

Answering police questions before talking to a lawyer may make it difficult for a lawyer to defend you later.

Karen Hummel is an attorney at Hummel Law, LLC which recently moved to Chardon.  Ms. Hummel practices in the areas of estate planning, domestic relations (divorce, dissolution, and custody), juvenile law, personal injury, and Social Security Disability. More information can be found online at www.karenhummellaw.com.  If you have a question that you would like to have answered in a future column, please send it to [email protected].  

Sometimes, shared parenting seems almost impossible because your ex-spouse is angry and continues to fight with you.  You might feel exhausted and discouraged.  

If shared parenting has not been working well for your family, the situation may improve if you think about why your ex is acting this way.  First, consider your response to your ex’s behavior.  If you have a strong reaction, your ex may be doing this to get attention from you or to aggravate you.

Second, think about whether you are contributing to the animosity.  Do you refuse to cooperate because your ex isn’t cooperating? Do you try to provoke a response from your ex?

Third, refuse to engage.  You can’t control your ex, but you can decide not to respond in a negative way and you can refuse to participate in an argument.  Calmly responding may eventually make your ex decide it’s not so fun to try to irritate you.  If your ex is yelling at you during a phone call, say “We can talk about this again when you calm down,” and hang up.

Finally, take care of yourself and try not to spend too much time thinking about what is happening with your ex.  Find a licensed therapist who can help you get through this stressful situation and give you some pointers on how to stay calm.  

In some circumstances, you may be able to get your child support obligation changed.  Either parent can ask the county Child Support Enforcement Agency (CSEA) that handles the case for a review, or the parent can go through the court system by filing a motion to modify child support. 

CSEA can review a child support order every three years.  In some cases, the support order may be reviewed sooner.  For example, CSEA may review the order early if you are unemployed, have a substantial change in your income, become disabled, or if the cost of child care or health insurance changes.  CSEA does not have to complete the review if there is a court case pending regarding support.

During a review, CSEA looks at the finances of both parents to determine whether support should be modified.  Both parents will be asked to provide information to CSEA.  If you requested the review but don’t provide the information that CSEA requested, the review will be dismissed. 

Once the review is completed, there are several possible outcomes.  CSEA may recommend that the support obligation stay the same, be reduced, or increase.  CSEA may also recommend that a medical support order be put in place. 

If you don’t agree with the results of the review, you can ask CSEA for an administrative hearing. 

Teen sexting is more common than you might realize.  According to the National Campaign to Prevent Teen and Unplanned Pregnancy, 39% of all teens say they have sent or posted nude or semi-nude pictures or video of themselves. 

When teens use a cell phone to transmit sexually explicit texts or naked pictures of themselves or other teens, their actions can have serious legal consequences.  Kids may see sexting as harmless, or think that it’s just what teens do.  However, teen sexting can lead to charges that stick with the teen for years.  Teens who send or receive the pictures can be charged with distributing, possessing or receiving child pornography, contributing to the delinquency of a minor, or illegal use of a minor in nudity oriented material.  These charges could lead to punishments such as community service, fines of up to $1,500, juvenile detention for up to one year, and they could end up being labeled as a juvenile sex offender. 

Even if teens aren’t caught sexting, their pictures and texts can be quickly forwarded to others and can’t ever be truly deleted.  The teens sending the pictures lose control over who sees the message, and it may eventually end up being seen by an employer or college admissions department.  Students who sext might be subject to gossip or harassment by other students.

Karen Hummel is an attorney at Hummel Law, LLC which recently moved to Chardon.  Ms. Hummel practices in the areas of estate planning, domestic relations (divorce, dissolution, and custody), personal injury, and Social Security Disability. More information can be found online at www.karenhummellaw.com.