What Is Intellectual Property?

Intellectual Property (“IP”) is generally classified as intangible personal property, meaning it’s an asset that lacks physical form but holds economic value.

The main types of IP are:

• Copyrights (protections for original works like books, music, software, art): Treated as intangible personal property under federal law.
• Patents (exclusive rights to inventions or processes): Classified as intangible personal property.
• Trademarks (protections for brands, logos, slogans): Regarded as intangible personal property.
• Trade Secrets (confidential business info like formulas, methods): Treated as intangible personal property or contract rights (enforced via agreements).

How Is IP Viewed in Marriage?

When you intertwine IP and marriage, it can create complications that many couples may not have been aware of previously. If you and your partner have not had a conversation or set up a prenuptial agreement where you explicitly state what happens to any IP, either created before or during marriage, in the event of divorce it can create animosity over who owns the IP, as well as who receives any assets the IP may generate.

Marital vs. Separate

IP developed before marriage is usually separate, but if developed during, that IP becomes marital. Even if the IP was created before marriage, an increase in value throughout the duration of the marriage may become marital property.

Valuation of the Asset

Valuing IP is complicated because it is intangible and based on future potential income. In some cases, if the IP is crucial to a spouse’s career and cannot be easily split, a court might award the asset to the creator, while retaining the non-creating spouse’s entitlement to financial interest in the work. Another method of division of IP is for the court to offset a given value of the IP by giving the spouse that is not awarded the IP more of other marital assets to balance the total value.

How A Court Would Divide in Divorce

Generally, a court will award intellectual property to the creator spouse (the spouse who created or obtained the intellectual property). Thus, the creator spouse has sole management and control over the intellectual property. However, the non-creator spouse may still be entitled to a financial interest in the work, if the work was created during the marriage. For example, if a spouse creates a new iPhone Application during the marriage, that spouse would hold the exclusive possession and control of that Application. The other spouse, however, could be entitled to a portion of the royalties and any other economic benefit earned from the Application.

How Do I Protect My Intellectual Property?

A prenuptial agreement is an effective way to protect your IP and any associated assets prior to marriage or in the event of a divorce. A well-drafted prenup can establish clear guidelines for how IP will be treated if the marriage ends. If you and your spouse have created IP during marriage, an experienced attorney can outline ownership rights or how any income associated with IP would be divided.

If you are an individual or business with intellectual property and would like advice on these assets, as well as how to protect them in the case of an upcoming marriage or potential divorce, our firm can handle these issues all under one roof. Our Intellectual Property and Domestic Relations attorneys will work hand-in-hand to ensure your IP is protected and passed along as you desire it to be.

For more information, or to seek counsel from our Family Law or Intellectual Property practice groups, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post IP & Marriage: How to Ensure Your Intellectual Property Is Protected appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Levels of Parental Alienation

There are different levels to the severity of parental alienation. These levels bring forward different signs and actions in children.

• Mild: The child(ren) will express resistance to visiting, communicating with, or spending time with the alienated parent. However, once they are alone with the alienated parent this resistance will quickly dissipate and the relationship will return to a positive one.
• Moderate: The child(ren) will express strong resistance to any contact or communication with the alienated parent. Once with the alienated parent that resistance will remain and the child(ren) will oppose being near them, spending time with them, and communicating with them.
• Severe: The child(ren) will express strong resistance, similar to moderate levels of alienation. However, when pushed to have contact with the alienated parent, the child(ren) will run away, hide, or physically resist any attempt to have such contact. This level of alienation often results in the child not engaging in parenting time with the alienated parent or acting out when with the alienated parent to sabotage or truncate the visit.

Signs of Parental Alienation

Parental alienation shows itself in children in many ways that differ case by case. These signs can be subtle or aggressive. Often they will build up, causing them to be even more difficult to resolve over time.

Unwavering Support of the Alienating Parent

Children being alienated will show unwavering support of the alienating parent. Everything the alienated parent does is “bad” and everything the alienating parent does is “good.” Additionally, when questioned on this support, an alienated child will deny any influence by the alienating parent and claim the feeling as all their own.

Adult/Uncharacteristic Language

Alienated children will often repeat the comments of the alienating parent. Because an alienated child does not fully understand why the alienated person is “bad” but just is told that they should feel that way, they will often grasp onto the words the alienating parent says and make them their own. If you notice the child(ren) saying words or phrases that are not usual for a young child or things that they should not know, this is a clear sign that the alienating parent is discussing these matters with them.

Fear of Having Fun with You

Children experiencing parental alienation will often feel scared to have fun with the alienated parent. If they are having a good time, they may even ask the alienated parent to not tell the alienator that they had a good time together.

No Guilt

Non-alienated children will feel bad when they say mean and hurtful things to their parents. However, an alienated child will feel justified in their harsh language towards their alienated parent.

Legal Remedies Available

The following section details some legal remedies that may be pursued.

Court Ordered Parenting Classes and Therapy

Many courts will assign parents to parenting classes that teach parents how to co-parent as well as techniques for healthy and productive parenting that encourages a positive relationship with the child(ren). In addition, if there are signs of parental alienation or trauma in the case, a court may order the parents and/or the child(ren) to attend reunification or family therapy to work on these issues.

Restraining Orders/Anti-Disparaging Orders

Courts can make orders that restrain parents from speaking poorly about one another publicly and in front of/to the child(ren). This allows a party to have a court order that they may enforce with a contempt motion if the other parent if found to be alienating the child(ren).

Guardian ad Litem or Parenting Coordinator

During a case, a court may appoint a Guardian ad Litem (“GAL”) or a Parenting Coordinator (“PC”). These individuals are court appointed licensed professionals that are third-party advocates for the children.

A GAL is appointed to review all aspects of the child(ren)’s lives including family, school, health, etc. They will interview every person relevant to the children and ultimately make a recommendation to the court as to what the parenting should look like on a case-by-case basis. As it pertains to parental alienation, a GAL is trained to notice the above-discussed signs and make findings of those in their recommendations.

A PC is similar to a GAL but will work with the parents to resolve disputes and implement positive parenting practices. PC’s are also trained in identifying parental alienation signs and will work to eliminate any negative influence that is occurring on the children.

Termination/Modification of Custody

In severe cases of parental alienation, a court may reassess a designation/allocation of parental rights and responsibilities. If the alienating parent is designated custody or significant parenting time, a court may modify this designation to restrict their parenting time or even terminate their custodial rights.

Conclusion

As stated, it is extremely important to stay knowledgeable on parental alienation and its signs so that you may raise these issues with the court. Domestic Relations and Juvenile courts take cases of parental alienation seriously and will not hesitate to take action when a child(ren) are being manipulated and/or abused into unwarranted resistance to a parent. These issues are often subtle and hard to catch, but if you know the signs, you will be able to spot them and take the proper legal actions to ensure that each parent is receiving fair and equitable treatment as it pertains to their parental rights and responsibilities.

For more information or to seek counsel from our Family Law group, please reach out to request a consultation or call us at 216-696-1422. 

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This article was originally authored for publication in the Cleveland Metropolitan Bar Association’s Family Law Section of the Bar Journal. To view this article on the CMBA’s website, follow this link. This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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What are Digital Assets?

Digital assets are broadly defined as anything of value that exists in digital form and can be stored or accessed electronically. Some common examples of digital assets include:

• Cryptocurrency
• NFTs and Digital Artwork
• Internet Businesses
• Video Games
• Websites and Domain Names
• Airline Miles
• Music Collections and Music Accounts
• Shared Social Media Accounts
• Shared Streaming Accounts – Netflix, Hulu, Spotify, etc.

Cryptocurrency is one of the most common and complex digital assets to address in the legal field. Unlike traditional currency, cryptocurrency is a decentralized form of digital currency that operates independently of governments or third-party banking systems. Because it is not regulated by outside entities, it often lacks oversight and consistency in valuation.

Well-known examples of cryptocurrency include:

• Bitcoin
• Ethereum
• Tether
• Binance Coin
• Dogecoin
• Chainlink

Common Complications of Cryptocurrency in Divorce

Although in the eyes of the court, cryptocurrency is viewed the same as physical property, cryptocurrency can create unique challenges during a divorce, particularly when it comes to discovery, access, and valuation.

Discovery & Access

With no connection to the physical world and little to no digital trail due to a lack of regulation, cryptocurrency is often hidden and intentionally kept from the eye of the opposing spouse. Further, since many cryptocurrencies operate within a peer-to-peer network, it can be difficult to decipher who to subpoena for records.

An experienced attorney understands that cryptocurrency transactions almost always leave a digital trail. If you know or suspect where funds were transferred to purchase cryptocurrency, it is important to share this information with your attorney.

One area of concern involves cold wallets, physical devices, such as USB or flash drives, that store private cryptocurrency keys offline. Cold wallets can complicate divorce proceedings if one party is unaware that the assets exist. However, when both parties are aware of a cold wallet, steps should be taken to confirm that it is properly accounted for and that it is being held in a secure location.

Valuation

If the party can find the digital asset and gain access to its information, the asset will require valuation for the purpose of division in divorce. Yet, cryptocurrency values change so often that it can be hard to determine at which point the value shows an accurate representation of the asset’s value. Courts will generally value the digital asset based on the day that a party filed for divorce.

Preparing for Divorce When Digital Assets Are Involved

Working closely with an experienced attorney, you can take the following steps to ensure that your digital assets are properly secured, documented, and accounted for during the divorce process.

Keep an Inventory

When managing digital assets during a divorce, it’s important to maintain a clear and comprehensive inventory of all assets. Make a list of all digital assets held during the marriage, including those you may not have direct access to. Even if certain accounts or investments are primarily managed by your spouse, documenting what you know or suspect exists can help ensure nothing is overlooked. Having open communication about shared digital assets can make this process more complete and accurate.

Obtain Usernames/Passwords for Accounts

Access is key. Make sure you have usernames, passwords, and private keys for any cryptocurrency or digital accounts you own. Being able to access your accounts allows you to accurately document balances, transactions, and holdings.

Document Your Assets

Keeping detailed records of your digital assets is equally important. Updated account values and balances from all cryptocurrency accounts, along with information from tax returns such as capital gains, losses, or income, can provide an essential record of digital activity and ownership.

Don’t Hide Your Assets

It’s also critical to be transparent about your assets. Attempting to hide digital holdings can result in serious legal consequences, including penalties, treble damages, and attorney fees.

Inform Your Attorney

Finally, when discussing your assets with your attorney, be sure to keep them informed about all of your digital assets, as well as any concerns you may have regarding them. Collaborating closely with a knowledgeable attorney ensures your digital assets are properly identified, secured, and accounted for throughout the divorce process.

For more information or to seek counsel from our Family Law group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Protecting Your Digital Investments & Cryptocurrency In Divorce appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Definitions Under Castle and House Bill No. 338

Under Castle and the new House Bill No. 338, there are some terms that are important to define and understand. They are as follows:

• Person with a Disability – A person with a mental or physical disability, whose disability began before the person reached the age of majority, and whose disability makes the person incapable of supporting or maintaining oneself.
• Age of Majority – All persons of the age of eighteen years or more, who are under no legal disability, are capable of contracting and are of full age for all purposes.
• Castle Child – A child that is physically or mentally disabled and unable to maintain themselves due to their physical or mental disability. Due to this fact, the court has ruled that they are unable to legally be deemed to have reached the age of majority and thus are still under the jurisdiction of the court for child support purposes, allowing them to have child support orders received for their care.

What Does House Bill No. 338 Modify?

The modifications of the Ohio Revised Code included in House Bill No. 338 change the law established through Castle in the following ways:

It no longer matters whether the child’s disability was attained while the child was a minor.

• Previously, a court could only order child support for a Castle child when the child was a minor and before the finalization of the proceeding.
• Now, a court within a divorce/dissolution/legal separation/annulment can order or modify child support for the parties’ Castle child, regardless of whether the child has reached the age of majority before or after the finalization of the proceeding.

House Bill No. 338 redefined “person with a disability.”

• A “person with a disability” now means a person with a mental or physical disability, whose disability began before the person reached the age of majority, and whose disability makes the person incapable of supporting or maintaining oneself.

A Castle child can lose their Castle status

• Previously, once a child was deemed to be physically or mentally disabled, as to warrant continuing support under Castle, that determination was final.
• Now, an order for child support for Castle children can be terminated upon satisfactory proof that the child who is the subject of the order is no longer mentally or physically disabled and/or can support or maintain themself.

How Does House Bill No. 338 Affect Me & My Family?

If you or someone you know has a child support order and a child with physical or mental disabilities who may not be self-supporting into adulthood, the new House Bill No. 338 could have future impacts. House Bill No. 338 also establishes an avenue for parents to seek support if their child develops physical or mental disabilities in adulthood that require additional care not needed during childhood.

If any of these situations sound familiar to you, you may have a claim through the courts to establish child support. A family law attorney can help you evaluate your options and determine the appropriate next steps.

To seek counsel from our Family Law practice group, please reach out to request a consultation or call us at 216-696-1422.

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[1] Castle v. Castle, 15 Ohio St. 3d 279 (1984).

This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post House Bill No. 338: Modifying Castle Child Support Orders & Regulation appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Essential Considerations in Custody Cases Involving Alcohol or Drug Abuse

The following list includes examples of key questions that may arise in custody cases involving parental alcohol or drug abuse and sobriety.

(1) Can the parent stop using or drinking?

If you believe you do not have a problem with alcohol or drugs and the other parent is making a baseless accusation, the easiest way to dispel a concern of one’s inability to manage their alcohol or drug consumption is to stop using. Your efforts are best spent dispelling the allegation rather than being upset that a parent has made the claim. Ceasing social alcohol use can clearly demonstrate the lack of dependence. Clean hair follicle drug tests can demonstrate sobriety up to ninety (90) days.

(2) If you are actively working on your relationship with alcohol or drugs, are you consistently participating in a structured recovery program?

Oftentimes, if a parent is actively working on their sobriety, it is in the children’s best interest to have ongoing and consistent contact and parenting time with appropriate safeguards in place:

• Ensure the parent is sober during parenting time;
• Restrict the parent’s ability to drive the children; and
• Supervise parenting time or have parenting time in a public location.

(3) How does the parent build back trust and demonstrate sobriety?

Over time, demonstrated sobriety rebuilds trust and proves that the substance use is under control.

• Soberlink Monitoring – Soberlink is a mobile breathalyzer connected to an app on your phone that tracks sobriety by reporting test results, including passed, missed, or failed tests. Parents can agree to the terms of using Soberlink to test for sobriety before, during, and after parenting time for a specified duration.
• Treatment Program or Therapy Reports – Routine updates, letters, or reports from treatment programs or therapists can provide evidence of ongoing recovery efforts.
• Routine Drug Testing – Regular drug testing offers objective proof of sobriety and compliance.

Modifying Parenting Plans Based on Sobriety Progress

Parenting arrangements are always subject to modification, allowing for adjustments to a parenting plan or parenting schedule based on a parent’s progress or setbacks. A useful analogy is the board game of “Chutes and Ladders” – as a parent displays progress, their parenting time can gradually increase. However, in the event of a setback or relapse, they may need to return to an earlier phase of the plan to rebuild trust and stability.

Balancing Stability, Safety, & Parental Rights

Navigating sobriety during a custody case can be challenging for the whole family. Understandably, a parent may feel apprehensive about sending their children for parenting time, while children may be concerned about spending time with a parent who may be inebriated and unable to provide proper care. Both the parent and the children need assurances that the children are safe. Again, building trust is imperative.

For the parent struggling with alcohol or drug use, this is also an opportunity to display a commitment to the well-being of the children as well as to the recovery process.

Ultimately, the goal is for children to have two healthy parents who can provide stability, consistency, and a safe, nurturing environment. Both parents should understand that there are various tools and stages available that can be used over time to achieve that goal.

For more information or to seek counsel from our Family Law group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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What is Grandparent Visitation?

Grandparent visitation is defined under Ohio law, which states that in a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding that involves a child, the court may grant reasonable companionship or visitation rights to any grandparent in certain instances. This visitation is scheduled time that the grandparent can spend with the child. A grandparent may want to establish a set schedule for visitation time in situations where they do not often or regularly see the child. This visitation can come in many different forms, such as:

• Phone/video calls – Established time for the grandparent and grandchild to talk via phone or video chat.
• Midweek visits – A time during the week when the grandparent is allowed to visit with the child for a few hours (dinner, movie, park, etc.).
• Overnight visits – The child stays with the grandparent overnight. This can be one night or even a full weekend.

Can a Parent Prevent Visitation with Grandparents?

The ability to visit with grandchildren will be determined by the court through a test of what is in the child’s best interests. A court will begin with the presumption that a fit parent is acting in the best interests of the child and will take into consideration a fit parent’s wishes regarding the child. The burden of proving that it is in the child’s best interests to visit with their grandparent is on the grandparent.

To determine a child’s best interests, the court will look at many factors, some of which include: 

• The prior interaction and interrelationships of the grandparents, parents, and children
• The geographical location of the residence of each person with visitation
• The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the holiday and vacation schedules of both the child and the parents.
• The age of the child
• If the court has interviewed the child in chambers, the wishes and concerns of the child, as expressed to the court
• The health and safety of the child
• The amount of time that will be available for the child to spend with siblings
• The mental and physical health of all parties
• The wishes and concerns of the child’s parents

In What Instances are Grandparents Awarded Visitation?

There are some instances where an award of visitation rights to a grandparent are most likely/common. These include:

1. When the grandparent’s child (the mother or father of the child whose visitation is at issue) dies – If your child dies, it can cause your access to your grandchild to be restricted or cut off. In this instance, the grandparents would move the court for more time with the children due to the restriction of historically exercised time.
2. When married parents terminate their marriage – A parent may restrict a grandparent’s ability to see the grandchild or a grandparent’s time to see their grandchild may be limited due to the results of the termination of marriage. Some examples of this situation are where:
   • A father travels extensively for work restricting his parenting time to when he is in town, but the paternal grandparents are local and desire consistent contact with the child.
   • A mother is on military deployment for months at a time restricting her parenting time to the months when she is home, but the maternal grandparents are local and desire consistent contact with the child.
     Thus, the grandparents would move the court for more time with the children due to the restriction of historically exercised time.
3. When a child is born to an unmarried mother – In this instance, the father (unless he establishes paternity) does not have rights to visitation. The paternal grandparents in turn do not either. Thus, the paternal grandparents would move the court to establish paternity of the father and visitation for themselves.

In What Instances Is Grandparent Visitation Uncommonly Awarded?

There are certain instances where awarding visitation rights to a grandparent is uncommon and unlikely. These include:

1. When a child is in protective custody due to abuse, neglect, or dependency of the child – If the child is in protective custody, the court will likely not order visitation for grandparents of the child.
2. Paternal grandparents of a child who does not have established paternity – As explained in the above section, if a father does not establish paternity of a child, he does not have parental or visitation rights to that child. In turn, the paternal grandparents would not have the possibility of visitation rights.

What Do I Do Next?

If you are having trouble seeing your grandchildren, you may have a claim through the courts to establish visitation. To begin this process or for more information from our family law attorneys, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Establishing Grandparent Visitation: What Is It & Who Can Seek It? appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

What is Financial Misconduct?

Financial Misconduct is defined as a spouse engaging in actions, including, but not limited to, the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets. Some common examples include:

• Acquiring significant debt that is unusual for the marriage
• Hiding financial assets
• Underreporting income
• Overpaying taxes
• Selling assets
• Extreme gambling
• Spending large sums on a paramour
• Transferring title to property to third parties
• Withdrawal of retirement funds
• Large gifts to third parties

Hiding financial assets by transferring money between financial institutions, and large withdrawals are two of the most common forms of financial misconduct in a divorce. This commonly occurs when one party is attempting to hide the parties’ marital money in separate accounts or worse yet, in their “dresser drawer,” so the other spouse is not able to receive their half interest.

However, another form of financial misconduct is acquiring significant debt that was not typical for the marriage. This occurs when, instead of hiding the marital money, a spouse will spend the marital assets in extreme ways, in order to ensure that the other spouse is not able to receive their one-half interest. The most common examples of this are pre-payment of taxes and utilities, extreme gambling, and overuse of joint credit cards.

How Do I Know and Show This is Happening?

To know that financial misconduct is happening or has occurred, one must be aware of what assets they have. To ensure that you know of all assets of the marriage, you can do the following:   

• Keep an Inventory – Keep a list of all the assets of your marriage.
• Get a Credit Report – If you are unsure of the extent of your assets, a simple credit report can identify the different financial accounts that are in your or your spouse’s name.
• Obtain Usernames/Passwords for Accounts – If you are aware of financial assets, such as bank and retirement accounts, try to obtain/retain usernames and passwords to all accounts.
• Keep Track of Your Assets’ Values – In addition to keeping a list of all financial accounts and property assets you own in the marriage, also make sure you know their current values.

The burden of proof to show this misconduct is on the complaining party. There is no requirement that you must show your spouse had malicious intent or bad faith in their actions. A complaining party must only show that the spouse is knowingly engaged in the wrongdoing that causes the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets.

Discovery: To prove the misconduct, a party will first obtain the necessary documents for all accounts, property, and any other asset. This can be done through the following methods: If you notice that your spouse is taking actions, such as those listed above, to dissipate, destroy, conceal, avoid disclosure of, or fraudulently dispose of your marital assets, there are ways you and your attorney can go about proving such, including:

• Subpoenas
• Credit Reports
• Requests for Production of Documents
• Requests for Interrogatories
• Requests for Admissions

Forensic Accounting: A spouse may hire a forensic accountant to track and trace the movement of assets. These forensic accounts will be able to create a report of the offending spouse’s actions.

How Will This Effect My Divorce?

If a court finds that financial misconduct was committed, they may compensate the offended spouse with a distributive award or with a greater award of the marital property. The court can decide to:

1. Make the offending spouse pay the offended spouse money damages to make up for their misconduct and the assets that were dissipated, destroyed, concealed, not disclosed, or fraudulently disposed of; or
2. Award the offended spouse a larger portion of the marital property to make up for the assets that the offending spouse dissipated, destroyed, concealed, not disclosed, or fraudulently disposed of.

To seek counsel from our Family Law group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Financial Misconduct: Ensuring Property Division is Equitable in Divorce appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Scientifically, an embryo is defined as “an animal in the early stages of growth and differentiation that are characterized by cleavage, the laying down of fundamental tissues, and the formation of primitive organs and organ systems especially the developing human individual from the time of implantation to the end of the eighth week after conception.”

Legally, the definition and legal status of an embryo have been called into question in light of the 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. As such, Ohio courts have overhauled the status of cryogenically frozen embryos. In Ohio, to engage in delayed assisted reproductive technology processes, like IVF, which requires the embryos to be frozen for a period of time, an individual or couple must enlist the services of a Cryopreservation Bank. If a couple decides to freeze their embryos, a healthcare provider will require them to read and sign consent forms, sometimes referred to as Informed Consent-Embryo Cryopreservation Agreements, which detail the process of cryopreservation, the method and duration of storage, and decisions that must be made in the event of contingencies

Before the 2022 Dobbs decision, Ohio courts used three methodologies to determine the disposition of embryos in contested litigation. The first method, Contemporaneous Mutual Consent, dictates that the embryos should remain in storage until the parties can reach an agreement regarding their disposition [1]. The second method, the Balancing Test, was employed when no valid pre- or post-embryo preservation contract existed. Under the Balancing Test, the court was required to balance the interests of all parties involved including the mother, father, any existing children, and the potential child arising from the embryo [2]. The final approach was the Contractual Method, which was employed by a majority of jurisdictions [3]. The Contractual Method reasoned that the fact that both parties expressed their intention to address the allocation of the embryos pursuant to the terms of the Informed Consent-Embryo Cryopreservation Agreement contracts, demonstrates that both parties intended to treat the embryos as marital property [4]. Moreover, the Supreme Court agreed that a “valid contract would remove any constitutional concerns as it would have represented the parties’ knowing and voluntary intentions at the time of the IVF treatment” [5].

Kotkowski-Paul v. Paul (2022), decided pre-Dobbs, was only the third time an Ohio court adjudicated on the disposition of embryos. Unlike the two previous Ohio decisions, Karmasu v. Karmasu and Cwik v. Cwik, which were decided under the Contractual Method, while the parties both stipulated that they signed an Informed Consent-Embryo Cryopreservation Agreement, neither party could produce a copy of the contract [6]. Therefore, although the trial court recognized that the stipulation alludes to the parties’ intention to treat the embryos as marital property, without the contract to guide its decision, the court chose to use the Balancing Approach to determine the disposition of the embryos [7]. In its analysis of the Balancing Approach the trial court weighed the mother’s desire to effectuate the birth of a child, the father’s adamant proclamation that he does not want the added responsibility of a new child, the existing children’s confusion over the potential status of their sibling, and the potential child’s hardship as a result of the father’s refusal of his parental status [8]. While the court recognized each individual’s constitutional right to procreate, or not to procreate, ultimately the court found that, as a matter of public policy, forced procreation and involuntary parentage are not amenable to judicial enforcement [9]. Therefore, the trial court ordered, and the appellate court upheld, the embryos be awarded to mother who must either donate them or destroy them (Id. at 69).

Dobbs v. Jackson introduced the concept of embryos as “potential life” which fundamentally altered the definition of embryo in a legal setting.

E.B.N. v. R.N. (2024) highlighted Ohio courts’ usage of this new classification of embryos in a legal setting. In this case, Husband and Wife could not agree to the disposition of their frozen embryos on divorce where Husband wanted the embryos donated and Wife wanted them for her personal use [10]. When deciding the allocation of the embryos, the trial court rejected the previous three methods of reasoning applied in these types of cases, the Contemporaneous Mutual Consent, the Contractual, and the Balancing Approaches, believing them all inadequate because they regard embryos as property and “do not account for the fact that what is involved is not property, but life or the potential for life” [11]. Furthermore, the trial court denotes Ohio’s express public policy to prefer preservation and the continuation of life whenever constitutionally permissible [12]. Although both parents wishes are in accordance with Ohio’s public policy, the court advances the notion that Husband’s decision to fertilize Wife’s eggs that produced the embryos in question served as his consent to create offspring biologically related to him [13]. As a result, the court award the Wife the remaining embryos believing her request to be more consistent with honoring the parties wishes at the outset of the IVF services to create a child [14].

The impact of the E.B.N v. R.N. decision throws into question the validity and enforceability of not only Informed Consent-Embryo Cryopreservation Agreements, but all other contracts, like prenuptial and postnuptial agreements, that deal with the disposition of embryos. If you or someone you know is considering IVF, be sure to contact a lawyer so that you can move forward with a complete understanding of your options and the potential implications of your decision.

For more information or to contact one of our Family Law attorneys, please reach out to request a consultation or call us at 216-696-1422. McCarthy Lebit would like to thank law clerk Isabel Cohen for her effort in assisting with the preparation of this legal blog post for The More Report.

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[1] Jessee v. Jessee, 74 Va. App. 40,866 S.E.2d 46,51-52 (Va. 2021)
[2] McQueen v. Gadbery, 507S.W.3d 127, 144-147 (Mo.2016)
[3] Kotkowski-Paul v. Paul, 2022-Ohio-4567, 204 N.E.3d 66, ¶76; Karmasu v. Karmasu, 5th Dist. Stark No. 2008 CA 00231, 2009-Ohio-5252; Cwik v. Cwik, 1st Dist. Hamilton No. C-090843, 2011-Ohio-463; Bilbao v. Goodwin, 333 Conn. 599, 217 A.3d 977, 992 (Conn.2019); Szafranski v. Dunston, 2015 IL App (1st) (Ill 2015)
[4] Id.
[5] Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)
[6] Kotkowski-Paul v. Paul, at ¶70
[7] Id. at ¶76
[8] Id. at ¶79-82
[9] Id. at 80. Citing Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) and A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051,1057 (Mass. 2000)
[10] E.B.N. v. R.N., 2024-Ohio-1455, P18
[11] Id. at P10-11
[12] Id. See O.R.C. 9.041 Ann
[13] Id. at P19
[14] Id. at P20

This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post IVF: Implications Post-Dobbs appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

To appreciate why these documents are helpful, one must appreciate what happens in the event of divorce or death and this document is not drafted. Prenups may be perceived as taboo, however, they aid in the unlikely termination of the marriage. Like an operating agreement in a business partnership, the contract that defines what happens should the business cease operation is critical—the same is true in marriage. A prenup is a legal contract entered into by a couple prior to marriage, outlining distribution of assets, spousal support, and other financial considerations in the event of divorce or death. In Ohio, these agreements are prudent means of protecting individual interests while fostering open communication between partners.

In the event one spouse has a business interest, a prenuptial agreement should be an absolute prior to entering the marriage. It is important to recognize if your marriage has a financial component so you can take steps to protect your family wealth and your finances before entering that financial partnership with your spouse.

Prenups enable candid conversation about financial expectations, assets, and debts prior to marriage, laying the foundation for a relationship built on trust and understanding. By clearly defining each party’s rights and responsibilities, a prenup can mitigate disputes and uncertainties that may arise in the unfortunate event of divorce or death.

No two relationships are identical, which is why it’s important to consult legal counsel when considering a prenup. There are several online resources that perhaps may be less expensive, but it is the proverbial, “you get what you pay for” that may make that inexpensive indulgence unenforceable when the agreement has application. Engaging with legal counsel is vital in minimizing potential prenup challenges that may be faced in the event of divorce or death. Whether safeguarding a family business, protecting inheritances, or outlining spousal support terms, attorneys can customize prenups to meet the unique needs and circumstances of each couple.

Ohio is home to a myriad of entrepreneurs and small-business owners. Prenups provide a mechanism for these individuals to shield their businesses from complexities of divorce proceedings, helping to ensure the continued success and security of their enterprises.

Crafting comprehensive prenuptial agreements requires a nuanced understanding of Ohio’s family laws for divorce, death, and tax. In handling prenups, our experienced legal team offers a unique approach in that we offer experienced counsel in family law, estate planning, and tax planning. All prenups see the eyes of at least one family law attorneys and another for the death piece of the agreement.

Prenups are not merely tools for the affluent; they are also practical instruments for individuals committed to building a strong foundation for their marriage. At McCarthy Lebit, we recognize the significance of these agreements in promoting financial transparency and protecting individual interests, and we can assist you in securing your future.

For more information or to seek counsel from our Family Law attorneys, please reach out to request a consultation or call us at 216-696-1422. McCarthy Lebit would like to thank law clerk Daniel Howard for his effort in assisting with the preparation of this legal blog post for The More Report.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Beyond the Knot: The Power & Purpose of Prenuptial Agreements appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Legal Custody – Decision Making Power for a Child

First, “legal custody” is the power to make decisions for a child. One parent could have sole custody, both parents could have shared parenting, or parents could have shared parenting with one parent having the ultimate decision-making authority. Legal custody designates authority over decisions such as: medical professionals or procedures, involvement in sports, etc.

Sole Custody means that you have sole decision-making authority over the child. Sole custody does not, in and of itself, provide a parent with more parenting time.

Shared Parenting allows both parents to have decision-making authority for a child. This requires parents to have discussions about what is in the best interest of the child and how they are going to make a given decision. Naturally, there can be an impasse on issues and additional “tie braker” protocols would be in place. If both parents possess decision-making power but cannot reach an agreement, viable options include retaining a parenting coordinator, seeking guidance from a mutually agreed primary care physician, or granting one parent ultimate decision-making authority.

Parenting Time – Physical Possession or Custody of a Child

The second prong, physical possession or custody of a child, is referred to as “parenting time.” There are several different arrangements and variations of schedules that could accommodate a given family. Often, parents seek to maximize the amount of time with the child and strive to divide the time equally. Most counties provide a Standard Schedule that allocates more time to one parent. This type of schedule may make sense for parents with demanding work schedules or other commitments. When a parent has relocated, a Long-Distance schedule that provides fewer blocks of time for longer durations can be the most practical schedule.

Residential Parent for School Purposes – Child School District

Third, “residential parent for school purposes” designates the school district for a child. This is easily determined when both parents want the child to stay in the same school district (i.e. Lakewood) and one parent plans to stay in that district (i.e. Lakewood) but other plans to move out of the school district (i.e. Cleveland). This can be more difficult when a young child has not yet started school, each parent believes they will live in a superior district.

Generally, people are encouraged to cooperatively co-parent with Shared Parenting and maximizing the time each parent has with their child(ren). However, designating legal custody, parenting time, and even residential parent for school purposes is very nuanced because each family has their own unique dynamic, schedules, and priorities. It is important to seek creative solutions and craft the parenting arrangements that are the best fit for the family.

Finally, parenting arrangements are always subject to modification. If things change over the years and a different arrangement would be best, the original parenting plan is not set in stone and could be amended.

For more information or to seek counsel from our Family Law group, reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

The post Understanding the Difference Between Legal and Physical Custody appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.