Friday, June 15, 2018

Landmark international residence case could impact those making aliyah

We are returning from oral argument in Cincinnati with our appellate co-counsel from Gibson Dunn (and fellow co-counsel Joan Meier, professor at George Washington University Law School, rooting us on from D.C.). Congratulations to Aidan Taft Grano for delivering our exceptional argument!

Zashin & Rich, specifically Andrew Zashin, Christopher Reynolds and Amy Keating (all adjunct professors at Case Western Reserve University School of Law and Fellows of the American Academy of Matrimonial Lawyers) tried this case in the Northern District of Ohio in March of 2016. More than two years later, we hope for a positive outcome that puts the Sixth Circuit Court of Appeals in line with its sister circuits for the legal standard on this particular issue.

Read more about this issue in full article by Becky Raspe on the Cleveland Jewish News

Thursday, June 14, 2018

Legal issues of traveling with children

By Andrew Zashin*

Summer is almost here and many families will take vacations near and far. While the thought of traveling with children – small children, in particular – can be daunting, the legal aspect does not need to be scary.

Special permission for travel is usually only necessary if you will be crossing international borders. While it can never hurt to travel with a copy of a child’s birth certificate and other important documents, like custody, guardianship or adoption papers, if you are driving domestically, you will likely face no issue or question.

The one notable exception would be if you have a custody order that limits or puts special restrictions on travel with the child. In that case, you will want to make sure you follow your divorce or other custody order.

As for air travel, the Transportation Security Administration similarly does not require identification or any special consent for children traveling accompanied on domestic flights. Children under the age of 13 can undergo modified screening procedures that are intended to be less scary, however older children must go through the same process as an adult.

Rules for children flying unaccompanied vary from airline to airline. Some form of identification may be required, at least for older children, and it’s always a good idea for an unaccompanied child to travel with some form of identification, whether a birth certificate, passport, driver’s license, school ID or similar form.

No matter the method of travel, if the travel will be with someone other than a parent or guardian, it is smart to give the chaperone a letter of consent so it is clear he or she is authorized to travel with the child. In fact, with group trips, such as those organized by a school, religious or other group, some form of permission slip will likely be required.

International travel is a bit more complicated. The website for the U.S. Department of State contains important travel requirements that vary from country to country. In general, if the child will be traveling internationally, a passport will usually be necessary just as for an adult.

If the child will be traveling with only one parent or guardian, it is useful and sometimes required for the traveling parent to travel with a letter of consent signed by the other parent. This letter is not a specific government form, but should clearly spell out the travel being permitted and identify as much detail about the travel plans as possible.

To obtain a passport for a child, both parents or guardian must consent. The only times a passport can be obtained unilaterally is if the parent applying for the passport can show that he or she has sole legal custody of the minor, such as by a divorce or custody decree, some other order authorizing the issuance of a passport, a birth certificate listing the requesting parent as the only parent or guardian, or a death certificate showing the death of the non-requesting parent.

This article originally appeared as a column for the Cleveland Jewish News.

Wednesday, May 30, 2018

En banc session of a United States Court of Appeals – How do courts determine the habitual residence of an extremely young child?

Download PDF of Press Release

An en banc session of a United States Court of Appeals is a case that involves complex issues or involving matter of exceptional public importance. In fact, it is so exceptional it is practically the last appellate step before the court of last resort—the United States Supreme Court. Taglieri v. Monasky, 2017 U.S. App. LEXIS 24292 (6th Cir., Nov. 29, 2017); 876 F.3d 868 (6th Cir.2017), is one such case. In Taglieri v. Monasky, Zashin & Rich defended Ms. Monasky at the trial court level and have been actively involved at all appellate levels. This is a case which has squarely turned on, to date, an open legal question in the 6th Circuit: how do courts determine the habitual residence of an extremely young child?

All areas of law develop over time, and that is true for how United States courts address the determination of a child’s habitual residence pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. One particularly challenging aspect of making those determinations occurs when the child at issue is unable to meaningfully form connections to any particular location, whether that is due to being extremely young or disabled. The facts in Taglieri v. Monasky are heart-wrenching and on-point: a child is born in Italy to an American mother (Monasky)and Italian father in the midst of a disintegrating marriage fraught with spousal abuse perpetrated against Ms. Monasky, even while pregnant. While Ms. Monasky made clear to Dr. Taglieri her intentions to leave Italy with the child as soon as possible after her birth, Ms. Monasky was effectively trapped in Italy for several weeks awaiting the child’s passport. After the marital situation came to a head, resulting in Ms. Monasky and the child being placed in a domestic violence safe house, Ms. Monasky is finally able to secure the child’s passport and leave Italy for the US with her then-8-week-old daughter.

In Taglieri v. Monasky, although the trial court ordered the child to be returned to Italy primarily because the court had no direct guidance on the appropriate legal standard from its superior courts. On appeal, Ms. Monasky’s counsel tirelessly pressed what should be the proper legal standard, a standard which had been applied by every other US circuit to have addressed the issue. Namely, when a child is too young to form meaningful connections and acclimatize to a particular place in order to establish a habitual residence, courts must look to the parents’ shared intent as to where the child would be raised as a proxy. Notwithstanding Ms. Monasky’s fervent efforts, a sharply divided appellate court meted out yet another blow by erroneously fashioning a legal standard at odds with both controlling 6th Circuit precedent, as well as with virtually all precedent in any prior case from the 6th Circuit and all other circuits to have addressed the issue. In effect, the appellate panel majority created both an inter- and intra-circuit split on what is the proper legal standard for determining the habitual residence of a very young child.

Undeterred, counsel sought and obtained an en banc rehearing of Ms. Monasky’s appeal by the 6th Circuit—an accomplishment achieved only once before in a United States Hague Convention case (see Silverman v. Silverman, 338 F.3d 886 (8th Cir.2003)), and the first ever on the issue of determining habitual residence. Zashin & Rich has had two goals from the beginning: to ensure a just and proper outcome for Ms. Monasky and her daughter, and also to advance the adoption of the proper legal standard in such cases. With oral argument before the 6th Circuit set for June 13, 2018, Ms. Monasky’s legal fate and that of similarly situated parents hangs in the balance.

Tuesday, May 15, 2018

Crowdfunding – new way to fund raise for charitable causes

By Andrew Zashin*

Crowdfunding, at its simplest, is the funding of some cause or venture via a large number of small contributions. That is, the concept is to raise money by calling upon a large number of people to each make a small contribution.

Clearly, this is not a new concept. After all, the humble idea of “taking up a collection” for something has been around for millennia. But the internet and social media have revolutionized the concept and given it a catchy name.

The concept is being used to fund the development of new products and ventures (think Kickstarter or Indigogo). But it is also being put to use in the area of charitable giving. Websites like GoFundMe, which is arguably the most successful and best known (to such extent that the phrase “I/he/she/they started a GoFundMe” has entered the common vernacular), allow anyone with an internet connection to set up a fundraiser for any cause of their choosing.

Most typically, such a crowdfund request will point to a specific individual or group of individuals, for example, a classroom looking for supplies, a family whose primary breadwinner has been diagnosed with a terminal illness, or the victims of an unexpected disaster. Requests run the gamut, with some seeking only a few hundred dollars and some raking in multiple millions of dollars.

For recipients, this type of fundraising is quick, easy, and often quite effective. The organizer of the fundraiser need only create a page on the crowdfunding site, and share the link with family and friends via social media. If the cause is compelling, ideally it will then be passed on to more and more potential donors, and hopefully attract a large response.

Typically, the hosting site will charge a flat fee per transaction, or take a small percentage of what is donated. The page creator can set up some rules as to who can access the funds. And, so long as the donations do not involve the sale of goods and services, they typically will not be taxable.

For the donor, though, no matter how “charitable” the cause, the contribution will probably not qualify as a tax-deductible charitable donation; donations are usually only deductible when made to qualified organizations that are intended to benefit a broader swath of the population, rather than the typical crowdfunding campaign that is intended to benefit one or a few named individuals. Further, it may be subject to gift tax rules if it exceeds the annual limit ($15,000 for the 2018 tax year).

“Philanthropy” and “charity” are not quite synonymous, and the rise of charitable crowdfunding makes some traditional philanthropic organizations uneasy. Crowdfunded campaigns are generally started in order to address an immediate concern. They neither have, nor require, a longer term vision.

For example, say a homeless person finds a bag full of cash deposits that a small business owner dropped on the way to the bank. Instead of keeping the money, he works to find the rightful owner and returns it. The business owner, grateful for the return of the cash, is compelled to repay this good deed by setting up a crowdfunding campaign for the benefit of the good Samaritan. This is great news for that individual.

But it does absolutely nothing to help the wider systemic problem of homelessness in the city. A concern is that while this one-off type of fundraising “feels good” and is very popular with the individual donor, it allocates donations in a way that accomplishes less overall good than could be accomplished with the type of longer term, sustainable plan that a philanthropic organization or other established charitable organization is likely to have.

But, ultimately, crowdfunding appears to be here to stay. The platforms for giving are changing as fast as technology advances. And, the options available to potential donors are much wider than ever before. And, ultimately, it is difficult to characterize more choice in charitable giving as anything other than a good thing.

This article originally appeared as a column for the Cleveland Jewish News.

Thursday, April 19, 2018

What you need to know about prenups, postnups

By Andrew Zashin*

When it comes to marital finances, usually we think of three major types of contracts between spouses: prenuptial or antenuptial agreements entered into before a marriage, postnuptial agreements in the absence of a divorce/dissolution and separation agreements incident to a termination of marriage in Ohio.

Most readers have likely heard of a prenuptial, or antenuptial, agreement. Also known more casually as a “prenup,” this agreement is used to clarify – before the nuptials – how certain assets and liabilities will be divided if the marriage ends in divorce or upon death. Romantic, right? But it can be a very useful and important tool.

A prenuptial agreement may also specify what spousal support will look like upon a divorce, and how certain assets will be treated upon the death of one party. It is most often used to protect assets that a party brings into the marriage, but it can also be used to protect a spouse against the debt of the other. And, it can also be used to protect the inheritance of children from a prior relationship.

If you are considering a prenuptial agreement, you will want to keep a few points in mind. First, it is important that both sides make full disclosure to the other of all assets and liabilities. This disclosure should be embodied in the document, usually as an attachment. Second, the other side should have a meaningful opportunity to read, review, and understand the document, and to consult with an attorney prior to signing.

It is important that the document be signed of each party’s own free will, without any fraud, duress or coercion. Please do not surprise the other side with a prenup two days before the wedding. Third, the terms of the agreement cannot encourage profiteering from a divorce. Fourth, know that spousal support terms contained in a prenuptial agreement are not necessarily binding if they are unconscionable at the time you are seeking to enforce them.

But what if you failed to get a prenuptial agreement before the marriage? Maybe the marriage is on rocky ground and it seems like a good idea to get some things in writing. Perhaps you want to take some of your premarital money or inherited money and use it to purchase a marital home and you want to make sure you are able to get it back if you divorce. Maybe you want to go into business with a family member and you want to clarify how that business will be treated.

All of those and more are reasons that have prompted couples to think about postnuptial agreements. It may sound tempting to whip up a quick contract that both spouses will sign. After all, a signature is binding, right? Not so fast. You will do much better to document any of these types of events and keep financial records in case they are ultimately needed in a court case, as postnuptial agreements simply are not valid in Ohio.

A notable exception to this rule is an agreement for purposes of separation. Generally used for a settled divorce, dissolution or legal separation, a separation agreement will typically encompass some agreement on all financial terms, including division of assets, debts, and other financial issues, and any ongoing financial support. That agreement will then be enforceable in the divorce court and will be attached to any final decree.

This article originally appeared as a column for the Cleveland Jewish News.

Wednesday, March 14, 2018

A helpful blueprint to your last will and testament

By Andrew Zashin*

Less than half of the population has a last will and testament. Ohio law provides a way to divide the property, or “estate,” left behind when a person dies without a will.

Generally speaking, your estate will go to your spouse. Or, if you have no spouse, your estate will go to your children. If you have no children and no spouse, your estate will go to your parents, or your siblings, or their descendants, in that order.

In many cases, the intestacy laws may provide what you would like to see happen anyway. But so you may want to select the person who will be responsible for administering your estate. You may want to provide that the administrator be paid (or not paid) for his or her services.

And, if you are divorced and remarried, if you have children from different relationships, if you want certain people to receive specific heirlooms, accounts, or assets, or, really, if your situation is anything other than wanting to simply leave your estate to your spouse or children, it is so important to put your wishes formally in writing.

Here are some questions you will want to consider:

What assets are in your estate?

Many assets, such as accounts that are “payable on death” or jointly held, retirement accounts on which a beneficiary is named, life insurance policies, real property that is jointly held or else subject to a “transfer on death” designation, or assets held in a trust, will not be divided by the probate court (or by will.) Instead, those things will transfer to the joint account holder, beneficiary, or other payee. Anything otherwise in your name or owned by you is probably an estate asset.

What debts are in your estate?

You may have heard your debts do not survive you, and they usually go away upon death. It is true that loved ones will not generally be responsible for the debts of a deceased relative. However, it is important to note that the debtors - a mortgage holder, a credit card company, etc. – will have a claim against the estate and that debt will likely need to be repaid from the estate before your heirs will receive any inheritance.

Who do you want to inherit from your estate, and how?

An heir could be a person or an organization, and of course provisions are occasionally made for beloved pets. Keep in mind it is not really possible to completely write a spouse out of a will in the state of Ohio. A surviving spouse, by law, has the right to certain assets, despite what a will provides. You should clearly articulate all individuals you are intending to include, and any you may be intending to exclude, otherwise the probate court may incorrectly presume what you intended. In addition, you should think about what you want to see happen if one of your heirs predeceases you. Do their descendants inherit their share or something different?

Who do you trust to appropriately administer your estate, ethically and accurately handle funds, and enact your wishes?

Keep in mind that individual would have to ultimately accept the appointment. Typically, that individual would be paid for their services, usually proportionate to the size of the estate, but you may make some alternate request known if you feel it is appropriate.

If you have minor children you may specify your intention as to responsibility for their care. A court could ultimately decide that a different arrangement is more appropriate, but your wishes would doubtless be considered.

You are not required to hire an attorney to draft your will. But it is important to understand that certain formalities must be observed. For example, it must be signed by you and witnessed by at least two individuals who do not stand to benefit from the estate. And, more complex situations can get tricky, and you may find it useful to at least consult a will drafting software package, book, the Ohio Revised Code, or other how-to resources to be certain you are saying what you think you are.

This article originally appeared as a column for the Cleveland Jewish News.

Thursday, February 15, 2018

Philanthropic giving for average donor

By Andrew Zashin*

The Internal Revenue Service identifies some 29 different types of organizations that are exempt from federal income tax.

In the most basic of terms, these are “nonprofit” organizations, or entities that exist generally for a purpose other than making money, and it is to nonprofits that we think about directing our philanthropy.

While you may make donations to causes such as a fraternal organization or a political campaign, in terms of philanthropic giving, you are probably most familiar with 501(c)(3) organizations. These are more commonly known as “charitable” organizations, and the “501(c)(3) label refers to the specific subsection of the Internal Revenue Code under which they are organized.

These types of organizations include only those which are “organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals…”

So what does this mean for the average donor?

In deciding where to put your donation dollars, obviously it is most important to select a cause that you believe in. However, people choose to donate for many reasons beyond the simple “feel good” factor of helping a good cause. Of course, the deductibility of charitable gifts has been impacted by the recent tax reforms. But if tax deductibility is on your radar you will want to speak with your accountant or financial planner before making any large donations to be certain the donation will be deductible.

When searching for that perfect charitable cause, know that you will come across many, many options vying for your money, and it can be difficult to know where to start. Websites like Charity Navigator, Charity Watch, GuideStar and Consumer Reports evaluate an astounding number of organizations on topics such as operating and fundraising overhead, total contributions, sources of contributions, and other information that may be of interest.

The majority of donors will look to contribute to public charities. That is, most people will make donations toward an organization that regularly receives contributions from the general public and has active programs. Organizations in this category might include a synagogue/temple/shul, an animal welfare organization, an educational organization, or a benevolence organization, just to name a few.

Of course, private foundations are another option. These entities are typically nonprofits that have been established from funds from a single source or small group of sources, such as a family or corporation. They often have no active programs of their own, but support the work of other public charities through grants.

Ultimately, what is right for you will depend on your personal tastes and how you prefer to see your funds allocated. With a little research you are sure to find the right fit for you.

This article originally appeared as a column for the Cleveland Jewish News.