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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86628
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My brother suffered a traumatic brain injury over a year ago.

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My brother suffered a traumatic brain injury over a year ago. They do not expect him to recover his full mental capacity, his wife is considering divorcing him because right now he is covered workman's comp she is worried that they could drop him if he should develop an illness not related to his brain injury. What rights does he have? Is he entitled to any marital property?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

AMICUS ATTORNEY
I am very sorry for your brother's situation. If he has a mental disorder due to the incident and cannot full represent himself, what the Court will do is the following: it normally appoints an attorney ad litem (also called an amicus sometimes) to represent him. This is to ensure that he is not taken advantage of in the divorce proceeding.

The pay for the amicus normally will come from his separate assets as decided by the Court, or if he cannot afford it, then she may be ordered to pay his amicus' fees, even! The Court is very sincere about individuals with mental issues or the incapacitated being involved in divorce and normally extends them a lot of rights.

So, we know he will be (or rather, should be) represented by the amicus. Now, if he has a court-ordered guardianship order, then his Guardian (assuming it is not her) can retain counsel on his behalf to do the same thing that the amicus would do.

DIVISION OF PROPERTY
So now that we have covered that, we go on to the division of property/assets. Is he entitled to any marital property? Yes. He has the same rights as someone without an injury that leaves him in such a state.

SEPARATE PROPERTY
Separate property and debt is property that is generally:
1. Owned before marriage by one spouse; or
2. Acquired by gift or will or similar legal way by spouse during marriage; or
3. Declared as such by a written declaration; or
4. Traceable property purchased by one spouse only; or
5. Tort Recovery for personal injury, but not medical expenses or loss of earning capacity.

Separate property and debt is awarded to the party which had claim to it as above.

COMMUNITY PROPERTY
Community Property and debt is everything else, including but not limited to:
1. Income from BOTH parties; or
2. Declared as such by written declaration; or
3. All titled and non-titled property gathered during marriage.

Ohio is referred to as an "equitable distribution" state when it comes to community property, which means fair, but not necessarily 50/50. When making a property award, the court shall consider the following: (A) The length of the marriage; (B) The assets and liabilities of the spouses; (C) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage; (D) The liquidity of the property to be distributed; (E) The economic desirability of retaining intact an asset or an interest in an asset; (F) The tax consequences of the property division upon the respective awards to be made to each spouse; (G) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property; (H) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; (I) Any other factor that the court expressly finds to be relevant and equitable. (Ohio Code - Sections: 3105.171) Given his condition, he is largely favored here.

ALIMONY
On a case by case basis, the alimony is decided based on the following subjective factors: (1) The income of the parties; (2) The relative earning capacities of the parties; (3) The ages and the health conditions of the parties; (4) The retirement, pension, 401k benefits of the parties; (5) The length of the marriage; (6) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (7) The standard of living while married; (8) The relative extent of education of the parties; (9) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (10) The contribution of each party to the earning capacity of the other; (11) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience; (12) The tax ramifications; (13) The dissipation of any marital assets; (n) Any other factor that the court expressly finds to be relevant and equitable. (Ohio Code - Sections: 3105.171) Again, he is likely to receive alimony if his attorney asks.

WHAT SHALL HAPPEN
Once the divorce is finished, then (if no guardianship is already in place), a party that cares for him should get a GUARDIANSHIP order for him, and help take care of his estate - see here.

I hope this helps and clarifies. Best of luck to him and your family.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

His wife is his legal guardian. How will I know if she proceeds will a divorce?

Expert:  Ely replied 1 year ago.
D,

If his wife is his legal guardian, someone in your situation may wish to do the following immediately:

FILE to challenge the guardianship and have it transferred to you or another caring individual. May I recommend the Ohio Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

This way, she cannot manipulate the system.

Technically, you will not know if she filed for divorce unless you do this, but, if the Court knows of his disability, then the Judge should award an ad litem even if she files herself as guardian. If she does not tell the Court about his disability and gets a quick divorce, then once you get guardianship from her, you can re-open the case and have it reheard, upon showing that he had no capacity to sign off on anything that she handed him and that the prior divorce is invalid.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86628
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 6 other Family Law Specialists are ready to help you

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