The Oregon Divorce Blog

On April 2, 2008, the Oregon Court of Appeals decided Jacobs and Jacobs.  The ruling on the case is in regards to bankruptcy and attorney fees.  Please review the full post on this subject at www.oregondivorceblog.com.

Based on questions we hear from clients, there is a lot of confusion about who ultimately has to pay for attorney fees. The belief that the opposing party will have to pay some of your fees isn’t exactly a myth, because sometimes the court does order one side to pay a portion of the other side’s legal bill. We hear a range of questions on the subject, from “Can I make my spouse pay for my lawyer?” to “He/She started this, they will have to pay, won’t they?” While it is the client’s responsibility to pay for work as it progresses, in many cases it is appropriate to ask the other side to pay some, or all of your lawyer’s bill.

Can the court order my spouse to pay legal fees at the beginning of my case? The court can, and sometimes does order one side to provide a retainer and expenses for experts to the other side. ORS 107.095 authorizes the court, at a hearing after a divorce filing, to order one side to pay a lump sum towards future attorney fees and costs to allow a party to pursue or defend a divorce.

The court can also order that one spouse reimburse the other for lawyers fees and costs already incurred. The general rule in Oregon is that each side pays their own legal fees, unless there is a statute that shifts liability to the other side. Many family law cases have such a statute, from modification (ORS 107.135) to divorce (107.105) to enforcement of parenting time (ORS 107.434), to contempt of court (ORS 33.105). When specified, you have the right to ask for fees at the beginning of the case, and the right to have a hearing on the issue of who pays at the end of the case. The procedure for asking for fees is governed by ORCP 68. The question as to if fees should be awarded, and how much, is covered in ORS 20.075. The first test is whether fees should be awarded. The court looks to ORS 20.075(1) to answer this question, which reads:

Factors to be considered by court in awarding attorney fees; limitation on appellate review of attorney fee award. (1) A court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees is authorized by statute and in which the court has discretion to decide whether to award attorney fees:

(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.

(b) The objective reasonableness of the claims and defenses asserted by the parties.

(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.

(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190.

(h) Such other factors as the court may consider appropriate under the circumstances of the case.

If appropriate to award fees, the court analyzes what fees to award per ORS 20.075(2), which reads:

A court shall consider the factors specified in subsection (1) of this section in determining the amount of an award of attorney fees in any case in which an award of attorney fees is authorized or required by statute. In addition, the court shall consider the following factors in determining the amount of an award of attorney fees in those cases:

(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.

(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the results obtained.

(e) The time limitations imposed by the client or the circumstances of the case.

(f) The nature and length of the attorney’s professional relationship with the client.

(g) The experience, reputation and ability of the attorney performing the services.

(h) Whether the fee of the attorney is fixed or contingent.

(3) In any appeal from the award or denial of an attorney fee subject to this section, the court reviewing the award may not modify the decision of the court in making or denying an award, or the decision of the court as to the amount of the award, except upon a finding of an abuse of discretion.

(4) Nothing in this section authorizes the award of an attorney fee in excess of a reasonable attorney fee.

How do you get your lawyer’s fees paid by the other side? Be prepared, be reasonable, and document the conduct of the unreasonable opposing party. How do you avoid paying the other sides fees? Be prepared, be reasonable, and make a good faith effort to settle.

We already blogged about whether Oregon has the power to make an initial custody determination. (See the post) But what if you already have a custody judgment from another state? Can Oregon modify it? What if your ex moves to another state after the case and files to modify custody in the new state? What if your ex tries to keep the kids at the end of summer parenting time and files to modify custody in the foreign state? To make these decision, Oregon looks to the “Uniform Child Custody Jurisdiction And Enforcement Act.” (UCCJEA) ORS 109.700 et seq.

To determine if Oregon has the power to make the first custody determination the Oregon court goes through the following analysis:

(1) Is it our order? If Oregon issued the original custody determination, then Oregon can modify it unless Oregon has lost significant connections with the child and a parental figure or unless there is better evidence regarding the child in another state, or no parental figure or the child reside in Oregon.

(2) Is the order from another state? If Oregon did not issue the original custody determination, than the issuing state has jurisdiction unless the issuing state declines jurisdiction or determines it is not a convenient forum, or Oregon or the issuing state determine that the child and parental figure no longer reside in the issuing state.

If you want Oregon to modify your custody judgment or decree and it was issued in another state, you should consult with a lawyer about the right place to file. A bad decision on where to file by either parent can land one in trouble with the court, and have you funding two lawyers in different states. If you are responding to a filing in a foreign state and you think the matter should be in Oregon, you should consult with a lawyer. The foreign court could take the wrong type of response as consent to their jurisdiction!