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NEWS: Budget Cuts Will Close State Courts on Fridays – An Opportunity for Alternative Dispute Resolution March 4, 2009

Posted by csstephens in Uncategorized.
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We just blogged about the effect on families of Oregon’s decision to close courts on fridays.   Please review the full post on this subject at www.oregondivorceblog.com.

New Case Law – splitting up the house February 14, 2009

Posted by csstephens in Uncategorized.

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On February 11, 2009, the Oregon Court of Appeals published an opinion in Branam and Beaver. The case is an appeal from a trial court ruling on the division of assets in a long term domestic partnership. The main question before the court was how to divide the proceeds from the sale of the parties’ home.

Beaver and Branam are a man and woman who lived together in a domestic partnership but never married. Branam had received an inheritance from her former husband. She used part of the money to buy a house. The parties never discussed what would happen if they decided to separate. When Beaver moved into the house, Branam agreed to put his name on the house. Beaver argued that this meant that he owned half the house and should receive half of the equity in the house after they broke up. Beaver said that she never intended for him to receive the money originally paid for the house and that she added his name as a way to insure that he could live in the house if she died. The parties sold the house and the trial court decided to award half of the apprectiation of the value of the house to each party and to award 100% of the original value to Branam. On appeal, Beaver contends that the court erred in reimbursing the purchase price to Branam.

In its opinion, the court of appeals explainst that Oregon law, based on the court of appeals’ ruling in Beal and Beal and that case’s progeny, provides that, in the dissolution of a domestic partnership, courts are required to divide property according to the express or implied intent of the parties at the time that they established their partnership. If the court cannot discern the parties’ intent, the court may exercise its equitable powers to reach a fair dissolution of the parties’ partnership. How the parties held legal title to real property is evidence of the parties’ intent, but it is not dispositive. Where there is no express agreement of the parties regarding the division of their property in the event of dissolution of their domestic partnership, “courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon.” Beal, 282 Or at 122. The court then looks at the following factors to determine the intent of the parties: 1. Inferences drawn from the way the parties lived; 2. The fact of cohabitation can be evidence of an intent to share incomes during the time the parties live together; and 3. Joint acts of a financial nature (joint checking account, joint savings account, joint purchases, etc…) may give rise to an inference of a intention to share equally. Where the evidence establishes that parties in a domestic partnership intend to share property equally but one party makes a greater initial contribution to the property, the property will be divided equally but the party making the greater initial contribution will be credited for that contribution.

In this case, since there was no evidence that the parties intended to split the initial contribution made by Branam, it was proper for the court to split the appreciation in the property equally, but to award the initial purchase price to Branam.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A133414.htm.

The case teaches us that unmarried couples who intend to share their financial lives would be well advised to set forth their intentions in a formal document. If not, the court will decide for them how to split up their possessions and finances when they break up.

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens Margolin P.C. can assist parties going through the dissolution of a domestic partnerhip or who want information on dometic partnership agreements and in better understanding the law in Oregon regarding divorce. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

Top 10 List: Top 10 ways to keep your kids out of the middle of your divorce or custody case April 7, 2008

Posted by csstephens in Child Custody, Top 10 List.

We just blogged about the “Top 10 list: Top 10 ways to keep your kids out of the middle of your divorce or custody case”   Please review the full post on this subject at www.oregondivorceblog.com.

New Case Law: Attorney Fees – Bankruptcy and Divorce April 6, 2008

Posted by margolinlegal in Uncategorized.

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.

Martial Settlement Agreements – How to work things out before filing for divorce March 27, 2008

Posted by margolinlegal in Alternative Dispute Resolution (ADR), Dissolution, Domestic Partners, Legal Separation, Property Division, settlement.
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I often have clients ask me how they can lock in an agreement with their spouse regarding how to divide up their assets in an impending divorce. Usually these clients have not yet filed for divorce. The answer is to execute a marital settlement agreement. Marital settlement agreements can also be used in the collaborative divorce process to formalize an agreement between spouses prior to finalizing their divorce.

A marital settlement agreement is a contractual agreement entered into by a husband and wife prior to their divorce. The settlement reached can be much more detailed and individualized than a judge’s ruling and can include provisions that a judge would not legally be allowed to include. The parties can work with their attorneys to make sure that their individual needs are accounted for while providing a fair division of the parties’ assets and debts.

A marital settlement agreement can also be used by parties who want to have a trial separation, but also be certain of how a divorce will proceed if they are unable to save their marriage. Clients will often want to file for a legal separation in order to preserve their rights while still being able to stay on the other spouse’s health insurance. Rather than going thorough that process, they can sign a marital settlement agreement and wait to file for divorce until the health insurance issue can be rectified.

A court is not required to approve the parties’ marital settlement agreement. A court will almost always approve the agreement provided that the agreement is fair and that both parties knew what they were agreeing to. In order for the parties to be as secure as possible that the agreement will be approved by the court they must disclose truthfully all of their financial information to the other spouse, must actually abide by the terms of the agreement during the time between signing the agreement and filing for divorce, and they must actually get divorced in a reasonable period of time. If, for instance, the parties wait many years to divorce, a court would be less likely to approve the agreement.

With the passage of the new domestic partnership legislation in Oregon, domestic partners may be able to use marital settlement agreements to formalize issues prior to dissolving their domestic partnership.

In conclusion, martial settlement agreements provide a great way for clients to divorce in an amicable and mutually beneficial manner.

New Case Law: Attorney Fees – Arbitration vs. Appeal March 22, 2008

Posted by margolinlegal in Arbitration, Attorney Fees, Dissolution, Legal Developments, Property Division.
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As a Portland Oregon divorce lawyer, it is important to keep up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On March 19, 2008, the Oregon Court of Appeals, in Ornelas and Ornelas, explained the difference between awarding attorney fees in arbitration appeals and appeals to the court of appeals.

In an Oregon divorce case where the parties have no children and no spousal support award is requested by either party the case is sent to mandatory arbitration. If either party disagrees with the result in arbitration, that party can appeal the arbitrator’s ruling for a trial de novo at the circuit court level. That means that a judge will look at the case without referring to the arbitrator’s ruling.

ORS 36.425(4)(c) provides:

“If a party requests a trial de novo under the provisions of this section, the action is subject to arbitration under ORS 36.405(1)(b), and the position of the party is not improved after judgment on the trial de novo, the party shall not be entitled to an award of attorney fees or costs and disbursements and shall be taxed the costs and disbursements incurred by the other parties after the filing of the decision and award of the arbitrator.”

This means that the trial court must make an award of attorney fees to a party who asks for a trial after arbitration and does not receive a better result.

In Ornelas, the husband was upset because his wife not only asked for trial de novo after she was unhappy with the arbitrator’s ruling, but also appealed the trial court’s ruling. She received a worse result on appeal than she did at arbitration or at the trial court level. Therefore, husband argued that wife must pay his attorney fees.

The court of appeals ruled that the attorney fee award language in ORS 36.425(4)(c) only applies to trial de novo and not to appeals. This is because the court of appeals has discretion to award or not award attorney fees on appeal pursuant to ORS 107.105. Meaning that even if you do worse on appeal that at arbitration, you can still receive an attorney fee award.

The court ended up not awarding attorney fees to either party since the final distribution of martial assets put husband and wife on roughly equal financial footing.

The entire opinion can be reviewed at http://www.publications.ojd.state.or.us/A128901A.htm.

Divorce Myths: The differences bewteen an annulment, legal separation, and a divorce March 21, 2008

Posted by csstephens in Annulment, Dissolution, Legal Separation, Myths, Property Division, Spousal Support.
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istock_000004698338xsmall.jpg As a divorce lawyer practicing in Portland, Oregon, one common myth I hear is that annulments offer substantially different relief than divorces. Another version of the myth is that legal separations offer substantially different relief than divorces or annulments. The purpose of this post is to explain the basis for legal separations, annulments, and divorces, and to explain the relief each offers. The myth is that they are all very different. The reality is that except for a few key points, they are almost the same.

Annulments, legal separations, and divorces are more similar than different. The differences can be categorized by (1) the legal standard to obtain them, and (2) the relief available.

The legal standard to get a divorce or an unlimited separation is defined in ORS 107.025 which provides that “A judgment for the dissolution of a marriage or a permanent or unlimited separation may be rendered when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.” In English, the marriage is broken and can’t be fixed.

The court can give you a “legal separation” if irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage; and the parties file an agreement suspending for a year or more their obligation to live together as husband and wife, and the court finds such agreement to be just and equitable; or irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest. In English, if you have a marital problem, and want to suspend your marriage for a year, you can. If you have a marital problem, but need to remain married because you are religious, need your spouse’s health insurance, need to protect a legal interest, or don’t want to hold yourself out as divorced, you can get a legal separation.

The court can give you an “annulment,” or a divorce if you don’t want an annulment, when “either party to the marriage was incapable of making such contract or consenting thereto for want of legal age or sufficient understanding; (2) When the consent of either party was obtained by force or fraud.” ORS 107.015. Per ORS106.020, the court can also grant an annulment when “either party thereto had a wife or husband living at the time of such marriage.” or “when the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, whether by blood or adoption, computing by the rules of the civil law, except that when the parties are first cousins by adoption only, the marriage is not prohibited or void.”

The relief offered by each is more similar than different. ORS 107.105 states what the court can do in all three types of cases. In annulments, disillusions, and separations, the court can make provisions for:

Temporary orders per ORS 107.095 for:

  1. attorney fees
  2. custody
  3. child and spousal support
  4. parenting time
  5. changing the kids routine
  6. awarding a party exclusive possession of a residence

Final orders per ORS 107.105 for:

  1. Custody of all children of the marriage.
  2. Parenting time for all children of the marriage.
  3. Child support.
  4. Transitional, compensatory, and maintenance spousal support.
  5. Division of real property.
  6. Division of personal property.
  7. Creation of trusts for children.
  8. Creation of trusts and appointment of trustees for the parties to manage property.
  9. Restore a former name.
  10. Continue a money award from a limited judgment.
  11. Award attorney fees and costs.

What are the differences between an annulment, legal separation, or divorce? If your marriage is annulled, it is as if it never happened. Per ORS 107.005, in an annulment case, the court can declare a marriage valid, void from the beginning, or void from the time of judgment. If you get a legal separation, you are still married, until you convert your separation into a divorce. An important side-note is that you can file for a legal separation without meeting the 6 month residency requirement. If you need immediate relief, it is a great option. In a divorce, the marriage is terminated when the judgment is entered.

What does this all mean? Annulments, legal separations, and divorces are much more similar than different. You can get virtually identical relief in all three, but there are subtle differences. Talk to an experienced family law attorney to see if the differences between the three may help you in your case.

Divorce Myths: The court will want to hear about my spouse’s fault. March 18, 2008

Posted by csstephens in Dissolution, Myths, Property Division.
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Many clients, in the first meeting, ask me what effect will their spouse’s bad acts have on the case. We hear about many human problems, from alcohol and drug addiction to abuse to adultery. We are frequently asked will they do better in court because their spouse has committed bad acts. The answer is that except for issues relating to custody and parenting time, fault is irrelevant.

In ORS 107.036, the Oregon legislature abolished fault in annulment, divorce (dissolution) , and separation cases. The court is barred from hearing evidence of specific acts of misconduct, except to the extent necessary to prove that a couple has “irreconcilable differences.” The court is specifically barred from considering “fault” when dividing real and personal property, and in setting the duration or amount of support.

What does this mean to divorcing parties in Oregon courts? When it comes to property and support, affairs don’t matter. Being a jerk doesn’t matter. Being a bad parent doesn’t matter. Being verbally or physically abusive doesn’t matter. When it comes to dividing assets and setting support, the court only wants to hear relevant, non-fault based testimony.

There is always an exception, and it is for custody and parenting time cases. When the court is analyzing who should have custody of the minor children, and what parenting plan is appropriate for the parties, it will hear evidence of specific acts of misconduct. While this evidence is not supposed to affect property division or support, it can and will affect the court’s ruling regarding custody and parenting time. The reason is that the court’s job when dealing with kids is to do what is in “the child’s best interests.” So, being a jerk means you will likely get half of the property, but not custody of the kids.

Divorce Myths: I can move to Oregon and file for divorce immediately. March 16, 2008

Posted by csstephens in Dissolution, International, Myths, Out of State.
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A surprisingly common “divorce myth” we hear in our practice is the belief that you can file for divorce immediately on moving to Oregon (or any state.) Oregon, like most states, has a residency requirement you must meet before you file for divorce. There is a lot of misinformation among people wanting to file for divorce regarding if they must wait to file, and for how long. Part of the reason for the misinformation is because there are a few exceptions to the waiting period.

The residency requirement is located in ORS 107.075. What do you have to do to become a resident? Oregon considers you a resident if you live in Oregon  and intend to remain in Oregon.  It is where you have the intent of returning after an absence  from the state(such as military service, extended travel, school, etc.)

For most residents, there is a 6 month waiting period prior to being able to file for divorce or annulment. For people married in or out of Oregon pursuing a divorce or annulment based on “irreconcilable differences,” one party to the divorce must be a resident (or domiciled) in Oregon continuously for six months prior to filing for divorce.

A much smaller group of residents don’t have to wait. For people married in Oregon, if the reason for your divorce or annulment is (1) bigamy, or (2) being too closely related to your spouse, or (3) being incapable of making a contract or consenting to the marriage because you are too young or don’t understand the consequences, or (4) you were forced or deceived into marriage, you can file immediately on residing or domiciling in Oregon.

New Case Law: how to ask for your attorney fees the right way. March 13, 2008

Posted by csstephens in Child Custody, Legal Developments.
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istock_000001836009xsmall.jpg As a Portland based firm representing divorce clients in Oregon, we are always interested in what the Oregon Court of Appeals says regarding attorney fees. We previously blogged about how in many types of family law cases you have the right to ask for fees. The Oregon Court of Appeals published a decision in Mcintyre and Freeman, ____ Or. App _____ (2008) dealing with an attorneys fee request after a custody and parenting time case. The case talks about your right to ask for fees, and your right to a hearing if you object to the other sides’ fee request.

In Mcintyre and Feeman, the parties had argued over custody, parenting time, and child support. Mother’s attorney reported that the case was very contentious. Father asked mother to pay a portion of her attorney fees, and mother objected. Mother also asked that father pay her fees. The court, without holding a hearing, ordered mother to pay a portion of father’s legal fees. We previously blogged about how in many types of family law cases you have the right to ask for fees in our post captioned “Divorce Myths: My ex will have to pay for my attorney fees.” The issue in the case was whether Mother objected properly, and whether the court wrongfully denied mother the right to a hearing. The court determined that mother had been wrongfully denied a hearing on the issue of fees. The court determined that mother had, within the appropriate time period, objected to father’s fees. (Oregon extends deadlines by three days when the original notice was served by U.S. mail.) The court then addressed whether mother’s failure to sign documentation showing the date of mailing made the objection defective. (Oregon law requires pleadings and other paper to be signed by the lawyer or client. While not discussed in the opinion, mother’ s attorney stated that the file room lost the properly filed certificate of service.) The court held that the notice was not defective just because mother’s lawyer didn’t sign the certificate of service. The court went on to say that Oregon law requires the other side to point out a lack of signature, and giving the other side an opportunity to fix it, prior to striking an unsigned pleading. One judge dissented, stating that there is no express obligation in the rules to bring a signing defect to the other side’s attention.

What does this mean to divorce and custody litigants in Oregon? Discuss with your lawyer the potential to ask for fees, and the potential to be required to pay fees. Ask for fees in your initial pleadings to preserve your rights to them. Behave appropriately in light of ORS 20.075 during your case (see our post captioned “Divorce Myths: My ex will have to pay for my attorney fees.”) Take reasonable positions. Follow the time line and procedures of ORCP 68 to the letter. And last but not least, sign your pleadings!

Divorce Myths: My ex will have to pay for my attorney fees. March 12, 2008

Posted by csstephens in Dissolution, Modification, Myths, Uncategorized.
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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.

Who gets to claim the child tax exemption? March 10, 2008

Posted by margolinlegal in Child Custody, Child Support, Dissolution, Myths, settlement.
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istock_000004891591xsmall.jpg Clients often come to me asking whether they or their ex-spouse/unmarried parent of their child can claim their joint child as a dependents for tax purposes and receive the dependent tax exemption. They often think that this is a decision that is up to them and attorneys often use it as a bargaining chip.

In a divorce or custody case I am representing clients in state court. The United States Congress, through the tax code, has determined how the child/dependent tax exemption should be awarded. The supremacy clause of the United States Constitution prevents state courts from deciding issues of federal law. This means that a state court cannot properly award the exemption to a parent who otherwise would not qualify for the exemption under federal law.

The qualifying parent under IRS rules is the “custodial parent,” which is defined as “the parent having custody for the greater portion of the calendar year.” The award of “legal custody” has no effect on this definition, rather the custodial parent is “the parent with whom the child resides for a greater number of nights during the calendar year.” In cases where the child resides an equal number of overnights with each parent, the parent with the higher adjusted gross income for the calendar year is awarded the exemption.

Parties can agree to share the exemption or to have the parent that does not qualify receive the exemption. This is usually accomplished by a provision in the parties’ judgment. In order to provide the non-qualifying parent with the exemption, the qualifying parent must sign a written declaration and the declaration must be attached to the non-custodial/non-qualifying parent’s income tax return. This can be completed using IRS tax form 8332, which can be found here http://www.irs.gov/pub/irs-pdf/f8332.pdf.

A decision to allocate the dependent exemption to the non-qualifying parent should not be taken lightly. In addition to the exemption, the non-qualifying parent will also receive the child tax credit. Therefore, an agreement to deviate from IRS rules can have significant tax impacts for the qualifying parent and creat a tax windfall for the non-qualifying parent. If the agreement will be included as a provision in a judgment, the decision to do so should be carefully discussed with your attorney.

The IRS faq located at http://www.irs.gov/faqs/faq-kw46.html provides detailed information on this question.

It’s OK to ask for help March 9, 2008

Posted by shelleycm in Child Custody.
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As I sat in the loft outside my nine-month-old’s bedroom, exhausted from caring for her while recovering from strep throat and a shiny new case of influenza, I was struck by just how difficult it must be for newly-single parents to care for their kids while they’re sick  themselves.  My husband and I barely manage to keep our daughter fed, changed, and reasonably happy while we shuffle around clutching boxes of Puffs — and that’s with two of us and a marginally mobile baby.   For single caregiving parents, it’s a hundred times more exhausting to put food on the table, change diapers, and somehow manage to entertain children before collapsing in bed to recuperate.  And anyone who has ever tried to take a squirmy child with them to urgent care, the emergency room, or even the doctor’s office knows how Herculean that task can be.

There is one logical person who can help out – but I’ve found that it rarely occurs to single parents to pick up the phone and ask.   Yep, that’s right – the other parent.

(Naturally, you’d want to clear it with your lawyer if a custody action is pending, because you’d hate to have it used against you.  If you do have a custody action pending, though, you might want to think about putting a provision like this into the judgment.)

No matter what may be going on between the two of you, your child must come first.  If all you can manage is to make it to the kitchen for the next cup of TheraFlu, think about calling the other parent and asking if he or she would like some extra parenting time for a day or two while you recover.  It’s win-win-win: you will feel better sooner if you rest up,  your child will have the full attention of a parent, and your ex will have some bonus parenting time.

And with that said, I think it’s time for my next cup of TheraFlu….

News: Divorce Rates Skyrocket in India February 21, 2008

Posted by shelleycm in Dissolution, International, News.
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The International Herald Tribute runs this story about increasing divorce rates in India, a place where arranged marriages are customary and, historically, long-lasting.   The reasons for the increase?  Women’s financial independence, weakening of taboos, laws permitting divorce, and Western-style expectations of love.  Interesting stuff, particularly for Oregon’s large East Indian population.

Here come the brides: the Oregon Family Fairness Act February 17, 2008

Posted by shelleycm in Child Custody, Child Support, Dissolution, Domestic Partners.

With the Oregon Family Fairness Act (OFFA) now in effect, registered domestic partners now have some of the same rights as a married couple, at least in Oregon and any other state which chooses to recognize these partnerships.* This post explains what a domestic partnership is, both for heterosexual and same-sex couples, and what the benefits of registering are for same-sex couples.

Let’s start with what seems like the easy part: what are domestic partnerships? Under OFFA, same-sex couples over 18 may register as partners. However, heterosexual couples may not register as partners (primarily because they already have the ability to receive these benefits through marriage). Because the Oregon Constitution limits marriage to heterosexual couples, a separate mechanism for uniting families was required. (Check out the Basic Rights Oregon website for a wonderful guide to the legislation.)

But what are these automatic rights married couples get that unmarried and unregistered domestic partners don’t have?

Some rights are obvious: for example, to make medical decisions for a partner when the partner is unable to make those decisions him or herself or to automatically inherit property if a partner dies without a will. Others aren’t as obvious, like the ability to claim wrongful death benefits or crime victim survivor benefits if a partner is killed.

Some rights are provided by the state, like the automatic inheritance of a partner or how custody would be determined in a partnership dissolution, because inheritance and family laws are set by the state. Other rights are federal, like the ability to file jointly on federal income taxes. Oregon’s domestic partnership law can only affect state-provided rights. Subsection 9 of the legislation provides that “any privilege, immunity, right or ben3efit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married….is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership…”

It doesn’t get more equal than that in Oregon, save in name alone. Additionally, registered partners also have all the same responsibilities as married couples!

But since this is a legal blog, we’re mostly concerned about the juicy bits – those rights dealing with estate planning, wrongful death claims, adoptions, custody, and, of course, dissolution of the partnership.

But first, a little history. Some readers might be surprised to learn that domestic partnerships in family law courts aren’t new in Oregon. In fact, Oregon family law courts have dissolved an increasing number of heterosexual domestic partnerships. In doing so, the court would look back and determine whether or not the parties actually intended to form a domestic partnership: even though these are relationship dissolutions, frequently one party argues it was not a partnership (usually the party with assets) and the other argues that it was (usually the party with fewer assets). To find out what the parties intended, the court uses a test usually used in the context of business partnerships – did the parties intend to pool resources and share liabilities? If the answer is yes, then the court tries to find an equitable way to divvy up the parties’ resources. If no, then the parties keep their separate property.

Sounds easy, right? But it’s not. The court can’t order spousal support. Custody of children is very complex, because for a non-biological parent to receive custody or visitation, another action must be filed (although in fairness, it may be joined to the dissolution of domestic partnership action). Basically, in the absence of a clear statute, the family law court exercises its equity powers — basically, whatever the court thinks is fair on that day. This means results can vary even more widely than they can with the assistance of statutes.

What OFFA does for same-sex couples is give the court all of the well-developed tools the legislature has enacted over the years for the dissolution of marriage cases, as well as providing more options for determining custody of children in a partnership dissolution. (If you want to know just how busy the legislature has been in developing and honing those family laws, take a gander at ORS 107 and ORS 109!)

We hope domestic partnerships thrive. However, if you have registered a partnership and wish to dissolve it, think carefully about your next steps and consult with an attorney well versed in dissolution of marriage procedures. Due to the sensitivity of the subject matter, don’t be shy about asking your attorney what he or she thinks of your lifestyle. It does matter. It’s important that there be an open and trusting atmosphere in your dealings with your dissolution attorney.

*Although states are supposed to give each other’s laws “full faith and credit” under the US Constitution – and this includes honoring marriages – states do not have to do so when another state’s laws violate public policy in that state. This was, generally, the way the law was practiced before the enaction of the so-called “Defense of Marriage Act” (or DOMA) in 1996, but it’s now the law of the land. So, for example, if a couple marries at the age of 14, and that is legal in the state in which they reside, but is illegal in another state, the question of the marriage’s validity in the second state is up for grabs, depending on the policy implication of 14 year olds marrying. If thinking about this makes your head hurt, you’re not alone: the topic of marriages alone took up weeks in my Conflicts of Law class.


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