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Common Divorce Myth: Courts Always Keep Kids Together May 30, 2007

Posted by shelleycm in Child Custody, Dissolution, Legal Developments, Myths.
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There is a fair amount of truth to this myth, actually. Placement of children in a dissolution action (and in any custody proceeding) is based on the “best interest of the child,” and often keeping siblings together does serve the best interests of children. McBrayer v. Randolph, 191 Or App 553, 559-62, 83 P3d 936 (2004). (We’ve discussed the “best interest of the child” standard previously in a post on this blog.)

But keeping children together is only one factor to consider.  Recently, the Oregon Court of Appeals heard a case originally from Washington County, where it determined it wasn’t in the child’s best interest to be placed with his sibling. In Morales and Morales, 213 Or App ___ (2007), a child, E, was subjected to negative comments and attitudes about his father by his mother and sibling and was criticized for wanting to live with his father. Id. When living with his father, E made healthy choices and lost weight (he had been an overweight child to begin with) and father encouraged him to exercise. Id. E missed school when he lived with his mother, but his father was in frequent contact with E’s teachers at school. Id.

The Court determined E was better off with his father, because the siblings weren’t close, E expressed a preference for living with his father, and because the Court did not find the mother’s testimony to be credible and because the Court had misgivings about the mother’s tendency to involve the older child in her disputes with the father. Despite the fact his father in the case had physically assaulted the older child of the relationship at one time in the past, the Court found the father was appropriately remorseful, had taken steps that this would not happen again, and found E would be better placed with his father than his mother. Id.

The moral of Morales appears to be that an appropriate child custody placement involves far more than a simple “keep the kids together” determination, and that a parent’s concern, caretaking, and involvement in a child’s life can overcome powerful arguments — including past domestic violence — to give custody to the other, less involved parent.

The perfect client May 25, 2007

Posted by csstephens in Child Custody, Child Support, Dissolution.
6 comments

What a lawyer thinks of as a “perfect client” in the domestic relations sense is a client who helps the process of the dissolution, custody, or support matter along. We know how hard this process is to be going through, but it can be a much more difficult process the longer it drags on — and a much more expensive one for you. (Although we like getting paid as much as anyone else, we believe we should be problem-solvers, not problem-creators.)

Good attorneys will always treat their clients — all of their clients — with the same professionalism and respect they treat any other client. However, by helping us help you, you can make the process smoother, lower your costs, and get a better result! Here are some things you can do to help your attorney in your domestic relations case, to make things run more smoothly.

  • Tell us everything — the good, the bad, the ugly. We want to know the nastiest things the other side might throw at us, true or not. If you have hidden sources of income, a stake in Anna Nicole Smith’s love nest in the Bahamas, or a rare coin collection, we need to know and plan accordingly.
  • Provide us with your tax, banking, investment, insurance, titles to cars and whatnot, and any other requested information quickly in the process (if you can bring this stuff to your first meeting, we might very well cry with joy). If you’re not in a place where you can get the information, sign a release that allows the attorney to request the information on your behalf.
  • Keep in contact with us. We’ll provide you with frequent updates, but there are times when we need to get in contact with you quickly, too.
  • Similarly, let us know the best way to contact you. If you’re one of those people who hates checking her voicemail but lives on her computer (wait, that would be me when I’m at home), let us know your email address and if that’s a better way to stay in touch.
  • Understand that a contested divorce may take a while, even if it ultimately settles. We want closure for you as soon as we can get it, too, but not at the expense of a good settlement for you.
  • If your case involves child custody, parenting time, or support, sign up and follow through with the mandatory education classes as soon as you can.
  • Remember that your attorney is there to give you expert advice and recommendations, but isn’t going to be able to make the final decision about whether or not you should take a settlement. He can and will tell you if it’s a good idea or a bad idea, and what the benefits and pitfalls of an offer might entail, but the ultimate decision is going to be yours.
  • Also, if you don’t like the way negotiations may be headed, if you change your mind about the way the case is going, or if you’re just generally unhappy about something, please say so. We’d much rather know about it (and fix it) than to find out much, much later that you’d been unhappy for a very long time.

Advice aside, we know that this may be the, or one of the most difficult times of your life. We treat all of our clients as we would hope to be treated under the same circumstances: with diligence to their case, courtesy, the utmost respect, and the highest level of customer service possible.

Common Divorce Myth: You only get spousal support if you don’t have a job May 23, 2007

Posted by shelleycm in Dissolution, Myths, Spousal Support.
1 comment so far

Yesterday I stopped by the family law facilitation office at the Washington County Courthouse in Hillsboro.  The person I wanted to speak with there had a room full of people waiting to be helped, so I took the next number to speed things along (lest you think I’m a rogue volunteer, I started helping out as a first-year law student and try to whenever I can).

The woman who approached me was looking for dissolution paperwork.  She and her husband have an older daughter and had been married for some time.  In going over the paperwork, I reached the place where she could ask for spousal support if she wished.  “But you only get spousal support if you don’t have a job,” she said.

Usually I’m more diplomatic, but I was so excited to be presented with another divorce myth to blog about that I gleefully said, “Nope!”

“But my friends said…”

At this point, I recovered my lawyerly cool and explained a bit about the way spousal support works in Oregon.  To begin with you can always ask for spousal support, with or without a job.  (In your petition for dissolution, you can ask for the sun, moon, and stars — however, there may be some jursidictional issues involving celestial bodies — because your petition is a sort of wishlist.  You may not get it, but you can ask.)  But before you do, it’s important to know what to ask for.

In Oregon, there are three types of spousal support: transitional, compensatory, and maintenance.  Roughly speaking, transitional spousal support is to get a party back on his or her feet after some time away from the job market.  This is probably what the woman in Washington County (and her friends) were thinking about.  This type of support tends to be for a fixed period of time, say enough for someone to finish college or complete a vocational program.

The second type of support is compensatory.  This is the sort of support you’d get if you put your spouse through vocational, medical, or law school and you then went through a dissolution proceeding. It’s designed to compensate you for your financial investment in your spouse.

The last type of support is maintenance. If the dissolution is going to leave you without enough income to support you in the type of lifestyle to which you’ve become accustomed (let’s say you married Elizabeth Taylor and she didn’t make you sign a prenuptial agreement), then the type of support you’d look for would be maintenance.  This tends to be longer-term then the other types of support, and can, depending on the length of the marriage and some other factors, go on indefinitely.  (The down side of being married to Elizabeth Taylor would be that you probably wouldn’t have been married long enough for you to convince a judge you should receive indefinite maintenance support.)

In each type of support, the court looks at certain factors to make its determination.  We’ll talk about these in future posts, but you can find each of them outlined in ORS 107.105.

Filing costs for dissolution, custody, and other family law matters May 21, 2007

Posted by shelleycm in Adoption, Child Custody, Child Support, Dissolution, Modification.
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Everyone wants to know how much their family law matter is going to cost. Your legal fees — well, that’s a matter between you and your attorney. Do you need a custody evaluation ? That requires a professional, and will cost between $500-3000. If your case is complex, you might need experts to testify.

But here’s some good news: your filing fees can be easily quantified, because they’re set by the circuit courts each year.

The circuit you file in depends on where you (if you’re the party who is filing) reside in. So, for example, if you’re in Washington County, you or your lawyer will hoof it out to Hillsboro to file your paperwork, even if you’re way out in King City. Barring unusual circumstances, your case will stay in that circuit until it’s resolved.

Here are some of the common filing fees in the Portland Metro Area for 2007.

Clackamas County Circuit Court:

adoption (petition): $100
adoption (objecting party): $78
annulment (petition): $320
annulment (response): $215
child custody or support (petition): $320
child custody or support (response): $215
child custody or support (motion to modify): $45
child custody or support (response to motion): $35
dissolution of marriage (petition): $371
dissolution of marriage (response): $215
dissolution of marriage (motion to modify): $105
dissolution of marriage (response to motion): $70
family abuse prevention act (all): $0
filing/docketing foreign child custody determination: $39
paternity/filiation (petition): $320
paternity/filiation (response): $215

Multnomah County Circuit Court

adoption (petition): $100
adoption (objecting party): $78
annulment (petition): $370
annulment (response): $206
child custody or support (petition): $370
child custody or support (response): $206
child custody or support (motion to modify): $200
child custody or support (response to motion): $100
dissolution of marriage (petition): $371
dissolution of marriage (response): $206
dissolution of marriage (motion to modify): $250
dissolution of marriage (response to motion): $135
family abuse prevention act (all): $0
filing/docketing foreign child custody determination: $39
paternity/filiation (petition): $370
paternity/filiation (response): $206

Washington County Circuit Court

adoption (petition): $100
adoption (objecting party): $78
annulment (petition): $320
annulment (response): $215
child custody or support (petition): $320
child custody or support (response): $215
child custody or support (motion to modify): $55
child custody or support (response to motion): $55
dissolution of marriage (petition): $321
dissolution of marriage (response): $215
dissolution of marriage (motion to modify): $105
dissolution of marriage (response to motion): $90
family abuse prevention act (all): $0
filing/docketing foreign child custody determination: $39
paternity/filiation (petition): $320
paternity/filiation (response): $215

Common Divorce Myth: “Title matters” in how property is divided May 19, 2007

Posted by csstephens in Dissolution, Myths, Property Division.
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Many divorcing couples believe that “title matters.”  I hear time and time again, “the house (or stock, or stock options, or investment property) are in my name so I will get them in the divorce, right?”  Wrong.  Oregon does not follow title in determining who gets a particular asset in divorce.  Instead, the court goes through an analysis of the property based on statues and case law. 

 

The courts’ job at a divorce trial is to divide the property between divorcing couples as is “just and proper in all the circumstances.” ORS 107.107(1) (f).  Many people are surprised to find out that the court has the power to divide property that was acquired by a spouse before the marriage. While Oregon divorce courts seldom do this, the court can, if it needs to divide premarital property to reach a just and proper division.

 

There are special rules that apply to property that was acquired during the marriage by one spouse or the other.  Property that was acquired during the marriage is called a “marital asset.”  In dividing property acquired during the marriage, there is a rebuttable presumption that both spouses have contributed equally to the acquisition of property.  This clause basically means that the court’s starting point for dividing property is equal.  It doesn’t matter that the disputed property happens to be in a husband’s or a wife’s sole name.  Another similar question is “Why should he or she share in the assets when I was the one out working and making money.”  A wife’s or husband’s work as a homemaker counts as a contribution to obtaining property.  From the court’s perspective, keeping house and raising children is a contribution, just like a job outside the home.   To make matters more complicated, sometimes the court will exclude part of an asset from division.  For example, in dividing retirement accounts, the court may divide only the portion of the pension acquired during the marriage.

 

What does this all mean?  Just because you are solely on title does not mean you will end up with the property.  The court will undergo a complex analysis of each piece of property based on statutory and case law, and the results are not always intuitive. In the end, the court has the power to do what is fair if the analysis produces a result that is not “just and proper.”  A lawyer can help.  If you and your spouse disagree on how any asset should be divided, you should consult with a lawyer familiar with divorce and property division laws in Oregon.

 

Meeting your attorney for the first time May 17, 2007

Posted by shelleycm in Dissolution, Domestic Partners.
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You’ve wondered if you should talk to a lawyer about getting a divorce, weighing if you’re ready to take the next step. You go back and forth, thinking maybe things will get better – but then they don’t improve. Maybe friends and family are pressuring you to call a lawyer. Once you’re finally ready, and you set up an appointment to talk with an attorney. What should you expect?

(If you feel a little nervous, you’re not alone. This may be the first time you’re meeting with an attorney, and you’re not doing it under the best of circumstances. We understand.)

Each attorney has a unique way of conducting a first meeting, but generally, the attorney is interested in getting the history of your relationship and what has happened during the marriage. Many will email you or mail you documents they’d like for you to fill out ahead of time, so they can scan the important information quickly – when you were married, your kids, their ages, your income and that of your spouse, the property you own, and so on. It’s a great idea to get this back to the attorney before your meeting, if possible, because it’ll make your time together that much more productive.

Before your meeting, you may want to make a list of the questions you’d like answered during this interview — and don’t be afraid to check the list while you’re in there.

During the meeting, listen to your gut — don’t be afraid to not hire the attorney on the spot if something feels “off.” The first interview doesn’t obligate you to hire a particular attorney, and if you have a feeling that something isn’t right, it probably isn’t. The attorney you hire for your divorce is going to help determine the outcome of the division of property, the potential for spousal support and child support, and child custody and parenting time, if you have minor children. It’s a big decision, and not one to make on the spur of the moment. (It may also be telling to see how the attorney reacts when you say you’re not ready to make a decision.)

These are some factors you might want to think about before you make a decision:

  • Does the attorney talk more or listen more in this meeting?
  • Attorneys have different approaches: do you want a bulldog who’ll fight every step of the way or someone who will work with the other side to reach an agreement? Ask about approaches and make sure the attorney matches what you want.
  • Is the attorney upfront with you about fees and costs? How does the attorney bill?
  • Do you feel you can be completely open with the attorney? It’s absolutely critical you trust your attorney and that your attorney trusts you. An attorney can’t do the best job representing you without knowing all of the facts, and you won’t be happy with the representation if you don’t feel comfortable enough to provide all the facts.
  • Ask how the attorney will keep in contact with you. If you’d prefer email to regular mail, ask if that’s a possibility.

Something you should also think about is the cost of an initial meeting. This depends on the attorney. Some attorneys bill their hourly rate and if the meeting goes for two hours, you’ll pay for two hours of the attorney’s time. Some attorneys set a fixed price for an initial interview. Don’t be afraid to ask about how the meeting pricing works ahead of time.

(In case you’re wondering, Stephens Family Law offers a free telephone consultation and initial meetings are a flat $100 fee.)

To sell or not to sell? May 15, 2007

Posted by shelleycm in Dissolution, Legal Developments, Property Division.
2 comments

In 2003, the Oregon legislature passed a bill that automatically prevents parties in a dissolution of marriage case from engaging in certain activities once the case is filed, for the petitioner, or after service of the petition on the respondent, for the respondent. Practitioners (who often sought these sorts of restraining orders on their own, before they became automatic) tend to refer to it as the “statutory restraining order.”

What exactly does the statutory restraining order prevent the parties from doing? Neither party can cancel, modify or allow insurance policies to lapse — these include heath, homeowner, renter, or auto policies — for the other party or a child of the parties. ORS 107.093(2)(a). The parties can’t change the beneficiaries to any insurance policy, either. ORS 107.093(2)(b).

Once the divorce case is underway, the parties can’t sell or encumber “any property” in which the other party has an interest unless the other party consents or the court allows the sale or encumbrance. There’s an exception to this provision, though for deals made for usual course of business or necessary life expenses. ORS 107.093(2)(c).

One of the more confusing provisions is that which prevents either side from “making extraordinary expenditures without providing written notice and an accounting” of the expenses. ORS 109.093(2)(d)(A). The question is — well, what’s an extraordinary expenditure? I recently researched this, and don’t have any good answers to it. In listening to the hearings and committee meetings at the legislature, it’s clear that the Senate and House were more interested in other provisions of the legislation — those dealing with the selling and encumbering of property, and making changes in insurance policies — than in the last bit about extraordinary expenditures. This issue hasn’t come up in the court of appeals, and so we don’t have court guidance yet, either.

Either party can request a hearing to ask the court to waive or modify certain provisions of the restraining order. ORS 107.093(3).

If you’re worried about whether the statutory restraining order is going to apply to transactions you’d like to conduct after your divorce action has been filed (if you’re the petitioner) or after you’ve been served (if you’re the respondent), make sure you talk to your attorney first.

How is Child Support Calculated? May 15, 2007

Posted by shelleycm in Child Support.
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One of the first things a prospective client in a case involving child custody wants to know is “how much child support will I get?”

(The real answer is “what the judge orders,” but clients understandably aren’t fond of that sort of answer. I wouldn’t be, either.)

Here’s the long version: child support in Oregon is based on child support guidelines promulgated in the Oregon Administrative Rules. Whenever a case is filed involving child custody and support, calculations must be made according to the guidelines and submitted with the petition. (There’s a web worksheet you can fill out to get an idea of how it all works.)

The calculations take a number of factors into consideration: the number of overnight visits the child spends with each parent, the gross income of each parent (although even an unemployed parent’s income will be presumed to be what someone would make working 40 hours/week at minimum wage), whether a party is paying or receiving spousal support, if either party has non-joint children, what child care costs are, or the child’s medical costs, or the child’s insurance costs. The calculations can be very complex (which is why every family law attorney in the state has the Division of Child Support’s Child Support Calculator bookmarked in their web browsers).

Based on these numbers, you’ll get a “presumptive” amount of child support. This isn’t the end of the calculation, though, because there are a number of rebuttal factors listed in the Oregon Administrative Rules that could apply in your case. For example, a rebuttal factor could be if either parent has resources that aren’t reflected in his or her gross income, or if either parent has special circumstances (both good or bad) that could affect the outcome. Sometimes parents have excessive financial obligations that can inhibit their ability to pay, or there are serious tax considerations the court should take into account.

The judge will take all of the evidence — the rough calculations based on gross income and overnight stays, plus all of the rebuttal factors — into consideration when he or she rules in your case. So, while the real answer still remains “what the judge decides,” it’s possible to get a good idea of what child support will look like based on the numbers in the worksheet.

Adoptions: Stepparent adoption considerations May 14, 2007

Posted by shelleycm in Adoption.
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Any proceeding involving the termination of parental rights is rightfully complex. Stepparent adoptions are complicated, too, but they’re one of the least acrimonious aspects of family law and can be a lot of fun for family law attorneys. It’s a rare opportunity for us to help us create a family (as opposed to our more usual role of dissolving the bonds of one).

Technically speaking, what happens in a stepparent adoption is that a child’s stepparent (usually a stepfather, but not always) legally replaces the child’s biological parent in that role. This means a new birth certificate, with the adoptive parent appearing on the certificate along with the other biological parent. The legal rights of the biological parent end.

The child also becomes the stepparent’s legal child in other ways, too. The adoptive child will be treated just like a biological child for the purposes of inheritance when there is no will. (For example, my husband’s stepfather adopted him when he was four, and when his father died several years ago, my husband inherited his property just as a biological child might have — much to the consternation of some aunts and uncles who had tried to persuade the probate court my husband was not legally adopted.)

Although this is an easier process than an agency adoption, because so many important rights are involved, if you want to adopt your stepchild you’ll need to consult an attorney. (You can take a look at the requirements yourself in ORS Chapter 109.) DHS may waive a homestudy, but criminal background checks must be performed on all members of the adoptive household (except the biological parent). Each parent must consent to the adoption, and Oregon statutes require that specific parties be notified about the adoption, such as the parents of the party whose parental rights will be terminated. ORS 109(7)(b)(B).

In the petition for adoption, the parties have the option of requesting that the child’s name be changed to reflect the new family surname. There are good reasons for a child’s name to change or to remain that of his birth family, and this is an important consideration. If the child is old enough, it’s a decision he or she should be involved in making.

If the parents decide to not change the child’s name, it will be apparent to the child at some point that he is somehow “different” from the rest of the family. This could provide an opportunity for the parents to explain the adoption, something that might not be an easy conversation to have without prompting. But the primary benefit to keeping the name the same is if the child remains close to his biological parent’s family; it will provide an outward symbol of that closeness.

There are downsides to keeping the child’s name the same. The “difference” the child feels might make him feel as though he is not the stepparent’s “real” child, despite the extents the stepparent went to in order to adopt the child. (This is very true where the new couple has additional children who share their name, leaving the adopted child the odd man out in the family.) It might also hinder the ability of the adopted parent’s extended family to accept the adopted child as “one of theirs.”

On a personal note, my husband’s parents decided to change his name when he was adopted, and I asked him about it. He thought for a while, then responded that he felt the name change helped him bond with his stepfather, and that it helped his stepfather accept him, too. Later, without prompting, he added, “But you know…if I were to adopt a child, I would absolutely want him to have the same name.”

Common Divorce Myth: Mothers always get custody of the kids May 12, 2007

Posted by shelleycm in Child Custody, Dissolution, Myths.
5 comments

Just in time for Mother’s Day, we’re going to dispel a mother-centered family law myth. In a word, the response to the notion that mothers always will get custody of the children is: Nope. Oregon statutes are gender-neutral in this regard: in fact, there’s a mandate that courts not give preference for either parent just because that parent is either the mother or the father. ORS 107.137(4).

Instead, ORS 107.137 provides a list of factors for courts to use in determining who should receive custody of the children in a divorce case. (The same factors apply to determination of custody matters when the parents aren’t married, too, via ORS 107.103.)

Roughly speaking, these factors boil down to the “best interest of the child.” More specifically, this means the court looks at the following factors, not giving undue weight to any one factor:

  • emotional ties between the child and other family members;
  • the interest of the parties in the child and their attitude toward the child;
  • the desirability of continuing an existing relationship between the child and the parties;
  • any abuse of one parent by another;
  • the preference for the primary caregiver of the child, if that person is determined to be fit;
  • the willingness and ability of each parent to facilitate and encourage a close relationship between the child and the other parent – but not where facilitating this relationship could pose a danger to the safety and health of the child.

ORS 107.103(1)(a)-(f).

Another factor not enumerated in the statutes but which has been mentioned in case law is the drug use of a parent. In Johnson and Johnson, 154 Or App 560, 962 P2d 752 (1998), the Court of Appeals (rather understatedly) held that drug use is not compatible with childrearing. Johnson at 566. In Johnson, the court also held that where a mother’s drug use was behind her and where the father had not been significantly involved in caring for the children, it would be inappropriate to shift custody from the mother to the father. Id.

In many cases, especially where both parties work and split childcare duties and there are no drug or abuse issues, these factors may not seem terribly helpful to the parties in looking at their case and in trying to work out a settlement.

Oregon encourages parties to resolve these disputes early on. Where custody is at issue, the parties are required to go through a mediation process after starting a child education program (these requirements are occasionally waived, but only for very good reasons).

If the parties still can’t agree, before the case goes to trial, either side can request a custody study be performed either through a public agency or a private expert. We’ve found private studies to be a very important tool in custody or parenting time disputes. The expert, usually a licensed clinical social worker or a psychologist, who conducts the study will do a very thorough evaluation, interviewing not only the parties and observing their interactions with the children, but also interviewing other references and delving into the background of the case. And while an expert may testify at trial, the expert’s report frequently assists the parties in settling the custody or parenting time issues prior to trial — saving clients subsequent attorney fees and costs.

New Case Law: Spousal support and a well-drafted judgment May 9, 2007

Posted by csstephens in Dissolution, Legal Developments, Modification, Spousal Support.
4 comments

In Oregon, the court may award three different types of spousal support, depending on the facts of a case. The court can award transitional support to allow a spouse to obtain education or re-enter the work force. The court can award compensatory support to compensate one spouse for a contribution to the other’s career. The court can award maintenance support to maintain a standard of living, which can be temporary or indefinite in length.

Last week, the Oregon Court of Appeals filed an opinion where a 10 year spousal maintenance award was extended indefinitely. In Deboer and Deober, 212 Or App ____, ____ P3d ___ (2007), the court upheld a trial court that increased a husband’s spousal support obligation and extended the term indefinitely. After a 20 year marriage, wife was awarded 10 years of support at $600 per month. The judgment did not identify the type of support awarded, or the reason behind the support award. Wife had some health problems that existed prior to the divorce, and developed severe foot problems that affected her ability to work after the divorce. Wife filed to modify her spousal support in 2004.

In Oregon, a spousal support order can be modified, but only where the court finds there has been a “significant, unanticipated change in circumstances.” Basically, this means something big changed, and it wasn’t something the parties foresaw at the time of the initial action.

In this case, the court discussed that the worsening of wife’s foot condition caused a substantial deterioration of her health. Even though wife had health issues at the time of the divorce in 1995, the court held that wife had shown a substantial and unanticipated change in circumstances due to a deterioration in health, causing her to be unemployable. The court upheld the trial court’s ruling which increased wife’s spousal support to $1000 per month, and made it indefinite.

What does this mean to men and women in divorce court with spousal support issues? Your final judgment should clearly describe the reason why support is being awarded, or you risk the court filling in the gap later and extending or terminating the support. The result in Deboer might have been different if the judgment clearly indicated why Wife was receiving support.

One way to address (or prevent) a future modification motion is to enter into a settlement that restricts the parties’ ability to modify support. In McInnis and McInnis, 199 Or. App 223 (2005), the parties included specific language in the settlement making husband’s support obligation non-modifiable. Wife later filed to modify and extend her support payment. The trial court granted wife’s motion and extended her support payment. On appeal, the court reversed the trial court decision and held that parties could validly waive their rights to modify settlements, including spousal support. A McInnis style restriction on modification may be useful in cases where parties want to guarantee the length and amount of support.

New Case Law: Owning real property with parents May 9, 2007

Posted by shelleycm in Dissolution, Legal Developments, Property Division.
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It’s not uncommon for married couples to own property in conjunction with the husband or wife’s parents. Sometimes the property is titled in the name of the parents and the child going through the divorce, or sometimes it’s titled in the name of the parents and both the child and his or her spouse. These entanglements can complicate property division when the parties divorce.
Usually the issue is whether the property should be considered a marital asset — something the parties presumptively divide equally — or whether it should be considered the sole property of one of the divorcing parties (and would not be divided, but would go to one party).

Even when only one party’s name appears on the title with his or her parents, it isn’t necessarily an easy call for the court. The court typically hears evidence about what the parents’ motivation was for placing the child on the title. (Reasons could be that the parent wants the child to have a right of survivorship, so the property won’t pass through the probate estate; as a gift to the child; as a way of compensating the child for some other reason; or as a gift to the couple.) The court’s determination is based on finding who is the most credible, or who the court believes is telling the truth.

In Kirkendall and Kirkendall, 211 Or App ___, ___ P3d ___ (2007), the Court of Appeals heard a case involving these issues. In Kirkendall, the wife’s mother had placed her on the title to some real property, and the motivation for that placement became an issue in the dissolution proceeding. The wife argued she’d placed her on the title so that it would be easy for the wife to care for her stepfather after her mother died; the husband argued the real reason was because there was a plan to remodel the property for both couples to live on.

The trial court sided with the husband and held the wife’s interest in the property was a marital asset that should be divided.

On appeal, the Court of Appeals was unwilling to reverse the trial court’s determination because it was based on a credibility finding. (The court also refused to reverse the trial court’s findings regarding a contribution to the property by the wife’s parents, for the same reasons.)

This case is important for a couple of reasons: first, it points out ways that owning property jointly with other parties, even family, can complicate a dissolution proceeding, particularly when there’s no written record of why the parties have decided to own property jointly. Also, it illustrates the Court of Appeals’ unwillingness to reverse a trial court’s ruling based on credibility of witnesses.

News: Custody disputes extend to animals May 8, 2007

Posted by shelleycm in Child Custody, Dissolution, Domestic Violence, News, Property Division.
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In dissolution of marriage cases and any type of custody case, we automatically assume that the parties have a dispute over the custody of their children. Sometimes, though, the parties may be interested in settling a dispute over pets.

CNN recently reported about a custody dispute involving a golden retriever, whose adult owner committed suicide and whose (divorced) parents, the deceased man’s fiancee and the deceased man’s ex-girlfriend all sought custody of the dog. (The judge resolved the dispute in favor of splitting custody between the man’s parents, both of whom agreed to seek appropriate medical care for the dog and to other conditions.)

The case sounds extreme, but pet disputes are becoming more common. (For example, one of my immediate neighbors was involved in a protracted dispute over custody of two expensive show dogs. I often wish his ex-wife would have won, usually when I’m gardening near that particular fence.) In Oregon, the owner of a car dealership and his ex-wife feuded over custody of a wallaby named Skippy; Skippy had been purchased by the dealership and the wife was ordered to turn him over as part of other personal property listed in Exhibit A. Patchett and Patchett, 156 Or App 69, 964 P2d 1114 (1996).

When Skippy escaped (as he was prone to doing) and did not return, the husband filed a contempt action against the wife. Id. at 71-2. The trial court held the wife in contempt, but the Oregon Court of Appeals reversed, writing that there was no evidence the wife had willfully allowed Skippy to escape. Id. at 72.

Technically, of course, pets are not people and are not actually subject to “custody” disputes, but are more characterized as subject to “property division” disputes. Recently Maine extended domestic violence protection to animals and gave parties the option to seek temporary custody of animals in situations involving domestic violence, recognizing how common it is for abusive spouses and partners to take their anger out on pets. It will be interesting to see if the rest of the country, especially animal-loving Oregon, follows Maine’s example.

Common Divorce Myths, Part I May 7, 2007

Posted by shelleycm in Dissolution, Myths.
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Often people arrive at a family law attorney’s office with some preconceived notions about what will happen during their divorce proceeding. Sometimes these ideas come from friends or family who have gone through a divorce in another state, or from television, or from what they’ve heard or read online.

Sometimes these divorce myths are easy to dispel. For example, occasionally people will think that a jury is going to be involved in their case, because they’ve seen juries in movies or or on TV. In Oregon, a judge will make the final determination – that’s just the way it works. However, there are states in which a jury is sometimes involved in a divorce, like Georgia and Texas.

Another common myth: people think the court will want to know why the parties are divorcing – for example, if one person cheated, or stole, or simply abdicated their responsibilities in the relationship. Unfortunately, this isn’t something you’ll get to mention in your petition, because Oregon is a no-fault state. This means you don’t have to have a reason why you’re getting divorced: it’s enough to just say “enough!” and file the paperwork. That said, a court might be interested in the surrounding circumstances – the lying, cheating, and stealing — when it comes to calculating spousal support or in dividing up the parties’ property, though, and your lawyer may find an appropriate way to bring this evidence into the case.

In future posts, we’ll take a look at some of the other common divorce myths.

News: One way to reconcile May 4, 2007

Posted by shelleycm in Dissolution, News.
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CNN reports today that a couple about to divorce reconciled after the wife donated one of her kidneys to her almost-ex-husband when he required a transplant. Not precisely the ordinary course of things in a divorce case, but we’re suckers for happy endings, too.