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New Case Law: Honesty is the best policy May 4, 2007

Posted by csstephens in Child Support, Dissolution, Legal Developments, Spousal Support.
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In Oregon, when going through any sort of support proceeding (child or spousal), the parties are required to complete what’s known as the USA, short for Uniform Support Affidavit. Completing this can be about as much fun as doing your taxes (maybe even more, because finishing it involves itemizing out all of your monthly expenses, as well as your income and liabilities), but it’s necessary for the court to know the financial situation of the parties to make a fair ruling.

This week, the Oregon Court of Appeals sent a warning to parties who might be tempted to fudge numbers on a USA. In Sugar and Sugar, 212 Or App ____, ____ P3d ___ (2007), the court upheld a trial court who penalized a woman who underreported her income on a USA she filed during an initial dissolution of marriage proceeding. Partially as a result of those numbers, the trial court ordered her husband to pay spousal support. Eight months later, her husband filed to terminate the support.

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 wife’s circumstances didn’t necessarily reflect significant changes that couldn’t have been foreseen at the time of the dissolution. Although she underreported her income in the first proceeding, in the modification proceeding she filed a new, more accurate USA. The husband argued that her increased income and better financial situation reflected a substantial, unanticipated change, and that his support order should be terminated. The wife argued that nothing much had changed, and that the trial court should have figured out her accurate level of income because she attached a paystub to her USA.

The trial court ruled that the wife was not allowed to represent her income hadn’t changed because she’d previously represented her income at a lower level (she was precluded from making this argument because of a doctrine called “judicial estoppel”), and the court ultimately ruled the wife’s support should be terminated completely. In Sugar, the Court of Appeals agreed.

For litigants in Oregon, what does that mean? Be completely forthcoming and don’t be too sharp — it can and will be used against you later!

News: Stay At Home Moms Should Earn $138,095 May 3, 2007

Posted by shelleycm in Dissolution, News.
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Salary.com calculates a stay-at-home-mom’s annual income – as a child care provider, housekeeper, cook, computer technician, janitor, facilities manager, and driver – at $138,095 a year, based on an average 92-hour work week.

Legally speaking, Oregon takes takes a stay-at-home parent or homemaker’s contributions into account in dissolution of marriage proceedings. Oregon statutes state that there is a “rebuttable presumption” that the assets acquired by either party during the marriage belong to both parties equally. ORS 107.105(f).  The court will assume this is true, unless one of the other parties can provide rebuttal evidence and convince the court otherwise. Id.

In the Oregon Supreme Court case Massee and Massee, 238 Or 195, 970 P2d 1203 (1999), the Supreme Court held trial courts must consider the contributions of a homemaker in determining whether the presumption of equal contribution has been rebutted.  Massee at 205.

Out of state: Working with a long-distance lawyer May 3, 2007

Posted by csstephens in Dissolution, Out of State.
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Going through a divorce is never an easy experience, no matter how amicable the parties might be throughout the process. When the divorce is contested, it’s a lot harder. Multiply that by a hundred, and you have an idea of how difficult it can be when you’re in one state and your case is in another.

Although you might have a lawyer in your state, you’re going to need a lawyer licensed to practice law in Oregon if this is where your case is. When you start shopping for a lawyer in Oregon, you’ll want to make sure you address the following issues. (more…)

Out of state: how does Oregon get jurisdiction over my divorce? May 2, 2007

Posted by csstephens in Dissolution, Out of State.
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A court in Oregon needs two types of jurisdiction in order to hear a dissolution of marriage (divorce) case and to make it stick. The first type of jurisdiction is personal jurisdiction, which means the court has the power over the parties involved in the case. The second type of jursidiction is subject matter jurisdiction, which means the court has the authority to hear the type of case that’s in front of it. [Both types of jursidiction are necessary for all court actions, not just divorces.]

Personal jursidiction over a person can be acquired pretty easily: if you’re served with papers in Oregon, that’ll do it, or if you own property in Oregon or have a lot of contacts with Oregon.

By contrast, subject matter jurisdiction in a dissolution stems from Oregon statutes which give the courts the authority to hear dissolution cases.

The Oregon Revised Statutes (ORS) lay out the rules for whether or not a case is appropriate to be heard in Oregon. The law requires that at least one of the parties has been a resident of Oregon for six months or more. ORS 107.075.

In a separation case, a party can file in Oregon without having lived in Oregon for six months or more, but the party must be a resident of Oregon or be domiciled in Oregon. (Legally speaking, “domiciled” means a party lives in the state and has the intention of remaining there indefinitely.)

Jurisdiction in cases involving child custody can be much trickier because of specific statutes adopted by states, including Oregon, which were crafted to protect children in dissolution or custody cases. We’ll talk about child custody jurisdiction and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in a future post.

News: Oregon Senate Approves Domestic Partnerships Bill May 2, 2007

Posted by shelleycm in Domestic Partners, Legal Developments.
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Today the Oregon Senate approved a bill granting same-sex couples rights similar to those of married couples. (The Oregon House already approved the bill, titled House Bill 2007.) Governor Kulongoski is expected to sign the bill. You can read the text of the original House Bill online. Oregon will be joining only five other states in recognizing the rights of same-sex couples to enjoy some of the the legal benefits married couples receive automatically, such as the right to visit one another in the hospital or to make medical decisions for partners.

Out of state: Oregon cases: Introduction May 2, 2007

Posted by csstephens in International, Out of State.
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We’re often asked questions about out of state or international matters, where one party lives in another state or country, but they’re involved in a family law matter in Oregon. Or sometimes, people move to Oregon and immediately want to file for dissolution of marriage or custody here and are surprised to find out that it’s not quite so simple as just going down to the courthouse and filing the appropriate paperwork. We’ve put together a list of some of the most common questions we’re asked about out of state and international matters, and we’ll answer them in our next few blog posts.

Do I need a lawyer for my divorce? May 1, 2007

Posted by csstephens in Child Custody, Child Support, Dissolution.
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I’m asked all the time: “Do I need a lawyer for my divorce case?” There’s no simple answer to this question.

Oregon doesn’t have a law that forces you to hire a lawyer in a divorce case. You can get divorced even though neither of you hires an attorney. While a judge might tell you in a contested case (where your spouse officially responds to your petition with a pleading of his or her own) to get a lawyer, the court won’t stop you from proceeding if you decide to represent yourself.

There are some types of cases where it’s probably OK to go it alone… (more…)