New Case Law: Restraining orders, easy to get, but harder to keep? November 30, 2007
Posted by csstephens in Domestic Violence, Legal Developments.4 comments
Oregon’s “Family Abuse Prevention Act” protects victims of domestic violence and allows victims of recent abuse to obtain protection from an abuser. ORS 107.700 et seq. While this is a necessary and valuable statute, it is also frequently misused as a custody tool, as obtaining a Family Abuse Prevention Act Order (FAPA order, or restraining order) against someone seriously impacts an alleged abuser’s claim for sole custody of children. Restraining orders are easy to obtain, as the initial application is done without notice to the opposing party. At the hearing to determine if a restraining order will continue, my experience has been that many circuit courts, out of an abundance of caution, tend to uphold restraining orders.
The Oregon Court of Appeals is a harder place to win a restraining order case. On November 28, 2007 the Oregon Court of Appeals reversed a trial court’s upholding of a restraining order in Baker v. Baker, ____ Or App ____ (2007). In the Baker case, the parties obtained mutual restraining orders against each other. Each party testified to a different version of events on the day of the incident that resulted in dueling restraining orders. The facts were ugly, and involved a pellet gun, a dog, and being dragged by the hair. Unfortunately for the petitioner, the testimony did not involve being threatened, or a fear of that the abuse would re-occur. The trial court upheld both restraining orders. The order upholding the dueling restraining orders issued by the court after hearing correctly identified the statutory test. To obtain a FAPA restraining order, the petitioner must show that he or she:
“has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an imminent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner * * *[.]”
“Abuse” is defined in ORS 107.705(1):
“(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.
“(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.
“(c) Causing another to engage in involuntary sexual relations by force or threat of force.”
ORS 107.718(1)
The trial court erroneously upheld the restraining order without meeting all of the above elements. There was no testimony that the respondent had threatened petitioner. There was additionally no evidence that the petitioner feared a repeat of the incident, as required by ORS 107.718(1). The appellate court, finding error, reversed and vacated Petitioner’s restraining order.
The moral of the story is when faced with keeping or defending a restraining order, you need a lawyer that knows the appropriate statutory test. With the same facts, a different (better) series of questions by Petitioner’s lawyer could have potentially made the restraining order bulletproof in the eyes of the Oregon Court of Appeals. Also, quick analysis by defense counsel could have resulted (correctly, based on the testimony) in the restraining order being denied at the trial court level.
News: How not to pay child support November 21, 2007
Posted by shelleycm in Child Support, News, Out of State.1 comment so far
The Oregonian reports that a Washington man has been accused of running an Internet prostitution ring in order to make payments on his child support — for his eight children (by seven women). The man allegedly advertised on Craigslist.
While it’s good to see that he was taking his child support obligation seriously, we here at the Oregon Divorce Blog urge anyone struggling to make child support payments to avoid committing felonies to support your kids. Instead, contact an attorney to request a modification of the amount owed each month. It’s a much better bargain in the long run — plus, no jail time!
Coordinating Parenting Time After Judgment – Part II November 17, 2007
Posted by csstephens in Child Custody, Divorce Tech.1 comment so far
We already posted about coordinating parenting time post judgment. (see post here) Managing children’s schedules is difficult when everyone is together and lives under the same roof. It can be almost impossible, even in a cooperative case, if the parents are not organized. Some clients we have worked with have reported good results from using a web service called OurFamilyWizard. They provide web based tools for coordinating parenting time, kids’s schedules and activities, and parental communication.
Out of State: Can Oregon modify my custody judgment? November 17, 2007
Posted by csstephens in Uncategorized.add a comment
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!
Out of State: Can Oregon hear my custody case? November 17, 2007
Posted by csstephens in Child Custody, Dissolution, Out of State.1 comment so far
Going through a custody dispute is never easy, and becomes even harder when the parties and children live in different states. Should you file here? Should you file where the other parent lives? What if the other parent files a custody action in another state even though the kids live primarily in Oregon? What if you both moved to different states after separation? If a couple has no kids, as long as one spouse lives in Oregon and meets the residency requirements, Oregon can usually hear the case. (We blogged about this topic in an earlier post) If a couple has kids, the court must decide if it has jurisdiction to hear the custody portion of the case. To make the 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 court must satisfy one of the following four tests:
(1) Is Oregon the “Home State” where the child has lived for at least six months prior to filing?
(2) Does Oregon have “Significant Connections” to the child and at least one parent or parental figure, with good evidence regarding the child’s care, protection and personal relationships located here, AND no “Home State” exists; or the “Home State” has declined to exercise its jurisdiction.
(3) Has the Home State or Significant Connections State declined jurisdiction in favor of Oregon, based on inconvenient forum grounds (ORS 109.761) or unjustifiable conduct grounds (ORS 109.764)?
(4) Is there NO other state with Home State or “significant connections” jurisdiction?
In some emergency circumstances, Oregon can assert temporary jurisdiction over a child even if the above tests are not met. For example, if a child or parent is threatened with mistreatment or abuse, Oregon can temporarily hear the matter. This type of jurisdiction is limited and usually only lasts until the “Home State” or “Significant Connections” state issues an order.Even if you meet one of the above tests and Oregon can assert jurisdiction, the court must determine if it should exercise jurisdiction. If Oregon is a less convenient place to hear the dispute, Oregon may decline to hear the matter. In making this decision, the courts considers domestic violence issues, travel and financial considerations, where the best evidence is, how familiar are the courts with the matter and how fast could they hear it, and how long a child has resided outside a state. ORS 109.761 Also, Oregon might decline jurisdiction if a party has engaged in wrongful conduct (like misrepresenting where a child lives).
If you are filing for custody and the children have lived in multiple states, make sure your lawyer is familiar with the UCCJEA and has all of the information needed to analyze whether Oregon is the right place to file.
Baby you can drive my car, or: how would an Oregon family law court handle the McCartney-Mills split? (Part II) November 6, 2007
Posted by shelleycm in Dissolution, News, Property Division, Spousal Support.add a comment
How much spousal support would Heather Mills be entitled to if she divorced Sir Paul in Oregon? That’s not as easy a question to answer as child support might be (there is a formula specifically set up for child support, and we’ll get to child custody and support next).
Earlier we mentioned that Sir Paul made about 100 million USD last year. Per month, that’s about 8.3 million USD. How much of that would a court pass off to Heather?
(As a preliminary matter, we should point out that it’s never guaranteed a court would award spousal support, even where one party is very rich and the other is not, or the marriage is a long or short one — it depends on the circumstances. In this case, a court might find that the income on the property settlement — say, to the tune of 250 million USD — would be more than ample to cover Heather’s expenses.)
But if the court does look at the possibility of spousal support, it has three types to choose from in Oregon: transitional, compensatory, and maintenance. (We’ve talked about them previously.) Transitional applies when a spouse needs some help to get back on his or her feet (Ouch! Sorry, Heather), and can be used for education or training programs. Compensatory applies where a spouse has put the other spouse through college, or medical school, or otherwise financially supported the spouse while he or she acquired training or education. Neither of these seem to apply to Heather, but the last, maintenance support, does.
Although we have no idea what Sir Paul and Lady McCarney’s expenses are on average, the goal in setting maintenance spousal support is to allow a spouse to lead a lifestyle “not disproportionate” to the type of lifestyle enjoyed during the marriage. So if Heather was used to private jets, living in estates (and all of those associated expenses), haute couture (though presumably not Stella’s line of clothing), and so on, a court would be more likely to award a large amount of spousal support. The goal isn’t so much to make the parties equal, though, but just to put the supported spouse in the place where he or she can live comfortably in a style “not disproportionate” to the type of lifestyle she’d previously enjoyed. The entire list of statutory factors involved in setting maintenance support is found at ORS 107.105.
Next up: Child Custody & Support
Baby you can drive my car, or: how would an Oregon family law court handle the McCartney-Mills split? November 5, 2007
Posted by shelleycm in Child Support, News, Property Division, Spousal Support.add a comment
The Paul McCartney/Heather Mills divorce action is all over the tabloids (and some of us at the Oregon Divorce Blog just love our celebrity gossip). It’s no wonder, though – Sir Paul’s fortune is in the hundreds of millions, and his soon-to-be-ex-wife is, under British law, entitled to a large chunk of that fortune.
While perusing the newest gossip, we found ourselves wondering that if this case had arisen in Oregon, however — and if either Sir Paul or Heather had resided in Oregon for the six months prior to filing the action, it could have — how would one of our courts have handled the case? Just take a look… (more…)
Divorce Myths: Is my future spouse’s bad credit contagious? November 4, 2007
Posted by csstephens in Myths.add a comment
Short answer: No, but you need to plan.
A common “divorce myth” we hear in our practice is a client’s concern that his or her spouse’s bad credit will affect their credit on marriage. The reality is that your credit remains separate, but you need to be careful if your spouse has bad credit and liability. Your credit file is not combined with your spouses by virtue of marriage and you have an absolute right to be considered for credit independently of your spouse and his or her credit issues. Your spouses’ low credit score will not affect your ability to independently obtain an auto loan or a mortgage, assuming you have the income to do so.
You do need to plan if your spouse has credit issues and liability. This is because while your credit files are not combined by virtue of marriage, a creditor of your spouses could go after an asset that is jointly titled. For example, assume Husband has $35,000 in child support arrears at the time of his marriage to Wife. Wife puts Husband on title to a house. Husband’s child support arrearage is now a lien on the house. If one spouse has substantial liability, plan for banking and owning property separately.
Divorce Myths: The court can protect my credit after divorce. November 4, 2007
Posted by csstephens in Dissolution, Myths.1 comment so far
A common myth we come across in our practice is that the court has the power to protect a client’s credit if the ex spouse doesn’t pay an obligation they were ordered to pay under a divorce decree. while everyone’s lives would be easier if the court had this power, they do not. You have to plan to protect yourself and help your lawyer in the process.
Liability for debt, and negative credit reporting for nonpayment of debt comes from contracts, not court orders and judgments. The court cannot alter a contractual relationship between you and a third party. If you and your spouse signed a legally binding contract with a creditor, the divorce decree cannot protect you from the creditor. You both signed a binding contract with the creditor (for example: Citibank, Countrywide, American Express), and that contract survives the divorce decree and remains an obligation of both parties, no matter what the divorce decree says. Worse, just because the judgment says your ex has to pay doesn’t prevent the creditor for suing you for non-payment.
how to protect yourself?
1. At the begriming of your case, you should obtain credit reports from all three credit bureaus, transunion, experian, and equifax. Your credit reports will help you identify what accounts are appearing on your report and may impact you. The easiest way to do this is online. The web addresses and mailing addresses for the three bureaus follow:
Equifax Credit Bureau
P .O. Box 740241
Atlanta GA 30374-0241
(800) 685-1111
Experian
P.O. Box 9701
Allen TX 75013
(888) 397-3742
Trans Union, Consumer Disclosure Center
P.O. Box 2000, Chester PA 19022
(800) 888-4213
- 2. You should, if at all possible, make sure that all joint credit cards are closed and paid at the time of divorce.
3. You can’t pay all the debt, you should monitor every month any joint obligation the court ordered your ex to pay. If he or she doesn’t pay it, you should consider paying it yourself and seeking reimbursement through the court.
4. You should make sure your judgment contains an indemnity clause stating that if you are harmed as a result of your ex spouses’ non payment, you have recourse.
5. In negotiating a settlement, you should try to make sure that you are responsible for payment on debts that you have primary contractual liability to repay! There is no benefit to you if the court orders your spouse to pay your debts and then the ex spouse fails to do so.
Some judges are willing to compensate a party post judgment for credit damage resulting from intentional failure to pay debts received by the ex spouse in divorce, however, it involves spending more money on lawyers and going back to court. Post divorce litigation is no substitute for proper planning and protecting yourself in advance.
The Oregon Divorce Blog 