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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.

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.

Introducing Domestic Partnerships February 14, 2008

Posted by shelleycm in Domestic Partners, Legal Developments.
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Last May, we blogged about the passage of a bill granting same-sex Oregon couples many of the rights of heterosexual married couples.  After a few hiccups in federal court, Oregon counties are now open to register same-sex couples as domestic partners (occasionally not the way the legislature intended).

Other than giving a boost to Oregon’s diamond and wedding supply retailers, what was the legislature’s intent with this bill? What are the rights of married people that a registered same-sex couple now also possesses?  What is the difference between a same-sex domestic partnership and a heterosexual domestic partnership?  What happens when same-sex or heterosexual domestic partnerships break up?  If children are involved, how exactly would a court determine custody?

In the following posts, we’ll examine these questions and explain the differences between types of domestic partnerships.  We’ll look at the rights married people receive automatically at the time of marriage, and how an unmarried couple (of any configuration) can duplicate those rights using other legal means.

Collaborative Divorce January 24, 2008

Posted by margolinlegal in Dissolution, Domestic Partners, Legal Developments, Property Division, settlement, Spousal Support.

Having a trial is a way, but not the only way to resolve your case. There are many tools available for resolving your case other than a trial. Good family law lawyers are problem solvers, and the good ones recommend that their clients try to resolve their disputes outside the courtroom. Many jurisdictions have mandatory mediation (without lawyers) for parenting time and custody issues. Many good lawyers recommend their clients use private (for a fee) attorney guided mediation for property and custody and parenting time issues. Many participate in judicial settlement conferences where a judge attempts to guide the parties towards a cooperative resolution. If successful, the benefit of these tools to the client is usually lower cost, less conflict, and an agreement they chose, rather than having a judge tell them what the result is.

Some specially trained lawyers are using a new process called “Collaborative Divorce” designed to keep clients out of the courthouse from the beginning. Collaborative Divorce is a non-litigious party based settlement process in which a husband and wife or domestic partners work together to dissolve their relationship. The process can result in less cost, stress and judicial involvement than a litigated divorce or domestic partnership dissolution. The main idea is for the parties to work together to end their relationship in a manner which allows for each party to be self-sustaining financially and that serves the best interest of their child.

In a Collaborative Divorce case, the parties use a team of professionals to work on specific areas of their case. For example, if a child is involved, then the parties would have a child specialist on their team. In all cases, a financial specialist trained specifically in divorce finance and a mental health practitioner will be used. One benefit of the collaborative divorce process is that it can produce much more creative methods of property division and spousal/child support than a judge in a litigated case would order.

At the beginning of the case, the parties sign a collaborative practice agreement or participation agreement, which outlines the essential principles of the collaborative process. The agreement limits the parties’ attorney-client confidentiality and sets forth the rule that if the collaborative process is unsuccessful, then all of the professionals involved in the case, including both parties’ lawyers, will no longer work on the case. In addition, any materials or information produced in the process will not be admissible in court.

This process is very popular in Canada, Australia, and in some states in the US. It has not taken off yet in Oregon at a substantial level. There are, however, a number of collaboratively trained lawyers and team professionals in the Portland area. This is a growing field, and something to seriously consider if both you and your spouse wish to avoid the expense, stress, and frustration of traditional, adversarial litigation. Our office maintains a list of family law lawyers trained in the collaborative process.

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.)

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.