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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.

Information about the mandatory parenting classes in Multnomah, Clackamas, and Washington County, Oregon. February 10, 2008

Posted by csstephens in Child Custody, Dissolution, Grandparents, Modification.

istock_000004700105xsmall.jpg As a divorce lawyer in downtown Portland Oregon, I frequently get asked about the parenting class requirements for family law cases in Multnomah, Clackamas, and Washington county. Some people already know of the class requirement, some don’t. A common reaction on learning of the class is “Me? Need a parenting class? Why?” A series of questions usually follows. “What is the cost? How long is the class? Can I waive it? Will I have to attend with my spouse?” The following is our effort to summarize the court’s authority to require the class, the reasons behind the class, and provide information about the classes in the tri-county area.

ORS 3.425 gives each family court department (or presiding judge) the power to set up a family law education class for parents in family law cases. The purpose of the class is to inform parents about the impact of family restructuring on children in family law litigation. If the county establishes a class, the class must include at a minimum information about: (1) The emotional impact of a divorce or separation on children at different developmental stages, (2) Parenting during and after a divorce or separation, (3) Custody , parenting time, and shared parenting plans, (4) The effect on children of parental conduct, and (5) Mediation and conflict resolution. The class may be required in divorce, annulment, legal separation cases, custody or parenting time petitions, modification of custody or parenting time actions, and enforcement actions. Our three local counties in the metro area (Multnomah, Clackams, and Washington) have all adopted mandatory parenting class programs.

Multnomah County: The court’s rules about the class are located in Multnomah County Supplemental Local Rule 8.125. The class is required for parties to divorces, annulments, legal separations, petitions for paternity and custody or parenting time, and modification actions if a parent has not previously completed the class. The class costs $45 – $60, depending on how fast you register. The class is one session and takes three hours. Online information about the Multnomah County class can be found at Family Court Services website. You can register online, or register by phone by calling (503) 988-3037.

Washington County: The court’s rules about the class are located in Washington County Supplemental Local Rule 8.102. The class is required for the following cases where the parties have children under the age of 17: divorce, annulment, legal separation, petitions for custody or parenting time, modification of custody and parenting time, and filiation cases. The cost of the class is $145 per adult. You can pay for the class with Visa, MasterCard, debit card, and money orders. The class consists of four (4) ninety minute workshops. Classes are scheduled weeknight evenings and Saturday mornings. You can find the Registration packet for Kids’ Turn, the class schedule, and a FAQ here. You can register for the class by returning the above packet or by calling the Kids’ Turn office (503) 846-0665.

Clackamas County: The court’s rules about the class are located Clackamas County Supplemental Local Rule 8.015. The class is required for the following types of cases where the parties have a child under the age of 18: Annulment or dissolution of marriage actions, legal separation actions, petitions to establish custody or visitation, and post-judgment litigation involving custody or visitation. The cost of the class is $60, but is reduced to $45 if your register within 45 days of filing your case. The class is one session, 3 ½ hours, held Wednesday evenings from 5:30 to 9:00 p.m. and on Saturday mornings from 9:00 a.m. to 12:30 p.m. You can register on the web, by fax at (503) 650-5656, by mail, by phone at (503) 655-8415, or in person at 2051 Kaen Rd. Oregon City, OR 97045. The registration link is here. The FAQ put out by Clackamas County Family Court Services about the Parent Education Program is here.

Our recommendation is to take the mandatory class as early as possible in the process. You may learn something to help your kids, and you won’t irritate the court.

New Case Law: Circumcision as the basis for custody modification? January 28, 2008

Posted by csstephens in Child Custody, Legal Developments, Modification.
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1440008_06caf3e411.jpg On January 25, 2008, the Supreme Court of Oregon issued a fascinating opinion in Boldt and Boldt, ___Or ____(2008). The Supreme Court in Boldt addressed a custodial parent’s authority to make religious and medical decisions for a child. The court also addressed whether a child’s objection to an elective medical procedure (circumcision) constituted a “change of circumstances” that would allow the court to modify custody if in the child’s best interests.

Mother and farther divorced in 1999. Mother was awarded custody of M, then 4 years old. The parties continued the fight over custody, and father was awarded custody of M when he was 9. In this proceeding, Mother filed for a change custody on the grounds that father intents to have M circumcised as part of M’s conversion to the Jewish faith. In the alternative, mother sought an injunction against father circumcising M as a condition of father retaining custody. The trial court denied mother’s motion to modify custody, but prevented father from circumcising M pending mother’s appeal. The Court of Appeals affirmed the trial court ruling without opinion. The Supreme Court heard mother’s petition for review, reversed both lower court rulings, and remanded the matter to the trial court for additional testimony regarding M’s preference.

Mother is a member of the Russian Orthodox Church, and M was raised in that faith. Father took interest in Judaism in 1999 (about the time of the divorce), and began teaching his children about the faith. Father converted to Judaism in 2004, and told mother that M may convert, and would have to be circumcised as part of the conversion.

On June 1, 2004, mother filed a motion for a temporary restraining order to prevent M from being circumcised, alleging that M objected to the procedure. Father countered that Oregon lacked jurisdiction to hear mother’s motion because M had lived in Washington state almost two years. He additionally argued that as the custodial parent, he had the authority to make the decision to have M circumcised. The court restrained father from circumcising M pending a hearing on jurisdiction and custody.

On June 4, 2004, mother filed for temporary custody under ORS 107.139 (alleging M was in immediate danger), or an alternate order barring M’s circumcision. Mother also filed a motion to change custody under ORS 107.135. Mother’s basis for both motions was an affidavit alleging that father was circumcising M against M’s wishes. Father again raised a jurisdictional challenge, and filed affidavits from family members asserting M consented to the circumcision, and from M’s doctor stating there were medical benefits to the procedure. At hearing, the circuit court found (1) it had jurisdiction to hear the matter, (2) that the decision for a child to have elective surgery is reserved to the custodial parent, (3) that in any event, mother had not alleged sufficient grounds for an emergency change of custody, and (4) issued an order preventing the parties from circumcising M until mother’s appeal was heard.

The Court of Appeals affirmed without opinion. The Supreme Court of Oregon allowed review. The court explained that Oregon requires a two-step inquiry to determine whether a court should modify custody. First, a parent seeking a custody change must show that (1) after the original judgment or the last order affecting custody, circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed, and (2) considering the asserted change of circumstances in the context of all relevant evidence, it would it would be in the child’s best interests to change custody from the legal custodian to the moving party. Ortiz and Ortiz, 310 Or 644 at 649 (1990). The question of a change of circumstances is a factual one, and can be shown by a change that has injuriously affected the child, or a change in the other parent’s ability or willingness to care for the child in the best possible manner. If the moving party cannot establish a change in circumstances, the court does not consider the second step of the analysis (the “best interests” test.)

The Supreme Court agreed with the trial court that the custodial parent has the authority to make elective medical decisions for his or her child. Father asserts that mother’s rights regarding medical care are limited by ORS 107.154, and that his medical decision on behalf of M cannot be the basis for a change of custody.

Outside medical and religious groups took interest in the case, and Mother was supported by amicus curiae briefs (briefs filed by a “friend of the court,” someone not a party to a case, who volunteers to offer information to assist the court in deciding a matter before it) from Doctors Opposing Circumcision (DOC). Father was supported by amicus curiae briefs from the American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America. Father and his supporters argued father has a constitutionally protected First Amendment right to circumcise his son, as it is a fundamental and sacred part of the Jewish religions tradition.

The Supreme Court declined to base its decision on the medical risks or benefits of circumcision. The Supreme Court held that circumcision is a decision is commonly and historically made by parents, and that the decision to circumcise a male child falls within a custodial parent’s authority, despite medical or religions objections by the non-custodial parent. Had mother only asserted an objection to circumcision as the basis for her motions, her case would have been dismissed. However, mother asserted that M objects to the circumcision. M is now 12. The Supreme Court remanded the case to the trial court to take testimony regarding M’s preference, because father’s circumcising M against his will could affect the relationship between M and father, and thus could have a pronounced effect on father’s capability to properly care for M. If M consents to the procedure, mother’s motion to change custody should be denied. If mother is correct that M objects, the trial court could consider changing custody, the trial court must determine if M’s opposition will affect father’s ability to properly care for M. If the answer is yes, the court can address modification of the existing custody arrangement, or whether conditions should be imposed on father’s custody of M.

Clients ask us regularly what is the scope of their custodial authority. Can the non-custodial parent make medical decisions for the child? (Maybe, per the limits of ORS 107.154). What if the non-custodial parent wants to pierce the child’s ears? What decisions regarding the child might make custody at issue? Boldt tells us that if you are the custodial parent, you can make medical decisions without input from the non-custodial parent. However, if the medical procedure is elective, and the child objects, your decision may constitute a “change of circumstances” that would allow a trial court to consider changing custody.

New Case Law: Custody and Adolescent Angst October 24, 2007

Posted by shelleycm in Child Custody, Legal Developments, Modification.
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On October 17, 2007, the Oregon Court of Appeals decided an interesting child custody modification issue in Connelly and Connelly, ____ Or App ____ (2007). When a custodial parent faces adolescent behavior problems, can he or she lose custody of the children in favor of the non-custodial parent?

In initial child custody determinations and subsequent modifications, a court will look at the “best interest of the child” standard. Often a professional child custody evaluator will be hired to assess the situation and to make recommendations to the court.

In the Connelly case, Mother and Father married in 1989, had two children, S and T, and then divorced in 1995. Mother had been the primary caregiver for the children, and she received custody of S and T. Father had typical parenting time: weekends, holidays, summer vacations.

Ten years after the divorce, Father went back to the court to ask for custody of both children, arguing that because Mother left the children unsupervised, they had become “violent and disruptive” and were doing poorly in school.

The court ordered a custody evaluation. After her interviews with the family, the evaluator determined custody should remain with Mother, although both parents were inappropriate with each other as regarded the children. Both children preferred to live with Mother, and if they moved to Father’s, they would have to change schools and friends.

However, the court transferred custody to Father, finding that there had been a substantial change in circumstances and that a change would be in the children’s best interests. The court told father that he hadn’t “had a chance yet, and something dramatically different has to happen here.”

Mother appealed, arguing that any substantial change in circumstances must relate to “the capability of one or both parents to care for the child.” State ex rel Johnson v. Bail, 325 Or 392, 398, 938 P2d 209 (1997).

The Court of Appeals agreed, saying that the record did not indicate that Mother’s “lifestyle or circumstances” had significantly changed. The Court rejected the contention that because Mother did not communicate well with Father, that this was a substantial change sufficient to modify custody, because both Father and Mother had communications issues, with the bulk of the problems tracing back to Father. (However, in the past, the Court has found that poor communication by the custodial parent may be sufficient.)

The Court also wrote that although the children had been experiencing social and psychological problems while living with Mother, it is “not the child’s conduct – but instead the custodial parent’s effort – that determines whether the parent” has inadequately cared for the child.

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

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

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

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.