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Divorce Myths: The differences bewteen an annulment, legal separation, and a divorce March 21, 2008

Posted by csstephens in Annulment, Dissolution, Legal Separation, Myths, Property Division, Spousal Support.
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istock_000004698338xsmall.jpg As a divorce lawyer practicing in Portland, Oregon, one common myth I hear is that annulments offer substantially different relief than divorces. Another version of the myth is that legal separations offer substantially different relief than divorces or annulments. The purpose of this post is to explain the basis for legal separations, annulments, and divorces, and to explain the relief each offers. The myth is that they are all very different. The reality is that except for a few key points, they are almost the same.

Annulments, legal separations, and divorces are more similar than different. The differences can be categorized by (1) the legal standard to obtain them, and (2) the relief available.

The legal standard to get a divorce or an unlimited separation is defined in ORS 107.025 which provides that “A judgment for the dissolution of a marriage or a permanent or unlimited separation may be rendered when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.” In English, the marriage is broken and can’t be fixed.

The court can give you a “legal separation” if irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage; and the parties file an agreement suspending for a year or more their obligation to live together as husband and wife, and the court finds such agreement to be just and equitable; or irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest. In English, if you have a marital problem, and want to suspend your marriage for a year, you can. If you have a marital problem, but need to remain married because you are religious, need your spouse’s health insurance, need to protect a legal interest, or don’t want to hold yourself out as divorced, you can get a legal separation.

The court can give you an “annulment,” or a divorce if you don’t want an annulment, when “either party to the marriage was incapable of making such contract or consenting thereto for want of legal age or sufficient understanding; (2) When the consent of either party was obtained by force or fraud.” ORS 107.015. Per ORS106.020, the court can also grant an annulment when “either party thereto had a wife or husband living at the time of such marriage.” or “when the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, whether by blood or adoption, computing by the rules of the civil law, except that when the parties are first cousins by adoption only, the marriage is not prohibited or void.”

The relief offered by each is more similar than different. ORS 107.105 states what the court can do in all three types of cases. In annulments, disillusions, and separations, the court can make provisions for:

Temporary orders per ORS 107.095 for:

  1. attorney fees
  2. custody
  3. child and spousal support
  4. parenting time
  5. changing the kids routine
  6. awarding a party exclusive possession of a residence

Final orders per ORS 107.105 for:

  1. Custody of all children of the marriage.
  2. Parenting time for all children of the marriage.
  3. Child support.
  4. Transitional, compensatory, and maintenance spousal support.
  5. Division of real property.
  6. Division of personal property.
  7. Creation of trusts for children.
  8. Creation of trusts and appointment of trustees for the parties to manage property.
  9. Restore a former name.
  10. Continue a money award from a limited judgment.
  11. Award attorney fees and costs.

What are the differences between an annulment, legal separation, or divorce? If your marriage is annulled, it is as if it never happened. Per ORS 107.005, in an annulment case, the court can declare a marriage valid, void from the beginning, or void from the time of judgment. If you get a legal separation, you are still married, until you convert your separation into a divorce. An important side-note is that you can file for a legal separation without meeting the 6 month residency requirement. If you need immediate relief, it is a great option. In a divorce, the marriage is terminated when the judgment is entered.

What does this all mean? Annulments, legal separations, and divorces are much more similar than different. You can get virtually identical relief in all three, but there are subtle differences. Talk to an experienced family law attorney to see if the differences between the three may help you in your case.

Divorce Myths: The court will want to hear about my spouse’s fault. March 18, 2008

Posted by csstephens in Dissolution, Myths, Property Division.
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Many clients, in the first meeting, ask me what effect will their spouse’s bad acts have on the case. We hear about many human problems, from alcohol and drug addiction to abuse to adultery. We are frequently asked will they do better in court because their spouse has committed bad acts. The answer is that except for issues relating to custody and parenting time, fault is irrelevant.

In ORS 107.036, the Oregon legislature abolished fault in annulment, divorce (dissolution) , and separation cases. The court is barred from hearing evidence of specific acts of misconduct, except to the extent necessary to prove that a couple has “irreconcilable differences.” The court is specifically barred from considering “fault” when dividing real and personal property, and in setting the duration or amount of support.

What does this mean to divorcing parties in Oregon courts? When it comes to property and support, affairs don’t matter. Being a jerk doesn’t matter. Being a bad parent doesn’t matter. Being verbally or physically abusive doesn’t matter. When it comes to dividing assets and setting support, the court only wants to hear relevant, non-fault based testimony.

There is always an exception, and it is for custody and parenting time cases. When the court is analyzing who should have custody of the minor children, and what parenting plan is appropriate for the parties, it will hear evidence of specific acts of misconduct. While this evidence is not supposed to affect property division or support, it can and will affect the court’s ruling regarding custody and parenting time. The reason is that the court’s job when dealing with kids is to do what is in “the child’s best interests.” So, being a jerk means you will likely get half of the property, but not custody of the kids.

Divorce Myths: I can move to Oregon and file for divorce immediately. March 16, 2008

Posted by csstephens in Dissolution, International, Myths, Out of State.
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A surprisingly common “divorce myth” we hear in our practice is the belief that you can file for divorce immediately on moving to Oregon (or any state.) Oregon, like most states, has a residency requirement you must meet before you file for divorce. There is a lot of misinformation among people wanting to file for divorce regarding if they must wait to file, and for how long. Part of the reason for the misinformation is because there are a few exceptions to the waiting period.

The residency requirement is located in ORS 107.075. What do you have to do to become a resident? Oregon considers you a resident if you live in Oregon  and intend to remain in Oregon.  It is where you have the intent of returning after an absence  from the state(such as military service, extended travel, school, etc.)

For most residents, there is a 6 month waiting period prior to being able to file for divorce or annulment. For people married in or out of Oregon pursuing a divorce or annulment based on “irreconcilable differences,” one party to the divorce must be a resident (or domiciled) in Oregon continuously for six months prior to filing for divorce.

A much smaller group of residents don’t have to wait. For people married in Oregon, if the reason for your divorce or annulment is (1) bigamy, or (2) being too closely related to your spouse, or (3) being incapable of making a contract or consenting to the marriage because you are too young or don’t understand the consequences, or (4) you were forced or deceived into marriage, you can file immediately on residing or domiciling in Oregon.

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.

Who gets to claim the child tax exemption? March 10, 2008

Posted by margolinlegal in Child Custody, Child Support, Dissolution, Myths, settlement.
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istock_000004891591xsmall.jpg Clients often come to me asking whether they or their ex-spouse/unmarried parent of their child can claim their joint child as a dependents for tax purposes and receive the dependent tax exemption. They often think that this is a decision that is up to them and attorneys often use it as a bargaining chip.

In a divorce or custody case I am representing clients in state court. The United States Congress, through the tax code, has determined how the child/dependent tax exemption should be awarded. The supremacy clause of the United States Constitution prevents state courts from deciding issues of federal law. This means that a state court cannot properly award the exemption to a parent who otherwise would not qualify for the exemption under federal law.

The qualifying parent under IRS rules is the “custodial parent,” which is defined as “the parent having custody for the greater portion of the calendar year.” The award of “legal custody” has no effect on this definition, rather the custodial parent is “the parent with whom the child resides for a greater number of nights during the calendar year.” In cases where the child resides an equal number of overnights with each parent, the parent with the higher adjusted gross income for the calendar year is awarded the exemption.

Parties can agree to share the exemption or to have the parent that does not qualify receive the exemption. This is usually accomplished by a provision in the parties’ judgment. In order to provide the non-qualifying parent with the exemption, the qualifying parent must sign a written declaration and the declaration must be attached to the non-custodial/non-qualifying parent’s income tax return. This can be completed using IRS tax form 8332, which can be found here http://www.irs.gov/pub/irs-pdf/f8332.pdf.

A decision to allocate the dependent exemption to the non-qualifying parent should not be taken lightly. In addition to the exemption, the non-qualifying parent will also receive the child tax credit. Therefore, an agreement to deviate from IRS rules can have significant tax impacts for the qualifying parent and creat a tax windfall for the non-qualifying parent. If the agreement will be included as a provision in a judgment, the decision to do so should be carefully discussed with your attorney.

The IRS faq located at http://www.irs.gov/faqs/faq-kw46.html provides detailed information on this question.

Divorce Myth: Your spouse can block a divorce by objecting to it. February 7, 2008

Posted by csstephens in Dissolution, Myths.
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istock_000004511002xsmall.jpg A “myth” we come across with surprising frequency is that you need your spouses’ consent to get a divorce.  As an Oregon divorce and family law lawyer, I am repeatedly surprised by the number of people who believe spousal consent is required.  This myth comes in varying forms, from (1) a belief you can’t get divorced unless your spouse agrees to get divorced, to (2) you can’t start the divorce process unless your spouse “accepts” the divorce papers, to (3) you can’t get a divorce unless your spouse signs the final judgment. In Oregon, all three are myths, myths, and more myths! While your divorce may not be simple if your spouse objects, your spouse cannot stop a divorce that you want.  If you want the divorce, and you jump through the right procedural hoops, you can get the divorce with or without your spouses’ blessing.

This myth is wrong for several reasons. First, Oregon is a “no fault” divorce state, meaning you don’t have to prove any wrongdoing to get a divorce. All you have to prove is that you have  “irreconcilable differences.” ORS 107.025. The fact that you want a divorce and your spouse doesn’t is considered an “irreconcilable difference.” So, when someone “objects” to a divorce, really all they can do is dispute the terms of the divorce (custody, parenting time, property division, support), but not the divorce itself.

Second, your spouse cannot block a divorce by not accepting the divorce papers. To start a divorce action, you need to serve your spouse with the divorce petition and other pleadings. Your spouse can accept them voluntarily, or you can serve your spouse without their consent. If your spouse is avoiding service, you may be able to get permission from the court to allow for “alternative service”, basically permission to serve your spouse through posting, mailing, or even publishing information about the divorce in the newspaper! If your spouse is dodging service, talk to your lawyer about whether alternative service is a good option.

Finally, your spouse does not have to sign the final divorce papers for it to be approved by the court. If your spouse won’t cooperate, you can get a divorce by “defaulting” your spouse. Once you file your divorce petition, serve your spouse (with or without their blessing), and wait 30 days, you can get an order from the court barring your spouse from objecting to the divorce. At 90 days after service you can submit a final judgment of divorce, without your spouse’s signature. Even if your spouse objects and files a response, the judge can and will order a divorce over his or her objection at trial.

So, now you know. If you are contemplating divorce and your spouse tells you that you can’t get divorced without their permission, consult with a family law lawyer. Your spouse either doesn’t know, or they are misleading you.

Divorce Myths: Everything must go before we are divorced! January 20, 2008

Posted by csstephens in Myths, Property Division, settlement.
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for saleA surprisingly common “divorce myth” we hear in our practice is that division of property must happen before the couple is divorced. There is no such rule! The court’s power to divide property after a divorce is defined in ORS 107.105(1)(f). Whenever a court finalizes a divorce, separation, or annulment action, the court can provide for the division of real property and personal property as is “just and proper in all the circumstances.” For example, the divorce judgment may explain how the parties are to divide the personal property after the divorce, or provide rules about how the parties will sell real property after the divorce. Once you have an agreement (or court ruling) on division of your assets, you can divorce first and divide and sell later.

Divorce Myths: Divorce always takes a long time. December 8, 2007

Posted by csstephens in Myths.
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Some divorces do take many months, or over a year, but this is a result of the process and conflicts and not mandated by the divorce statutes. The length of your case usually depends on how your case resolves. Many counties in Oregon have policies about how long a case may take (for example, some counties say 90% of cases should resolve within 9 months.) Cases that resolve by a trial may take 9 months, or potentially longer. Cases that resolve by default take less time than cases that are litigated. For cases that end in a default judgment, there is a 90 day waiting period from the date of service until the court can enter a final judgment. (ORS 107.065) However, if the parties agree, or “stipulate” to a divorce, the court can and usually does waive the 90 day waiting period, meaning there is NO waiting period. If you don’t have kids, and you live in a county where the court will sign a divorce judgment on the spot, a same day divorce is possible (maybe not desirable, but possible.) Many people express suprise (hence the myth) when they learn a same day divorce is possible.  In the right circumstances,  (remarriage, relocation, etc.) a same day divorce may be worth pursuing.

Divorce Myths: Is my future spouse’s bad credit contagious? November 4, 2007

Posted by csstephens in Myths.
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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.
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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

http://www.equifax.com/ 

Experian

P.O. Box 9701

Allen TX 75013

(888) 397-3742

http://www.experian.com/

Trans Union, Consumer Disclosure Center

P.O. Box 2000, Chester PA 19022

(800) 888-4213

http://www.transunion.com

    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.

(Un)Common Divorce Myth: Court-Appointed Counsel October 25, 2007

Posted by shelleycm in Dissolution, Myths.
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I had no idea people thought they were entitled to court-appointed counsel in anything other than criminal cases until I spoke with a friend who is a domestic relations clerk. He jokes that he must have a room in the back just chock full of lawyers waiting to be assigned by the way people imperiously demand court-appointed counsel in their custody or marital dissolution case.

Let’s debunk this myth, and quickly: in family law, you don’t get an attorney just because you need one and can’t afford one. In Oregon you may, with the court’s permission, get your filing fees and service costs waived or deferred, but that’s it.

This isn’t any sort of lawyer-conspiracy, but a matter of economics. The state can’t pay for attorneys for everyone who wants to get divorced or determine child custody — it’d be a huge expensive for something that is, on the face of it, entirely optional (it’s not at all like the court-appointed counsel someone would get in a felony case, when they’re facing prison time). It’d be kind of like requiring the state to pick up the tab for elective surgery.

So: having an attorney for your divorce? It’s a good idea — but it’s not the law.

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.

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.
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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.

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.

 

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

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