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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.

New Case Law: Attorney Fees – Arbitration vs. Appeal March 22, 2008

Posted by margolinlegal in Arbitration, Attorney Fees, Dissolution, Legal Developments, Property Division.
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As a Portland Oregon divorce lawyer, it is important to keep up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On March 19, 2008, the Oregon Court of Appeals, in Ornelas and Ornelas, explained the difference between awarding attorney fees in arbitration appeals and appeals to the court of appeals.

In an Oregon divorce case where the parties have no children and no spousal support award is requested by either party the case is sent to mandatory arbitration. If either party disagrees with the result in arbitration, that party can appeal the arbitrator’s ruling for a trial de novo at the circuit court level. That means that a judge will look at the case without referring to the arbitrator’s ruling.

ORS 36.425(4)(c) provides:

“If a party requests a trial de novo under the provisions of this section, the action is subject to arbitration under ORS 36.405(1)(b), and the position of the party is not improved after judgment on the trial de novo, the party shall not be entitled to an award of attorney fees or costs and disbursements and shall be taxed the costs and disbursements incurred by the other parties after the filing of the decision and award of the arbitrator.”

This means that the trial court must make an award of attorney fees to a party who asks for a trial after arbitration and does not receive a better result.

In Ornelas, the husband was upset because his wife not only asked for trial de novo after she was unhappy with the arbitrator’s ruling, but also appealed the trial court’s ruling. She received a worse result on appeal than she did at arbitration or at the trial court level. Therefore, husband argued that wife must pay his attorney fees.

The court of appeals ruled that the attorney fee award language in ORS 36.425(4)(c) only applies to trial de novo and not to appeals. This is because the court of appeals has discretion to award or not award attorney fees on appeal pursuant to ORS 107.105. Meaning that even if you do worse on appeal that at arbitration, you can still receive an attorney fee award.

The court ended up not awarding attorney fees to either party since the final distribution of martial assets put husband and wife on roughly equal financial footing.

The entire opinion can be reviewed at http://www.publications.ojd.state.or.us/A128901A.htm.

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.

New Case Law: Property division, inherited property, and a clear trial court record. February 14, 2008

Posted by csstephens in Dissolution, Legal Developments, Property Division.

istock_000004820705xsmall.jpg On February 13, 2008, the Oregon Court of Appeals decided an interesting real property and equalizing judgment issue in Olson and Olson, ____ Or App _____ (2008). As a Portland, Oregon-based divorce attorney (Based in Oregon’s most populous county, Multnomah County), I am always interested in how the Oregon Court of Appeals adjusts trial court’s property divisions. The Olson decision addresses the issue of the division of inherited property, the division of appreciation on separately held property, presumptions regarding property division, the effect of credibility findings by the trial court, and the definition of what is a “just and proper” in dividing assets and liabilities.

The Olson decision dealt with husband’s appeal from a trial court ruling equally dividing husband’s inheritance (an 80 acre estate consisting of timber and a residence.) The trial court (in Lane county) treated the 80 acres as a marital asset and divided the inherited value and post-inheritance appreciation equally between the parties. Husband appealed in light of the Oregon Supreme Court’s ruling in Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004), arguing the court should have excluded the inherited property from division, or awarded wife only a small fraction of the property’s value.

Wife and husband married in 1995, and divorced in 2006. In 1995, husband’s father (“grandfather”) lived on an 80 acre timber property. Father’s relationship with grandfather was strained, but father was closer to grandfather than other family members. The parties jointly considered buying the property from grandfather, but did not complete the purchase. They spent $3000 investigating the purchase. Husband and wife’s relationship with grandfather soured in 1997, and the parties shelved their plans to move to the property. Husband’s relationship with grandfather improved, but cwife’s did not.

Grandfather died in 2000, and husband inherited the entire estate. Husband transferred the 80 acres to himself in his sole name (the property was worth $330,000 at the time.) Wife was not put on title. Other proceeds of the estate were mixed with the parties’ finances. Husband sold equipment and deposited it into a joint account, and the parties spent $10,000 in joint funds on an attorney for the estate. Husband and wife continued to file joint income taxes. At the time of trial in 2006, husband’s inherited property was worth $465,000.

In Oregon, property division at trial is controlled by ORS 107.105(1)(f). Under the property division statute, property received by a party during the marriage (by inheritance, gift, wages, or otherwise) is considered a “marital asset”, which means the court assumes both contributed equally to earning the asset, and that the asset should be divided equally. This is a “rebuttable” presumption, meaning that either spouse can challenge the other spouse’s contribution to an asset (and thus argue to receive a larger share of the asset.) Herein lies the main dispute in Olson. The trial court held that wife, through her labor on the property, and the use of the joint account in maintaining the property, had established that the property was “marital” and subject to equal division. The trial court equally divided both the premarital value of the property, and the appreciation on the property during the marriage. The trial court did not make specific findings as to WHY it had exercised its’ discretion in awarding wife half of the inherited value and the appreciation on the property during the marriage.

In reducing wife’s property award, the Oregon Court of Appeals quoted the Oregon Supreme Court’s construction of ORS 107.105(1)(f):

In dividing the parties’ property, we follow ORS 107.105(1)(f), as construed in Kunze, 337 Or at 134-36. Under that case, we undertake a series of inquiries, described by the Supreme Court:

“If a party establishes that the property at issue is a marital asset * * *, then the court must apply the rebut table presumption of equal contribution under ORS 107.105(1)(f) as its next step in the analysis.* * * [T]he presumption directs the court that, unless proven otherwise, the court must find that both parties have contributed equally to the acquisition of marital assets. When the statutory presumption is not rebutted, this court has determined that, absent other considerations, the ‘just and proper’ division of the marital assets is an equal division between the parties. * * *

“Because the presumption of equal contribution under ORS 107.105(1)(f) is rebut table, either or both of the parties may seek to overcome it. If a party seeks to overcome that presumption, then that party has the burden of proving by a preponderance of the evidence that the other spouse’s efforts during the marriage did not contribute equally to the acquisition of the disputed marital asset. In assessing whether a party has satisfied that burden, ORS 107.105(1)(f) requires the court to consider both economic and non-economic espousal contributions, including the contributions of a spouse as a homemaker. ORS 107.105(1)(f) (court shall consider contribution of spouse as homemaker). If a party ultimately rebuts the presumption that the other spouse contributed equally to a disputed marital asset, then the court decides how to distribute that marital asset without regard to any presumption and, instead, considers only what is ‘just and proper in all the circumstances,’ including the proven contributions of the parties to the asset. When a party has proved that a marital asset was acquired free of any contributions from the other spouse, however, this court has determined that, absent other considerations, it is ‘just and proper’ to award that marital asset separately to the party who has overcome the statutory presumption.

“After the court makes its preliminary determination of the appropriate division of the marital assets by applying the statutory presumption, ORS 107.105(1)(f) next requires that the court consider what division of all the marital property–that is, both the marital assets and any other property that the parties had brought into the marriage–is ‘just and proper in all the circumstances.’ By contrast to the focus upon the parties’ respective contributions under the statutory presumption, the court’s final inquiry as to the ‘just and proper’ division concerns the equity of the property division in view of all the circumstances of the parties. * * * The trial court’s ultimate determination as to what property division is ‘just and proper in all the circumstances’ is a matter of discretion.”

The Oslon court held that for Wife to benefit from the premarital value of the property, she must show that her contribution to the property influenced the inheritance, and that grandfather intended for her to receive the estate. Wife did not show that her work on the property influenced the inheritance, or that she was the intended recipient of the estate. The court thus concluded that she did not influence the inheritance and also did not contribute equally to the acquisition of the property.

The Oslon court next considered whether Wife was entitled to a portion of the appreciation on the property during the marriage. The Olson court held that it must consider both economic and non-economic contributions in considering whether the presumption of equal contribution has been rebutted. Wife, without compensation, had primarily raised the partes’ children. She contributed her earned income to the family. She made substantial contributions of labor to grandfather’s property. The Olson court held that husband had not rebutted wife’s contribution to the appreciation on the 80 acres.

The court went on to award wife 25% of the pre-inheritance value of the property because it was “just and proper in all the circumstances.” In awarding wife a portion of the pre-inheritance value of the property, the court primarily considered that the property had been treated as “commingled” by the parties. While held in husband’s name alone, the parties had intermingled the property with their personal affairs, and jointly labored on the property. Wife has separately researched whether they were eligible for a Ballot Measure 37 claim. In considering what was “just and proper” the court found that some fraction of the inherited value, less than half, should be awarded to wife. The Court of Appeals awarded wife 25% of the inherited value, and 50% of the appreciation between inheritance and divorce. The Court of Appeals then reduced wife’s equalizing judgment.

The Court of Appeals went out of its way to explain that the trial court’s decision had been modified because the rationale for the decision was not clear in the court’s record. Normally, the Appellate court respects the lower court’s rulings as to husband and wife’s credibility, both express and implied. If the trial court record does not reflect why it made a credibility decision, it is subject to adjustment at the appellate level.

What lesson does Olson offer for a husband or wife facing a divorce trial in Oregon? First, present the court in a trial memorandum with the proper property division analysis under ORS 107.105(1)(f) and the Kunze case. Second, make sure the court’s ruling is clear in the final judgment (see our earlier post on well drafted judgments.) Third, make sure the court’s record and the divorce judgment includes findings as to WHY the court is making the specific property division. Make sure your lawyer asks the court to make specific findings of fact! If the trial court exercises discretion in dividing property, but does not explain why, you are leaving your decision open to reconsideration by a higher court.

Top 10 list: Top 10 questions to ask a divorce lawyer in the first consultation. February 10, 2008

Posted by csstephens in Child Custody, Child Support, Dissolution, Out of State, Property Division, settlement, Spousal Support, Top 10 List.

first meeting with lawyer If you are contemplating divorce, you should consult with an experienced family law attorney. Once you set up a consultation, be prepared for the first meeting, and have a list of questions to ask the lawyer. The following questions should help you understand the divorce process, how your lawyer’s office operates, and if the lawyer is a good fit for you and your case.

  1. How experienced are you in family law? All lawyers have law degrees, but many lawyers practice in several fields other than family law. You don’t want a generalist. Family law is a specialized field, and you will likely be better served by a lawyer who focuses on family law. Make sure that most of their cases are family law cases. Ask the lawyer if they have handled cases like yours before.
  2. What steps are involved in the divorce process? Your lawyer is there to educate you and guide you through the process. Have the lawyer clearly explain the process to you, from filing the petition, negotiating temporary orders, and the trial process.
  3. How will you charge me? If you hire the lawyer, you should expect to sign a retainer agreement that covers how you will be charged. Ask about the hourly rate, and how often you will be billed. Ask if you will be charged for time spent with paralegals and other staff in the office, and at what rate. Ask what will happen if you cannot pay your bill in full every month. Ask if you can pay by credit card, and if payment plans are available.
  4. How will we communicate? Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call. Is your lawyer tech savvy enough to email you draft documents as PDF files? Is your lawyer’s office set up to scan and email incoming and outgoing correspondence? Do you automatically get a copy? The last three are essential if you live out of state, or a distance from your lawyer’s office. Lawyers ta
  5. How long will the process take? Ask your lawyer about what is their estimate for how long the case will take depending on if you settle quickly, settle after protracted negotiations, or have a trial.
  6. Can you estimate the cost of my divorce? This is an important question, but a very difficult one to answer. Don’t worry if your lawyer is hesitant to answer. The cost of a divorce depends on what you ask the lawyer to do, the level of conflict between you and your spouse, and the reasonableness of your spouse and their lawyer. Many of the cost factors are outside your control.
  7. What kind of resources do you make available to clients to make the divorce process less difficult and painful? Divorce is a difficult time, and good lawyers provide information and resources to help deal with the human side of the impact. Does your lawyer provide information about the process for self education? Are they patient with you? Do they offer referrals to other professional services if you request them? Our firm provides information through this blog, and educational articles on our website. We also maintain a list of recommended reading materials, and a list of qualified counselors and therapists for those who ask.
  8. Do you recommend mediation? Ask your lawyer if your case is appropriate for mediation. Ask about private mediation, and about how often the lawyer uses private mediation with clients. Good lawyers try to settle their cases once they have analyzed the case. A lawyer that does not use private mediation or other alternative dispute resolution tools may be doing you a disservice.
  9. What fees and costs can I expect other than charges for your time? Your local county (Multnomah, Washington, Clackamas, etc.) will charge a filing fee to open a case. You will likely have to pay a process server to server your spouse with divorce papers. Your case may require experts, such as appraisers, actuaries, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
  10. How would you predict a judge would rule on the issues in my case? While no lawyer can guarantee specific results, listen closely to the analysis behind the lawyer’s answer. Understanding the facts that would make a favorable ruling more likely will help with strategy during the case.

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.

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.

Top 10 list: Top 10 things to NOT do during your divorce. December 14, 2007

Posted by csstephens in Dissolution, Property Division, settlement, Top 10 List.

Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.

During your divorce, you should NOT:

1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.

2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.

3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.

4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.

5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.

6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.

7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult cases settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.

8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.

9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.

10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.

New Case Law: Bankruptcy and divorce don’t mix well. December 8, 2007

Posted by csstephens in Dissolution, Legal Developments, Property Division.
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bankruptcy_714eace06a_m1.jpgOn December 5, 2007, the Oregon Court of Appeals in Cam and Cam, _____ Or App _____ (2007) upheld a trial court’s ruling setting aside a divorce judgment, but said the court got the result right but the reasons wrong. The case explores the tension between bankruptcy and divorce law.

Mr. Cam and Ms. Cam were trying to settle their divorce. Mr. Cam thought there was a complete deal, but Ms. Cam did not. Mr. Cam’s lawyer drafted and submitted a judgment, which the court then signed. The judgment awarded Ms. Cam real estate and a money award ( a judgment for money.) Less than a month prior to filing the judgment, Mr. Cam filed for bankruptcy, but did not submit all the necessary paperwork to the bankruptcy court, and his petition was dismissed. Unknown to the divorce court (and probably Mr. Cam’s divorce lawyer), the bankruptcy case was active when the judgment was entered.

Ms. Cam then moved to set aside the judgment, and the court granted her motion on the basis that there was no a complete agreement, and that Mr. Cam had concealed assets.

The Oregon Court of Appeals upheld the trial court’s ruling, but said that the trial court was “right for the wrong reason.” When someone files for bankruptcy, an “automatic stay,” or prohibition on all creditor activity goes into effect. The court upheld the trial court ruling because the entry of the divorce judgment dealing with property violated the “automatic stay,” not because Mr. Cam may have hidden assets or the settlement was not complete. The trial court had the right result, but for the wrong legal reason. The court further ruled that the trial court did not err in setting aside the non-void (or non-stayed) portions of the judgment because of the court’s broad authority under ORS 107.105.

The moral of the story? If you are filing for bankruptcy, TELL YOUR DIVORCE LAWYER! The federal filing trumps most state court legal actions, and you may make your expensive, hard won judgment moot.

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.
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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.
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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…)

New Case Law: A promise is a promise October 3, 2007

Posted by shelleycm in Dissolution, Legal Developments, Property Division.
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Last month, the Oregon Court of Appeals ruled an agreement to settle a case was binding under a very unusual set of circumstances.

John and Diane Baldwin divorced in 1993. As part of the divorce, the court divided John’s PERS account. The next year, John married Karen. In 2005, John died, and Karen became his estate’s personal representative.

Diane and Karen disagreed about how to handle the marital portion of John’s PERS benefits. Karen asked the court that dissolved John and Diane’s marriage to clarify its 1993 order. When the court declined to clarify, Diane was left with 100% of John’s marital portion of his PERS benefits.

Karen filed a notice of appeal from the trial court’s order. After a settlement conference, Diane and Karen’s attorneys worked via email for months towards a resolution of the case. Finally, Karen hired new counsel and decided to go ahead with the appeal.

Diane moved the court to dismiss Karen’s appeal, because Diane said the women had reached a settlement agreement that should be enforced. Karen disagreed.

The court sided with Diane. It wrote that a settlement agreement is a contract and is governed by contract law. Baldwin and Baldwin, ____ Or App ____ (A130180). The issue of whether or not a contract exists is an issue for the court to decide. Id. The court wrote:

As often stated, Oregon subscribes to an objective theory of contracts, which means that whether the parties entered into a contract does not depend on the parties having the same subjective understanding of the agreement. Rather, it depends on whether the parties agreed to the same express terms of the contract. Newton/Boldt v. Newton, 192 Or App 386, 392, 86 P3d 49, rev den, 337 Or 84 (2004).

In this case, the court concluded the parties had agreed to the same express terms, and that the parties had haggled over some of the details was immaterial to the actual agreement. The email exchanged between Diane and Karen’s attorneys is what made the contract. Baldwin, supra. The court wrote that a different result would have been reached if Diane and Karen had disagreed about the primary issues at stake. However, because the material issues had been agreed upon, the women had formed a settlement contract. Id.

The moral of the story? This case shows just how important it is for a client to know what his or her attorney is doing on his or her behalf. It also demonstrates for attorneys that even an informal discussion via email can give rise to a binding settlement agreement for their clients.

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.


To sell or not to sell? May 15, 2007

Posted by shelleycm in Dissolution, Legal Developments, Property Division.

In 2003, the Oregon legislature passed a bill that automatically prevents parties in a dissolution of marriage case from engaging in certain activities once the case is filed, for the petitioner, or after service of the petition on the respondent, for the respondent. Practitioners (who often sought these sorts of restraining orders on their own, before they became automatic) tend to refer to it as the “statutory restraining order.”

What exactly does the statutory restraining order prevent the parties from doing? Neither party can cancel, modify or allow insurance policies to lapse — these include heath, homeowner, renter, or auto policies — for the other party or a child of the parties. ORS 107.093(2)(a). The parties can’t change the beneficiaries to any insurance policy, either. ORS 107.093(2)(b).

Once the divorce case is underway, the parties can’t sell or encumber “any property” in which the other party has an interest unless the other party consents or the court allows the sale or encumbrance. There’s an exception to this provision, though for deals made for usual course of business or necessary life expenses. ORS 107.093(2)(c).

One of the more confusing provisions is that which prevents either side from “making extraordinary expenditures without providing written notice and an accounting” of the expenses. ORS 109.093(2)(d)(A). The question is — well, what’s an extraordinary expenditure? I recently researched this, and don’t have any good answers to it. In listening to the hearings and committee meetings at the legislature, it’s clear that the Senate and House were more interested in other provisions of the legislation — those dealing with the selling and encumbering of property, and making changes in insurance policies — than in the last bit about extraordinary expenditures. This issue hasn’t come up in the court of appeals, and so we don’t have court guidance yet, either.

Either party can request a hearing to ask the court to waive or modify certain provisions of the restraining order. ORS 107.093(3).

If you’re worried about whether the statutory restraining order is going to apply to transactions you’d like to conduct after your divorce action has been filed (if you’re the petitioner) or after you’ve been served (if you’re the respondent), make sure you talk to your attorney first.