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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.

New Case Law: Two new Oregon spousal support cases. February 16, 2008

Posted by csstephens in Legal Developments, Spousal Support.
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istock_000001909034xsmall.jpg istock_000004621270xsmall.jpg As an Oregon divorce lawyer, I am always interested in what the appellate court says regarding spousal support.  The Oregon Court of Appeals published two spousal support decisions on February 6, 2008. Both decisions provide some guidance to husbands and wives dealing with spousal support claims at the trial court level.

In Potts and Potts, ____ Or. App ___ (2008), a self employed husband challenged a $7000 monthly award of indefinite spousal support to Wife. The court denied wife’s property appeal, and reduced husband’s spousal support obligation to $5000. Husband’s main argument was that the spousal support award gave wife a much higher net income than him after he paid support. Husband argued that he faced an increase in business expenses that should be deducted from his income, and that wife could earn substantial income from the property received, thus reducing her need for monthly support. The court didn’t buy husband’s “increased business expenses” argument, and found that wife’s potential for investment income should be reduced by the cost of the home she would purchase with her property award. The court still reduced husband’s support to $5000 per month for an indefinite term, holding that the goal of enabling the parties to live separately at a standard of living similar to the marriage could be met at this amount. The court calculated husband’s after tax income to be $139,671, and wife’s to be $88,744. The court considered these figures roughly equal in part because husband received the riskiest, most volatile assets, with wife’s property award being more stable.

In Van Riesen and Cross, ____ Or. App. ___ (2008), the court considered husband’s argument that he should have been awarded maintenance support. The court agreed, holding that husband was entitled to both temporary and indefinite support from wife.

The parties were married in 1979 and divorced in 2004. They have two children. Husband worked full time during the marriage, and was fired from Intel in 1996 after a bad review. He took time off to recover from the emotional blow, and after an 18 month employment hunt, did not seek new employment because his investments were doing well, and he anticipated a $2,000,000 payment from Intel from his employment grievance with Intel for lost compensation. His employment grievance was ultimately denied. Husband then developed diabetes, dyspepsia, and depression. Wife filed for divorce in 2003. At that time she earned about $120,000 per year.

At trial, husband and his experts argued he was unemployable based on his personality, age, and health conditions. The trial court awarded husband $25,000 in transitional support, and the “long half” of the property. (Really not that much more than half, only $31,565 more than wife in a $1,600,000 marital estate) Wife argued on appeal that husband had skills, and that he could work but had voluntarily retired. Husband argued that he could not work based on his age, health, and time out of the workforce. The appellate court found husband capable of work, but not at his previous salary (approximately $120,000 including bonuses.) The court also found that husband’ s unemployment was not voluntary as wife claimed. The court awarded husband maintenance support of $2,500 per month for 4 years until he could draw on his retirement, and that a lesser amount be paid after that time.

There is no magic formula for spousal support. The court considers each claim on a case by case basis, applying the statutory factors in ORS 107.105(1)(d) and existing case law. Both cases are interesting, and informative to parties with similar issues and claims.

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.
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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.
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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.

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: Satisfying the original purpose behind support, Part II June 27, 2007

Posted by shelleycm in Dissolution, Legal Developments, Spousal Support.
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In a case decided the same day as Cheever, discussed below, the Court of Appeals determined that a support order should not be terminated — even after the remarriage of an ex-spouse — where the original purpose of the support award remains unfulfilled.

In Lenhart and Lenhart, ____ Or App ____ (2007), a couple split after a 30-year marriage, during which the husband was employed (making $11,000 per month) and the wife remained at home.  As part of the dissolution, the husband was ordered to pay transitional, compensatory, and maintenance spousal support.

The wife in this case eventually remarried (wisely to an attorney) and moved to Missouri.  She was unsuccessful in finding employment, even after completing a bachelor program in English.

The husband moved to terminate the maintenance spousal support award (and the insurance policy he was required to maintain while he was obligated to pay support), based on substantial change of circumstances due to her remarriage.

The trial court disagreed, finding there was no substantial change of circumstances in the wife’s remarriage (even to an attorney) and her potential earning capacity.

The Court of Appeals agreed with the trial court.  The original finding in favor of a support order was that the wife “require[d] spousal support in order to have a standard of living that is not disproportionate to the one which she enjoyed during the marriage.” Here, given that she continued to be unemployed, this factor didn’t change her circumstances, even though she now had a bachelor degree in English.  The husband also argued that because of her remarriage, wife’s new husband’s income should be imputed to her and this was a substantial change of circumstances.  The Court of Appeals disagreed with husband here, as well, finding that even if half of her new husband’s income was imputed to her, it was not enough to merit a finding of a substantial change to modify or terminate the spousal support order.  The original purpose of the order — to support wife in a lifestyle roughly commensurate to that of the marriage — would not be fulfilled if the support order terminated.

As in Cheever (and discussed here earlier in Deboer), this case demonstrates just how important it is for a judgment to explicitly lay out the reasons behind a support order: if, for example, the judgment had been clear about support terminating at remarriage, or when other conditions had been met (such as the completion of her degree), the husband might have been successful in getting the spousal support order terminated.

New Case Law: Satisfying the original purpose behind support, Part I June 27, 2007

Posted by shelleycm in Dissolution, Legal Developments, Spousal Support.
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Very often people expect that there is one hard-and-fast formula that courts apply to awarding spousal support in every case. While there are statutes that outline the factors that a court should look at when determining if spousal support is necessary, these determinations are always very fact-specific. It’s a good idea for the judgment to set out exactly what the reasons behind support are, in case one party might want to modify the support order later.

Last week the Court of Appeals decided a case which demonstrates just how important individual circumstances are to a spousal support case. In Cheever and Halperin ____ Or App ____ (2007), the court was faced with a very particular set of facts. In Cheever, the husband was a physician and his wife a technician at OHSU. When they divorced in 1999, the husband was ordered to pay spousal support through 2022, when the wife turned 65.

A year after the divorce, however, the wife remarried a retired dentist, with whom she lived on a sailboat, sailing around the world. She agreed that her ex-husband’s spousal support payments should terminate, and the court approved the modification.

However, when the wife’s new marriage did not work out and she returned to Oregon, she asked the court to reinstate her spousal support payments, arguing that the purpose behind the original spousal support order had not been satisfied.

Not surprisingly, the husband objected, based on the notion that his ex-wife had deliberately chosen a new, bohemian (and less expensive) lifestyle – not the high standard she’d become accustomed to during her first marriage. Because the support order was one of maintenance, which is designed to support a spouse with lower income in a “not disproportionate” lifestyle than that of the marriage, the husband argued that he didn’t have any burden to support her in that lifestyle now that she had lived more frugally.

The trial court didn’t agree with husband: it found the original purpose of the support award hadn’t be satisfied, and so the original order was reinstated. The trial court rejected the husband’s position, and said that the husband got “a four year break” in his payments, but that he must continue to pay through 2022.

The husband appealed, claiming the trial court erred in four separate ways. The most important argument he made were that the trial court placed an undue emphasis on the wife’s past and current circumstances, but not the reason the support was terminated.

The Court of Appeals rejected the husband’s argument. The trial court had the power to reinstate the award based on statute (ORS 107.136); the court didn’t place any undue emphasis on any one factor in its decision, and the gist of the husband’s argument – that it simply wasn’t fair for him to have to resume support after his wife’s remarriage and lower standard of living – just wouldn’t fly. The reason for support at the time of the dissolution and at the present time were the same, and the wife’s position now and then were also the same. The support order would continue until 2022.

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.

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

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

New Case Law: Honesty is the best policy May 4, 2007

Posted by csstephens in Child Support, Dissolution, Legal Developments, Spousal Support.
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In Oregon, when going through any sort of support proceeding (child or spousal), the parties are required to complete what’s known as the USA, short for Uniform Support Affidavit. Completing this can be about as much fun as doing your taxes (maybe even more, because finishing it involves itemizing out all of your monthly expenses, as well as your income and liabilities), but it’s necessary for the court to know the financial situation of the parties to make a fair ruling.

This week, the Oregon Court of Appeals sent a warning to parties who might be tempted to fudge numbers on a USA. In Sugar and Sugar, 212 Or App ____, ____ P3d ___ (2007), the court upheld a trial court who penalized a woman who underreported her income on a USA she filed during an initial dissolution of marriage proceeding. Partially as a result of those numbers, the trial court ordered her husband to pay spousal support. Eight months later, her husband filed to terminate the support.

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 wife’s circumstances didn’t necessarily reflect significant changes that couldn’t have been foreseen at the time of the dissolution. Although she underreported her income in the first proceeding, in the modification proceeding she filed a new, more accurate USA. The husband argued that her increased income and better financial situation reflected a substantial, unanticipated change, and that his support order should be terminated. The wife argued that nothing much had changed, and that the trial court should have figured out her accurate level of income because she attached a paystub to her USA.

The trial court ruled that the wife was not allowed to represent her income hadn’t changed because she’d previously represented her income at a lower level (she was precluded from making this argument because of a doctrine called “judicial estoppel”), and the court ultimately ruled the wife’s support should be terminated completely. In Sugar, the Court of Appeals agreed.

For litigants in Oregon, what does that mean? Be completely forthcoming and don’t be too sharp — it can and will be used against you later!