Filing costs for dissolution, custody, and other family law matters

by csstephens on June 25, 2009

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Everyone wants to know how much their family law matter is going to cost. Your legal fees — well, that’s a matter between you and your attorney. Do you need a custody evaluation? That requires a professional, and will cost between $500-$7,000. If your case is complex, you might need experts to testify.

But here’s some good news: your filing fees can be easily quantified, because they’re set by the circuit courts each year.

The circuit you file in depends on where you or the other party (depending on the facts of your case) reside. So, for example, if you’re in Washington County, you or your lawyer will hoof it out to Hillsboro to file your paperwork, even if you’re way out in King City. Barring unusual circumstances, your case will stay in that circuit until it’s resolved.

Here are some of the common filing fees in the Portland Metro Area for 2008.

Clackamas County Circuit Court: (Effective April 1, 2008)

adoption (petition): $100

adoption (objecting party): $98

annulment (petition): $380

annulment (response): $304

child custody or support (petition): $370

child custody or support (response): $294

child custody or support (motion to modify): $100

child custody or support (response to motion): $75

dissolution of marriage (petition): $381

dissolution of marriage (response): $304

dissolution of marriage (motion to modify): $150

dissolution of marriage (response to motion): $115

family abuse prevention act (all): $0

filing/docketing foreign child custody determination: $41

paternity/filiation (petition): $370

paternity/filiation (response): $294

Multnomah County Circuit Court (Effective January 1 2008)

adoption (petition): $100

adoption (objecting party): $98

annulment (petition): $380

annulment (response): $254

child custody or support (petition): $370

child custody or support (response): $244

child custody or support (motion to modify): $200

child custody or support (response to motion): $100

dissolution of marriage (petition): $381

dissolution of marriage (response): $254

dissolution of marriage (motion to modify): $253

dissolution of marriage (response to motion): $140

family abuse prevention act (all): $0

filing/docketing foreign child custody determination: $41

paternity/filiation (petition): $370

paternity/filiation (response): $244

Washington County Circuit Court (Effective January 1 2008 and April 1 2008)

adoption (petition): $100

adoption (objecting party): $98

annulment (petition): $330

annulment (response): $263

child custody or support (petition): $320

child custody or support (response): $253

child custody or support (motion to modify): $55

child custody or support (response to motion): $55

dissolution of marriage (petition): $331

dissolution of marriage (response): $263

dissolution of marriage (motion to modify): $108

dissolution of marriage (response to motion): $95

family abuse prevention act (all): $0

filing/docketing foreign child custody determination: $41

paternity/filiation (petition): $320

paternity/filiation (response): $253

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Oregon divorce lawyers and filing fees – strict enforcement

by csstephens on June 25, 2009

Many divorce filings and motions made by Oregon lawyers require filing fees. Historically our experience has been that courts would extend a courtesy to our peers if they filed a case with the wrong filing fee by calling the lawyer and giving them an opportunity to pay the correct fee.

The Professional Liability Fund notified Oregon lawyers that at least three circuit courts (Bend, Multnomah, and Washington counties) are now strictly enforcing Oregon Chief Justice Order (CJO) 08-015 and returning all motions and responses that are unaccompanied by the correct filing fee-$50 for motions and $35 for responses. Circuit courts in other counties throughout the state are also considering strict enforcement of these motion and response fees.

Firms will no longer receive courtesy calls or letters from the court, and there is no grace period to submit the filing fee at a later date. Motions and responses submitted without the correct fee will not be filed with the court, and hearings based on the motion will be cancelled.

CJO 08-015 requires filing fees for the following trial motions and responses:

(1) ORCP 21 motions to dismiss, make more definite and certain, strike, and quash (such ORCP 21 motions, filed jointly, in any combination, are subject to one fee);

(2) ORCP 46 motions to compel discovery;

(3) ORCP 47 motions for summary judgment;

(4) ORCP 63 motions for judgment notwithstanding the verdict (JNOV) or reconsideration;

(5) ORCP 64 motions for new trial or reconsideration;

(6) Motions to reconsider rulings on the motions identified in CJO 08-015;

What does this mean to divorce lawyers and their clients? Failing to stay on top of the current filing fees may seriously prejudice a client’s case.

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Remedies for omitted or hidden assets in divorce

by csstephens on June 18, 2009

As a divorce lawyer in downtown Portland Oregon, I frequently get asked about hidden assets in divorce. Sometimes a client is concerned the opposing party may be concealing assets. Sometimes individuals are curious about their obligations to disclose assets in divorce. There are many discovery tools available to lawyers to help discover assets a party may own. For example, ORS 107.089 mandates basic discovery between parties in divorce if a copy of the relevant statute is served on the other side. (See our blog post regarding statutory discovery here) There are also serious ethical consequences for lawyers that assist clients in concealing assets during divorce. The purpose of this post is to discuss what Oregon divorce courts can do after divorce if an asset was left out of the distribution.

Assets can be “omitted” two ways, intentionally or accidentally. ORS 107.452 specifies what the divorce court can do if a party discovers an omitted asset post divorce. If a party alleges that significant assets belonging to either party (1) existed at the time of the entry of the judgment; and (2) were not discovered until after the entry of the judgment; the divorce court must reopen the case.

If the assets were accidentally or inadvertently omitted from the distribution, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances. Basically, if the omission was an accident, the court will divide the asset using the same legal standard as if the asset were discovered prior to the divorce.

The court can hand out harsher remedies in the event an asset was intentionally concealed. If the court finds evidence of intentional concealment, it can order:

1. The division of the appreciated value of the omitted assets;

2. The forfeiture of the omitted assets to the injured party;

3. A compensatory judgment in favor of the injured party;

4. A judgment in favor of the injured party as punitive damages; or

5. Any other distribution as may be just and proper in all the circumstances.

The court can order attorney fees on a motion to reopen a divorce case. A fee award is mandatory if the court finds a party intentionally concealed assets. We previously blogged about how the court decides if fees are appropriate, and if so, how much. Many of the factors the court considers in awarding fees factor in to concealed asset cases.

Time limitations apply. If you think significant assets were omitted from your divorce, you should consult with an experience family law lawyer immediately.

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NEWS: High end divorce firms report increase in divorce business – couples with assets chosing to divorce now

by csstephens on June 18, 2009

The American Bar Association posted an interesting article about an increase in business for divorce law firms handling higher end divorce. A link to the article is here. While the news is full of stories about couples postponing divorce in the economic downturn, some couples with assets are choosing to divorce now for asset valuation issues. For divorce purposes, assets are likely to be valued at the time of settlement or trial. Electing to divorce during the economic downturn locks in lower valuations on securities and real estate, leading to lower equalizing judgments. Our experience has been that some clients have been able to retain assets in divorce for zero valuation because of the market declines, where in prior years they would have to pay to retain the assets in divorce.

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Facebook and Divorce

by Daniel Margolin on June 16, 2009

Time magazine ran an article on the use of social networking sites like Facebook in divorce cases. The article can be reviewed here.
When going through a divorce or custody case it is very important to be careful about what is posted on social networking sites, in Twitter posts or in emails and letters sent to the other party. All of these can be used against the poster/sender in court. Also, scrutinizing the other party’s posts and correspondence can be very helpful in a case.
Stephens Margolin P.C. prides itself on keeping up with technology and its role in family law matters. For more information, contact the firm.

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Useful “divorce financial mistakes” list published by Association of Divorce Financial Planners

by csstephens on June 15, 2009

We like divorce information lists! The Association of Divorce Financial Planners posted a useful article on their site captioned “Fifteen Critical Financial Mistakes in Divorce.” The list is useful, however, I would supplement some of the points. The article says it is a mistake to not consider mediation, however, there is no mention of collaborative divorce as an option. Parties considering divorce are well served to consult with lawyers trained both in traditional litigation and collaborative divorce to make sure that all options are available to them.

For comparison purposes, The Oregon Divorce Blog’s “Top 10 things to NOT do during your divorce” published December 2007 follows:

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.

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News: Survey by Institute For Divorce Financial Analysts shows economy impacting divorce decisions

by csstephens on June 12, 2009

The Institute for Divorce Financial Analysts published the results of an interesting survey on June 11, 2009. In a collaborative case or a traditional case, a Certified Divorce Financial Analyst™ (CDFA™) can forecast the long-term effects of the proposed divorce settlement. A CDFA can also help attorneys by helping the client make financial sense of proposals, and empower their clients with the knowledge they need to make smart financial choices. An April 2009 survey of CDFA’s indicated that the ways in which divorce proceedings are handled has changed substantially with the dip in the stock market and home prices. The survey found some clients in an indefinite holding pattern while waiting for the economy to recover. Clients were also considering non-traditional, creative solutions to property division problems, such as sharing the marital home post divorce until the home sells or the market improves. A link to the article published by the IFDC is here.

As a Portland Oregon based divorce law firm, the attorneys at Stephens Margolin P.C. have seen the impact of the housing crisis and the declining stock market on clients. In recent litigation, we have seen courts ordering one spouse to pay the other to keep a house that is underwater. Parties contemplating divorce are well served to consult with lawyers trained in both traditional litigation and collaborative divorce to ensure that all resolution options are available.

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Dissatisfaction With Property Distribution in the Current Economy

by Daniel Margolin on June 11, 2009

The New York Times published an article regarding a top London divorce attorney named Raymondy Tooth. The article describes how Mr. Tooth makes a living representing the wives of wealthy British men.
The article describes a case in which Mr. Tooth represented Ms. Myerson, whose husband was worth around $44 million at the time of the divorce. Ms. Myerson elected to take less than half of the assets in case and some properties, while Mr. Myerson received $21.7 million worth of stock in his investment fund. Mr. Myerson was very disappointed when, some months later, the global economic downturn reduced his stock holdings by 90%. He filed a petition with the court to overturn the property distribution and make his ex-wife return the property that she received. The court declined to do so.
Under Oregon law, property distributions in a divorce cannot be modified post-judgment, as opposed to support awards and custody/parenting time determinations. It is crucial to have competent legal counsel’s advice in deciding on a strategy for division of assets. Mr. Tooth considered the volatility of the market, while Mr. Myerson just looked at the bottom line, to his misfortune.
If you have questions about the division of assets and property awards in an Oregon divorce, contact Stephens Margolin P.C. for a consultation.

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The house is mine, or is it?

by Daniel Margolin on June 10, 2009

During initial consultations, a spouse often says to me “He/She signed the house over to me two years ago” or “The house is only in my name.” They expect that this means that they will be awarded the house free and clear and that the other spouse has no interest in the house. This is not true. ORS 107.105(f) provides, in part, as follows: “Subsequent to the filing of a petition for annulment or dissolution of marriage or separation, the rights of the parties in the marital assets shall be considered a species of coownership . . .” This means that regardless of whether a house is titled in only one spouse’s name either because it was purchased that way or because the other house signed a deed transferring ownership solely to the other spouse, the house is still a marital asset subject to equitable division. There are many factors that can play a role in the actual division of the property, including in whose name the house is titled, but that fact is not dispositive.

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New Case Law – Spousal Support Modification

by Daniel Margolin on June 10, 2009

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping 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 May 27, 2009, the Court of Appeals ruled in the case of Haley and Haley. With the current economy, courts are inundated with support modification motions.

Husband appealed and Wife cross-appealed from the entry of supplemental judgments in their family law matter. Husband appeals the trial court’s denial of his motion to terminate or reduce his spousal support obligation. Wife appeals from the trial court’s denial of her request for a money judgment against Husband for his failure to pay debts that were allocated to him in their divorce judgment. The court of appeals ruled that Husband failed to establish a sufficient basis for a modification of spousal support.

Husband owns and works for a company. Wife was a 50 percent owner before the divorce. In 2004, at the time of the divorce, the company earned $77,900 and paid Husband $30,673 in salary. The parties were divorced in 2005, after 16 years of marriage. At that time, Husband’s income was $5,731 per month and Wife’s income was $2,300 per month. Wife was awarded support of $500 per month for 10 years, and Husband was awarded the business.

After the divorce Wife remarried. Her new husband earns $34,000 per year. Husband filed to modify support in December of 2005 and a hearing was held in August of 2006. At the time of the hearing Wife was pregnant and not working. Husband argued that he was making less money (in 2006 the company had lost money and Husband was taking a salary of $4,000 per month) and that Wife had the benefit of her new husband’s income and no longer needed support. Husband’s CPA testified that he had urged Husband to reduce his salary to $2,500 per month in order to keep the company solvent. Wife provided evidence that Husband was expensing significant costs to the company and that her new husband had significant costs of his own. The trial court concluded that Husband had not proven a substantial change in circumstances.

On appeal, Husband argues that he has had a sufficient change in circumstances on his own to justify the modification. The court of appeals held that the evidence regarding Husband’s income was not sufficiently definite to satisfy his burden of proof. “In summary, the record does not establish how much husband’s income has diminished. It follows that husband did not show that the disparity in the parties’ income has been eliminated or, consequently, that the purpose of the maintenance support award has been satisfied. Nor did he prove a substantial change in circumstances.”
This case shows how important it is for a successful appeal to have competent trial counsel and a clear and sufficient case put on before the trial court. It may be the case that Husband had a substantial reduction in income, but he did not put on a strong enough case on this issue.

The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A134174.htm

The lawyers at Stephens Margolin P.C. can assist you with your family law questions. As this case shows, it is crucial to have a competent attorney at both the trial court and appellate level. If you have any questions about Oregon appellate law please contact Daniel Margolin, who focuses part of his practice on family law appeals, or C. Sean Stephens at Stephens Margolin P.C.

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New Case Law – Military Pension Division

by Daniel Margolin on June 9, 2009

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping 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 May 27, 2009, the Court of Appeals ruled in the case of Hayes and Hayes.

Husband appealed from the entry of a domestic relations order (a QDRO) that awarded Wife a property interest in his military pension and requires him to designate her as beneficiary under the military survivor benefit plan. The court reversed the beneficiary designation as the trial court was not authorized to make such a designation.

The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A134465.htm

The lawyers, including Daniel Margolin, who focuses part of his practice on family law appeals, at Stephens Margolin P.C. can assist you with your family law questions. As this case shows, it is crucial to have a competent attorney at both the trial court and appellate level. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

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Child Support and The New Economy – A Letter From The Oregon Attorney General’s Office

by Daniel Margolin on May 7, 2009

I wrote a post a few weeks ago about the effect of the current enconomy on child support modification. The State of Oregon has taken note of the problem. Margaret Olney with the Oregon Attorney General’s Office sent out the following email with regard to the changes being made effective today, May 7th. Please contact Stephens Margolin P.C. to see how the changes may affect your child support situation.

Here is the letter:

Greetings,

As you know, the Attorney General has initiated a special project to respond to current economic crisis. The goal of this project is to speed the entry of fair and enforceable orders. We are also hoping to use the project as an opportunity to try out some other changes in the guidelines and procedures.

There are two important changes that will become effective May 7, 2009. First, at the request of the Division of Child Support, the legislature has enacted and the Governor signed emergency legislation and rules authorizing the temporary modification of existing orders based upon employment related loss of income to either parent. HB 2275A. These temporary modifications are only available through the child support program, either through the Division of Child Support (DCS) or through District Attorneys offices. Private attorneys and the court cannot independently issue temporary modifications. DCS has established a specialized unit in Salem called the “Recession Response Team” (RRT) to handle these modifications, using streamlined procedures designed to encourage consent and expedite modifications. Parents can access this team through the DCS interactive telephone system, by dialing 1-800-850-0228 and listening to the instructions.

The second change is to the child support guidelines themselves. The most significant changes include a cap on child care costs, adjustments relating to medical support orders and the establishment of a presumption $100 minimum order.

More details regarding the changes follow. The proposed rules are currently posted on the DOJ/DCS website in draft form. http://www.dcs.state.or.us/oregon_admin_rules/child_support_rules/draft.htm. In addition, a training module will be available through the DOJ-DCS website.

Statutory Change:

HB 2275A was signed by the Governor on May 5 and makes a number of changes to ORS 416.400 through ORS 416.465. It authorizes the Attorney General to declare that we are in a period of significant unemployment (an unfortunately easy decision to make in this economy), during which time existing orders can be suspended and replaced with a temporary modification based upon actual income. These temporary modifications automatically expire six months from the date of entry in court, but may be renewed. HB 2275A also authorizes alternate forms of service designed to speed the modification process.

Regular Division Rule Changes:

OAR 137-055-2140 (Delegations to Administrative Law Judge): this change allows an administrative law judge (ALJ) to enter a final order by default on employment-related modifications. It also allows the ALJ to dismiss the temporary modification request if the requesting party fails to appear for the hearing.

OAR 137-055-2165 (Request to Reschedule): this change requires requests to reschedule a hearing to be filed within 60 days of the notice of hearing cancellation.

OAR 137-055-3420 (Periodic Review): this change clarifies that a temporary modification does not affect the time period for a periodic review and adjustment of the order that is suspended.

OAR 137-055-3430 (Change of Circumstance Review): this change amends the change of circumstance rule to:

• Provide a definition of an “temporary modification” pursuant to HB 2275
• Define “employment-related change of income”
• Allow for a verbal request for temporary modifications
• Allow for alternative service methods on temporary modifications

The online calculator will be modified and ready with the changes outlined above on May 1, 2009.

Guideline Rule Changes:

OAR 137-050-0320 (Definitions): this change provides that when a parent must self-enroll in medical coverage in order to enroll his/her child(ren), the providing party’s portion of the health care coverage premium may be deducted from modified gross income. The coverage must still be found to be appropriate before it can be ordered. The child’s portion of the cost is still handled as set out in OAR 137-050-0410.

OAR 137-050-0330 (Computation): this change clarifies that when the self-support reserve lowers the child support obligation, the reduction is applied first to the cash medical support amount and then to the cash child support amount.

OAR 137-050-0340 (Gross Income): this change moves the requirement that gross income must be attributed to the parent who is a recipient of TANF to the “Income Presumptions” rule.

OAR 137-050-0360 (Potential Income): this change renames the rule to “Income Presumptions” and provides that a rebuttable presumption of actual income is to be used for temporary modifications and potential income for all other modifications.

OAR 137-050-0420 (Child Care Costs): this change caps child care costs based on the age of the child and where the care is provided. The figures used for the cap are captured from the Department of Human Services administrative rules, averaged across the board.

OAR 137-050-0430 (Cash Medical Support): this change creates the priority of cash child support over cash medical support when the self-support reserve lowers the obligation amount. It also prohibits entry of an order for cash medical support if the obligor’s income is less than Oregon minimum wage.

OAR 137-050-0475 (Ability to Pay): this change provides that where the self support reserve is presumed to be the correct obligation amount, any reduction in the obligation amount applies first to the cash medical support amount, if any, and then to the cash child support amount.

OAR 137-050-0485 (Minimum Order): this new rule authorizes a rebuttable $100 per family minimum order, except in certain situations.

Looking to the Future

The Attorney General is extremely committed to making the Oregon Child Support Program effective and fair to all participants. DCS staff have worked extraordinarily hard to develop and implement this Recession Response project on a very short timeline. I am confident that many families will benefit from the program and that we will be able to learn from this project. Some aspects will work, others not, so please let us know your experience and thoughts.

If you have questions, you may contact me directly and I will attempt to answer you question or point you in the right direction.

Margaret Olney
Special Counsel
Office of the Attorney General
margaret.olney@doj.state.or.us

1162 Court Street, NE
Salem, OR 97301
503.378.6002
971.673.1880 (Portland)
503.367.4017 (fax)

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New Case Law – Lump Sum Spousal Support

by Daniel Margolin on April 30, 2009

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping 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 April 15, 2009, the Court of Appeals ruled in the case of McLauchlan and McLauchlan.

Husband appealed from the trial court’s ruling in his divorce with regard to the division of property and the award of spousal support to his ex-wife.

As part of the division of assets, the court awarded the “Butte Falls” property to wife provided that she could come up with a plan to refinance the property in order to pay to husband his equalizing judgment. On appeal, husband argued that the trial court did not have the authority to incorporate wife’s refinance plan into the divorce judgment, and that the trial court should have ordered the property sold rather than awarding it to wife. At issue was husband’s claim that wife, and thus the trial court, undervalued the property at trial. The court of appeals held that husband did not property preserve the error at the trial court level because he did not argue that the court lacked authority to do what it did and further that husband had the opportunity to present evidence regarding the value of Butte Falls but did not.

With regard to spousal support, the trial court ordered that husband pay spousal support to wife and reduced the amount of support to a “lump sum present value.” Husband disagreed witht both the amount and the reduction to a present value. Despite the fact that wife agreed with husband that it was error for the trial court to provide for a lump sum present value for spousal support, the court of appeals held that the parties misunderstand the law and that the trial court acted properly.

ORS 107.105 provides that a divorce judgment may provide for spousal support both “in gross or in installments or both.” The trial court awarded wife $1,000 per month for a period of five years and also provided that as part of the refinance of Butte Falls, she can deduct $54,000 (which the court deemed as the present value of the spousal support award). The court of appeals held that it was proper for the trial court to provide for alternative awards, both of which are proper under the terms of the statute.

The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A134002.htm

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens Margolin P.C. can assist you with your family law questions. As this case shows, it is crucial to have a competent attorney at both the trial court and appellate level. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

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New Case Law – Constructive Trust Over Life Insurance

by Daniel Margolin on April 30, 2009

Clients often feel very upset about having to provide a life insurance policy to secure their spousal or child support obligation. The most common complaint is with regard to the beneficiary designation for securing child support. Generally the other parent is designated as the trustee over the proceeds of life insurance for the benefit of the children. Clients feel upset that the other parent will receive a good sum of money at the time of their death.

As part of any life insurance provision in a judgment, a clause is always added stating that a “constructive trust” will be established over the life insurance proceeds. On April 15, 2009, the Oregon Court of Appeals ruled on this issue in the case of Tupper v. Roan v. Tupper.

Jerry Tupper and Heather Tupper divorced in 2004. As part of the divorce, Jerry was required to provide a life insurance policy in the amount of $100,000 to secure his child support obligation. In addition, the judgment stated that a constructive trust would be established over the proceeds of any life insurance policy if a party designates a different beneficiary on the policy.

Jerry started living with Danette Roan shortly after the divorce and designated her as the beneficiary on his life insurance policy in direct violation of the terms of the judgment. Jerry died in 2006 and the proceeds of his policy went to Danette. Danette received $600,000 and no money went to Heather to secure Jerry’s child support obligation.

Heather sued Danette claiming that she improperly kept $100,000 in violation of the terms of the judgment. Danette’s response was that she was not aware of Jerry’s obligation to maintain a life insurance policy for child support before he died. Danette further asserted that the court could not impose a constructive trust over the $100,000 because Heather could not prove that Jerry transferred property to Danette that rightfully belonged to Heather and that Danette either knew or should have know of that wrongful conduct.

The court of appeals ruled in Danette’s favor, holding that since Jerry created the life insurance policy after the divorce, Heather did not have an interest in it at the time of the divorce and it was therefore never her property.

For clients, this case creates a difficult situation. Unless a party has a life insurance policy in place at the time of the divorce, the other spouse will likely have a very difficult time obtaining the funds from that policy unless the other spouse follows the requirement to maintain the beneficiary designation required by the terms of the judgment.

If you have questions about life insurance provisions in divorce, custody, or other support situations, the lawyers at Stephens Margolin P.C. would be happy to answer your questions. The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A136095.htm.

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Divorce Tech – Family Law Software

by Daniel Margolin on April 28, 2009

As a firm, we are always looking for ways to find an advantage for our clients.  We recently began using a software program called “Family Law Software.”  The program allows us to enter all financial information, including assets, liabilities and income information, for both our client and their spouse and use that information to create very detailed reports.  The software was designed in such a way that it takes all tax issues into account and the publisher is constantly updating and modifying the software to take modifications of the law into account. 

Using the software allows us to both provide a detailed and visual example of what is really happening to a family’s finances.  This is helpful to the client in that it provides a clear way to understand what is happening in the case both in the short term and over time.  In the short term, working with the client and thr program we can fine tune how the division of assets can be made in teh best way for our client.  In the long term, they can see how the division and the payment or receipt of support will affect their financial picture.  The program’s data can be used by a financial specialist for both testimony purposes and to help a client with financial planning.  Lastly, and importantly, the data can provide the court with a very clear understanding of our client’s position on the issues.  It is rare for opposing counsel to use comparable charts and the ease of access to the information can help to sway the court towards our client’s position.

Stephens Margolin PC is committed to the use of technology to assist our client’s in all factes of their case.  Please contact the firm to find out how we can use Family Law Software to benefit you.

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