by csstephens on February 7, 2010
When consulting with Oregon parents about parenting time and parenting plans, I get lots of questions about what kind of parenting time a judge might order. There is a lot of misinformation about what Judges do in setting or modifying parenting plans. A common concern I hear, even from very involved parents, is about loosing rights with the kids, or having very limited parenting time with their children. This has been made worse by some Oregon counties having restricted parenting plans posted as examples on their websites. It is actually the policy of the State of Oregon to provide substantial parenting time to good parents. ORS 107.101 provides that it is the policy of this state to:
(1) Assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child;
(2) Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage;
(3) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, if necessary;
(4) Grant parents and courts the widest discretion in developing a parenting plan; and
(5) Consider the best interests of the child and the safety of the parties in developing a parenting plan.
Involved good parents should get substantial time with the children. If you have been a good involved parent and your ex is trying to limit your time, you should talk to an experienced family law attorney.
by Daniel Margolin on February 3, 2010
This is a trick question. There is no age at which a child can make these decisions, until he/she turns 18 and the court no longer has jurisdiction over them.
There are, however, a few methods by which a child can have input in the process. 1. An attorney can be appointed for the child. If the child is old enough, the attorney can advocate for the child’s wishes; 2. If there is a custody evaluation, the child will be interviewed and the evaluator may take the child’s views into account; 3. The child can testify in court. I never have children testify and am opposed to it. Judges do not want children to be involved in the process and it is generally thought that the less a child can be involved in the process, the better. That being said, an attorney can help a parent to advocate for their child’s wishes.
by csstephens on January 26, 2010
The courtroom is not the only path to a good resolution. Divorce mediation is a wise choice in most cases. I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate. The opposing attorney had filed for temporary custody without asking for mediation. We asked the opposing attorney to mediate prior to the hearing, but they refused. I would have been happy to meet in our conference room and talk about some creative solutions to the problem, but they refused. Rather than mediate or negotiate, a hearing was held. The result was substantially worse for the moving party than they expected, and perhaps even than they could have reached in mediation. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.
Good divorce lawyers are dispute resolution experts. They are trained in negotiation, cooperative face to face meetings, collaborative law, mediation, and have trial skills. When asking a lawyer questions before you hire them, make sure to ask about how they resolve disputes. If court is the primary answer, you may be wise to look elsewhere.
by Daniel Margolin on January 8, 2010
On January 6, 2010, the Oregon Court of Appeals made a ruling in Hanson-Parmer and Parmer on the issue of what evidence is required to demonstrate a “child-parent relationship” under ORS 109.119. The entire opinion can be found here: http://www.publications.ojd.state.or.us/A133335.htm
In Oregon, third parties (meaning not a child’s biological parents) can assert rights to custody and/or visitation. In order to do so they have to meet certain threshold tests. In March of 2005, wife filed a petition for divorce. Husband and wife had three children together and wife had another child, D. Husband, in a counterclaim filed in December of 2005, asserted that he is entitled to parenting time with D because he had established a parent-child relationship with D. For at least the six months proceeding wife’s filing, husband did not have any parenting time with D. Starting in July of 2005, husband had regular and consistent parenting time with D. The trial court ruled in husband’s favor and provided him with ongoing parenting time. The court of appeals reversed and ruled that “husband is not the psychological parent of D and is not entitled to parenting time or visitation with D.”
ORS 109.119 (10)(a) provides, in part that a “‘[c]hild-parent relationship’ means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs.” To determine whether a child-parent relationship exists the court must look at the six-months preceding husband’s counterclaim to determine whether his relationship with D meets the requirements of the statute. Husband did not have physical custody of D during those six months, nor did he reside in the same household as D. Husband was not able to meet the requirements of the statute.
by Daniel Margolin on January 5, 2010
The Indian court system does not properly recognize divorces issued in the United States. A divorced wife can flee on her own, or even worse with the parties’ children to India. Once there, she can file dowry harassment charges against her “ex-husband.” In addition, India is not yet ratified the Hague convention and will not act to send abducted children back to the United States.
There has been a rise in the number of dowry harassment cases filed against non-residen Indians (NRIs). India has been used as a haven for ex-wives who are disatisfied with the result of their United States divorce case. Once in India they utilize dowry laws which are peculiar to the Indian legal system and do not have a US counterpart.
Spouses who are NRIs or are divorcing NRIs should discuss their case with a competent attorney who understands these complex international law issues.
by Daniel Margolin on January 5, 2010
In addition to the rights provided in the judgment with respect to parenting time and anything else agreed upon between the parties or ordered by the court, a non-custodial parent has certain statutory rights. They are set forth in ORS 107.154 as follows:
107.154 Authority of parent when other parent granted sole custody of child. Unless otherwise ordered by the court, an order of sole custody to one parent shall not deprive the other parent of the following authority:
(1) To inspect and receive school records and to consult with school staff concerning the child’s welfare and education, to the same extent as the custodial parent may inspect and receive such records and consult with such staff;
(2) To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records;
(3) To consult with any person who may provide care or treatment for the child and to inspect and receive the child’s medical, dental and psychological records, to the same extent as the custodial parent may consult with such person and inspect and receive such records;
(4) To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable; or
(5) To apply to be the child’s conservator, guardian ad litem or both.
This does not mean that the other parent has to provide information to the non-custodial parent, but rather that the non-custodial parent has the right to access said information. A custodial parent’s refusal to provide such information could reflect poorly on him/her in future litigation.
by Daniel Margolin on December 30, 2009
On December 23, 2009, the Oregon Court of Appeals filed its decision in Baker and Andrews, a dissolution of domestic partnership case. The entire opinion can be found here: http://www.publications.ojd.state.or.us/A135564.htm.
Baker and Andrews were an opposite sex couple who lived together for many years. Baker appealed the trial court’s order that no domestic partnership existed and from an order of the court awarding Andrews sanctions against both Baker and her attorney. The court of appeals agreed with the trial court with respect to its ruling that no domestic partnership existed, but reversed the trial court with respect to its ruling on sanctions.
They lived together for 24 years, and shared a home and bed and raised their own separate children to adulthood in the home during that time. They maintained separate bank accounts. Baker did some work outside of the home and Andrews owned a business (that Baker did some work for without pay). Baker also worked as a homemaker. They had no agreement as to their financial relationship. Andrews added Baker to the title on the house in 1994, but Baker then signed a quitclaim deed releasing her interest in the home in 2004. She also filed for SSI disability, stating in her application that she did not expect anything from the home and that she lives financially separately from Andrews.
The trial court did not find Baker to be credible, a finding upon which the court of appeals must rely.
Oregon does not recognize common law marriage. Under the court’s decision in Beal and Beal and subsequent cases, however, Oregon has a body of case law that recognizes that where parties intend to create a domestic partnership that the court can then equitably divide their property and debts. The court of appeals describes this as follows: “In general, an equitable property division on dissolution of domestic partnership is appropriate where the parties’ intent to share assets and expenses is shown by evidence that they have jointly purchased, built, or maintained property, held joint accounts, and made substantial economic and noneconomic contributions to the household for mutual benefit.” There cannot be an award of spousal support, nor can there be a claim for attorney fees made in such a proceeding.
Here the court of appeals found that there was insufficient evidence of financial commingling sufficient to support Baker’s claim of the existence of a domestic partnership.
Even though a party has no entitlement to attorney fees in this form of proceeding, if the other party files a frivolous case then the offended party can seek sanctions under Oregon Rule of Civil Procedure 17. The court of appeals did not reach the issue of whether the filing was in fact frivolous, because it decided that the trial court’s manner of assessing sanctions was legally improper. The matter was remanded to the trial court to decide if sanctions were warranted under ORCP 17.
by Daniel Margolin on December 23, 2009
by csstephens on December 14, 2009
We consult with many people with Oregon divorce and family law cases. One of the most painful questions to hear is when someone who settled the property part of a divorce asks about renegotiating the property distribution. The question is painful because the answer is harsh. Property divisions, once finalized in a judgment, are non-modifiable. The court has no authority to reopen property division post divorce just because you are unhappy with how things were divided.
There are some limited exceptions where the court can revisit part of a property award. One exception is for “omitted” assets. The court has the authority under ORS 107.452 to reopen the property distribution if a significant asset is left out of the division. What authority the court has depends on whether the asset was omitted accidentally or concealed and omitted intentionally.
It is critical to make sure you are aware of the nature and extent of the marital property, and that you have good advice from a lawyer about what property division is fair in your case. You should consult with an experienced divorce lawyer before signing any final property agreement.
by Daniel Margolin on December 3, 2009
There are two forms of emergency custody order. A pre-judgment order (meaning that it is taken out at the time the original custody request is filed with the court) and a post-judgment order (meaning that it is taken at the time a modification is requested).
Pre-Judgment orders are governed by ORS 107.097 (3)(a). The statute does not require that notice be provided to the other party. The party requesting the order must be present in court and present an affidavit alleging that the child is in immediate danger.
Post-Judgment orders are governed by ORS 107.139. The statute requires that the party requesting the order state in his/her affidavit that he/she has made a “good faith effor to confer with the other party regarding the purpose and time of the court appearance.”
These orders are difficult to obtain as the court will only make such an order where there is clearly immediate danger present. There is a good deal of legal strategy involved in deciding whether or not to request such an order. The outcome of the court’s decision can have a lasting effect on the case.
It is advisable to utilize the services of an attorney in obtaining such an order.
by csstephens on November 22, 2009
Few property claims cause as much contention as a claim to divide a personal injury settlement in a divorce. Oregon’s Court of Appeals treats personal injury claims as a form of property. Timing matters in determining how a claim may be divided. A claim from a post separation injury should go to the hurt spouse. The court can divide a pre-separation claim that is unresolved at the time of separation. The court can also divide personal injury settlements that were received during the marriage. Settlements received during the marriage are marital assets and subject to the presumption that both spouses equally acquired the asset. A spouse may try to rebut the presumption that the non-injured spouse contributed to the acquisition of the claim. Even if the injured spouse is successful in rebutting the presumption, the divorce court can still give part of the settlement to the non injured spouse if it is “just and proper” in all the circumstances. Personal injury claims may have multiple components, such as lost wages, pain and suffering, loss of spousal companionship, and medical payments. How the settlement is characterized may have an impact on the court’s division. If your case involves a substantial personal injury claim, consult with an experienced family law lawyer about your options.
by Daniel Margolin on November 19, 2009
If a custody matter has not yet been filed, then under Oregon law, the parent with whom the child was living at the time paternity of the child was determined is determined to have legal custody of the child. ORS 109.175 provides: (1) If paternity of a child born out of wedlock is established pursuant to a petition filed under ORS 109.125 or an order or judgment entered pursuant to ORS 109.124 to 109.230 or ORS 416.400 to 416.465, or if paternity is established by the filing of a voluntary acknowledgment of paternity as provided by ORS 109.070 (1)(e), the parent with physical custody at the time of filing of the petition or the notice under ORS 416.415, or the parent with physical custody at the time of the filing of the voluntary acknowledgment of paternity, has sole legal custody until a court specifically orders otherwise.
If paternity was not established, then the father does not have any legal rights to the child until paternity is established.
The best way to address this issue is to file a petition for custody and obtain a status quo order pursuant to ORS 107.097 which will maintain the child’s “usual place of residence,” “present placement and daily schedule,”party’s usual contact and parenting time,” and “current schedule and daily routine of the child.” This will prevent the other parent from taking the child and running. You should also do your best to document the other parent’s statements.
by Daniel Margolin on November 12, 2009
The division of personal property in a divorce can be one of the most expensive, emotional, and wasteful parts of a case. Parties will often spend thousands of dollars arguing over a very inexpensive piece of personal property.
Personal property, meaning furniture, art, family photos, pets, and other general property, in a divorce is treated no differently than the division of other assets. A dollar value figure is placed on the property and the allocation of property is dealt with as part of the general division of assets and debts. For example, if all of the personal property is worth $20,000 and one party takes all of it, they would owe the other party $10,000 as either a cash payment or out of the division of some other asset or by taking on a similar amount of debt.
The better way to deal with the division is for the parties to agree on who takes what piece of furniture and not assign a dollar figure to anything. This can be more complicated with valuable artwork. Family photos are generally given to one party with the other party having an option to make copies.
If there is a clear dispute over which property each party wants, the easiest method is to have the personal property appraised. The appraiser will make a list of all property and assign dollar values to each piece and then the judge can make a determination of how it is divided.
Some property is not included as a marital asset. Generally this happens with jewelry or other clear gifts that were intended to be given to the other party and not shared. In that case, there will be no offset and the property will go to the party whom received the gift. One example is that a wedding ring always stays with the party who received it.
by csstephens on November 7, 2009
As divorce lawyers based in Portland, Oregon, we get a surprising number of questions about common law marriage. Common law marriage is where a legal marriage is created without a marriage license or marriage ceremony. Usually the couple has to (1) live together for a significant period of time, (2) hold themselves out as a married couple, (3) and intend to be married. I am surprised by how many people believe Oregon has common law marriage. We don’t, hence the myth. If you live together in Oregon, to be married, you have to comply with the marriage statues. A few states do allow for common law marriage. . Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Texas, and the District of Columbia recognize common-law marriages created within their borders.
by csstephens on October 28, 2009
One “Divorce Myth” we come across is the belief that if a spouse cannot remove you from a mortgage loan at the time of divorce, it will prevent you from obtaining a new loan. This is a divorce myth because it is a commonly held belief (even by some lawyers) and is completely false. In today’s real estate market and economy, more and more people are remaining on loans with an ex because the ex can’t refinance because of tightened lending standards and decreased home equity. There are some problems remaining joint on a loan with your ex if they have been or they may turn into a late payer. While your credit could be damaged if your ex doesn’t pay the loan timely, you should still be able to get a new mortgage loan if you would otherwise qualify to do so. HUD Document 4155 outlines the requirements for FHA underwriting in regards to excluding a joint mortgage from consideration on a new mortgage application. Per the HUD rules, for FHA transactions, joint mortgages can be excluded from consideration in a new credit application if:
(1) the divorce judgment contains a release of liability for the borrower or the assumption of liability by another party
(2) title has been transferred to another party
So what does this mean to divorcing parties with real estate? Try to get off the loan if your ex has a history of late payments or you expect a future of late payments. If you can’t get off the loan because your spouse can’t refinance, but he or she has good credit you expect to continue, insist on an indemnification clause, and don’t worry so much about being unable to get a new loan.
