by csstephens on July 28, 2010
One of the reasons we provide family law information for free through our blog is to help educate consumers of legal services. It’s easier helping people that have already done some footwork and have some understanding of the process. I was pleased to learn that Multnomah County Family Court is now offering information on thier website that includes:
- • Frequently Asked Questions (FAQs) answered
- • Forms
- • Referrals for finding legal help
- • Resources and materials about family law matters, and
- • Links to rules, procedures, and committees that
Under the “Quick Links” box on the right side, click on “Family Court”
by admin on July 27, 2010
by csstephens on June 1, 2010
CNN ran an interesting article captioned “Divorce attorneys catching cheaters on Facebook.” An example given of social media in the courtroom was a lawyer using Facebook data to attack a parent’s credibility as a witness. The parent claimed he didn’t drink alcohol, but his Facebook account showed recent photos of him drinking beer. Not good, because credibility is everything in court.
In our Oregon divorce and family law practice, we see social media come up in cases with increasing frequency. People freely post personal information online that they might be reluctant to give up as part of a deposition. One case involved an online dating site where a party had posted income information, and was then dismayed to see it at the child support hearing. Our suggestion is make sure your privacy settings are such that you aren’t giving away information that you wouldn’t want to freely disclose in your court case. Better yet, don’t disclose personal information that could affect your case, because the records could be obtained by court order.
by Daniel Margolin on April 18, 2010
ORS 107.093 provides that when a petition for marital annulment, separation or dissolution is filed and upon service of summons and petition upon the respondent, a restraining order is in effect against the parties. Violation of the statute is punishable via contempt proceedings.
On April 14, 2010, the Oregon Court of Appeals filed an opinion in Frazier and Frazier. The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A137220.htm
The case dealt with how to address a party’s violation of the statutory asset restraining order. After filing for divorce, wife completed a refinance of the marital home. The refinance violated the statutory asset restraining order. The trial court valued her withdrawal of equity as $60,000, based upon husband’s testimony. The trial court decided that the full amount of her benefit from the refinance should be awarded to husband out of the division of assets as an equalizing judgment.
The court of appeals held that the actual benefit to wife was only $47,000, but the trial court’s ultimate determination as to what property division is just and proper in all circumstances is a matter of discretion that the court of appeals will not disturb unless the trial court misapplied the statutory and equitable considerations that ORS 107.105 requires. The court of appeals held that husband should receive a benefit of $47,000 out of the division of sale proceeds from the house.
The order provides for certain exceptions. It is important to consult a lawyer when initiating a divorce proceeding or being served with divorce paperwork with regard to how the asset restraining order affects you. Failure to consult an attorney and properly abide by the order can have harmful effects. Also, visit the following link for a prior post by Sean Stephens on this issue: http://oregondivorceblog.wordpress.com/2007/05/15/to-sell-or-not-to-sell/
by Daniel Margolin on April 15, 2010
On April 14, 2010, the Oregon Court of Appeals filed an opinion in Stevens and Stevens. The entire opinion can be found here: http://www.publications.ojd.state.or.us/A138624.htm
The appeal was filed by father due to a trial court ruling awarding sole custody to mother. Father appealed based upon the fact that the custody evaluation was in his favor and that he had recently been the primary parent. The court of appeals upheld the trial court ruling that mother should be awarded sole custody. The court based its holding on a reliance on the trial court’s credibility findings, a review of the factors set forth in ORS 107.137, and the following:
“Here, the trial court concluded that most of the factors weighed fairly evenly between the parties, finding that both parents are fit and have close emotional ties with the children, that each parent has strengths and weaknesses, that each has “an exaggerated view” of the other’s interpersonal style, and that both parties had “unnecessarily exposed the children to issues in the divorce.” The court found that, although father had been the primary parent for the past two years, mother had been the primary parent before that. The court further found that father had “unreasonably interfered with [mother's] parenting time with these children” and that father’s interference “was one of the primary reasons” for awarding custody to mother. The court explained that, although being most recently the primary parent weighed slightly in father’s favor, father had excluded mother from parenting, and mother was more willing and able to facilitate and encourage a close relationship between the children and father.”
Custody decisions are always very fact intestive, and, in cases such as these, can turn on a very small difference between the parents. It is interesting in thie case that the custody evaluator did not testify and I wonder how much her actual testimony would have assisted father. It is crucial for a parent to have a competent attorney who can produce the required evidence to provide the trial court with a basis for ruling in that parent’s favor.
by Daniel Margolin on April 12, 2010
During the divorce process clients must deal with the very burdensome process of discovery. The record keeping process does not end with the end of a case. When there is an award of spousal support, both parties should continue to keep very careful records. In some instances, spousal support will be withheld from a person’s wages. The benefit of having state enforced support is that the state will take on the burden of record keeping. Unfortunately the state does make mistakes, and it is important to keep backup records. These records are important for both tax purposes and for potential future litigation purposes.
The person paying spousal support should:
- Make a detailed spreadsheet which lists all payments made. The method of payment, check number, date, and the address to which the check was sent or direct deposit made should all be listed. In addition, a copy of the outgoing payment should be kept;
- If payments are going to be made in cash, then the payee should sign a receipt at the time payment is accepted.
The person receiving support should:
- Make a detailed spreadsheet which lists all payments received. Including, the date the payment was received, the amount received, the check number or electronic payment record, the bank and account from which the payment was made.
- In addition, a copy of the payment should be kept.
Both parties should be aware of the tax impact of spousal support payment or receipt and should discuss how to appropriately deal with tax issues with his/her CPA. You should contact a lawyer if you have any questions about your current spousal support award.
by Daniel Margolin on April 1, 2010
The Oregon Court of Appeals filed an opinion in Stokes and Stokes on March 31, 2010. The entire opinion can be found here: http://www.publications.ojd.state.or.us/A136795.htm The case addressed the treatment of the following issues: 1. Whether military benefits that are non-taxable can be included in gross income for child support calculation purposes; 2. What the proper valuation date for a pension is; 3. The proper method to divide a pension interest; 4. Whether payment for other debts can be credited against support obligations.
Husband is in the military and receives BAH and BAS payments which are included in his monthly paychecks. He argued that the court should not consider those benefits as income for child support purposes since they are non-taxable. The court of appeals did not agree and held that pursuant to OAR 137-050-0340 which defines gross income as “income from any source including, but not limited to, salaries, wages, commissions, advances, bonuses, dividends, severance pay, pensions, interest, honoraria, trust income, annuities, return on capital, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, including lottery winnings, and alimony or separate maintenance received,” that the BAH and BAS payments were gross income. It did not matter that those payments were non-taxable.
Husband, as a member of the military, is entitled to a military pensiion after 20 years of service. At the time of the divorce he had not completed 20 years of service, but testified that he would complete said service. Under Oregon law, the marital portion of husband’s pension must be calculated as a fraction of the entire actual pension, rather than as a fraction of a hypothetical pension amount. The trial court had awarded wife a potion of the pension based upon a hypothetical retirement date prior to his full srevice. The “time” rule is typically used to calculate the marital portion of benefits under a defined benefit retirement plan. Under that rule, the marital portion is determined by multiplying the total actual pension benefit by a fraction, the numerator of which is the number of years (or months) of service during the marriage and the denominator of which is the total years (or months) of employment. Wife’s interest in the pension should be based on the total pension benefit as of the date of retirement, determined either by way of an actuarial present value or through a division of benefits as they are distributed.
The court used the date of the parties’ separation to determine the marital portion of the pension. The court of appeals held that the proper date is the date of dissolution, not the date of separation.
The court of appeals also held that in view of the fact that wife is entitled to a share of the marital portion of husband’s retirement benefits, and because those benefits would terminate if husband were to predecease her, it is appropriate that wife’s interest be protected by the provision of survivor benefits in an amount sufficient to cover wife’s share of the marital portion of the pension, with the parties to share equally in the cost of the annuity.
The trial court ruled that husband satisfied his pretrial child and spousal support obligation via payment of the parties’ credit card debt. Under Oregon law, a court cannot forgive a past-due support obligation. Wife was awarded temporary spousal and child support in order to provide her with assistance in meeting her monthly expenses during the pendency of the proceeding as sset forth in ORS 107.095. The trial court should not have credited husband’s obligation by his payment of credit card debt.
This case shows that a trial court can make myriad errors in its decisions. In this case, the divorce was finalized by the trial court years prior to the court of appeals rendering its decision. The issues in this case were complex. In complex cases, the parties are frequently unable to reach a settlement due to their lawyers not being sure of a proper result. Obviously, the alternative of throwing the issue into the hands of a trial court was not helpful in this case. It is important to make sure that your lawyer has a firm grasp of the law and is able to property understand its application to the facts of your case and to the trial court.
by Daniel Margolin on March 24, 2010
The Oregon Court of Appeals published an opinion in Fields and Fields on March 24, 2010. The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A141040.htm
The case dealt with the treatment of wife’s separately held company. Wife was given the company by her parents prior to the marriage. She kept the company in her sole name throughout the marriage. Husband provided a significant amount of work for the company and the parties used the company’s income during the marriage. The trial court ruled that husband was not entitled to a award to equalize the value of the company to wife.
The court of appeals held the the trial court was mistaken and, that while wife had rebutted the presumption of equal contribution with regard to her initial acquisition of the property that she had not done so with respect to the company’s appreciation during the marriage. ORS 107.105(1)(f) requires that the division of marital property be “just and proper” under the circumstances. Marital assets are subject to a rebuttable presumption of equal contribution and ownership, which applies to property acquired by a spouse by gift during the marriage. The appreciation in value of a separately held asset is a marital asset that is also subject to the rebuttable presumption of equal contribution. A spouse rebuts the presumption of equal contribution with respect to the appreciation of a separately held asset if he or she proves that the other spouse did not contribute either directly or indirectly to its appreciation. Here, wife could not rebut the presumption.
The court of appeals awarded husband one half of the appreciation of the company during the marriage.
by Daniel Margolin on March 23, 2010
The Oregon Court of Appeals filed an opinion in Quant and Carrier on March 17, 2010. The entire opinion can be read here: http://www.publications.ojd.state.or.us/A136186.htm
The case dealt with what the proper amount of maintenance spousal support should be pursuant to ORS 107.105. Wife assigns error only to the trial court’s award of transitional spousal support, in the amount of $2,000 per month for two years, arguing that, because of her health problems and the disparity in the parties’ earning capacities, the trial court should also have awarded indefinite maintenance support. The trial court recognized the disparity in the parties’ earning capacities– that wife had no income and some fixed expenses, and that husband had significant income and the ability to assist wife with her expenses. The court further found that it was highly unlikely that, even with retraining, wife would ever attain the earning capacity of husband. The court found, however, that because the parties kept their finances largely separate, wife has had little benefit from husband’s earnings during the relationship and has not enjoyed during the marriage a standard of living that would be commensurate with that level of income. The court found further that wife has the ability to supplement her income and that, given wife’s employment skills and talents, she could be self-sufficient. The court found that wife’s employment possibilities would be only minimally impacted by her physical problems. Because husband had been providing wife with some financial help, the court awarded wife transitional support of $2,000 per month for two years so that she could retrain as a medical coder.
The court of appeals, basing its decision on the fact that maintenance support is designed not to allow the dependent spouse to become financially independent and self-supporting, ruled that wife should be granted an award of maintenance support in the amount of $1,500 per month for a period of seven years.
Spousal support awards are very fact specific. It is important to clearly tie the facts of a person’s need for support to the reasons articulated in Oregon’s statutory framework.
by Daniel Margolin on March 10, 2010
The Oregon Court of Appeals in Martinez and Martinez released an opinion on March 10, 2010 relating to the definition of abuse in a restraining order case. One of the prima facie elements necessary to obtain a restraining order (FAPA order) is proof that a party has been “a victim of abuse committed by the respondent wihtin 180 days preceding the filing of the petition[.]“ ORS 107.718(1) and ORS 107.710(1). The court of appeals agreed with the appellant that the trial court was incorrect in finding that respondent committed abuse against petitioner during the 180 days preceding the filing of the petition.
The ruling is not that interesting and is very short. What is interesting is that the court refused to divulge the facts of the case or the reasoning that went into its ruling. Instead the court quoted Chief Judge Herbert Schwab as follows: “The incidents which give rise to child custody litigation are never pleasant, and often sordid. Such litigation tends to emphasize human weaknesses. While the published opinion of an appellate court in a custody case is rarely a ‘best seller,’ it is nevertheless a public record which can in later years come to the attention of the children who were the subject of the controversy.”
The entire opinion can be found here: http://www.publications.ojd.state.or.us/A141745.htm
For a person considering filing a restraining order, it is important to consult with an attorney.
by Daniel Margolin on March 9, 2010
With almost 80% of cases in domestic relations involving pro se (self represented) litigants, it is not uncommon for a party to fail to respond to a pleading and find themself defaulted. The court of appeals in Nolan and Nolan, which was decided on March 3, 2010, ruled on what constitutes a proper “written response.” The entire opinion can be found here: http://www.publications.ojd.state.or.us/A141393.htm
In the case, Mother appealed from the trial court ruling awarding Father sole legal custody of the parties’ children. The court of appeals found that the trial court improperly granted Father’s motion for default against Mother and remanded the matter to the trial court for a full hearing on the merits.
At the trial court level, Father served Mother with a Motion and Order to Appear and Show Cause why custody should not be modified. Under the Douglas County local rules, Mother was required to file a “written response.” Mother filed a motion to have the court decline jurisdiction, but did not file a counter-affidavit contesting Father’s allegations. The trial court issued a default order against Mother.
The court of appeals held that the trial court’s ruling was incorrect. The order of default should have been set aside since Mother did file a “written response.”
It is very important, both as a petitioner and a respondent to seek at least a consultation with an attorney if you are representing yourself. On the petitioner side, you need to make sure that you understand the rules with respect to obtaining a default order. On the respondent side, you need to make sure that you understand the county’s local rules.
by Daniel Margolin on February 17, 2010
The Court of Appeals decided the case of Bolte and Bolte on February 17, 2010. The case is an appeal from a divorce trial. The Court of Appeals modified the spousal support award made by the trial court.
Husband and Wife were married for 22 years, and separated a few years prior to trial. Wife gave up employment opportunities of her own to further Husband’s career. The parties had a household income of $14,000 per month, consisting of Husband’s income of $10,700 and Wife’s income of $3,300.
Husband argued that his income should be only $7,900 per month because the remainder was from a position that he termed temporary. Husband also argued that Wife’s income should be presumed to be higher because she was underemployed.
Trial court awarded indefinite support in the amount of $1,500 per month.
The Court of Appeals held that Wife was not underemployed as she was already working full time and is not, for spousal support purposes, required to work at the highest possible salary. The amount of spousal support must be “just and equitable” under the totality of the circumstances. Specifically, ORS 107.105(1)(d)(C) provides a nonexclusive list of factors that we consider in establishing a just and equitable support award for spousal maintenance support, which include (1) the duration of the marriage; (2) the standard of living established during the marriage; and (3) the parties’ age, income and earning capacities, training and employment skills, work experience, and financial needs and resources. The Court of Appeals modified the support award up to $2,500 per month indefinitiely because “without a substantial award of spousal support, wife’s standard of living following the dissolution will be significantly diminished when compared to the parties’ predissolution lifestyle, which was based on a monthly household income of approximately $14,000.”
The opinion can be found here: http://www.publications.ojd.state.or.us/A139055.htm
by csstephens on February 10, 2010
We talk to a lot of parents in Oregon about parenting time and visitation problems, especially in high conflict cases. From working with parents, I know it can be frustrating to wait months for a court date when a communication or visitation problem is happening now. In some divorce cases, even after the divorce judgment is signed, high levels of conflict and animosity remain between the parents. One good solution for parents involved in high conflict cases is the use of a Parenting Coordinator, also called a Parenting Time Coordinator. A Parenting Coordinator is a neutral person to whom parents can turn when in dispute on matters relating to the children. They can be psychologists, social workers, lawyers, or mediators. The purpose of the Parenting Coordinator is to provide parents an alternative to litigation and expensive, divisive court battles.
The court’s authority to appoint a Parenting Coordinator is found in ORS 107.425 (3), which provides in part:
In addition to an investigation, examination or evaluation under subsections (1) and (2) of this section, the court may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist parents in creating and implementing parenting plans. The services provided to the court and to parents under this section may include: (A) Gathering information; (B) Monitoring compliance with court orders; (C) Providing the parents, their attorneys, if any, and the court with recommendations for new or modified parenting time provisions; and (D) Providing parents with problem solving, conflict management and parenting time coordination services or other services approved by the court. (b) Services provided under this section may require the provider to possess and utilize mediation skills, but the services are not comprised exclusively of mediation services under ORS 107.755 to 107.795. If only mediation services are provided, the provisions of ORS 107.755 to 107.795 apply. (c) The court may order one or more of the parties to pay for services provided under this subsection, if the parties are unable to agree on their respective responsibilities for payment. The court may not order that expenses be charged against funds appropriated for public defense services.
It can be faster and less expensive than using a lawyer to address a problem. Parenting coordinators can help by resolving disagreements essentially without court intervention. You can avoid costly court appearances, and have a forum to openly communicate with one another.
If you find yourself returning to court on parenting issues either before or after you are divorced, retaining the services of a parenting coordinator may be a good alternative.
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.
