In this case, the wife owned a 60% interest in a piece of property prior to the marriage, and acquired the other 40% interest during the marriage. The trial court awarded the entire property to the wife as a pre-marital asset and did not include it in the division of marital property in the divorce. The Court of Appeals found that the wife’s 60% interest acquired prior to the marriage was her separate property, and not a marital asset. It also stated that the prenuptial agreement signed by the parties overrode any interest the husband might have had in the appreciation on the wife’s 60% interest under ORS 107.105(1)(f) or the Kunze line of cases. However, the Court found that the 40% interest that the wife acquired during the marriage was a marital asset. The Court stated that this interest was subject to the ORS 107.105(1)(f) presumption of equal contribution, and that the wife did not rebut that presumption where the husband made some financial contribution to the purchase, he was making financial contributions to the couple’s joint finances, and the couple used the property for “joint marital endeavors.”

The entire opinion can be found here.

Here are a few tips based on my 17 years of experience helping people during and after divorce:

1. Establish New Boundaries. Decide what things can and cannot be discussed. It is best for you to stay away from the topics of conflict until such time that you can calmly discuss them.
2. Compromise. “Agree to disagree.” This one can be tough because of pride and differences in opinion. When this happens, you need to focus and get back to the reason why you need to get along… your children. You should also acknowledge from the beginning that there will be inevitably differences in opinion. Then agree that when this happens, you should try not to talk while angry.  There should be a reasonable cooling period, and the try again.
3. Keep the promises. Once you and ex-spouse have compromised agreements, you need to keep those promises. If you agreed to take turns to pick up kids,  live up to that agreement.  Whether you followed through or not during the marriage, you need to now.
4. Continue to communicate. Communication is vital. The cold shoulder or silent treatment may have contributed to the breakdown of the marriage, and it is even more destructive to cooperation post-divorce.  You and your ex-spouse need to keep the lines of communication open even if it is awkward.
5. Consider Counseling. The Portland area has many extraordinary counselors who can help divorced couples with communication. I frequently refer people to counselors as part of our helping approach to divorce and because I believe that if successful,  it has enormous benefits for a client. If you or your ex are having difficulty with the above three points, consider getting into post divorce counseling to help with your communication issues.

Divorce is an opportunity to establish a new relationship with your ex that focuses on the children.  From my experience, parents that can focus on getting along and on the kids use lawyers less and are happier. Most importantly, there are enormous benefits for your children.

In Oregon at the time of divorce, the court can change the name of either spouse to a name the spouse held before the marriage.

Do you feel you need your former name for a fresh start? Do you have kids, and how will a name change affect the children at school and with their peers? Are you an established professional with goodwill attached to your current last name? There are a lot of considerations to go through in deciding what is the right choice for you.

If you decide to change your name, plan on spending substantial time working on it.

Here are some things that you need to do when you will change your last name:

1. Get new identification cards, such as drivers license or state ID card, social security, etc.
2. Inform people, agencies and organizations, and and companies of the change of name. You should let your bank, schools, doctors, postal office, insurance companies, business associates, family members, retirement accounts, and friends know.  Be ready for supporting documents when updating information.
3. Once you have completed #2, get a credit report to make sure your account information is showing accurately.
4. Update important papers, such as a will, advanced directive, power of attorney, motor vehicle tile, etc.

The lawyers at Stephens Margolin PC have substantial experience assisting Oregonians with prenuptial agreements.

BAPCPA is still relatively a new law, so there is some uncertainty about how BAPCPA will apply in some situations. In addition, the process to protect your rights can be complex if your former spouse files for bankruptcy. If your former spouse owes you money and is filing for bankruptcy, it is important to consult with an experienced attorney. The lawyers are Stephens Margolin PC have substantial experience in cases involving support obligations and bankruptcy.

In this case, the Court of Appeals stated that the stipulated divorce judgment that the parties had agreed to in 2009 was enforceable even though it treated a child for whom the parties were legal guardians as a child of the marriage. Under Oregon law, a child of the marriage is a biological child of the parties or a child whom the parties adopted during the marriage. The former husband and wife had two biological children and were legal guardians of the husband’s nephew, who had lived with them since birth. The stipulated judgment determined custody, parenting time, and child support for all three children, treating all of them as children of the marriage. The husband sought to modify the child support award, arguing that the court had no authority to approve or enforce a judgment which he believed was void. The court stated that it would enforce a stipulated judgment as long as it didn’t violate law or public policy even if the trial court would have lacked authority to order the parties to provide support for the nephew.

The entire opinion can be found here.

In this case to establish visitation between grandparents and their grandchild, the trial court denied the grandparents’ petition for visitation and the Court of Appeals upheld the trial court’s decision. The grandparents had been the child’s foster parents for 14 months, and, after the child was returned to his parents’ care, the parents denied the grandparents visitation. The grandparents argued that denying them visitation was harmful to the child’s long term emotional development. The child’s mother argued that he needed time to reestablish a secure relationship with his parents and that court-ordered visitation with the grandparents would interfere with that process. In this type of case, there is a presumption that the parent is acting in the child’s best interests, and the grandparents had to show that the mother was not acting in her child’s best interests. After considering a number of factors, the Court of Appeals decided that the grandparents had not shown that the mother was not acting in the child’s best interests. The court stressed that the law gives parents “significant freedom to make decisions on behalf of their children,” even though a continuing relationship with the grandparents may have benefitted the child.

 The entire opinion can be found here.

Children of married couples have no legal right to money for college.

Children of divorced couples have more rights. A child  of divorced parents who qualifies as a “child attending school” under ORS 107.108 has the right to receive support between the ages of 18 and 21.  Child support is calculated based on a formula based on factors laid out in ORS 20.275, which includes the educational needs of a child.  While the court can deviate upwards on the amount of child support ordered to include college expenses, the court has no authority to order that a parent pay for college as an obligation separate from child support.

Many divorcing parents negotiate deals where one party, or both, pay for college beyond the statutory obligation, however, parents are not required to do so. If funding for college is an issue important to you in your case, make sure to talk through with your lawyer what the court can order, and what is achievable only by agreement.

Most persons about to lose insurance rights because of a divorce have the right to obtain continuation coverage under COBRA, or portability coverage under Oregon’s portability coverage rules.

In general, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) allows divorcing spouses to  continue their plan coverage for a limited time when they would otherwise lose coverage. For COBRA, the non-employed divorced spouse may be able to stay on the employed party’s health plan for an limited period of time. Generally, to qualify, the employed spouse must:

1. Work for an employer with 20 or more employees.
2. Must be covered under the employer’s group health plan as an employee or as the spouse or dependent child of an employee.
3. Have a qualifying event that would causes the loss of group health coverage, such as divorce.
4. Comply with varying application deadlines.

Portability rules require insurance carriers to provide plans to qualifying individuals. For  portability coverage, a person must:

1. Have at least 180 consecutive days of coverage under one or more Oregon group health plans;
2. Have applied for portability coverage within 63 days after termination of the group coverage;
3. Be an Oregon resident when applying for portability coverage;
4. Not be eligible for either medicare or the prior group coverage, except for continuation coverage, at the time portability coverage would begin.
5. Comply with application deadlines.

Persons can move from continuation coverage to portability coverage, but not portability coverage to continuation coverage.  Persons may be eligible for both types of coverage, and differences exist between the type of coverage, application rules, deadlines, and duration of coverage.

Children losing benefits may qualify for extended COBRA coverage through a qualified medical child support order (QMCSO).

Portability and continuation coverage rules and restrictions are complex, and clients should  plan with their lawyer early in the process to determine what type of coverage is available, and best suits their needs.