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.

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 February 11, 2009, the Oregon Court of Appeals published an opinion in Branam and Beaver.  The case is an appeal from a trial court ruling on the division of assets in a long term domestic partnership.  The main question before the court was how to divide the proceeds from the sale of the parties’ home.

Beaver and Branam are a man and woman who lived together in a domestic partnership but never married. Branam had received an inheritance from her former husband. She used part of the money to buy a house. The parties never discussed what would happen if they decided to separate. When Beaver moved into the house, Branam agreed to put his name on the house. Beaver argued that this meant that he owned half the house and should receive half of the equity in the house after they broke up. Beaver said that she never intended for him to receive the money originally paid for the house and that she added his name as a way to insure that he could live in the house if she died.  The parties sold the house and the trial court decided to award half of the apprectiation of the value of the house to each party and to award 100% of the original value to Branam.  On appeal, Beaver contends that the court erred in reimbursing the purchase price to Branam.

In its opinion, the court of appeals explainst that Oregon law, based on the court of appeals’ ruling in Beal and Beal and that case’s progeny, provides that, in the dissolution of a domestic partnership, courts are required to divide property according to the express or implied intent of the parties at the time that they established their partnership. If the court cannot discern the parties’ intent, the court may exercise its equitable powers to reach a fair dissolution of the parties’ partnership. How the parties held legal title to real property is evidence of the parties’ intent, but it is not dispositive. Where there is no express agreement of the parties regarding the division of their property in the event of dissolution of their domestic partnership, “courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon.” Beal, 282 Or at 122. The court then looks at the following factors to determine the intent of the parties: 1. Inferences drawn from the way the parties lived; 2. The fact of cohabitation can be evidence of an intent to share incomes during the time the parties live together; and 3. Joint acts of a financial nature (joint checking account, joint savings account, joint purchases, etc…) may give rise to an inference of a intention to share equally. Where the evidence establishes that parties in a domestic partnership intend to share property equally but one party makes a greater initial contribution to the property, the property will be divided equally but the party making the greater initial contribution will be credited for that contribution.

In this case, since there was no evidence that the parties intended to split the initial contribution made by Branam, it was proper for the court to split the appreciation in the property equally, but to award the initial purchase price to Branam.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A133414.htm.

The case teaches us that unmarried couples who intend to share their financial lives would be well advised to set forth their intentions in a formal document.  If not, the court will decide for them how to split up their possessions and finances when they break up.

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens Margolin P.C. can assist parties going through the dissolution of a domestic partnerhip or who want information on dometic partnership agreements and in better understanding the law in Oregon regarding divorce. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

On June 11, 2008, the Oregon Court of Appeals published an opinion in Himler and Katter, in which the court further explained how unmarried domestic partners’ assets should be divided after they end their relationship.

In Himler and Katter, the question before the court was how property should be distributed following the end of a domestic partnership.  More specifically, when different assets should be valued and what should be done with appreciation of assets acquired prior to and assets acquired after the parties separated but before trial.

The parties were a heterosexual couple who lived together for 16 years and had multiple children.  The court found that the parties had intended to share their property equally.  The parties owned two pieces of real property and a large amount of personal property, some of which was acquired after the relationship ended.  The trial court determined the value of all property as of the time of trial and divided it equally.

The respondent appealed, assigning error to the trial court’s valuation of the property at the time of trial rather than the time of separation.  The Court of Appeals held that the parties did not intend to share any assets acquired after the relationship ended, but agreed with the trial court that valuing the property as of the time of trial was proper.

The Court of appeals based its valuation ruling on the laws of co-tenancy.  Under domestic partnership dissolution case law, regardless of whose name title to property is in, for those pieces of property that are partnership property, the parties are determined to be equal co-tenants.  This means that they own the property jointly.  Therefore, the parties retain an equal 50 percent ownership in the property; however, each party must reimburse the other for 50 percent of any contribution made by the other.  This co-ownership continues until the property is divided, which takes place at the time of trial.

This decision demonstrates the necessity for all unmarried people living together in a domestic partnership (whether same-sex or heterosexual partners) to enter into some form of an agreement to clearly state their intent regarding their property prior to separation.  Without such an agreement, the parties will be at the whim of the court to have their intent and the division of their assets determined.  The lawyers at Stephens Margolin P.C. can assist unmarried domestic partners in drafting such agreements and in better understanding the law in Oregon regarding dissolution of domestic partnerships.

You can review the full opinion in Himler and Katter at http://www.publications.ojd.state.or.us/A132719.htm

If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

There are costs and benefits to proceeding under any model.  In a perfect world, the collaborative model would be the most cost-effective and most effective at resolving disputes in a manner that benefits all parties.  If your case involves physical or extreme emotional abuse, drug or alcohol abuse by one parent so severe that parent cannot understand the harm it has caused to kids or that parent is not able or willing to put up with supervision and requirements, if one party is unable to financially move forward and the other party will not cooperate, or if it is impossible for the parties to trust each other, then a traditional litigation model will be necessary to resolve your dispute.  

A good attorney who is trained and experienced in both models can assist you, not only in choosing the best model for you, but also, in making sure that you do not make the wrong choice.  The collaborative model can also be used to assist parties in domestic partnership dissolutions and custody disputes as well as in a divorce.

The lawyers at Stephens Margolin P.C. are happy to discuss the various legal models with you.  Contact us for a consultation if you would like to discuss these models with regard to your specific situation.

A marital settlement agreement is a contractual agreement entered into by a husband and wife prior to their divorce. The settlement reached can be much more detailed and individualized than a judge’s ruling and can include provisions that a judge would not legally be allowed to include. The parties can work with their attorneys to make sure that their individual needs are accounted for while providing a fair division of the parties’ assets and debts.

A marital settlement agreement can also be used by parties who want to have a trial separation, but be insured of how a divorce will proceed if they are unable to save their marriage. Clients will often want to file for a legal separation in order to preserve their rights while still being able to stay on the other spouse’s health insurance. Rather than going thorough that process, they can sign a marital settlement agreement and wait to file for divorce until the health insurance issue can be rectified.

A court does not have to approve the agreement reached by the parties, but will almost always do so provided that it is a fair agreement and both parties knew what they were agreeing to. In order for the parties to be as secure as possible that the agreement will be approved by the court they must disclose truthfully all of their financial information to the other spouse, must actually abide by the terms of the agreement during the time between signing the agreement and filing for divorce, and they must actually get divorced in a reasonable period of time. If, for instance, the parties wait many years to divorce, a court would be less likely to approve the agreement.

With the passage of the new domestic partnership legislation in Oregon, marital settlement agreements may be able to be used by domestic partners to formalize issues prior to dissolving their domestic partnership.

In conclusion, martial settlement agreements provide a great way for clients to divorce in an amicable and mutually beneficial manner.

Let’s start with what seems like the easy part: what are domestic partnerships? Under OFFA, same-sex couples over 18 may register as partners. However, heterosexual couples may not register as partners (primarily because they already have the ability to receive these benefits through marriage). Because the Oregon Constitution limits marriage to heterosexual couples, a separate mechanism for uniting families was required. (Check out the Basic Rights Oregon website for a wonderful guide to the legislation.)

But what are these automatic rights married couples get that unmarried and unregistered domestic partners don’t have?

Some rights are obvious: for example, to make medical decisions for a partner when the partner is unable to make those decisions him or herself or to automatically inherit property if a partner dies without a will. Others aren’t as obvious, like the ability to claim wrongful death benefits or crime victim survivor benefits if a partner is killed.

Some rights are provided by the state, like the automatic inheritance of a partner or how custody would be determined in a partnership dissolution, because inheritance and family laws are set by the state. Other rights are federal, like the ability to file jointly on federal income taxes. Oregon’s domestic partnership law can only affect state-provided rights. Subsection 9 of the legislation provides that “any privilege, immunity, right or ben3efit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married….is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership…”

It doesn’t get more equal than that in Oregon, save in name alone. Additionally, registered partners also have all the same responsibilities as married couples!

But since this is a legal blog, we’re mostly concerned about the juicy bits – those rights dealing with estate planning, wrongful death claims, adoptions, custody, and, of course, dissolution of the partnership.

But first, a little history. Some readers might be surprised to learn that domestic partnerships in family law courts aren’t new in Oregon. In fact, Oregon family law courts have dissolved an increasing number of heterosexual domestic partnerships. In doing so, the court would look back and determine whether or not the parties actually intended to form a domestic partnership: even though these are relationship dissolutions, frequently one party argues it was not a partnership (usually the party with assets) and the other argues that it was (usually the party with fewer assets). To find out what the parties intended, the court uses a test usually used in the context of business partnerships – did the parties intend to pool resources and share liabilities? If the answer is yes, then the court tries to find an equitable way to divvy up the parties’ resources. If no, then the parties keep their separate property.

Sounds easy, right? But it’s not. The court can’t order spousal support. Custody of children is very complex, because for a non-biological parent to receive custody or visitation, another action must be filed (although in fairness, it may be joined to the dissolution of domestic partnership action). Basically, in the absence of a clear statute, the family law court exercises its equity powers — basically, whatever the court thinks is fair on that day. This means results can vary even more widely than they can with the assistance of statutes.

What OFFA does for same-sex couples is give the court all of the well-developed tools the legislature has enacted over the years for the dissolution of marriage cases, as well as providing more options for determining custody of children in a partnership dissolution. (If you want to know just how busy the legislature has been in developing and honing those family laws, take a gander at ORS 107 and ORS 109!)

We hope domestic partnerships thrive. However, if you have registered a partnership and wish to dissolve it, think carefully about your next steps and consult with an attorney well versed in dissolution of marriage procedures. Due to the sensitivity of the subject matter, don’t be shy about asking your attorney what he or she thinks of your lifestyle. It does matter. It’s important that there be an open and trusting atmosphere in your dealings with your dissolution attorney.

*Although states are supposed to give each other’s laws “full faith and credit” under the US Constitution – and this includes honoring marriages – states do not have to do so when another state’s laws violate public policy in that state. This was, generally, the way the law was practiced before the enaction of the so-called “Defense of Marriage Act” (or DOMA) in 1996, but it’s now the law of the land. So, for example, if a couple marries at the age of 14, and that is legal in the state in which they reside, but is illegal in another state, the question of the marriage’s validity in the second state is up for grabs, depending on the policy implication of 14 year olds marrying. If thinking about this makes your head hurt, you’re not alone: the topic of marriages alone took up weeks in my Conflicts of Law class.

Other than giving a boost to Oregon’s diamond and wedding supply retailers, what was the legislature’s intent with this bill? What are the rights of married people that a registered same-sex couple now also possesses? What is the difference between a same-sex domestic partnership and a heterosexual domestic partnership? What happens when same-sex or heterosexual domestic partnerships break up? If children are involved, how exactly would a court determine custody?

In the following posts, we’ll examine these questions and explain the differences between types of domestic partnerships. We’ll look at the rights married people receive automatically at the time of marriage, and how an unmarried couple (of any configuration) can duplicate those rights using other legal means.

Having a trial is a way, but not the only way to resolve your case. There are many tools available for resolving your case other than a trial. Good family law lawyers are problem solvers, and the good ones recommend that their clients try to resolve their disputes outside the courtroom. Many jurisdictions have mandatory mediation (without lawyers) for parenting time and custody issues. Many good lawyers recommend their clients use private (for a fee) attorney guided mediation for property and custody and parenting time issues. Many participate in judicial settlement conferences where a judge attempts to guide the parties towards a cooperative resolution. If successful, the benefit of these tools to the client is usually lower cost, less conflict, and an agreement they chose, rather than having a judge tell them what the result is.

Some specially trained lawyers are using a new process called “Collaborative Divorce” designed to keep clients out of the courthouse from the beginning. Collaborative Divorce is a non-litigious party based settlement process in which a husband and wife or domestic partners work together to dissolve their relationship. The process can result in less cost, stress and judicial involvement than a litigated divorce or domestic partnership dissolution. The main idea is for the parties to work together to end their relationship in a manner which allows for each party to be self-sustaining financially and that serves the best interest of their child.

In a Collaborative Divorce case, the parties use a team of professionals to work on specific areas of their case. For example, if a child is involved, then the parties would have a child specialist on their team. In all cases, a financial specialist trained specifically in divorce finance and a mental health practitioner will be used. One benefit of the collaborative divorce process is that it can produce much more creative methods of property division and spousal/child support than a judge in a litigated case would order.

At the beginning of the case, the parties sign a collaborative practice agreement or participation agreement, which outlines the essential principles of the collaborative process. The agreement limits the parties’ attorney-client confidentiality and sets forth the rule that if the collaborative process is unsuccessful, then all of the professionals involved in the case, including both parties’ lawyers, will no longer work on the case. In addition, any materials or information produced in the process will not be admissible in court.

This process is very popular in Canada, Australia, and in some states in the US. It has not taken off yet in Oregon at a substantial level. There are, however, a number of collaboratively trained lawyers and team professionals in the Portland area. This is a growing field, and something to seriously consider if both you and your spouse wish to avoid the expense, stress, and frustration of traditional, adversarial litigation. Our office maintains a list of family law lawyers trained in the collaborative process.

(If you feel a little nervous, you’re not alone. This may be the first time you’re meeting with an attorney, and you’re not doing it under the best of circumstances. We understand.)

Each attorney has a unique way of conducting a first meeting, but generally, the attorney is interested in getting the history of your relationship and what has happened during the marriage. Many will email you or mail you documents they’d like for you to fill out ahead of time, so they can scan the important information quickly – when you were married, your kids, their ages, your income and that of your spouse, the property you own, and so on. It’s a great idea to get this back to the attorney before your meeting, if possible, because it’ll make your time together that much more productive.

Before your meeting, you may want to make a list of the questions you’d like answered during this interview — and don’t be afraid to check the list while you’re in there.

During the meeting, listen to your gut — don’t be afraid to not hire the attorney on the spot if something feels “off.” The first interview doesn’t obligate you to hire a particular attorney, and if you have a feeling that something isn’t right, it probably isn’t. The attorney you hire for your divorce is going to help determine the outcome of the division of property, the potential for spousal support and child support, and child custody and parenting time, if you have minor children. It’s a big decision, and not one to make on the spur of the moment. (It may also be telling to see how the attorney reacts when you say you’re not ready to make a decision.)

These are some factors you might want to think about before you make a decision:

• Does the attorney talk more or listen more in this meeting?
• Attorneys have different approaches: do you want a bulldog who’ll fight every step of the way or someone who will work with the other side to reach an agreement? Ask about approaches and make sure the attorney matches what you want.
• Is the attorney upfront with you about fees and costs? How does the attorney bill?
• Do you feel you can be completely open with the attorney? It’s absolutely critical you trust your attorney and that your attorney trusts you. An attorney can’t do the best job representing you without knowing all of the facts, and you won’t be happy with the representation if you don’t feel comfortable enough to provide all the facts.
• Ask how the attorney will keep in contact with you. If you’d prefer email to regular mail, ask if that’s a possibility.

Something you should also think about is the cost of an initial meeting. This depends on the attorney. Some attorneys bill their hourly rate and if the meeting goes for two hours, you’ll pay for two hours of the attorney’s time. Some attorneys set a fixed price for an initial interview. Don’t be afraid to ask about how the meeting pricing works ahead of time.

(In case you’re wondering, Stephens Family Law offers a free telephone consultation and initial meetings are a flat $100 fee.)