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.

ORS 107.425(6) provides that the court can on it’s own motion or on the motion of a party , appoint counsel for children. If a party asks, the appointment is discretionary. If the child asks, the court must appoint a lawyer.   Some counties have local rules that further explain the process. For example, in Multnomah County, the Supplemental Local Rule describes the role of the children’s attorney as “”[t}o the extent possible, appointed counsel will represent their clients’ legal interests in obtaining a secure, stable home life and a balanced relationship with both parents and will be answerable only to their client and to the Court. ” The role is to give a child a voice in a proceeding when one parent, or both, may disagree with what the child wants.  Many times in our experience, a child’s attorney can help settle a case outside of court that otherwise would have been resolved in a courtroom.

If you believe your child is caught in the middle, or needs an independent voice in a case, talk to your attorney about having an attorney appointed to represent your child.

The lawyers at Stephens Margolin PC have represented children in divorce cases, and are knowledgeable about the appointment process.

What is interesting about the ruling is that the judgment specifically said that the life insurance provision was for the purpose of securing both parties’ support obligations.  Neither party had a support obligation.  The Court of Appeals, none the less, found that the obligation still existed.  This case shows the long term implications of agreements reached in judgments.  It is crucial that your attorney informs you of the long term effects of your judgment and that your attorney is up to date with current case law.

The lawyers at Stephens Margolin PC strive to assist their clients in understanding the long range implications of their agreements.

On May 21, 2008, the Oregon Court of Appeals published an opinion in Lynch-Kirby and Kirbey that changed a term in a general judgment because it differed from the settlement read into the record. The primary issue in the case was what date to use for valuing the parties real estate. Husband wanted to use January 2005 as the valuation date. Wife wanted to use September 2005, and the final judgment said September 2005.

The parties read a settlement into the record, and offered as exhibits the letters between the parties leading up to settlement. Husband’s attorney stated the letters summarized the agreement, and he read over the “main points” which were slightly different than in the letters. The parties were asked if they understood and agreed to the settlement, to which they said yes.

After settlement on the record, the parties requested a hearing regarding the terms of the settlement on the record. Husband’s position was that the settlement was unambiguous and that the division date, per the series of letters, was January 2005. The trial court disagreed, and eventually signed a judgment ordering the valuation date to be September 30, 2005.

The Court of Appeals looked at the series of letters as a “marital settlement agreement,” and chose to interpret the agreement as a contract. Under a contract analysis, the court would first look to see if the parties’ intent can be determined by examining the test of the documents, then look outside the agreement to the parties intent if the text and context are ambiguous, and as a last resort, looking to the maxims of construction (a series of rules describing how to interpret vague contracts). In reviewing the series of letters, the court found the parties intent from the text of the letters was to use January 2005 as the real estate valuation date. Wife argued that Husband’s verbal settlement had altered the terms of the letter, and in rejecting wife’s argument, the court said the verbal settlement must be read in context with agreements already made.

What does this mean to clients and lawyers? Clearly document the terms of your settlement and negotiations with paper. Create a paper trail of your intent. Understand that you are building a contract regarding the terms of your deal, which will be interpreted under contract law.

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.

In a divorce or custody case I am representing clients in state court. The United States Congress, through the tax code, has determined how the child/dependent tax exemption should be awarded. The supremacy clause of the United States Constitution prevents state courts from deciding issues of federal law. This means that a state court cannot properly award the exemption to a parent who otherwise would not qualify for the exemption under federal law.

The qualifying parent under IRS rules is the “custodial parent,” which is defined as “the parent having custody for the greater portion of the calendar year.” The award of “legal custody” has no effect on this definition, rather the custodial parent is “the parent with whom the child resides for a greater number of nights during the calendar year.” In cases where the child resides an equal number of overnights with each parent, the parent with the higher adjusted gross income for the calendar year is awarded the exemption.

Parties can agree to share the exemption or to have the parent that does not qualify receive the exemption. This is usually accomplished by a provision in the parties’ judgment. In order to provide the non-qualifying parent with the exemption, the qualifying parent must sign a written declaration and the declaration must be attached to the non-custodial/non-qualifying parent’s income tax return. This can be completed using IRS tax form 8332, which can be found here http://www.irs.gov/pub/irs-pdf/f8332.pdf.

A decision to allocate the dependent exemption to the non-qualifying parent should not be taken lightly. In addition to the exemption, the non-qualifying parent will also receive the child tax credit. Therefore, an agreement to deviate from IRS rules can have significant tax impacts for the qualifying parent and creat a tax windfall for the non-qualifying parent. If the agreement will be included as a provision in a judgment, the decision to do so should be carefully discussed with your attorney.

The IRS faq located at http://www.irs.gov/faqs/faq-kw46.html provides detailed information on this question.

1. How experienced are you in family law? All lawyers have law degrees, but many lawyers practice in several fields other than family law. You don’t want a generalist. Family law is a specialized field, and you will likely be better served by a lawyer who focuses on family law. Make sure that most of their cases are family law cases. Ask the lawyer if they have handled cases like yours before.
2. What steps are involved in the divorce process? Your lawyer is there to educate you and guide you through the process. Have the lawyer clearly explain the process to you, from filing the petition, negotiating temporary orders, and the trial process.
3. How will you charge me? If you hire the lawyer, you should expect to sign a retainer agreement that covers how you will be charged. Ask about the hourly rate, and how often you will be billed. Ask if you will be charged for time spent with paralegals and other staff in the office, and at what rate. Ask what will happen if you cannot pay your bill in full every month. Ask if you can pay by credit card, and if payment plans are available.
4. How will we communicate? Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call. Is your lawyer tech savvy enough to email you draft documents as PDF files? Is your lawyer’s office set up to scan and email incoming and outgoing correspondence? Do you automatically get a copy? The last three are essential if you live out of state, or a distance from your lawyer’s office. Lawyers ta
5. How long will the process take? Ask your lawyer about what is their estimate for how long the case will take depending on if you settle quickly, settle after protracted negotiations, or have a trial.
6. Can you estimate the cost of my divorce? This is an important question, but a very difficult one to answer. Don’t worry if your lawyer is hesitant to answer. The cost of a divorce depends on what you ask the lawyer to do, the level of conflict between you and your spouse, and the reasonableness of your spouse and their lawyer. Many of the cost factors are outside your control.
7. What kind of resources do you make available to clients to make the divorce process less difficult and painful? Divorce is a difficult time, and good lawyers provide information and resources to help deal with the human side of the impact. Does your lawyer provide information about the process for self education? Are they patient with you? Do they offer referrals to other professional services if you request them? Our firm provides information through this blog, and educational articles on our website. We also maintain a list of recommended reading materials, and a list of qualified counselors and therapists for those who ask.
8. Do you recommend mediation? Ask your lawyer if your case is appropriate for mediation. Ask about private mediation, and about how often the lawyer uses private mediation with clients. Good lawyers try to settle their cases once they have analyzed the case. A lawyer that does not use private mediation or other alternative dispute resolution tools may be doing you a disservice.
9. What fees and costs can I expect other than charges for your time? Your local county (Multnomah, Washington, Clackamas, etc.) will charge a filing fee to open a case. You will likely have to pay a process server to server your spouse with divorce papers. Your case may require experts, such as appraisers, actuaries, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
10. How would you predict a judge would rule on the issues in my case? While no lawyer can guarantee specific results, listen closely to the analysis behind the lawyer’s answer. Understanding the facts that would make a favorable ruling more likely will help with strategy during the case.

1. Judicial Settlement Conference: A judicial settlement conference is a meeting, guided by a judge, to help parties settle a lawsuit. In some counties they are mandatory, while in others the parties must request them. One benefit is cost. The court does not charge for the settlement conference, but your lawyer will charge you for his or her time. Usually, what happens at a settlement conference is confidential to make sure parties feel good about making their best offers. What happens at the conference? Usually the judge will meet with both sides to see where there is middle ground. The judge may help the parties and lawyers by giving their opinion of what should happen in a case. If the parties reach an agreement, the court can put the settlement on the record on the spot.

2. Mediation: Mediation is a way of resolving a dispute in which an impartial person (the mediator) helps you discuss your case and, if possible, reach a voluntary agreement. The mediator helps you think about your needs, clarify your differences, and find common ground.

Oregon courts require mediation for custody and parenting time disputes. The benefit of county mediation is that it is free. Lawyers do not attend. The downside is that you likely cannot resolve your case if it involves financial or property issues. Also, your county mediation department may be overwhelmed with cases, and they may not have enough time or energy to get both parties to “yes.”

Good lawyers steer clients towards private mediator, if appropriate for the case. In private mediation, the parties jointly hire an expert to help resolve a dispute. The expert is usually a retired judge or experienced divorce lawyer. Usually the lawyers attend to provide guidance. The parties pay the mediator for his or her services (the best mediators in Oregon charge $250-$300 per hour) and pay for their lawyer’s time. While expensive, if you reach a resolution, it is generally less expensive and less stressful than having a trial. Unlike court, you have the opportunity to reach a flexible and creative solution to your dispute. Most important, the result is voluntary, rather than imposed on you by a judge you just met.

Make sure to talk to your lawyer about your dispute resolution options other than the courtroom. While a courtroom may be necessary, you have other options. Talk about these options with your lawyer to see if they are right for you.

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.