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.
by Alexis Dow on October 26, 2009
A Forensic Accountant can be a great help to you and your attorney to assist in communication and explanation by creating, using and explaining visual displays for financial details.
Communication is fundamental to any human interaction. The ability to communicate clearly, concisely and in a way one’s audience can readily understand is an extremely important skill.
During a divorce, there is a need to communicate with opposing parties, attorneys, judges, and people in general. The stress and distractions of divorce can make communicating effectively a challenge. This is particularly true when trying to communicate the significance of property, income, and other information needed in divorce proceedings to attorneys, soon-to-be former spouses and possibly a mediator or judge.
Clearly laying out key ideas and arguments supporting divorce matters can be critical to successful negotiation or convincing the judge. Visual tools such as tables, charts and graphs can help make and emphasize key points. They can also be particularly helpful for laying out financial information. Clear communication can help achieve a satisfactory solution as soon as possible as both sides can clearly see the facts and figures.
Some of the areas where a CPA and forensic accountant can help develop and illustrate financial matters in a divorce include:
• Preparing a Marital Balance Sheet: Developing and presenting in tabular form a listing of assets and liabilities of each spouse before, during and after marriage and apportion assets and liabilities to each spouse based on the date and nature of property acquisition
• Determining Spousal interest in Marital Assets: Calculating the percentage owned by each spouse based on the timing of acquisition, use of joint funds to add to assets or to fund costs of assets and showing this information in a table or on a graph. For example, a 401(k) has a value at marriage, marital assets are used for additional investment, and then, after separation, individual funds add to the 401(k). During the period of ownership there are price fluctuations. The total marital value would need to be apportioned to reflect all the inputs. A second example, a home is owned by a spouse at date of marriage, it is rented during the marriage, but marital assets are used to pay shortfalls. Both the original owning spouse and the married couple now have an interest in the home. A third example is when spouses have separate checking accounts and each pays certain expenses related to a marital asset with one spouse paying more (possibly because that spouse earns more or has greater assets than the other spouse) creating a disproportionate interest in the asset.
• Calculating Controllable Cash Flow: Determining the total value of compensation, including perks and payment of personal items with business funds when a spouse owns a business and illustrating that information using a bar chart, pie chart, table or graph.
• Performing a Needs/Lifestyle Analysis: Calculating monthly needs for alimony payments and presenting this information in tabular form.
Other related services a forensic accountant can provide include:
• Valuing Spousal Interests in Businesses
• Analyzing personal expenses of business owner who denies income and available cash flow. Analyzing the personal expenses of a business owner who states there is little or no income to assist in proving the existence of positive cash flow.
• Tracing Assets: 1. Tracing the source of funds used to purchase assets during marriage; for example, one spouse owns a house at marriage, it is deemed separate property. That house is sold and the proceeds are used to buy stock, it would remain separate; 2. Following assets/income to determine if additional marital assets exist.
• Searching for Undisclosed Assets
When you want to communicate core financial issues in any dispute, contact a forensic CPA to help improve communication and facilitate resolution by providing clear visual displays of financial matters.
by csstephens on September 25, 2009
This post is the second in our series on Oregon’s “Family Abuse Prevention Act” restraining orders. The first post was on who is eligible to get a restraining order. See previous post here. This post is about what you have to show to have the court issue a restraining order.
There is a lot of misinformation about what you have to prove to get a restraining order. The goal of this post is to clear up some common misconceptions. So, what do you have to show to get a restraining order? A petitioner requesting a FAPA restraining order must show that:
- He or she has been the victim of an incident of abuse within the preceding 180 days
- The or she is in imminent danger of further abuse, and
- The respondent presents a credible threat to the physical safety of the petitioner or the petitioner’s minor child.
Abuse: A showing of “abuse” is required. OK, so what is “abuse”? Abuse is NOT being threatened with legal action. Abuse is not rudeness or abruptness. Abuse is not “he said she would file a modification motion to get custody.” Abuse IS any of the following in the previous 180 days:
(1) Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury;
(2) Intentionally, knowingly, or recklessly placing another in fear of imminent bodily injury; or
(3) Causing another to engage in involuntary sexual relations by force or threat of force.
Within the last 180 days: The incident of abuse has to have happened in the last 180 days. Something that happened 3 years ago is not grounds for a restraining order. There are exceptions to the 180 day rule the respondent is incarcerated or has lived more than 100 miles away during the preceding 180 days.
Imminent Danger of Further Abuse: If there is no danger of further abuse, the court should not issue a restraining order. There has to be some reason that “abuse”, as defined above, is likely to happen again.
Credible Threat to Safety of Petitioner or Petitioner’s Child: The party requesting the restraining order must show that the other party represents a credible threat to their safety. You may have a credibilty problem if you are 6 feet tall and weigh 210 and your spouse is petite and has no history or thereat of weapon use.
The petition must specifically allege the nature of the abuse and the date(s) of the abuse.
The court grants or denies restraining orders at ex parte, a short hearing with only the applicant present. Sometimes the court asks the applicant questions. The court will then make an initial finding about the above points and issue or deny the restraining order.
If you are considering getting a restraining order, you should talk to an experienced family law lawyer.
by csstephens on September 25, 2009
As Portland based family law lawyers, we field a lot of questions about restraining orders under Oregon’s “Family Abuse Prevention Act.” Many are interested in getting help and keeping an abusive partner or household member away. Others have been served or threatened with Family Abuse Prevention Act restraining order, for good or bad reasons, and want to know what to do. People ask us how to get a restraining order, or how to defend against a restraining order.
Oregon’s “Family Abuse Prevention Act” is intended to protect victims of domestic violence and allows victims of recent abuse to obtain protection from an abuser. There is a lot of misinformation about restraining orders, how to get a restraining order, who can get a restraining order, and what you need to show to get one. This is the first in a series of posts to dispel some of the misinformation.
Who can get a restraining order? I have been asked dozens of times over the last 15 years if someone can get a restraining order against the neighbor, some parent at school, an ex boyfriend, etc. The answer is no unless the offending person is a family or household member. ORS 107.705 defines who qualifies as a family or household member. Family or household members are:
- Spouses.
- Former spouses.
- Adults related by blood, marriage, or adoption.
- Persons who are cohabiting now or who have cohabited.
- Persons who have been involved in a sexually intimate relationship with each other within the preceding two years.
- Unmarried parents of a minor child.
Minors have rights independent from their parents.
If you are considering getting a restraining order or receive one, you should talk to an experienced family law attorney.
by Daniel Margolin on September 24, 2009
A common question that new clients come to my office is with is either can I move with the children or my ex-spouse has told me that she is going to move with the children and what can I do? Child custody and/or parenting time modification matters often revolve around relocation issues. In deciding these cases, the court will most frequently rely on the opinion of a custody and parenting time evaluator.
On September 23rd, the Oregon Court of Appeals overturned the trial court on a relocation request by a custodial parent. The facts of the case are as follows: Father and Mother have one child, who is currently 9 years old. They lived in Klamath Falls. The parents split up about 8 months after the child was born, and agreed on a parenting plan under which Father received approximately 45% of the parenting time. Shortly thereafter, Father married and Mother began living with her current husband, Taylor. About three years ago, Father moved to Roseburg, and, as a result of the move, his parenting time decreased to 27%. Around the same time, Taylor was given a job opportunity in Chicago. Mother decided to relocate to Chicago with Taylor. Mother argued to the trial court that it was in the child’s best interest to also relocate as the child had a strong bond with Taylor, Father had already moved and reduced his role, and that her relationship with Taylor would end if she could not move.
A custody and parenting time evaluation was conducted. As a point of legal technicality, Father initiated his case as a request for a change in custody, but then dismissed that claim, leaving the only issue at trial as a modification of the parenting plan. This was a strategic move, as the burden in a modification of parenting time matter is only what is in the child’s best interest.
The trial court decided that Mother should be allowed to relocate with the child. The court of appeals reversed the decision. This has become a regular trend in relocation cases. The court of appeals based its opinion on the fact that the relocation would harm the child’s relationship with Father, who would lose his frequent and regular parenting time.
In discussing relocation matters, a parent should consider the following: 1. It is very likely that the court of appeals will overturn trial court decisions on relocation matters; 2. Trial courts often decide in favor of relocation despite this fact; and 3. The child being allowed to move and then being brought back to Oregon is hard on everyone in the family. It is crucial to have both competent trial and appellate counsel when considering how to either relocate or deal with a relocation issue. A good attorney can help a parent put together a strong case for or against relocation and address how to best manage the issues with relation to the child.
For more information on relocation issues or on family law appellate issues, please contact Stephens Margolin P.C.
The entire appellate opinion in Herinckx and Matejsek can be found here: http://www.publications.ojd.state.or.us/A137564.htm
by csstephens on September 24, 2009
A new fee has been added to many family law cases. Effective October 1, 2009, Oregon courts will charge a $10 fee for orders and judgments, including show cause orders. The fee is due at the time the order or judgment is submitted to the court for signature by a judge.
by Daniel Margolin on September 8, 2009
Dan Margolin is quoted in Jacques Von Lunen’s artice in the Oregonian published on September 8th 2009. The full article can be found here: The article discusses how pets are treated in divorce cases.
by Daniel Margolin on August 24, 2009
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 August 5, 2009, the Court of Appeals ruled in the case of Morales and Morales, in which the court modifies the trial court’s ruling with respect to spousal support based upon the wife’s appeal.
Husband and Wife married when he was 22 and she was 17. Their marriage lasted for over 35 years. Wife raised the parties’ children, never working outside the home, while Husband served in the army. Husband retired from the army in 1992, after 20 years of service, for medical reasons.
Wife was awarded $2,000 per month in support at a temporary hearing, in order to cover joint family expenses along with her own individual expenses. At the hearing, the trial court imputed minimum wage income to wife and advised her to obtain a job.
At the time of trial, husband’s income totaled approximately $5,200 after subtracting taxes and payment for his child’s health insurance. His income included $3,210 in nontaxable disability payments. Wife had attempted to find a job, but was still unemployed. The trial court awarded wife spousal support in the amount of $1,000 per month for one year, $800 per month for two years, and then $500 per month indefinitely. The court imputed minimum wage income to wife and made a ruling that the nontaxable disability income for husband could not be divided by the court.
On appeal, wife argues that the award of $500 per month is inequitable and husband counters that the award is appropriate based upon husband’s non-disability income.
The court of appeals explains that husband’s nontaxable disability income is in to be considered income for support purposes, regardless of whether it can be divided as part of a property distribution. Oregon law defines “income” for purposes of support payments, as, among other things, “any program or contract to provide substitute wages during times of unemployment or disability.” ORS 25.010(7)(f); see also OAR 137-050-0340 (for purposes of support, “gross income includes income from any source including, but not limited to * * * disability insurance benefits” (emphasis added)). In addition, the court held that federal law does not restrict the court’s ability to consider the disability payments as income.
The court of appeals then goes on to consider what amount of support is “just and equitable.” Based on the length of the parties marriage, the parties’ respective situations, and the parties’ respective incomes or ability to obtain employment, the court of appeals held that wife should be awarded an amount of $1,400 per month indefinitely.
The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A134242.htm
The lawyers at Stephens Margolin P.C. can assist you with your family law appellate questions. If you have any questions about Oregon appellate law please contact Daniel Margolin, who focuses part of his practice on family law appeals, or C. Sean Stephens at Stephens Margolin P.C.
by csstephens on August 22, 2009
We blogged about the filing fees for divorce, custody, and other family law cases on June 29, 2009. The previous post can be found here.
Just to keep us at the Oregon Divorce Blog on our toes, Multnomah County increased filing fees as of July 1, 2009. Multnomah County’s new filing fees as of July 1, 2009 follow:
DOMESTIC RELATIONS CASES
Annulment or Separation:
Petitioner, moving party 404.00
Respondent 266.00
Custody or Support of Child Determination Under ORS 109.103:
Petitioner, moving parent 394.00
Respondent 256.00
Motion to modify custody or child support determination
Petitioner, moving party 224.00
Response to motion 112.00
Dissolution:
Petitioner, moving party 405.00
Respondent 266.00
Dissolution of Domestic Partnership:
Petitioner, moving party 189.00
Respondent 188.00
Filiations petition under ORS 109.124 to 109.230:
Petitioner, moving party 394.00
Respondent 256.00
Motion to modify filiations determination
Petitioner, moving party 224.00
Response to motion 112.00
Motion After Entry of Dissolution, Annulment, or Separation Judgment:
Moving party modification motion after judgment entry 277.00
Moving party modification motion one year or less after judgment entry 274.00
Moving party motion other than modification 50.00
Response to modification motion 152.00
Response to Motion other than modification 40.00
Motion to Enforce Parenting Time:
Moving party motion 99.00
Response to motion 56.00
by Daniel Margolin on August 20, 2009
The New York Times published an article in its Health section regarding how divorce complicates caregiving for parents. The author of the article is a woman whose parents divorce when she was young and then remarried. Now both her parents and their spouses are in the later stages of life and suffering from various ailments requiring nursing care. The divorce caused her to have twice as many obligations as she would otherwise have. There is nothing that can be done legally to address this issue, but perhaps parents should consider it in their post-divorce estate planning.
The entire article can be found here: http://newoldage.blogs.nytimes.com/2009/08/10/years-later-divorce-complicates-caregiving/
by Daniel Margolin on July 22, 2009
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 July 15, 2009, the Court of Appeals ruled in the case of Shineovich and Kemp, in which the Petitioner challenged the constitutionality of tow statutes under which a married man is deemed to be the legal parent of children born to his wife.
Petitioner and Respondent were in a same sex relationship for 10 years, during which respondent became pregnant by artificial insemination. After they separated, Petitioner brought suit seeking a declaration that she was the legal parent. She alleged that Oregon Law created a privilege for married men as being the legal father of a child born to their wife, but not for same sex couples. The trial court dismissed the claim on legal grounds.
The parties had obtained a marriage license through Multnomah County prior to the child being born with the intent that the marriage would give Petitioner legal parentage. The marriage was subsequently declared void by operation of law. Respondent then became pregnant again, giving birth after the parties had separated. Respondent denied Petitioner contact with that child.
The court of appeals held that the statute which concerns artificial insemination, ORS 109.243, violates Article I, Section 20, of the Oregon constitution, and that its protections should be expanded to include legal parenthood by operation of law for the domestic partner of a woman who conceives a child by artificial insemination.
The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A138013.htm
The lawyers at Stephens Margolin P.C. can assist you with your family law appellate questions. If you have any questions about Oregon appellate law please contact Daniel Margolin, who focuses part of his practice on family law appeals, or C. Sean Stephens at Stephens Margolin P.C.
by Daniel Margolin on July 21, 2009
Wired Magazine printed a short article on the use of text messages in divorce cases. The article is on page 28 of the August 2009 Issue.
The articles quotes Gabriel Cheong, a Boston divorce lawyer as follows: “In most states, the conduct of the parties during marriage is determinative of property division in a divorce.” That is not a correct statement with regard to Oregon Law. In Oregon, the conduct of the parties does not affect asset division, with the exception of a party hiding or wasting assets. Where text messages can be valuable is in parenting time or custody proceedings. In the past letters would be used as evidence against a party. As we move further forward with technology Facebook wall writing and text messaging are starting to be used in trials. The lesson of this story is to be careful with your texts.
.bmp.jpg){kind=logo}