Now, in 2009, the hypothetical situation to which the Oregon Court of Appeals referred back in 1998, has become familiar to many people; that is, most experts believe that the current economic downturn is something more than just a temporary occurrence. Whereas once courts may have been reticent to find that a decrease in a person’s income, or even the loss of a job, was something other than a temporary occurrence, courts now, like the rest of our society, have become more sensitive to the unfortunate realities with which many people are currently faced. Judges read the papers and listen to the news just like the rest of us; they are aware that things are tough, and they are not insensitive to alleviating difficult or impossible situations.

When a court finds that there has been a change of circumstances sufficient to warrant reconsideration of an existing order of support, the court takes into account the original purpose of the award. Judgments are often vague as to the purpose of a spousal support award. In making a spousal support award, courts are directed by statute to designate one or more categories in which the support award falls. Spousal support can be deemed maintenance support, transitional support and/or compensatory support. Some combination of maintenance and transitional support are often awarded in long term marriages, whereas transitional support by itself is often awarded in shorter marriages. Compensatory support is only awarded as the result of very specific fact patterns, and will not be addressed here. Without going into too much detail regarding the difference between the other categories of spousal support, one of the primary reasons behind an award of maintenance and/or transitional spousal support is to enable the parties to live separately at a standard of living “not overly disproportionate” to the one they enjoyed when they were together. Interestingly, as a result of the recent economic downturn, the standard of living of the party receiving spousal support has, in many instances, become overly disproportionate to the party paying it. This is not surprising when you think about it. If the amount of support originally ordered to keeps things “not overly disproportionate” between the parties remains constant, but the payer’s income decreases substantially, then the amount originally ordered will no longer place the parties in a “not overly disproportionate” position to one another. Thus, the original purpose behind the award is no longer being met, and a court would presumably “adjust” the award to maintain its original purpose. This was essentially the logic behind a 1999 Court of Appeals case where the Court found that it was not originally anticipated that the husband would have to draw upon his retirement account to fund his spousal support obligation. In other words, the Court of Appeals held that when a party’s circumstances have changed to the point where his/her continued payment of support would drive that party to the “poorhouse”, the purpose of that support award was no longer being met, and modification would be justified.

The “not overly disproportionate” language can be viewed as another way of saying that the purpose behind many spousal support awards is to make up for the disparity of the parties’ earning capacities at the time of dissolution. Whether the support is deemed maintenance, transitional, or both, courts will often consider this factor when determining the amount, if not the duration, of an award. When the substantial purpose behind an award is to make up for the disparity of the parties’ earning capacities, and no other express reason is provided, the Court of Appeals determined in 1987, that, upon a showing of a substantial change in circumstances, the task of the court is to maintain the “relative positions of the parties as established in the initial decree in light of the changed circumstances.” The Court of Appeals affirmed it’s 1987 decision in more recent cases, finding in 2002 that it would be just and equitable to reduce spousal support to “preserve the overall percentage division of income” between the parties provided by an initial award, and in 2003 modifying a support award due to a party’s decrease in earnings to an amount equal to the “same proportionate share” of the parties’ total income as the original award.

Please continue to Part 3 of this post:  http://oregondivorceblog.com/wordpress/?p=409

While some cases require a Judge to make decisions to resolve a case, having a judge impose a decision on litigants is usually not the best way for a family to resolve disputes.  Most good family law attorneys advise clients to participate in mediation or other forms of alternative dispute resolution.   A small group is trained in collaborative law, a rapidly growing form of alternative dispute resolution.  The lawyers of Stephens Margolin P.C. are prepared to meet the needs of family law clients by offering dispute resolution tools that don’t require a judge or a five day a week court calendar.  We are strong advocates of using mediation to resolve cases, and are trained in using collaborative law to resolve the needs of clients outside the court system.

Private attorneys and parties can bring “remedial” contempt actions for willful parenting plan violations.  A remedial action is the court using its authority to remedy, or fix the non-compliance. A broad range of sanctions are available to get a parent to comply with the parenting plan.  ORS 33.105 specifies what sanctions are available in a contempt action.  Unless there is a contrary statute, the court can impose one or more of the following remedial sanctions:

1. Payment of a sum of money sufficient to compensate a party for loss, injury or costs suffered by the party as the result of a contempt of court.
2. Confinement for so long as the contempt continues, or six months, whichever is the shorter period.
3. An amount not to exceed $500 or one percent of the defendant’s annual gross income, whichever is greater, for each day the contempt of court continues. The sanction imposed under this paragraph may be imposed as a fine or to compensate a party for the effects of the continuing contempt.
4. An order designed to insure compliance with a prior order of the court, including probation.
5. Payment of all or part of any attorney fees incurred by a party as the result of a contempt of court.
6. A sanction other than the sanctions specified in paragraphs (a) to (e) of this subsection if the court determines that the sanction would be an effective remedy for the contempt.

Basically the court has the power to craft any remedy, including jail, to encourage compliance with a court order. 

Liability for contempt can extend even beyond the parties. Third parties that interfere with parenting time orders may be held accountable through contempt.

What to do to avoid a contempt action? When your case is complete, get and retain a copy of your parenting plan.  Read it.  Know what it says.  If you can, communicate with the other parent about parenting time to make sure you are on the same page.  If you want to change the parenting plan and the other parent agrees, confirm the agreement in writing or email.  Don’t unilaterally disregard the parenting plan. What to do if you are served with a contempt action?  Talk to an experienced family law lawyer and get help.  What to do if the other parent won’t follow the parenting plan? Talk to an experienced family law lawyer about what remedies you may have.

1. Can I move with the children out of the marital home?
2. Can the other parent move out with the children without my consent?
3. If we haven’t followed the parenting plan in our judgment, can I prevent the other parent from changing the agreed upon plan?
4. Can I prevent a move that disrupts the children’s routine?
5. Can I move and change the children’s routine?

This post was almost a “divorce myth” post for the sole reason there so much misinformation about moving away from the other parent with children. The answer is that you can move without the other parent’s permission, but Oregon provides two potential remedies to block a move out of the family home, or force a return of the children to the family home.

Prior to a final judgment, as part of a divorce, annulment, legal separation, or third party custody case, Oregon law allows a parent to obtain a temporary order called a “Temporary Protective Order of Restraint” The order is temporary because it is only in effect during a case. The statue, ORS 107.097, allows you to obtain a court order that prevents the other party from:

1. Changing the child’s usual place of residence;
2. Interfering with the present placement and daily schedule of the child;
3. Hiding or secreting the child from the other party;
4. Interfering with the other party’s usual contact and parenting time with the child;
5. Leaving the state with the child without the written permission of the other party or the permission of the court; or
6. In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

With a few exceptions, if the other parent moves out of the house without your permission, you can use ORS 107.097 to force the children’s return to the home, and force a return to your pre-move level of contact with the kids.

During a modification of custody or parenting time (after entry of a final judgment), the court allows for entry of a “Status Quo Order” that is very similar to the “Temporary Protective Order of Restraint.” ORS 107.138 allows you to obtain a “Status Quo Order” in a custody modification action that prevents the other parent from:

1. Changing the child’s usual place of residence;
2. Interfering with the present placement and daily schedule of the child;
3. Hiding or secreting the child from the other party;
4. Interfering with the other party’s usual contact and parenting time with the child;
5. Leaving the state with the child without the written permission of the other party or the permission of the court; or
6. In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

To obtain a status quo order, you must:

1. Notify the other party;
2. Give the other party an opportunity to contest issuance of the order;
3. File an affidavit that sets forth with specificity the information required by ORS 109.767 and the person with whom the child has lived during the preceding year and the child’s current schedule, daily routine and usual place of residence.
4. Give the other party 21 days notice before the date set for the hearing.

For both a “”Temporary Protective Order of Restraint” and a “Status Quo Order,” a “Child’s usual place of residence” means the place where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time. A“Parent’s usual contact and parenting time,” “present placement and daily schedule of the child” and “current schedule and daily routine of the child” mean the contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed.

If you are thinking of moving out of the family home with the children without consent, or the other parent moves out of the family home without your consent, you should consult with a family law lawyer to discuss the legal effect of the move in light of ORS 107.097 and ORS 107.138. The lawyers at Stephens & Margolin can help you with how these laws apply to your particular situation.

On April 30, 2008, the Oregon Court of Appeals published an opinion in Pfaff and Pfaff that provided a frustrating twist to father’s objection to mother’s move. Mom was awarded custody of the child in the 2002 divorce. In December of 2005, she asked the court to modify parenting time so she could move to California with the child. She alleged the move was in the child’s best interests, because she had family in the area and a good job prospect. After hearing, mother was granted permission to move to the Bay Area, and take the child with her.

Additional motions were filed. The court clarified parenting time by a supplemental judgment in January of 2007. In August 2007, a hearing was held where mother testified she had instead moved to Las Vegas, was pregnant, and had built a house with her fiancee. In a November 2007 hearing, father was awarded temporary custody pending a December 2007 hearing.

The Court of Appeals dismissed father’s appeal as moot, because the trial court ruling did not decide whether moving the child out of state was in the child’s best interest, but rather, the specific question whether relocating to the Bay Area was in the child’s best interests. The Court reasoned that since mother was not going to return to California, any decision regarding the child’s interests in living in California wouldn’t affect the parties’ rights.

What does this mean? If you are resisting a move, ask the court to make specific findings that any relocation out of the area is not in the child’s best interests.

You can review the full opinion in Pfaff and Pfaff at http://www.publications.ojd.state.or.us/A123987.htm.

1. Hire an experienced divorce attorney. There is no substitute for help from a lawyer that is familiar with divorce and family law, the judges, and the procedure. Family law is a specialty, and you would likely be better served by a lawyer that only practices family law. Make sure the focus of your lawyer’s practice is family law.
2. Consider different approaches to your case. There are many was to finalize your divorce case. The courtroom is a way, but frequently not the best way to resolve your case. You should consider what approaches may work for your case other than traditional litigation. Consider a collaborative law case with a lawyer trained in collaborative law. Note that both lawyers must have special training to conduct a collaborative law case. Consider individual or attorney guided mediation prior to or in lieu of court.
3. Document, Document, Document! Your lawyer and the other side will want paper documentation of debts, assets, financial holdings, valuables, pensions, real estate, stock options, and basically any asset either party owns. Make copies of your titles, policies, deeds, and important records. You and your lawyer will need them.
4. Promptly exchange discovery. Once a divorce case is filed, both sides have “discovery power.” You have the right to see the other side’s financial documentation, and the other side as the right to see yours. Many cases bog down and legal fees go up when one side does not timely or completely produce documentation. You can avoid a motion to compel production and lower your costs by getting your documentation to your lawyer sooner rather than later.
5. Work with your lawyer on a proposed division of property. After you have all of the information on assets and finances, work with your lawyer to analyze the property distribution and determine an appropriate amount of spousal support. In Oregon, divorcing parties are required to exchange a proposed distribution of assets. In our experience, lawyers exchange the proposed distribution to late in the case for maximum benefit. Good divorce lawyers model property distributions starting day one. Help your lawyer prepare and perfect the spreadsheet.
   
6. Take reasonable positions and set realistic goals. It is hard to succeed in a divorce if your goal is something the court will not give you. After analysis, both lawyers can usually determine a range within which the court will likely rule. You may be well served to pick a position within that range, rather than outside it. If your lawyer is encouraging to you to take a too sharp position, be ware. Frequently the only beneficiary is the lawyer. In determining if you should pay the other side’s attorney fees after trial, the court can scrutinize whether your positions were reasonable. If not, you may end up paying your lawyer and your spouses.
7. Treat your case decisions as business decisions. It is really hard to treat your case objectively when you are in the middle of it. This is the reason why divorce lawyers hire divorce lawyers to represent them. Listen to your lawyer’s objective opinion, and try to base your decisions on the property distribution spreadsheet, and not your emotions. If you can buy the lamp at Ikea for $14, don’t make the emotional decision to spend $1000 in legal fees fighting over it.
   
8. Obtain and or Maintain independent credit. Your ability to borrow will help in your post divorce life. Many times people’s credit suffers because there is no plan in place to address joint debt, and payments get missed. Other times, a couple will have only used one party’s credit during the marriage. Prior to or during the divorce, if you don’t already have it, obtain and maintain credit separate from your spouse
9. Promptly take the parenting class, and take the message to heart. We previously blogged about Oregon’s parenting class requirement. Register for the class at your first opportunity, and listen. You and your your children will do better in your case by keeping the kids out of the middle. Guess what the court thinks of parents that want custody but have not taken the class?
10. Stay strong. In the midst of a hotly contested divorce case, it may be hard to picture your life after the stress and conflict is over. Stay strong. Don’t give in to unhealthy stress relief, like alcohol. Go to the gym and work out. Rally your friends for moral support. Take some special time with your kids. If you need the professional help of a therapist, don’t hesitate to get it. Take care of yourself during the process, and the process will take less of a toll on you.
    

Good family law lawyers get along with other lawyers. They problem solve. They listen. They promote the integrity of the profession and legal system. They show appropriate respect for other professionals working on a case. They don’t hang up on phone calls, or personally insult the other lawyer. In our opinion, personal attacks on the other lawyer have no place in a professional practice. You can be a zealous, aggressive advocate for your client’s legal position without stooping to name calling. The American Bar Association complies a list of different State Bar’s Professionalism Codes. On November 16, 2006, the Oregon State Bar House of Delegates adopted and Supreme Court of Oregon approved an updated Statement of Professionalism. One of the professionalism points is “I will be courteous and respectful to my clients, to adverse litigants and adverse counsel, and to the court.”

As a client, beware of the unprofessional lawyer. Advocacy and being an asshole are very different things. Such behavior is not only unprofessional, but may harm your case and increase your legal fees. If your lawyer is intentionally being a jerk to the other lawyer, the likely victim is you.

It is not unusual for a husband and wife to sell the family home and divide the proceeds equally between them. Most people think that this will make their divorce case easier. Sometimes this is true, but more often than not, the premature sale of the home will lead to a more difficult asset distribution.

Prior to filing for divorce a home may be titled in just one parties’ name. This gives them control over the asset. After a divorce case has been filed, the asset cannot be sold absent agreement of the non-titled party.

Since the home is usually the largest asset, not having it to divide can make coming up with a creative asset division much more difficult. One party may have preferred to keep the house and buy the other party out rather than selling it. The same applies to rental properties or other homes. If the home is sold, there may be no way to immediately “equalize” the property distribution.

It is common for a divorce judgment to require that the parties list the home for sale and then dictates how the net proceeds will be divided. In these situations it is crucial for the parties to use a quality real estate agent. This is especially true in the current market.

My advice to people who are considering divorce is to consult with a family law lawyer to discuss the best way to address issues regarding the family home. Self education is power, and getting advice from other real estate professionals prior to making the decision to sell their home prior to starting the divorce process is a good idea.

One good source of Portland real estate information is fellow blogger Charles Turner (of Turner Realtors) blog, located at www.portlandrealestateblog.com.

While CourtCare receives some public funding, it is primarily funded through donations from the legal community, which contributes through the Multnomah Bar Foundation. They are having a fundraising campaign themed “A Jungle Gym in the Jungle” from April 21 to May 9, 2008. More information about this excellent program and worthy cause can be found at www.mbabar.org/MBA_courcare.htm.

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.