The New York Times published an article regarding a top London divorce attorney named Raymondy Tooth. The article describes how Mr. Tooth makes a living representing the wives of wealthy British men.
The article describes a case in which Mr. Tooth represented Ms. Myerson, whose husband was worth around $44 million at the time of the divorce. Ms. Myerson elected to take less than half of the assets in case and some properties, while Mr. Myerson received $21.7 million worth of stock in his investment fund. Mr. Myerson was very disappointed when, some months later, the global economic downturn reduced his stock holdings by 90%. He filed a petition with the court to overturn the property distribution and make his ex-wife return the property that she received. The court declined to do so.
Under Oregon law, property distributions in a divorce cannot be modified post-judgment, as opposed to support awards and custody/parenting time determinations. It is crucial to have competent legal counsel’s advice in deciding on a strategy for division of assets. Mr. Tooth considered the volatility of the market, while Mr. Myerson just looked at the bottom line, to his misfortune.
If you have questions about the division of assets and property awards in an Oregon divorce, contact Stephens Margolin P.C. for a consultation.

It is important to note that, in this economy, both the person paying spousal support and the person receiving it can experience a substantial, unanticipated change in circumstances. For example, if the purpose behind an original award to a party was to allow that party the time to increase his/her earning capacity through education or other means (often the purpose of a “transitional” support award), and that party, as a result of the unanticipated economic downturn, is not able to find the anticipated employment at the anticipated income rate, then the receiving party may also be justified in requesting a modification of support.

There are two important things to note when attempting to modify support, whether as the party paying support, or the party receiving support. The first is this: courts can only make support modifications retroactive to the filing of a motion to modify support. In other words, if your suffering to make support payments, taking action sooner rather than later is extremely important. Next, for those who are receiving support, if circumstances haven’t panned as anticipated at the time of dissolution, your right to modify support expires when the support obligation is over. In other words, you must move to modify (either to extend the duration of support, or to modify the amount, or both) before the time when your right to receive support under the original judgment has passed.

There are a number of considerations which go into any request to modify spousal support. This blog is specific to the current recession. It must be remembered that a decrease in income, or the inability to find a job, is but one consideration among potentially many others in a modification case. Nevertheless, it may well be an important consideration. There aren’t many people who anticipated the current economic downturn. If the payment of support under a judgment drafted when things were good has become near impossible, or if the support being paid under an old judgment has proven inadequate, then you may need help to modify the situation. If you are like the “regular guy” who I overheard while watching basketball, you shouldn’t feel bad about circumstances that may be out of your control. Spousal support is not meant to be a punishment (though it may seem that way to some). It is not meant to leave a party with no resources. If the economy has caused an impossible situation for you, whether you are paying or receiving support, you may want to contact an attorney to see what can be done about it.

If you would like more information on spousal support modification, please contact Stephens Margolin P.C. in order to schedule a consultation.

Please view parts 1 and 2 of this post:  Part 1 (http://oregondivorceblog.com/wordpress/?p=404); Part 2 (http://oregondivorceblog.com/wordpress/?p=407)

Though my girlfriend might be insulted to discover that my attention can, in fact, be diverted from the madness of college hoops in March, that’s exactly what happened last Saturday as I watched A.J. Price drain his forth 3-pointer of the game, sealing yet another Final Four berth for the Huskies. Let me clarify. First, though the Huskies of Washington put forth a valiant effort this year, I’m a UCONN man, so I’m talking about the Connecticut Huskies. Second, my attention was only diverted after UCONN took an insurmountable lead. Nevertheless, the clock was still ticking, and instead of watching the screen, I found myself staring at my french fries, contemplating something that I had just overheard at the table next to mine.

“I don’t know what to do… I won’t be able to make my spousal support payment this month… I feel horrible.” The man who spoke these words was well-dressed, middle-aged and an obvious sports fan. By all accounts, he was a “regular guy.” This does not surprise me, because if there is one near constant among family law matters it is this: folks don’t like paying spousal support.

The payment of any monthly obligation can be tedious; keeping up with consumer obligations (paying high interest credit cards), or even providing for more basic needs (paying the mortgage), is a dreary process which is constantly eating away at our disposable income. Nevertheless, whereas we have presumably derived some benefit from accruing consumer debt (e.g., the purchase of new clothes, an automobile, vacation, etc), and whereas we derive current and future benefits by making our monthly mortgage payment, there does not appear to be any comparable benefit derived from the payment of spousal support. This seemingly thankless obligation, coupled with the probability that the person to whom this obligation is owed is often someone who we may not particularly like very much, can make the payment of spousal support particularly loathsome.

And so this is exactly what struck me about the comment made by this “regular guy.” I got to thinking that, perhaps, for some, once the obligation to pay support has “sunk in”, and after the pain and hurt feelings associated with divorce have passed, the payment of spousal support may appear different to the person paying it then it once did. Perhaps the notion of helping out a former (or maybe even a current) loved one starts to feel pretty good.

The economy is clearly in bad shape and the downturn has affected everyone. While many companies are trying to avoid lay-offs by reducing employee salaries, other employers are having to take more drastic measures. For some, this means lay-offs and severance packages. For others, it means unemployment checks. Whatever the situation, for many, the economic downturn means a decrease in income.

Please continue to parts 2 and 3 of this post:  Part 2 (http://oregondivorceblog.com/wordpress/?p=407); Part 3 (http://oregondivorceblog.com/wordpress/?p=409)

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 18, 2009, the Oregon Court of Appeals published an opinion in Talik and Talik. The case is an appeal from a divorce judgment. Husband objected to the trial court ruling on three issues: 1. That the court erred in calculating child support; 2. That the court erred in not awarding him compensatory spousal support; and 3. That the court erred in limiting his parenting time.

The parties were married for 16 years. During the marriage, Husband worked for a period of time while Wife attended medical school. The parties moved around in order to meet Wife’s needs. The parties had three children.

With regard to the limitations on Husband’s parenting time, the court of appeals agreed with the trial court. There was evidence at trial that husband hit and kicked two of the children. The trial court found that Husband’s behavior negatively affected the children. In addition, a custody evaluator made recommendations regarding parenting time that the court agreed with. Husband provided no compelling argument to the court of appeals to deviate from the court’s decision.

With regard to Husband’s argument that he should have been awarded compensatory child support, the court of appeals disagreed with Husband and agreed with the trial court. The court explained that compensatory spousal support is available where the party requesting the support shows that they made a “significant financial or other contribution” to the factors set forth in ORS 107.105(1)(d)(B)(i) to (vi). The significant contribution is not limited to enhancing the earning capacity of the other party because that is only one of the “areas to which a spouse may contribute in order to meet the threshold requirement for compensatory spousal support.” A contribution to the education, training, or career of the other party is sufficient. If a party meets the initial threshold, then the court must determine whether a compensatory spousal support award is “otherwise just and equitable in all of the circumstances.” Here, the court of appeals found that while Husband had met the threshold requirement of a significant contribution that such and award would not be just and equitable in the circumstances of this case.

With regard to Husband’s claim that the court erred in calculating child support, the court of appeals disagreed. The trial court had the opportunity to hear witnesses and obtain a clear understanding of the parties’ finances.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A134376.htm

The case teaches us that trial court factual findings are key in any appellate case. While the court of appeals does review these cases de novo, it relies on the court’s factual findings.

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 a divorce or appeal from a divorce judgment. As this case shows, it is crucial to have a competent attorney at the trial court level. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

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 October 15, 2008, the Oregon Court of Appeals published 4 opinions on family law cases: 

• Bean and Bean, in which the court ruled on the amount and duration of a spousal support award and division of military retirement benefits;
• Brinkly and Brinkly, in which the court ruled on a modificaition of custody request by a non-custodial mother;
• Cullen and Cullen, in which the court ruled on the amount and duration of spousal support; and
• English and English, Jr., in which the court ruled on issues of property division and spousal support.

In Bean and Bean, the question before the court was whether wife had been awarded enough spousal support for a long enough period of time and whether she had received a proper amount of husband’s military retirement benefits.  The parties were married for over twenty years and wife had sacrificed her own employment opportunities and moved extensively to enable husband to advance his own military career and raised the parties’ children.  The trial court had awarded wife transitional spousal support of $1,000 for 10 months.  The court of appeals held that was not a sufficient amount or duration of monthly support for wife to obtain enough traning and advancement in her career and modified the amount to $1,500 for 3 years.  The court upheld the trial court’s division of husband’s military benefits based upon the time rule “(because the parties were married for half of the time during which husband accrued retirement benefits, wife was entitled to half of a half-share, see generally Richardson and Richardson, 307 Or 370, 769 P2d 179 (1989)).”  The entire opinion can be reviewed at http://www.publications.ojd.state.or.us/A136278.htm.

In Brinkly and Brinkly the court reviewied a trial court’s decision to modify an award of sole custody to father by providing sole custody to mother.  At the time of the divorce father was awarded sole custody of the parties’ son.  At the time mother was a severe methamphetamine addict.  Three years after the divorce, mother file a motion to modify custody.  At trial, the evidence demonstrated that mother had attended counseling and her methamphetamine addiction was “in full, sustained remission.”  The evidence also showed that father had pulled the child’s ear and had not attended required counseling.  The trial court found that there had been a substantial change in circumstance and awarded custody to mother.  The court of appeals upheld the ruling.  The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A137235.htm.

In Cullen and Cullen, the court of appeals again ruled on the amount and duration of spousal support provided to Wife.  The parties had been married for 25 years.  Husband was 50 and Wife 44.  The parties owned a business together which Husband ran.  Wife’s primary occupation was as homemaker.    The trial court ordered husband to pay “step-down” maintenance spousal support to wife in the amount of $8,000 per month for four months, $7,000 per month for one year, $6,000 per month for the next 18 months, and $5,500 per month for an indefinite time thereafter.  Husband appealed, arguing that the amount of support was too much considering Wife’s assets and investment income that she can earn from the assets.  Prior Oregon caselaw provides that in a long term marriage, “the primary goal of maintenance support is to provide a standard of living comparable to the one enjoyed during the marriage.”  With regard to step-down support, “a judgment may provide for a larger maintenance award initially and a reduced award after a spouse has had an opportunity to achieve financial independence, . . . and may be continued indefinitely where necessary to allow the supported spouse to maintain a lifestyle not overly disproportionate to that enjoyed during the marriage.”  The  court of appeals agreed partially with Husband and reduced the amount of support to an indefinite support award of $4,500 per month.  The entire opinion can be reviewed here:  http://www.publications.ojd.state.or.us/A131021.htm.

In English and English, Jr., the court ruled on both property division and spousal support.  The parties were married for 25 years but lived separately for the last 11 years of the marriage.  In his appeal, “Husband asserts that the trial court erred in finding that evidence of the manner of the parties’ separation did not rebut the presumption of equal contribution to marital assets obtained by husband during that time and in awarding wife compensatory spousal support for her alleged contributions to husband’s career during the marriage.”  The court of appeals ruled for Wife and affirmed the trial court’s ruling.  The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A133289.htm.

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

As family law attorneys based in Portland, Oregon, we talk to a lot of parents with safety concerns about the other parent’s home. We hear questions about how to get custody quickly, or change a parenting plan quickly if a child is not safe with the other parent.

The court can establish custody or parenting time in divorces, annulments, legal separations, modifications, custody actions, filiation actions, and third party custody cases. If custody is established in these cases at the time of the final hearing, it may take months between the filing of the petition or motion and the court’s final decision. But what do you do if a child is in danger now, and a full evidentiary hearing is months away? Oregon courts provide for an emergency remedy if a child is in immediate danger of harm.

Oregon courts can award emergency custody even if there is no previous custody determination between the parties. ORS 107.097 provides in part that “[a] court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

• (A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
• (B) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

Oregon courts can also award emergency custody even if there is already a custody judgment between the parties. ORS 107.139 provides in part that “[f]ollowing entry of a judgment, a court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

• (A) A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
• (B) The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
• (C) The court finds by clear and convincing evidence, based on the facts presented in the parent’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

The main difference between the two provisions is that pre-judgment no notice is required; while post-judgment you must make a good faith effort to talk to the other party about the appearance. If the court grants an emergency motion, the non-moving party is entitled to a hearing. The issue at the hearing is limited to whether or not the child was in an immediate danger at the time the emergency order was issued.

If you already have a parenting plan, you need the court’s permission to change it. You cannot simply refuse to return a child in violation of the parenting plan. The consequences for refusing to follow parenting plans are serious, and can include jail time in some situations. The emergency custody statutes do not offer much guidance to the courts, and judges in the same courthouse can have different interpretations of what both “immediate” and “danger” mean. You should immediately consult with an experienced family lay attorney if you believe your child is in danger of harm with the other parent.

As a Portland, Oregon based family law firm we field a lot of questions from potential clients about how to “succeed” in a divorce case. One message that surprises many people is that there are seldom any clear winners in a divorce. That said, there are many things you can do to help ensure that you are protected during the divorce process, and to maximize your chances of a good result. We offer the following 10 tips on how to do well in your divorce.

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.
    

University of Arizona men’s basketball coach Lute Olson is currently going through a divorce with his wife. 

He has been ordered to appear in court to explain why he took the majority of funds out of the parties’ joint bank account and placed the funds in a personal account.  Most of the money was earned by him from a sneaker deal with Nike.  The money was taken out of the account the day after he filed for divorce.  You can read an article regarding the story at http://sportsillustrated.cnn.com/2008/basketball/ncaa/04/22/bc.bkc.olson.divorce.ap/.

In Oregon, upon the filing of a divorce, ORS 107.093 Restraining order; request for hearing states that a party cannot transfer, encumber, conceal or dispose of property in which the other party has an interest, in any manner, without written consent of the other party or an order of the court, except in the usual course of business or for necessities of life. The statute provides exceptions in the following circumstances: payment of Attorney fees in the existing action; Real estate and income taxes; Mental health therapy expenses for either party or a minor child of the parties; or Expenses necessary to provide for the safety and welfare of a party or a minor child of the parties.  Violation of the statute can lead to remedial contempt sanctions against the violating party. 

If you have any questions regarding your assets either in the course of a divorce or prior to divorce, please feel free to set up an consultation with our office.  Even if you are not planning on getting divorced in the near future, it is important to consult with a divorce lawyer to understand your rights.

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 April 23, 2008, the Oregon Court of Appeals published an opinion in Nelson and Nelson, in which the court further explained its treatement of the presumption of equal contribution

In Nelson and Nelson, the question before the court was whether or not a piece of real property should have been included in the division of the parties’ assets.  During the parties’ marriage, the parties’ acquired a piece of real property which had $95,070 in equity at the time of the parties’ divorce.  The trial court ruled that Husband had rebutted the presumption of equal contribution with regards to the property and awarded all of the equity and the property to Husband. 

The Court of Appeals overturned the trial court’s ruling.  Even though Husband had made the financial contributions to the acquisition and maintenance of the real property, he did not prove that wife had not contriubted equally to it.  Citing Owens-Koenig and Koenig for the proposition that “when one spouse ‘holds assets separately, and the other makes a disproportionately greater nonfinancial contribution to the marital estate through homemaking, child care, or some other form of undercompensated service * * * the presumption of equal contribution is not overcome with respect to the spouse whose contribution is at least partly indirect and nonfinancial’,” the court held that Wife was entitled to one-half of the equity in the real property.

You can review the full opinion in Nelson and Nelson at http://www.publications.ojd.state.or.us/A131724.htm.

If you have any questions about appeallate law, attorney fees or any family law or divorce legal issue, please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

One “Divorce Myth” we come across is that some clients expect you to be a jerk to the other lawyer. The myth is that such behavior is beneficial to the client and part of being an advocate. The reality is that being a jerk to the other lawyer is unprofessional, won’t improve your results, makes judges and your colleagues think less of you, and makes cases more expensive for both clients.

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.