The Institute for Divorce Financial Analysts published the results of an interesting survey on June 11, 2009. In a collaborative case or a traditional case, a Certified Divorce Financial Analyst™ (CDFA™) can forecast the long-term effects of the proposed divorce settlement. A CDFA can also help attorneys by helping the client make financial sense of proposals, and empower their clients with the knowledge they need to make smart financial choices. An April 2009 survey of CDFA’s indicated that the ways in which divorce proceedings are handled has changed substantially with the dip in the stock market and home prices. The survey found some clients in an indefinite holding pattern while waiting for the economy to recover. Clients were also considering non-traditional, creative solutions to property division problems, such as sharing the marital home post divorce until the home sells or the market improves. A link to the article published by the IFDC is here.

As a Portland Oregon based divorce law firm, the attorneys at Stephens Margolin P.C. have seen the impact of the housing crisis and the declining stock market on clients. In recent litigation, we have seen courts ordering one spouse to pay the other to keep a house that is underwater. Parties contemplating divorce are well served to consult with lawyers trained in both traditional litigation and collaborative divorce to ensure that all resolution options are available.

We previously blogged about contempt of court as a tool for parenting plan violations.  Contempt is a broad remedy for violations of court orders, but is has some shortcomings for enforcing parenting plan violations.  The burden of proof is higher than for most types of family law actions, making close cases much harder to prove.  It can take many weeks to get in front of a judge.  While contempt remedies are powerful, they are not narrowly tailored to fixing parenting time issues.

The legislature created an enforcement remedy specifically for parenting time violations.  ORS 107.434 provides for an enforcement remedy specifically for parenting plan violations, as opposed to the general remedy of contempt.   Expedited parenting time motions have some potential benefits over contempt actions:

• The burden of proof is lower than for contempt, making it easier to prove close cases.
• You can generally get in front of  a judge faster than with contempt. The court must hold a hearing within 45 days unless the parties agree otherwise.
• There are unique remedies designed specifically for parenting plan violations.

In addition to any other remedy the court may impose to enforce the provisions of a judgment relating to the parenting plan, the court may:

• Modify the provisions relating to the parenting plan by (1) Specifying a detailed parenting time schedule; (2)Imposing additional terms and conditions on the existing parenting time schedule; or (3) Ordering additional parenting time, in the best interests of the child, to compensate for wrongful deprivation of parenting time;
• Order the party who is violating the parenting plan provisions to post bond or security;
• Order either or both parties to attend counseling or educational sessions that focus on the impact of violation of the parenting plan on children;
• Award the prevailing party expenses, including, but not limited to, attorney fees, filing fees and court costs, incurred in enforcing the party’s parenting plan;
• Terminate, suspend or modify spousal support;
• Terminate, suspend or modify child support as provided in ORS 107.431; or
• Schedule a hearing for modification of custody as provided in ORS 107.135 (11).

Talk to an experienced family law lawyer about what enforcement remedy may be best for your situation, or if you are served an enforcement motion.  

“Discovery” is the process of obtaining information about the other side’s case. Divorcing parties have a right to see the other side’s financial cards. There are many formal ways to get the other side’s financial documents. For example, you can ask a records holder to give you documents directly through a subpoena. You can also send out a formal request for production (ORCP 43B). More formal discovery methods can be expensive and take time.

Oregon’s legislature created a discovery shortcut in enacting ORS 107.088 and ORS 107.089. This “statutory discovery request” can be an efficient tool to get basic financial documents from the other side. The statute provides that if you serve a copy of ORS 107.089 on the other party, both sides shall provide the other party copies of the following doucments in thier possession or control:

• (a) All federal and state income tax returns filed by either party for the last three calendar years;
• (b) If income tax returns for the last calendar year have not been filed, all W-2 statements, year-end payroll statements, interest and dividend statements and all other records of income earned or received by either party during the last calendar year;
• (c) All records showing any income earned or received by either party for the current calendar year;
• (d) All financial statements, statements of net worth and credit card and loan applications prepared by or for either party during the last two calendar years;
• (e) All documents such as deeds, real estate contracts, appraisals and most recent statements of assessed value relating to real property in which either party has any interest;
• (f) All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due;
• (g) Certificates of title or registrations of all automobiles, motor vehicles, boats or other personal property registered in either party’s name or in which either party has any interest;
• (h) Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has any interest;
• (i) The most recent statement describing any retirement plan, IRA pension plan, profit-sharing plan, stock option plan or deferred compensation plan in which either party has any interest; and
• (j) All financial institution or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently open or closed.

The documents requested must be produced within 30 days of service of a copy of the statute. Failure to exchange discovery after serving the statute on the opposing party can have serious consequences.

Law.com had an interesting post about Phillip Smith’s divorce from his wife, Tricia Walsh-Smith in Manhattan. The case is an example of technology being misused in divorce. Apparently Ms. Walsh-Smith had made a rather embarrassing video about her intimate life with her husband, and posted it to YouTube. The video had over 3 million hits. The Manhattan judge granted the divorce on grounds of “cruel and inhuman treatment,” and stated the video was an attempt to embarrass her husband into settling the case on terms more favorable than in the couple’s prenuptial agreement. The full article can be found here. http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202423183846

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.
    

China View reports today that China’s civil affair department registered an increase in marriages and divorces in 2007. Approximately 1.4 million couples divorced last year, a year on year increase of 18.2 percent, according to the Ministry of Civil Affairs. This rate could be much higher because the Ministry does not report state-sanctioned divorces in the figure. China’s divorce rate has been increasing since 1980. Sociologists attribute the increase to the fast changing society and challenges to traditional concepts of marriage. China’s divorce rate is still far below the US divorce rate of approximately 50%. A new law in 2003 simplified divorce filings and allows for a same day divorce with a filing fee of 10 yuan ($1.36 US).

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.

Some divorces do take many months, or over a year, but this is a result of the process and conflicts and not mandated by the divorce statutes. The length of your case usually depends on how your case resolves. Many counties in Oregon have policies about how long a case may take (for example, some counties say 90% of cases should resolve within 9 months.) Cases that resolve by a trial may take 9 months, or potentially longer. Cases that resolve by default take less time than cases that are litigated. For cases that end in a default judgment, there is a 90 day waiting period from the date of service until the court can enter a final judgment. (ORS 107.065) However, if the parties agree, or “stipulate” to a divorce, the court can and usually does waive the 90 day waiting period, meaning there is NO waiting period. If you don’t have kids, and you live in a county where the court will sign a divorce judgment on the spot, a same day divorce is possible (maybe not desirable, but possible.) Many people express suprise (hence the myth) when they learn a same day divorce is possible. In the right circumstances, (remarriage, relocation, etc.) a same day divorce may be worth pursuing.

On December 5, 2007, the Oregon Court of Appeals in Cam and Cam, _____ Or App _____ (2007) upheld a trial court’s ruling setting aside a divorce judgment, but said the court got the result right but the reasons wrong. The case explores the tension between bankruptcy and divorce law.

Mr. Cam and Ms. Cam were trying to settle their divorce. Mr. Cam thought there was a complete deal, but Ms. Cam did not. Mr. Cam’s lawyer drafted and submitted a judgment, which the court then signed. The judgment awarded Ms. Cam real estate and a money award ( a judgment for money.) Less than a month prior to filing the judgment, Mr. Cam filed for bankruptcy, but did not submit all the necessary paperwork to the bankruptcy court, and his petition was dismissed. Unknown to the divorce court (and probably Mr. Cam’s divorce lawyer), the bankruptcy case was active when the judgment was entered.

Ms. Cam then moved to set aside the judgment, and the court granted her motion on the basis that there was no a complete agreement, and that Mr. Cam had concealed assets.

The Oregon Court of Appeals upheld the trial court’s ruling, but said that the trial court was “right for the wrong reason.” When someone files for bankruptcy, an “automatic stay,” or prohibition on all creditor activity goes into effect. The court upheld the trial court ruling because the entry of the divorce judgment dealing with property violated the “automatic stay,” not because Mr. Cam may have hidden assets or the settlement was not complete. The trial court had the right result, but for the wrong legal reason. The court further ruled that the trial court did not err in setting aside the non-void (or non-stayed) portions of the judgment because of the court’s broad authority under ORS 107.105.

The moral of the story? If you are filing for bankruptcy, TELL YOUR DIVORCE LAWYER! The federal filing trumps most state court legal actions, and you may make your expensive, hard won judgment moot.

There is no substitute for planning, and planning for your divorce can make the process go smother, lower your lawyers fees, and help ensure you emerge on the other end of the case ready to move forward, and with the least amount of emotional and financial damage. We put together the following “Top 10 list” for those considering divorce.

1. Consider your other options: While not appropriate in every case, consider if you really want to be divorced. If not, talk to a marriage counselor or other professional who can explore saving your marriage. If the process works, great! If the process does not work, you can at least get help discovering what went wrong, how to cope, and how best to move on.
2. Consult with and retain a family law attorney: Clients often make strategic mistakes prior to filing. For example, moving out of the family home, even briefly, can impact a custody and parenting time case. We blogged about the difference between consulting a lawyer and retaining a lawyer before. Make sure you at least consult so you know your rights, and how to avoid shooting yourself in the foot.
3. Copy documents: Your case will be smoother and your fees lower if you have a copy of all essential documents to provide to your lawyer. Obtain copies of pay stubs, tax returns, retirement account statements, bank statements, car and boat titles, real estate documents, insurance polices, etc. If you or your spouse uses financial software to track expenses, save a copy of the file.
4. Inventory your personal property: Go room to room and make a list of major items of value. You do not need to inventory every muffin tin, but you may end up out of the house for a period of months while the case progresses, and you may forget what is there.
5. Get a copy of your credit reports: Getting a credit report is very useful in identifying debt, accounts, and what accounts are open and closed. Pull a copy of your report from each of the three credit bureaus or a tri-merge report and your lawyer will thank you.
6. Establish your own credit and source of funds: If you do not have credit in your own name, apply for them and get several. You will need to establish your own separate credit history, and do not want to be in the position of having your access to funds cut off. If there is a joint cash account, consider splitting it and transferring ½ to a separate account in your sole name.
7. Keep the kids out of it: Getting ready for a divorce can take lots of time and energy. Make sure the kids don’t suffer any more than necessary by making them the first priority. Do not put them in the middle. Do not argue in front of them. Do not badmouth your spouse in front of the kids. Keep their routines as normal as you can. Stay connected (or get connected) to their activities at school and after school. Courts take a dim view parents that put kids in the middle of the conflict. Just don’t do it.
8. Know your finances: Make sure you know what you make and are capable of making, what your spouse makes and is capable of making, and where the money goes each month. What are the credit cards? How much is owed? Where are the retirement accounts? Can you earn enough in your current job or will you need your spouse to support you for a period of time? If your job involves travel, will you need a different job without travel if you don’t have a spouse to watch the kids while you are gone? The more you know about the finances the easier it will be to communicate with your lawyer. Knowing the finances and having a plan helps put you in the best position after the divorce is over.
9. Manage debt: This could be the worst time to increase your debt level. Unless your lawyer tells you otherwise, don’t make major purchases. Don’t go on shopping sprees. Some lawyers advise their clients to contact joint creditors and have accounts closed, or limits reduced to prevent the accumulation of new debt during the divorce.
10. Take care of yourself: Divorce can be a very stressful experience. Take care of yourself, even before anyone files. Work out. Find a support group, either through your friends or a formal divorce support group. Consider getting counseling. Many clients choose to get into counseling to help with the process, and report back that it was helpful.