The Oregon Divorce Blog » Stephens Margolin P.C.

Oregon divorce lawyers and filing fees – strict enforcement

C. Sean Stephens — Thu, 25 Jun 2009 18:09:14 +0000

Many divorce filings and motions made by Oregon lawyers require filing fees. Historically our experience has been that courts would extend a courtesy to our peers if they filed a case with the wrong filing fee by calling the lawyer and giving them an opportunity to pay the correct fee.

The Professional Liability Fund notified Oregon lawyers that at least three circuit courts (Bend, Multnomah, and Washington counties) are now strictly enforcing Oregon Chief Justice Order (CJO) 08-015 and returning all motions and responses that are unaccompanied by the correct filing fee-$50 for motions and $35 for responses. Circuit courts in other counties throughout the state are also considering strict enforcement of these motion and response fees.

Firms will no longer receive courtesy calls or letters from the court, and there is no grace period to submit the filing fee at a later date. Motions and responses submitted without the correct fee will not be filed with the court, and hearings based on the motion will be cancelled.

CJO 08-015 requires filing fees for the following trial motions and responses:

(1) ORCP 21 motions to dismiss, make more definite and certain, strike, and quash (such ORCP 21 motions, filed jointly, in any combination, are subject to one fee);

(2) ORCP 46 motions to compel discovery;

(3) ORCP 47 motions for summary judgment;

(4) ORCP 63 motions for judgment notwithstanding the verdict (JNOV) or reconsideration;

(5) ORCP 64 motions for new trial or reconsideration;

(6) Motions to reconsider rulings on the motions identified in CJO 08-015;

What does this mean to divorce lawyers and their clients? Failing to stay on top of the current filing fees may seriously prejudice a client’s case.

Remedies for omitted or hidden assets in divorce

C. Sean Stephens — Fri, 19 Jun 2009 04:30:45 +0000

As a divorce lawyer in downtown Portland Oregon, I frequently get asked about hidden assets in divorce. Sometimes a client is concerned the opposing party may be concealing assets. Sometimes individuals are curious about their obligations to disclose assets in divorce. There are many discovery tools available to lawyers to help discover assets a party may own. For example, ORS 107.089 mandates basic discovery between parties in divorce if a copy of the relevant statute is served on the other side. (See our blog post regarding statutory discovery here) There are also serious ethical consequences for lawyers that assist clients in concealing assets during divorce. The purpose of this post is to discuss what Oregon divorce courts can do after divorce if an asset was left out of the distribution.

Assets can be “omitted” two ways, intentionally or accidentally. ORS 107.452 specifies what the divorce court can do if a party discovers an omitted asset post divorce. If a party alleges that significant assets belonging to either party (1) existed at the time of the entry of the judgment; and (2) were not discovered until after the entry of the judgment; the divorce court must reopen the case.

If the assets were accidentally or inadvertently omitted from the distribution, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances. Basically, if the omission was an accident, the court will divide the asset using the same legal standard as if the asset were discovered prior to the divorce.

The court can hand out harsher remedies in the event an asset was intentionally concealed. If the court finds evidence of intentional concealment, it can order:

1. The division of the appreciated value of the omitted assets;

2. The forfeiture of the omitted assets to the injured party;

3. A compensatory judgment in favor of the injured party;

4. A judgment in favor of the injured party as punitive damages; or

5. Any other distribution as may be just and proper in all the circumstances.

The court can order attorney fees on a motion to reopen a divorce case. A fee award is mandatory if the court finds a party intentionally concealed assets. We previously blogged about how the court decides if fees are appropriate, and if so, how much. Many of the factors the court considers in awarding fees factor in to concealed asset cases.

Time limitations apply. If you think significant assets were omitted from your divorce, you should consult with an experience family law lawyer immediately.

NEWS: High end divorce firms report increase in divorce business – couples with assets chosing to divorce now

C. Sean Stephens — Thu, 18 Jun 2009 16:14:14 +0000

The American Bar Association posted an interesting article about an increase in business for divorce law firms handling higher end divorce. A link to the article is here. While the news is full of stories about couples postponing divorce in … Continue reading →

Modification of Spousal Support – Part 2 (The law)

Jon Berman — Tue, 14 Apr 2009 23:18:52 +0000

Oregon law permits courts to modify awards of spousal support upon a showing of a substantial change in circumstances. The party seeking to modify an award carries the burden of proving that such a substantial change has occurred. Typically, courts require that the change in circumstances is one that was not anticipated by the parties at the time of the original award. Thus, in one recent case, a court denied a business owner’s motion to reduce his spousal support obligation based upon his claim that his business had experienced a down year. The court held that, though the business owner was able to demonstrate a decrease in his income, he was unable to show that the decrease would be sustained. However, the court went on to state that if the business continued to suffer (that if the downturn was more than just the “economic ups and downs” inherent to most businesses), then a reduction in spousal support would have been warranted. This case was decided by the Oregon Court of Appeals in 1998, when the economy was still hitting on all cylinders.

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

New Case Law – an Oregon divorce lawyer’s take on why NOT to harass your spouse post separation (and a few other issues)

C. Sean Stephens — Tue, 17 Mar 2009 05:02:33 +0000

On March 4, 2009, the Oregon Court of Appeals published an opinion in Boyd and Boyd. In the Boyd case, wife appealed from a divorce judgment, claiming the trial court erred in dividing the marital property, awarding husband attorney fees, and in the amount of her spousal support award. The parties had been married 30 years, and had been gifted substantial monies during the marriage from wife’s family. Husband was making $4000 per month at the time of the dissolution, and wife was not working, nor did she work during the marriage. Wife also received by inheritance real estate worth approximately $133,000. The trial court included wife’s inherited property in the property distribution and awarded it to wife (rather than awarding it as wife’s separate property). The court’s original math had wife receiving approximately $15,000 more in property than husband. The trial court also awarded husband $13,274.70 in attorney fees, and gave wife $200 per month indefinite spousal support. The trial court’s logic was that wife would receive reduced spousal support and the long half of the property in exchange for not having to pay an equalizing judgment.

Both parties made corrections to the trial court’s letter opinion. The brickyard property and husband’s retirement had been substantially overvalued. The trial court’s new math resulted in wife receiving $50,000 more in property than husband, however, the court still did not order an equalizing judgment to be paid.

The Court of Appeals disagreed with the trial court’s inclusion of the inherited property in the distribution, and excluded it as wife’s separate property. The court noted that excluding the property produced a more equal distribution.

The Court of Appeals also disagreed with the trial court that $200 per month of spousal support was adequate in a long term marriage. The court raised wife’s support award to $750 per month and noted that the primary goal of spousal support in a long term marriage is for the receiving spouse to enjoy a standard of living not overly disproportionate to that enjoyed during the marriage. The effect of the increase in spousal support was to eqalize husband and wife’s post divorce income, assuming that wife could earn minimum wage.

The court upheld husband’s award of attorney fees against wife. We previously blogged about the analysis the court uses in determining if one party should pay the other’s fees, and if so, how much. The Boyd court focused on wife’s post separation conduct. Wife was angry, and had left about 700 messages on husband’ s answering machine in the 16 months between separation and trial. Many of them were threats that she would make this expensive, that she would not settle and would then appeal, and that husband could not afford to fight her. Many of the messages ended up as an exhibit in court.

This is an interesting case for several reasons. First, the trial court’s math and analysis were flawed, and the result at the court of appeals may have been different had the trial court not changed its ruling. Help your attorney get accurate values on assets, accounts, and debts so they can get good information to the court.

This case is also interesting for the attorney fee award against wife. As divorce lawyers, we see many parties who are embittered by the divorce process, and who then lash out at their spouse. We tell people not to do it. The wife in Boyd probably didn’t listen to her lawyer’s advice, and was dumb enough to leave repeated threatening messages that ended up as exhibits in court! You should assume that anything you write (or say on a recorded message) during litigation may show up as an exhibit in trial, but Ms. Boyd still could not restrain herself. While we are a no fault divorce state, the court can and will consider conduct under ORS 20.075 (1) and ORS 20.075(2)in determining if a spouse should pay the other’s fees.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A135183.htm

MTV’s documentary series “True Life” doing show about divorce – Casting call!

C. Sean Stephens — Tue, 10 Feb 2009 21:19:43 +0000

As divorce and family lawyers in Portland, Oregon, we see the impact that divorce can have on parents and children. While our client’s stories are confidential and private, I think a lot of people would benefit from seeing a show about what real people actually go through during a divorce, and how it affects them. MTV’s documentary series, “True Life” is doing a show on young people going through or affected by divorce. We were contacted by the producers of True Life at MTV and asked to help with casting. They are looking for people between the ages of 16 and 28 anywhere in the US, who are either getting divorced or are the children of getting-divorced parents. They are looking for a few couples to follow over the next few months.

The following is the casting call notice and contact information:

MTV’s documentary series, “True Life,” is casting young people who are going through or affected by a divorce

Are you in the process of getting divorced, or considering getting a divorce? Do you feel like you married too young, and just can’t make it work anymore? Is your marriage taking an emotional toll on your home, work and social life? Do you feel like people in your life – friends, family members, your children – must take sides in your marital war? Is the chaos just too much to bear anymore? Or is your parents’ pending divorce forcing you to choose sides? Is one of your parents moving far away, and taking you along? Do you feel like their divorce is somehow your fault… or that it’s basically ruining your life? If divorce is affecting your life right now, MTV wants to hear from you. If you appear to be between the ages of 16 and 28 email us at divorce@mtvn.comwith all the details. Please be sure to include your name, location, phone number and a current photo, if possible.

“Since its initial episode in 1998, MTV’s award-winning True Life documentary series has told remarkable real-life stories of young people and the unusual subcultures they inhabit. Whether documenting the lives of gay marriage activists, individuals dealing with obesity, or teens in high school–the True Life series tells its stories solely from the varied voices and points-of-view of its characters–putting the series in the unique position of reflecting the state of youth culture at any given moment.”

- MTV’s True Life website

http://www.mtv.com/ontv/dyn/truelife/series.jhtml

Dispute Resolution: Family Law Mediation in Multnomah, Washington, and Clackamas County

C. Sean Stephens — Fri, 16 Jan 2009 06:20:08 +0000

As a divorce lawyer in downtown Portland Oregon, I frequently get asked about the mediation requirements for family law cases in Multnomah, Clackamas, and Washington county. Some people are aware of the availability of mediation through the county, and some are not. There is confusion about what mediation is, and how it differs from a hearing or a trial. We hear lots of questions like “what is mediation? Is county mediation mandatory? Do I have to mediate if I know the other parent won’t agree? Will I have to see the other parent face to face? The following is our effort to summarize the court’s authority to require mediation, the reasons behind court mandated mediation, and provide information about county family law mediation in the tri-county area.

Mediation is a form of dispute resolution that aims to assist two or more disputants in reaching an agreement. At a trial, the parties present evidence, and a decision is imposed on the parties by the judge. In mediation, the parties themselves determine if there is an agreement, and the contents of the agreement. Many parents chose mediation with a private mediator. If, for financial or other reasons, you do not want to hire a private mediator, Multnomah, Clakamas, and Washington county make mediation available to parties involved in family law disputes. Courts want people to mediate because it weeds out cases that can be resolved without the help of a judge. Clients want mediation because it gives them control over the outcome, is confidential, reduces conflict between the parties, and is generally less expensive than litigation. Good lawyers like mediation because it provides an efficient and lower cost way to help clients resolve their disputes.

ORS 107.755 requires that each judicial district provide a mediation orientation session for all parties in cases where custody, parenting time, or visitation is in dispute, and in any other domestic relations case where mediation has been ordered. The orientation session should make parties aware of (1) what mediation is; (2) mediation options available to them; and (3) the advantages and disadvantages of each method of dispute resolution. With limited exceptions, mediation is mandatory prior to a judge hearing a case. Mediation is not appropriate for restraining order or cases involving domestic violence, and court mediators must, per statute, be trained in recognizing domestic violence, allow parties to opt out, and take steps to avoid intimidation before and during mediation. County mediation is held in private, and all persons other than the mediator and staff, parties, counsel and children of the parties shall be excluded. All communications, verbal or written, made in mediation proceedings shall be confidential, and not subject to examination in court.

Multnomah County: The court’s rules about mediation are located in SLR 8.046. Multnomah county is a mandatory mediation county for family law cases. If you don ‘t mediate or get permission to get out of mediation, you won’t get time with a judge. No temporary hearing or trial regarding custody or parenting time will be set unless an Order for mediation has been obtained, an Order Waiving Mediation has been entered, or the parties have attended mediation since the filing of the Petition. Modification motions will not be heard without compliance with the mediation requirement. The Multnomah County Family Court Services website provides that mediation is available for custody and visitation issues. The service is supported by filing fees and is free to the participants. For more information or to set an appointment call Family Court Services at 503.988.3189.

Washington County: Washington County has mandatory mediation for Any action filed in the court involving a controversy over custody or parenting time of minor children. If the parties agree, the mediator can address issues other than children, such as property and support. If there is a disagreement concerning custody or parenting time at any stage of a domestic relations proceeding, the parties must mediate. Parties must complete two sessions of Kids Turn, the mandatory parenting class prior to mediating. Parties may independently select a private mediator. Mediation is confidential, and free. The Washington County Conciliation Services website provides information on mediation services in Washington County. Mediation can be scheduled by court order, or by calling Conciliation Services at : (503) 846-3428.

Clackamas County: Clackamas county is a voluntary mediation county. There is no SLR mandating mediation. Parents can access free mediation through the county, but are not required to do so in most cases unless specifically ordered to by a judge. The Clackamas County Family Court Services website provides information about accessing mediation in Clackamas County. Most types of family law filings qualify for one or two free mediation sessions. Mediation sessions beyond the two free sessions are charged at $80 per hour. Mediation can be scheduled by calling Family Court Services at 503-655-8415 .

Expedited Parenting Time Enforcement

C. Sean Stephens — Mon, 12 Jan 2009 04:21:38 +0000

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.

News: Bugged Teddy Bear Backfires!

C. Sean Stephens — Sun, 11 Jan 2009 20:56:28 +0000

While wanting to know what is happening in the other parent’s house is understandable, there are some boundaries. For example, don’t grill the kids about what is happening with the other parent during parenting time. Also, putting recording devices in kids toys also crosses the line! The Omaha World Herald published a story about a Nebraska woman who is being sued by her ex-husband because she placed a listening device in the 4 year old daughter’s teddy bear. The couple was enmeshed in a custody battle. The plan backfired when the judge refused to hear the recording. It is illegal in Nebraska, and many other states including Oregon to tape a conversation where at least one party has not consented to the recording. The full article can be found here.

Divorce Myth: The Police Will Enforce My Parenting Plan

C. Sean Stephens — Sun, 11 Jan 2009 02:06:52 +0000

One “Divorce Myth” we come across is the belief that the police or sheriff will help with parenting time and custody disputes. We hear stories of parents who call the police if the other parent was late returning a child, only to be told that it is a “civil matter” and that they should call a lawyer. Some manage to convince an officer to do a “civil standby” where the officer is present, but the officer cannot forcibly retrieve the child without special permission from the court. The myth is that law enforcement will help enforce your parenting plan immediately. The reality is that no immediate remedy exists for parenting time violations, and law enforcement can only assist to return a child to the custodial parent with special permission from the court.

For the non-custodial parent, law enforcement won’t help. The non-custodial parent can file a motion and set a hearing for remedial contempt or for enforcement of parenting time, but weeks may pass before the court actually hears the matter.

Custodial parents can get law enforcement to retrieve a child, but they need a special order from the court called an “Order of Assistance.” ORS 107.437 allows a person entitled to custody parent to appear ex parte in a county:

In which a child is located if the person is entitled to the physical custody of the child under a valid and current order issued in this state; or
In which a valid and current foreign custody order has been filed with a petition.

A certified copy of the court order must be presented with the motion or petition. If the court finds that the applicant is entitled to physical custody under a valid and current order, and that the child is being withheld in substantial violation of the order the court may issue an order directing local law enforcement to use any reasonable means and force to deliver the child as directed by the court, including directing forcible entry into specified premises.

The Order of Assistance is a heavy handed remedy, and should not be used lightly, considering the impact on a child of being forcibly retrieved by police. However, it will get you the help of law enforcement in retrieving a child.