New Case Law – Parenting Time Change As Basis for Child Support Modification

Family law is often seen as a messy and emotionally driven area of legal work. As a family law attorney, I need to both deal with the emotional side of cases and be technically proficient regarding the legal issues at hand.

One place where technical legal hurdles occur is in the area of modifications. Child support is set based upon factors that are frozen in time and the time of the judgment. In the real world, however, health insurance premiums, child care costs, parenting time and incomes change frequently. In Oregon, when one of these factors change enough to make it worthwhile for a party to ask for a change in child support, that party needs to file a motion and demonstrate that the change has been substantial. If the change is not “substantial,” then the court cannot approve the change (even if factors are different than they were).

The court of appeals recently decided a case which turned on whether or not a change in parenting time is a substantial change in circumstances sufficient to justify a modification of child support. This link will take you to the opinion.  In the case, the court of appeals holds that father’s increase in time from 41% to 100% was a substantial change.

Posted in Appeal, Child Support, Legal Developments | Comments Off on New Case Law – Parenting Time Change As Basis for Child Support Modification

Should I File For A Legal Separation?

I have had a lot of questions from potential divorce  clients contemplating divorce about whether a legal separation is a good alternative.   I previously blogged about the differences between an annulment, legal separation, and divorce.  Usually when a client asks about legal separation as an option,  the goal is to not get divorced, but to send an attention getting “shot across the bow” of their spouse to get them focused on the marriage.  From my experience and observation, this almost always backfires, and these cases get converted to a divorce mid-stream.

ORS 107.025 (2) provides the following grounds for a legal separation:

  1. Irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage;
  2. The parties make and file with the court an agreement suspending for a period not less than one year their obligation to live together as spouses, and the court finds such agreement to be just and equitable; or
  3. Irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest.

There are some narrow circumstances when a legal separation makes sense. The above three factors cover temporary marital problems, religious reasons to not seek a divorce, preservation of medical insurance or financial benefits, or those just seeking temporary breathing room in a troubled marriage.  Also, there’s no waiting period on moving to Oregon to file a legal separation, so it can be a useful tool to access the court’s authority over custody,  parenting time, and support until the court obtains divorce jurisdiction.

This is an area of family law where self-help is a bad idea. Through drafting, a good lawyer can make the difference between achieving a predictable and final result vs. future litigation and financial uncertainty. Great care must be taken in drafting the judgment of legal separation to avoid the possibility of the court substantively changing the financial terms of the agreement.  If there are ambiguities, the court can address the ambiguities and reallocate property in later proceedings.  The stipulated judgment of legal separation must be unambiguous that the parties intend the terms to be binding on any future divorce proceeding.  You also need to address in the judgment  many possible life events at a time of great uncertainty.  Many things can happen to separated couples, such as temporary reconciliations, and these contingencies  should be addressed by your lawyer in the judgment.

 

 

Posted in Child Custody, Child Support, Legal Separation, Property Division, Settlement | Comments Off on Should I File For A Legal Separation?

Second Opinion Divorce Consultations

second.opinion.divorce.consultIf you received a serious medical diagnosis and a recommendation for surgery, you’d likely seek a second opinion. You’d want it because a misdiagnosis with your health can have significant consequences.  If your mechanic recommends expensive car repairs, you’d likely want to to verify the recommendation with another mechanic.  To ensure your long term financial well being, you may want a second opinion from an independent financial adviser to make sure your portfolio is structured to meet your goals.  So why is it that clients are reluctant to get a second advisory opinion when receiving recommendations about divorce property division, parenting time, child support and child custody, or supporting an ex spouse?

Most people other than lawyers are not familiar with the nuances of the legal system, the specific judges you may appear in front of, and the complexity of legal strategy.  When working with unfamiliar matters and issues, it makes sense to have all of the information you can to make informed decisions about your case.

Divorce and family law is complex.  It makes sense to get a second opinion if:

  • If your doesn’t seem familiar with the law or the complexity of your case.
  • There appears to be no overall plan for the case, the case is not moving forward,  and there’s no end in sight.
  • You are not being well prepped for hearings or trials.
  • Your lawyer is not seeking or receiving thorough discovery of financial documents.
  • You can’t get meaningful answers or clear strategies from your attorneys about the case.
  • Your relationship with your lawyer is strained, and you want confirmation that you are getting good advice and your case is being properly handled.

The cost of a second opinion is relatively inexpensive compared to the cost of your case, and much lest costly than an unnecessary bad result.  You may pay for an hour or two of the lawyer’s time, and get valuable advice and reassurance about your case, or to help you decide if another lawyer is  better suited to the task.

By Sean Stephens
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Other Popular Articles and links from the Oregon Divorce Blog

  1. Top 10 questions to ask a divorce lawyer in the first consultation.
  2. At what age can a child decide custody/parenting time?
  3. Contempt Of Court for Parenting Time Violations

 

 

Posted in Divorce | 1 Comment

Helping People During Divorce – Father and Daughter Reunited

I have previously blogged about my passion to help people through difficult divorce and custody cases.  I previously wrote about helping to reunite a father and his children, and helping get a fair property award and my client’s legal fees paid in the process.  I just finished another satisfying case and helped reunite a father with his daughter after a year and a half of no contact.

My client was entitled to substantial parenting time by court order, and the other party  unilaterally cut him off from all contact with his daughter. His mother was very involved with her granddaughter, and  she’d been cut off from contact with her granddaughter too. He tried on his own to get the issue addressed and filed parenting enforcement actions as a self represented litigant, but didn’t make any progress.  He thought about giving up and living with the lack of contact, but he didn’t.  I am thrilled he made his way to our office.  I listened to his story, we put together a plan to address it, and in February 2015 the court awarded him sole custody. The mother had hidden with the child, and after searching in and out of state, she was located and father and his family were reunited with his daughter.  I love hearing updates I get about how well  his daughter is doing, and reading the feedback from the grandmother about the case.

It would have been easy for him to give up, and I am thrilled he didn’t. Lawyers can be expensive, and it’s challenging to navigate the court system on your own. I was honored to stand by his side until the court did the right thing and awarded him custody of his daughter.

By Sean Stephens
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Other Popular Articles and links from the Oregon Divorce Blog

  1. Top 10 questions to ask a divorce lawyer in the first consultation.
  2. At what age can a child decide custody/parenting time?
  3. Contempt Of Court for Parenting Time Violations
Posted in Child Custody, Divorce | Leave a comment

Stephens & Margolin LLP moving to new offices located at 1000 SW Broadway building August 4, 2014!

Stephens & Margolin LLP 1000 Broadway location

We’re Moving!

As of August 4th, 2014, Stephens & Margolin LLP will be open for business at 1000 SW Broadway Suite 1250, Portland, OR 97204. The staff of the 1000 Broadway Building went out of the way to make us feel welcome!

 

Posted in Divorce | Leave a comment

Parenting Class Update For Multnomah, Clackamas, and Washington County, Oregon

This post is to summarize the current parenting class requirements for Multnomah, Clackamas, and Washington County courts. I previously blogged about the parenting class requirement for parents in divorce, custody, and parenting time cases. The 2008 article can be found at this link.  The rules and websites have changed, and thank you to all of the readers who let me know the old post was out of date. The current information follows:

MULTNOMAH COUNTY PARENTING CLASS

  1. What’s the class called? Parents Helping Children Cope with Family Change
  2. Who must take the class? Everyone who is a party in a domestic relations case involving minor children. (annulment, divorce, legal separation, and paternity, custody, or parenting time cases, and modifications if class not previously taken)
  3. When do I need to register? You must register within 15 days of receiving notice of the requirement to take the class, or get court permission to take an alternate class.
  4. What happens if I don’t register? The court will not enter your final judgment, or enter the judgment with a condition that you can’t enforce parenting time until you complete the class requirement.
  5. How much does the class cost? Registration costs $70, unless you register within 60 days of filing or service, in which case the cost is $55.
  6. How many classes are required? One.
  7. How often is the class held? Five times monthly.
  8. How do I get more information? Link to Multnomah County Family Court Services Parent Education Program site. 

 

CLACKAMAS COUNTY PARENTING CLASS

  1. What’s the class called? Parents Helping Children Cope with Family Change
  2. Who must take the class? All parties to an annulment, dissolution (divorce), legal separation, custody or visitation action, or post-decree litigation involving custody or visitation, where the interest of a child under the age of 18 is involved, are required to attend the class.
  3. When do I need to register?  You must register within 15 days of receiving notice of the requirement to take the class, or get court permission to take an alternate class.
  4. What happens if I don’t register? The court will not enter your final judgment, or enter the judgment with a condition that you can’t enforce parenting time until you complete the class requirement.
  5. How much does the class cost? Registration costs $70, unless you register within 15 days of filing or service, in which case the cost is $55.
  6. How many classes are required? One class, 3 1/2 hours.
  7. How often is the class held? Four to five times monthly.
  8. How do I get more information?   Link to Clackamas County Parent Education Program site.

WASHINGTON COUNTY PARENTING CLASS

  1. What’s the class called? Kids Turn
  2. Who must take the class? All parties with children under the age of 17 in family law cases.
  3. When do I need to register?  You must register within 14 days of filing, or receiving notice of the requirement to take the class.
  4. What happens if I don’t register? The court can do a variety of things. Your judge won’t be impressed with you, you may not be able to have a scheduled hearing, trial, and may have enforcement restrictions put on your judgment.
  5. How much does the class cost? Registration costs $267, unless you show financial hardship.
  6. How many classes are required? Four 90 minute workshops.
  7. How often is the class held? Monday, Wednesday, Thursday, and Saturday at 3 different locations. Link to current class schedule. 
  8. How do I register, contact the class providers, and get more information? Link to The Family Law Education Program Of Washington County.

 

 

 

Posted in Child Custody, Dissolution, Divorce, Parenting Time / Visitation | 2 Comments

Helping People During Divorce – Parenting Time Enforcement

I love helping people through difficult court cases. Saying this at a social gathering can be a conversation stopper, but it’s true. I previously blogged about my passion to help, and about helping one particular client through a very difficult case, and having the court award him $25,000 from his ex wife for his legal bill. Many people in his situation would have given up, but he didn’t.

One of the most satisfying cases I’ve worked on in the previous 19 years involved helping a father wrongfully cut out of his children’s lives regain time and his relationship with his children. His ex-wife intentionally interfered with his parenting time, and had been playing games with his time since the divorce over 6 years ago. Over the course of 6 years and five different hearings, false allegations were debunked, attorney fees were awarded; and the court tried different sanctions to gain mother’s compliance with previous orders. Never in 19 years of practice have I seen a parent so relentless in destroying the other parent’s relationship with the children. He’d exhausted himself financially trying to get parenting time going. He thought about giving up and walking away, but ultimately didn’t. Instead, after much soul searching, he agreed to go forward with the final hearing. I am truly glad he did, and I believe the children will be thankful when they are adults. In addition to getting his legal fees paid, the Judge put mother on probation until the children are 18. She has to report to the judge every other month to talk about how she is complying with the parenting plan or face jail time.

If he had given up he wouldn’t see his kids at all. He wanted to. Watching his struggle, counseling and encouraging him, and standing by his side until the court did the right thing was one of my most satisfying experiences as a lawyer. Period.

By Sean Stephens
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Other Popular Articles and links from the Oregon Divorce Blog

  1. Top 10 questions to ask a divorce lawyer in the first consultation.
  2. At what age can a child decide custody/parenting time?
  3. Contempt Of Court for Parenting Time Violations
Posted in Attorney Fees, Divorce, Helping People During Divorce | 4 Comments

When is my Oregon divorce final?

imageI have had many divorce clients ask when is the divorce final? People in divorce want closure and finality, and many expect the divorce to be final at trial, or when they sign the judgment of dissolution of marriage, or when their spouse signs the divorce judgment. Courts enter Divorce Judgments signed by Judges into the Oregon Judicial Information Network (OJIN), and frequently the entry date in OJIN is several days after the Judge has signed. The correct answer is that the marriage is dissolved when the Judge signs the judgment of dissolution of marriage. (See ORS 107.115). In many cases this happens weeks or months after a divorce trial if there are disagreements as to what should be in the judgment.

Now you know!

By Sean Stephens
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Posted in Divorce | 2 Comments

New Case Law – Proper Calculation of Military Pension Amount

In February, the Oregon Court of Appeals ruled on a case I filed.  The ruling addressed two issues: The calculation of a military pension; and use of the child tax exemption.  The Court refused to rule on the child tax exemption issue due to lack of preservation and invited error.  The opinion has an interesting discussion of those two issues. The Court did agree with me that the highest pay grade should be used to calculated the division of a military pension regardless of the date of divorce.  The opinion can be read here:  http://www.publications.ojd.state.or.us/docs/A146655.pdf

Posted in Appeal | Tagged , , | 1 Comment

Helping People During Divorce

I love my work as a divorce and custody lawyer. I get funny looks saying this sometimes, but it’s true. The reason I chose this challenging work is a basic desire to help people. One of the biggest satisfactions I get is really helping people who are at a disadvantage in court. Most divorce cases settle within the range of what is fair. Most people take good advice from good lawyers. However, some people misuse the court system to try to increase costs, make the case unpleasant and difficult for everyone involved, and pressure the opponent into an unfair settlement.

Last year I represented a client who was in a much worse financial position than his spouse. He had limited access to money, and was kicked out of the home he had lived in for years. The other party was difficult, obstructionist, intentionally increased his legal costs, took positions not supported by Oregon divorce law, filed false criminal and civil charges against my client in an effort to get him to “go away” and settle for nothing, and at least doubled what my client’s bill should have been. Her hope was that his resources would be exhausted, his lawyer would quit, and he would give up and go away with an unfair result. We gave his wife multiple chances to settle for what was fair, all of which were rejected.

The case should have settled, but the other party’s position made it impossible to settle. I took the case before the judge standing by my client’s side.  I exceeded his goals, and far exceeded what he would have received had he taken one of his’ ex’s “offers.” I had a lot of personal satisfaction in helping him persevere and getting a good result from the court.

This week, the trial court let us know that the other party had to pay $25,000 of my client’s legal bill because of her conduct during the case. It’s money he shouldn’t have had to spend, and I am happy to be a part of leveling the playing field for my client, and putting him in a better financial position. I feel fortunate to be in a position to help people like him persevere, not give up, get a good result, and get vindication at the end for the other side’s bad behavior. Cases like this are one of the reasons I love what I do.

By Sean Stephens
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Posted in Divorce | 3 Comments