Parenting time: Is sharing the “nest” the best?

Divorce can prompt parents to consider a variety of options when it comes to caring for their children. As divorce attorneys, we regularly see parents weigh the pros and cons of different parenting time arrangements in order to find the option that is the least disruptive for their children. In an effort to create a stable home environment for children, some parents are turning to an alternative approach that may raise a few eyebrows: Nesting. Instead of requiring the children to shuttle back and forth between two residences in order to spend time with each parent, nesting allows the children to remain put while the parents move in and out of the house in accordance with their parenting times. At the end of the parenting time, one parent will leave the residence to make room for the other parent. Stability is a clear advantage of nesting. Because they always remain in the same house, the children sleep in the same bed every night. They have the same walk home from school each day. They play with the same neighborhood children each weekend. Nesting allows the children to stick to a comfortable and familiar schedule, eliminating the need for the children to lug suitcases back and forth between two houses. While nesting may be the best option for some parents and their children, the drawbacks can make nesting off limits for others. Nesting would require the parents to maintain three total residences—the main “nest” house, plus the houses each parent retires to at the end of his or her parenting time. The additional housing costs could make nesting impossible for many. Alternately, nesting parents could maintain only two residences by sharing the same house away from parenting time in the same manner as they share the “nest” house. However, some parents may have a difficult time sharing all their space with a former spouse or partner. Remarried parents might not want to drag their new spouse between two houses as well, especially if the new spouse also has children. Along the same line, your new wife may not want to sleep in the same room where your ex-wife sleeps with her new husband. And sharing living spaces can lead to some age-old roommate squabbles, like whose turn is it to buy toilet paper. Nesting will likely never be the option the majority of divorcing parents choose, but it does work for some people. As with any parenting time arrangement, it is important for both parents to consider all options carefully.

Posted in Parenting Time / Visitation | 3 Comments

8 Tips For Surviving A Divorce

Divorce is a legal process with enormous social and personal consequences.  As Portland, Oregon divorce lawyers, we are in the habit of giving legal advice, but in talking to and working with clients have seen some struggle and some thrive through and after the divorce process. This post isn’t legal advice, but personal advice based on watching people go through the divorce process for almost two decades.

Is your spouse in the situation of saying “I don’t”? Like “I don’t want to be with you anymore”, “I don’t love you anymore”. In facing a divorce, you may be tempted to do things out of anger, distress, or frustration that you may regret in the future. The following 8 tips can help you through a difficult time to a better place.

  1. Don’t be a loner. Isolating yourself will just make you feel sad and you’re giving yourself more time to pity yourself. Surround yourself with loving people because positive vibes will help you regain joy. Especially when it’s a holiday, don’t be alone. Try to be with friends or family.
  2. Don’t start bad habits. Now’s not the time to drink more or start other bad habits. Treat yourself. Go to a parlor, gym, restaurant, or the mall. Make yourself important. This is the time to prove your spouse that it’s not your lost if they want a divorce. Take care of yourself.
  3. Don’t jump into a new relationship. When you’re ending your marriage, you are in a state where in any opposite sex that can comfort you will be a candidate to be your center of attention. You may just mistake it for love but it’s not. Avoid a rebound relationship. Allow yourself to heal and grow. Don’t be pressured by your friends. You alone can tell when you are ready for a new relationship.
  4. Don’t let your ex’ belongings stay in your place and vice versa. It will only make you remember the pain when you see things that belong to him or her. Make sure nothing will be left behind when he or she moves out. This way it is easier to move on.
  5. Don’t keep on blaming. Stop blaming yourself or anybody about what happened. This is your destiny. You will soon get over it. And you will find out the answers to all your questions as to “why” when the right time comes. Don’t let your self esteem suffer. Pick up the pieces and stand up.
  6. Don’t assume and don’t expect. Don’t assume the judge will be in favor of you because life is full of unexpected things. A divorce can be with surprises sometimes. Just be open and ready to whatever the decision will be. Take life as it comes.
  7. Don’t avoid communicating with your ex. This is okay if your ex was not abusive; but if not, you should try to be civil for the sake of your kids. If there is need to talk about your divorce or marriage then just listen and talk with respect.
  8. Don’t be bitter for so long. You may feel angry towards your ex but you can’t be like that for the rest of your life. It will not do you any good. Just think, he or she was once a part of your life and you had some good times together. Give yourself a time to bring out all the pain and then stop. Past is past, you should look forward. Let go.
Posted in Top 10 List | 2 Comments

Bankruptcy and Child Support

As the economy continues to struggle, bankruptcy can become an enticing option to more and more people who are looking for a fresh start. We have found that bankruptcy can pose some interesting questions for those receiving payments from their former spouse or partner. What happens if your former husband or wife files for bankruptcy? Will you lose your right to collect any back child or spousal support payments? The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) makes certain that child support and spousal support cannot be discharged through bankruptcy. In fact, you may be able to collect your debts by attaching property owned by your former spouse that is normally unreachable during a bankruptcy proceeding. Other debts owed to you by your former spouse can sometimes be discharged during bankruptcy, depending on the nature of the debt and the chapter of bankruptcy he or she is filing.

BAPCPA is still relatively a new law, so there is some uncertainty about how BAPCPA will apply in some situations. In addition, the process to protect your rights can be complex if your former spouse files for bankruptcy. If your former spouse owes you money and is filing for bankruptcy, it is important to consult with an experienced attorney. The lawyers are Stephens & Margolin LLP have substantial experience in cases involving support obligations and bankruptcy.

 

Posted in Child Support, Divorce | 2 Comments

New Case Law – Support Enforcement Division Does Not Have Authority to Modify Child Support While an Appeal is Pending

On August 31, 2011, the Oregon Court of Appeals decided Division of Family Support Unit v. Sullivan.

This case deals with a parent’s ability to modify child support through the Support Enforcement Division while the divorce judgment is being appealed.  Mother had appealed the trial court’s decision in the divorce case and, while her appeal was pending, Father requested a modification of child support.  There followed a number of different administrative and Circuit Court hearings related to Father’s request to modify child support, and Mother eventually appealed the final decision.  The Court of Appeals stated that the Support Enforcement Division did not have the authority to modify child support while the appeal was pending.

It is important to note that, under ORS 19.275, the trial court can modify child support while an appeal is pending based on a substantial change of circumstances.  This decision only limits administrative changes to child support.

The entire opinion can be found here.

Posted in Child Support, Modification, News | 2 Comments

New Case Law – Fear of Imminent Bodily Injury Does Not Require Overt Threats or Physical Violence

On September 8, 2011, the Oregon Court of Appeals decided Hubbell v. Sanders.

In this case, the victim was granted a restraining order against her ex-boyfriend due to his threatening behavior and stalking, including sending threatening text messages, lurking near the victim’s home and trespassing on her property, and vandalizing her property.  In order for the court to issue a FAPA restraining order, the victim had to show that she had been the victim of abuse by her ex-boyfriend in the past 180 days, that there was imminent danger of further abuse, and that her ex-boyfriend represented a credible threat to her physical safety.  The definition of abuse includes conduct which places the victim in fear of imminent bodily injury.  In this case, the trial court continued the restraining order and the Court of Appeals upheld it.  The Court of Appeals found that victim’s proof of the ex-boyfriend’s repeated threatening behavior and stalking was sufficient to establish that she was in fear of imminent bodily injury.  The Court further found that his persistence in threatening the victim and her friend, in trespassing on the victim’s property, and in harassing her by chasing her in his car were sufficient to show that the victim was in imminent danger of further abuse and that the ex-boyfriend represented a credible threat to her safety.

Many people believe that an individual must physically harm the victim in order for the court to grant the victim a restraining order.  However, many different actions which cause an individual to fear imminent harm may be the basis for a restraining order.

The entire opinion can be found here.

Posted in News | 2 Comments

New Case Law – Agreement Not To Modify Child Support Does Not Violate Law or Public Policy

On October 26, 2011, the Oregon Court of Appeals decided Matar and Harake.

In this case, the parties signed a stipulated general judgment which awarded child support to Mother.  The judgment included a provision preventing either party from modifying child support in the future based on changes in income or any other change of circumstances, such as a change in parenting time.  Four years later, Father attempted to modify his child support obligation based on a decrease in his income, and the trial court upheld the agreement not to modify.  Father argued that the provision violated public policy because it deprived the state of the right to set child support according to the support guidelines and deprived the court of its authority to modify child support.  The Court of Appeals found the agreement did not take away the court’s authority to modify child support, but rather was an agreement between the parties waiving their right to seek modification.  The Court found that such waiver provisions are enforceable, unless the circumstances of a particular case make enforcement of the agreement contrary to public policy.  The Court left the open the possibility that it would not enforce such an agreement if doing so would negatively impact the children in a particular case.

Parties to a divorce should generally avoid provisions which limit their ability to seek future modifications which would be allowed under Oregon law.

The entire opinion can be found here.

Posted in Child Support, Modification, News | 2 Comments

New Case Law – Stipulated Judgments are Enforceable as Long as They Do Not Violate Law or Public Policy

On August 31, 2011, the Oregon Court of Appeals decided Porter and Griffin.

In this case, the Court of Appeals stated that the stipulated divorce judgment that the parties had agreed to in 2009 was enforceable even though it treated a child for whom the parties were legal guardians as a child of the marriage. Under Oregon law, a child of the marriage is a biological child of the parties or a child whom the parties adopted during the marriage. The former husband and wife had two biological children and were legal guardians of the husband’s nephew, who had lived with them since birth. The stipulated judgment determined custody, parenting time, and child support for all three children, treating all of them as children of the marriage. The husband sought to modify the child support award, arguing that the court had no authority to approve or enforce a judgment which he believed was void. The court stated that it would enforce a stipulated judgment as long as it didn’t violate law or public policy even if the trial court would have lacked authority to order the parties to provide support for the nephew.

The entire opinion can be found here.

Posted in Divorce, News | 3 Comments

Divorce and Taxes – Claiming the Dependency Exemption

As Portland divorce lawyers, we get a lot of questions from clients about who gets to claim the dependency exemption after divorce.  Who gets to claim the dependency exemption post divorce hinges on who is the “custodial parent.”  The IRS applies a “time” test to determine who qualifies as the custodial parent,and does not rely on the divorce judgment. If the number of overnights is close to equal in the parenting plan, talk to your attorney about getting the other parent to pre-sign IRS form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents)), which pre-authorizes a parent to claim the exemptions.

 

Posted in Divorce | 8 Comments

New Case Law: US Supreme Court – Due Process and Jail Time For Contempt

The United States Supreme Court issued an oppinion on June 20, 2011 in Turner v. Rogers that touches on self represented litigant’s due process rights in contempt proceedings where jail time is at issue. The Father, Turner,  was ordered to show cause why he should not have been held in contempt for failing to comply with child support order. The South Carolina Family Court, Oconee County, found father in willful contempt and sentenced father to 12 months’ imprisonment. Father appealed. The court found that Turner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedures to resolve the matter. He did not have clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. And the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil contempt and ordered him incarcerated.

You can see the full opinion here.

Posted in Child Support, Legal Developments | 1 Comment

New Case Law – Definition of Abuse under Family Abuse Prevention Act

On August 10, 2011, the Oregon Court of Appeals decided Sacomano v. Burns.

The Court of Appeals reversed the trial court’s decision to continue a restraining order after a hearing. The court found that, although the respondent had sent the petitioner harassing text messages, and had threatened to expose damaging information about her to the public, he had not placed her in fear of imminent bodily injury, which is the standard under the Family Abuse Prevention Act.

 The entire opinion can be found here:

Posted in Domestic Violence, Legal Developments, News | 1 Comment