Reaching the end of a divorce can be a drawn-out process with issues that seem impossible to resolve. The distribution of assets, custody (if there are children), and support, are three of the primary concerns couples face. “What is going to happen to the house? Who gets it? What about the furniture? The car? The remaining debts?”…etc.—are all questions that seem daunting to rectify. However, Oregon is an equitable distribution state and has established guidelines to help determine who gets what.
Equitable Distribution seeks to divide marital assets and debts (meaning any property or liabilities that were acquired during the marriage) in a way that both spouses leave the marriage with relatively equal footing. Each spouse is entitled to some percentage of the property—but it’s not always 50/50 when it comes to the division.
How is “equitable” calculated?
The courts vigilantly evaluate the documentation to determine how much each spouse contributed to the marriage and how they stand financially. Separate property is anything a spouse receives, such as a gift, inheritance, or other court settlements, and may not be shared, or distributed to the other party. All property is before the court, both separate and joint, however if you properly trace the funds, most times the courts will exclude the separate property from division.
What is most commonly distributed is marital property. The most common assets and debts that are considered marital property include: bank accounts, personal property, debts and loans made while as a couple, retirement/pension benefits, and the real estate that had been mutually shared. These are just a few examples and is not an exhaustive list.
For most couples, the marital home is often the largest asset acquired during the marriage and dividing it can seem impossible. Obviously the parties can agree to sell the home and divide the net proceeds fairly equally. If one of the parties wants to keep the residence the common approach is also fairly simplified. First, fair market value needs to be determined. If the parties cannot agree to a value then hopefully they can agree to a joint appraisal and accept the value determined. Second, the marital equity is commonly the fair market value less the outstanding mortage(s) and lines of credit. Costs of sale, including real estate fees, are generally not included in determining martial equity. Third, is to determine how the party keeping the home is going to pay out the other party’s equity: refinance and cash out, greater distribution of other marital assets, assumption of greater debt, offset against spousal support etc. It is important to remember that the only way to remove a party from the mortgage obligation is to refinance or sell the home. At the very least you should have a refinance provision within a set period of time or requirement to sell the home at some point.
Prior to reaching the final settlement, retirement accounts are reviewed as part of the divorce process. In the state of Oregon, a vested/unvested retirement account is considered marital property if acquired during the marriage. In the situation where the spouses cannot reach an agreement on the division of the pension, a pension valuator would be advised to determine the distribution.
If the couple can set an equal division on their own, then they will present the marital agreement to the court for review and approval. If any accounts cannot be divvied fairly by the parties, then the court will review the arguments presented at trial and ultimately determination on how best to divide the retirement accounts. It is normal to use a common valuation date and divide retirement accounts by keeping the retirement with the party who earned it as much as possible. Division of retirement accounts are nontaxable events if handled properly.
Using a mediator can be an effective tool for dividing up assets if both parties are cooperative. Through the mediation process the parties work with a mediator go through all assets, debts, or any conflicts. This initial review is documented. If the parties cannot come up with a settlement for their case then the mediation will take place with their standing lawyers and the mediator. Once an agreement is reached the settlement agreement is drafted and taken to the court for review and finally a divorce decree will be constructed.
Keep in mind that experts such as real estate agents, mediators, and pension valuators will add to the cost of the divorce. While the initial cost of the divorce might be higher, it is advised to take advantage of the help that is available at the time of settling a divorce.
Oregon’s Equitable Distribution is an exceedingly practical and convenient system to help aid the courts in the decision of the distributions for both parties.Reaching settlements is an essential piece of the divorce process and working with a lawyer (and other important experts) can maximize your ability to protect your assets and minimize your exposure to risk down the road. If you have questions regarding how assets are divided in an Oregon divorce, please give us a call.
The conversation about the legalization of marijuana was spawned from a recent article in the Willamette Weekly about the upcoming vote for legalizing pot. According to the article, “A recent poll shows eight of 10 Oregonians believe it’s a matter of when, not if, voters erase laws against recreational use of marijuana.”
The conversation regarding post-nuptial agreements was also sparked by recent rumors that Kaley Cuoco, one of the actresses on “Big Bang Theory”, asked her husband for a post-nuptial agreement.
To hear what Colin had to say about both of these topics, click on the video below.
The cost of divorce in Oregon is affected by a number of factors and can vary greatly depending on the unique facts of your situation. There are 3 major factors that will impact the final expense of your divorce: conflict, compromise, and counsel.
There is a positive correlation between the amount of conflict in a divorce and the cost— the greater the conflict, the more expensive the divorce. High conflict divorces present a greater level of complexity and there are often additional legal issues that will need to be addressed and resolved.
The only divorce judgment that doesn’t require at least some level of compromise is a default judgment. Unless your soon-to-be ex-wife fails to take action, essentially forfeiting the case, you will be faced with making some compromises. Having a clear idea on what issues you are willing to make concessions and what isn’t open for negotiation can save you money and help your attorney craft a strategy to protect what matters most to you.
Refusal to compromise will draw out the divorce process and most likely lead to a divorce trial. Having a divorce settled in trial is costly and the outcome is at the judge’s discretion (within Oregon law).
Handling your divorce yourself can be tempting, particularly when you see the average hourly rate for a divorce lawyer can range between $200 and $400 an hour. While the price tag might be appealing, a do-it-yourself divorce can end up costing you more than working with an attorney from the get go. We have seen numerous men undertake a DIY divorce only to wind up in our office at a greater disadvantage. Hiring a good divorce attorney isn’t cheap, but it can end up saving you a significant amount of money in the long run. Protecting your assets and ensuring any support payments are accurately calculated and fair given the facts of the case can potentially save you thousands of dollars.
The cost of divorce in Oregon can vary greatly depending on your circumstance. Regardless if you intend to pursue a do-it-yourself divorce or you are ready to retain an attorney, educate yourself on your rights and the Oregon divorce process. An experienced Oregon divorce lawyer can provide insight and give you an accurate idea of what to expect from your divorce or custody case. An initial consultation is an excellent way to get the information you need, answers to your questions, and a personalized assessment of your unique situation.
Parental Alienation is defined as “a social dynamic when a child expresses unjustified hatred or unreasonably strong dislike of one parent, making access by the rejected parent difficult or impossible. “
Father’s that are the target of Parental Alienation face a plethora of challenges. Overcoming those challenges can be overwhelming and leave fathers uncertain of their options for maintaining a relationship with their children.
Have a Plan
One of the best ways fathers can protect themselves is to hone in on creating a detailed and explicit parenting plan. Your parenting plan will outline what your rights are as a parent and will provide the framework for enforcing your rights. It is imperative that you ensure your parenting plan is specific and provides for significant visitation. A vague parenting plan can invite opportunities for the manipulation of visitation, resulting in an undermining of your parental relationship with your child.
A Good Set of Rules Means Nothing if You Don’t Enforce Them.
A comprehensive parenting plan will only protect your rights if you enforce it. Many men make the mistake of letting small encroachments slide in an effort to be amicable and accommodating. These small grants can quickly add up to big obstacles down the road. Complaining about violations or denial of parenting time isn’t enough. You have to enforce the parenting plan. Failing to enforce the parenting plan through the court system can embolden the mother to continue treading on your rights and your relationship with your child.
Multiple Findings of Contempt can Lead to a Switch of Custody
Enforcing your parenting plan with the court will have several effects. First, it establishes your commitment to maintaining a consistent and involved parental relationship with your child. Second, it provides a record of parenting plan violations (contempt). Multiple violations of the parenting plan can lead to a switching of custody.
Family Counseling May Be Needed
Sometimes dad’s can do everything right and Mom is still able to alienate them from their child. If Parental Alienation has been effective, modifying the parenting plan to add a provision for family counseling, child counseling and/or a custody evaluation may help reverse the damage of the estrangement.
Parental Alienation can be devastating. If you are a father and are facing custody, divorce or other family law issues, educating yourself on your rights is the first step to protecting your relationship with your child. Our firm is a dedicated family law practice that is focused on husbands and fathers. If you have questions about your rights, please give us a call. Our managing attorney, Colin Amos, can provide you answers over the phone at no charge, and with no obligation. (503) 731-8888
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Finances are often at the forefront when a couple has made the decision to divorce. Who will get what and how those decisions are made can create a lot of anxiety. Additionally, some couples are surprised to find out that debts are also divided in the divorce process.
Credit cards, home loans, auto financing and other debts will distributed between both parties. Because Oregon is an equitable distribution state there are some subtleties in how debts will be apportioned. Equitable distribution is “a legal principle under which assets and earnings acquired during marriage are divided equitably (fairly) at divorce.” It is important to note that equitable is not synonymous with equal. This means it is possible for assets and debts to be divided disproportionately. Depending on the unique facts of your case, it is possible that the court might divide marital debts and assets in a 40/60 split, but it’s also possible that the court will determine a 50/50 division to be fair.
Dividing debt in a divorce also comes with the additional hazard of enforcing the divorce decree. Unfortunately when your ex fails to pay off the debt that was awarded to them in the divorce, it is possible that the debtor can seek payment from you. In this situation, men often have to pay off the debt and then sue their ex for restitution.
You are probably asking yourself, “how does this happen?” Much to the chagrin of divorcing couples, credit card companies and mortgage holders are not bound by your divorce decree. If the debt was incurred during the marriage, creditors can seek repayment from either spouse. Opening a line of credit requires the debtor (you) and the creditor (the company to whom the money is owed) enter into a contract. The family courts do not have the jurisdiction to alter the creditor’s rights and therefore can’t modify the terms of your debt. The court is restricted to assigning the responsibility of repayment, but that doesn’t guarantee you won’t still be liable for repaying the debt.
Dividing debt in a divorce can be a tricky subject. Making sure you understand all your rights and your options is important. If you have questions about how your debts will be divided in divorce, please give us a call. Our managing attorney, Colin Amos, is happy to answer your family law questions over the phone at no charge.
Colin stopped by Flight 750 to answer questions about divorce and custody, and weigh in on some family law issues that have been in the news.
The first question Colin tackled came from an involved dad whose children were requesting to live with him. The father has been divorced for more than 7 years, and his kids, 12 and 15, want to change their living arrangements so they can reside with their father.
In answering this question, Colin addresses a common misconception— once children reach a certain age they are allowed to choose where they live. The parents (and potentially the court) have authority to decide where minors will reside. In custody cases, the courts will often consider the children’s preferences, but the final decision is at the discretion of the court.
To change the parenting plan the father will need to demonstrate to the court that there has been a significant change in circumstances. Once the change in circumstances has been articulated, the father can bring a modification to the court. At this point, a guardian ad litem can be hired to represent the kids and a private custody evaluator can assess the situation and make a recommendation.
After fielding the first question, Colin shifted gears to chat about a recent article posted on Time.com that discusses how the use of Twitter may increase the likelihood of infidelity. The article states “People who are active on Twitter are more likely to get involved in the types of confrontations that may eventually lead to infidelity and divorce, according to a study published online in the journal of Cyberpsychology, Behavior, and Social Networking.”
As the use of social media has become widespread, it is common for it to find its way into divorce and custody cases. Texts, tweets, and status updates are frequently used as evidence and it isn’t uncommon for people to get themselves into hot water with their posts and pictures. All too often, people will incriminate themselves with their over-sharing. Colin cited the example of someone claiming to be in rehab, and then posting pictures of them out drinking.
You can hear all of Colin’s advice in the clip below, and if you have questions regarding family law, divorce, or custody, give us a call. Colin is always happy to answer your questions over the phone at no charge and with no obligation.
What should I do if my parenting plan is violated?
The parenting plan is the cornerstone of your custody arrangement. If one party violates the agreement, knowing what to do will help you protect your relationship with your child.
What is a parenting plan?
A parenting plan is often part of a divorce agreement, but it is also necessary for parents that were never married. A parenting plan is a formal document that is filed with the court that outlines the custody arrangements between parents. The plan will cover all aspects of raising the child and should explicitly cover the parameters of each parent’s responsibilities.
The parenting plan should also address how decisions are made, transportation and exchanges of the child, how disputes between parents are to be handled and a plethora of other important details.
What is the process for enforcement?
Once a parenting plan is in place both parties are legally obligated to honor it. Unfortunately there are times when the court has to be involved to enforce the agreement.
In Oregon the courts expect compliance with the parenting plan. When one parent violates the agreement the other parent will need to turn to the court to pursue a remedy. The first step in enforcing your parenting plan will be to file a motion seeking enforcement with the court.
Once the motion has been filed the court will conduct a hearing no more than 45 days after the filing (unless both parties agree otherwise). The court will review the motion and determine if a violation has occurred.
The three most common outcomes in this type of case are:
- The judge finds that there was no violation and no further action is taken.
- The parenting plan was violated, but with good reason and no remedy is required.
- The parenting plan was violated and a remedy is ordered.
Depending on the severity of the violation, the remedy can range from minor —like allotting one parent more time (to make up the lost time) to more severe, like scheduling a hearing to change custody of the child. Other remedies that the court may order include adding additional terms to the current parenting plan, ordering counseling or parenting classes, suspending child support, or ordering the offending parent to pay restitution of court and attorney fees.
If you have questions about enforcing a parenting plan, speak to an experienced family law attorney. Every situation is unique and getting specific answers that address your personal circumstances is imperative.
A civil standby is an opportunity for those restricted by a restraining order to gather essential personal effects without violating the restraining order. Regardless if you are the petitioner of the restraining order or the respondent, understanding how a civil standby works and its limitations is important.
In Oregon, a civil standby is requested through your local police department. Officers will be dispatched to meet the person who is restricted by the restraining order (the respondent) at a neutral location. There the officers will brief the respondent that they will have a maximum of 20 minutes to collect their belongings and that any disputes over ownership will not be settled by the police. If there is a dispute, the item in question will remain at the property and the respondent will have to take further legal action to establish ownership.
There are significant limitations on what the police will and will not do during a civil standby. The officers will accompany the respondent to the premises and supervise the removal of undisputed essential property. Additionally, if the standby exceeds 20 minutes, the respondent refuses to leave and/or becomes uncooperative they can be arrested for violation of the restraining order.
The police cannot require the petitioner to allow access to the property. The officers are there to ensure no crime is committed and no injury is incurred—they won’t force compliance with allowing you entry to gather your belongings.
If you need to request a civil standby, contact your local police station or dispatch. You will need to let them know the circumstances and that you are requesting a civil standby.
If the ownership of an item is contested or if the other party is uncooperative, you will want to speak to your attorney. You may have to get an enforceable court order to collect items if there is a disagreement over ownership.
If you have questions or need more information about restraining orders, civil standbys, or any other family law issues, please give us a call (503) 731-8888. We are happy to answer questions over the phone.
“Do I have to hire a divorce attorney?” is a common question for men facing divorce. The answer is no. Having a divorce lawyer is not required to get divorce. You can represent yourself—but like many things, just because you can, doesn’t mean you should.
What is the benefit of having a divorce attorney?
The end of a marriage is an emotional and stressful time and it is important to keep in mind that the decisions you make during your divorce will have long lasting effects. Working with an experienced divorce lawyer can ensure you have an advocate protecting your rights and your interests.
Taking a personal assessment of your situation can help you evaluate the benefits of hiring an attorney. Every divorce is unique and realistically appraising your circumstances can benefit you two-fold—you will be able to prioritize your goals and determine what type of legal help will be most beneficial.
Some of the factors that you should consider are: the division of assets and debts, retirement, custody, parenting time, and spousal maintenance. The decisions that you will be required to make now regarding these issues will impact everything from your standard of living post divorce to the age at which you retire. Unfortunately, once a divorce is final it can be difficult, if not impossible, to modify many of the terms of the divorce decree. Having an attorney is an important piece to making sure you get it right when you only get one shot.
Hiring a divorce attorney is especially important if you have children. Protecting your relationship and parenting time with your children should be paramount. An experienced divorce attorney can craft an equitable parenting plan that will safeguard your access to your children. Having a parenting plan will also allow you to enforce your rights as they pertain to visitation in the event your spouse denies or inhibits your ability to see your kids. Additionally, your lawyer will ensure all the facts of the case are considered when support is calculated and your payments are fair.
There are some scenarios where a do-it-yourself divorce makes sense. Even in those situations it is still important to consult with an attorney before filing any papers. A DIY divorce might be an option to explore if you have no children, no debt or assets, and an amicable relationship with your soon-to-be ex. DIY divorce should be approached with caution. We have seen numerous cases where the couple started the divorce with the intention of saving money by doing it themselves, only to have the case become contentious and expensive.
Divorce is a difficult matter, both legally and emotionally. The guidance of an experienced Oregon family law attorney is a valuable resource for protecting your rights and your assets. And while there are times when do-it-yourself solutions can be the best course of action, it is critical to consult with legal counsel about your divorce and legal issues.
The term “divorce deposition” sounds much more ominous than it really is. Simply stated, it is a tool used by attorneys to obtain information from both parties during a divorce. The deposition is a formal interview conducted by court personnel like an attorney or a paralegal.
Depositions are not unique to family law, and while you may hear the term “divorce deposition”, that simply refers to a deposition that is being used in a divorce case. They are used for discovery in almost all areas of law where a transcript of testimony is necessary.
Depositions are usually held in an attorney’s office—the interview is conducted under oath and is documented by a court reporter. Statements made under oath are sworn to be true; lying, falsifying, or misleading statements will compromise the case and can be prosecuted as a felony. The penalty is up to 5 years in prison and a $125,000 fine.
Depositions are often used during pre-trial discovery to document each party’s sworn testimony regarding the case. Depositions usually seek to uncover information regarding income, assets, debts, and the desired outcome of the opposing party. Additionally, the deposition creates a permanent written record that becomes evidence that is admissible in court. This is particularly valuable when allegations of abuse or violence are present, as sworn testimony of the allegations can be useful in uncovering false accusations.
Depositions are not limited to just the spouses that are divorcing. Anyone that is relevant to the case can be deposed. People like co-workers, childcare providers, and family members can be called to answer questions under oath.
Depositions are not a requirement of every case, but are commonly used in custody cases and complex, contentious, or high asset divorces. Anything that is disclosed during a deposition can be used if a divorce agreement is not reached and the divorce goes to trial.
Because depositions are admissible during a trial, having consistency in your answers is crucial. Depositions can be used by opposing counsel (your spouse’s attorney) to cross-examine witnesses. During cross-examination, the opposing counsel will try to point out inconsistencies and undermine the credibility of the witness.
Depositions can be a powerful tool in the discovery process and in building the case. They provide an opportunity to proactively craft an argument that efficiently addresses allegations and circumstances that will be influential in the outcome.
When a case is finally heard by the court it can be anticlimactic for clients. Oftentimes the judge will review the documents and listen to attorney’s arguments, but usually the client won’t get an opportunity to speak. A deposition can be a client’s “day in court”. Depositions can cast a broad net for gathering information. Because it is a part of the discovery process, the deposition can address a wider range of topics and provide the client the chance to have their side of the story heard in its entirety. It can also offer an opportunity to ask questions that might not be allowed in court.
Regardless if you are using a deposition as part of your legal offense, or if the other party has requested it, it is important to be prepared. Your attorney will be able to help you prepare for the sworn questions and answers by outlining what to expect from the process.
Your lawyer will give you specific guidelines that address the unique facets of your case, but there are some general recommendations for surviving your first deposition.
There are many benefits to being truthful: You won’t run the risk of committing perjury; it will be easy to maintain consistency in your answers, and you won’t undermine your credibility. Lying in your deposition is never a good idea and can put you on the fast track for fines, jail time, and losing your case.
Understand the Questions
Make sure that you understand what the question is asking before providing an answer. If you don’t understand the question, or you didn’t hear it, be sure to get clarification. You can ask the attorney to rephrase the question or have the court reporter read the question back to you.
Don’t Volunteer Information
It is incredibly common for people to volunteer information above and beyond what is required. If you are asked a yes or no question, limit your answer to yes or no. If more information is required the attorney will ask follow up questions.
Additionally, don’t explain your answers. Be polite, provide accurate answers, but keep them short. Trying to explain or provide additional information can make you seem untrustworthy or dishonest.
Jokes, attempts at humor, and sarcasm rarely translate well into written documents. The court reporter will only record what is said, so attempting to be funny might result in making you seem crude or like you are avoiding the questions.
Seek Guidance From Your Attorney
Your attorney is there to guide you through the divorce and deposition process. They have most likely participated in numerous depositions and are well aware of potential pitfalls. Work with your attorney to prepare for the deposition—they will be able to guide you on addressing difficult topics and making the deposition as positive as possible.