Bend Family Law

Family law matters can be one of the most difficult things that an individual ever has to deal with. Very few people enter a relationship with an exit strategy, and that fact can be compounded by lengthy relationships that involve children, property, debt, or all three. The following information will provide a brief overview of the institution of marriage, the process of divorce, some related matters, and will give you some idea of what you can expect in the coming months if you are dealing with a family law matter.

Bend Oregon Family Law

Whether you go to a Bend family law lawyer, another attorney, or a handle the case yourself, it is our hope that this information will assist you in understanding your situation and assist you in asking the right questions if you find yourself in need of a divorce and custody lawyer in Bend or elsewhere.

Oregon Child Support

Child support is almost always going to be present after a divorce if children are involved. Child support continues until a child turns 18, or until a child is 21 if the child qualifies as a “child attending school”. Generally, child support is calculated according to a formula set by the Oregon State Legislature based on the income of each party, and the number of overnights each party has. The idea is the formula establishes a “self-support reserve” and then determines how much each party should be contributing to the children based on that number and gives a each party a credit for the number of overnights they have. A party will only get credit for overnights however if they have the child at least 25% of the time.

Although child support is based on a standard formula, the courts do have the authority to deviate from that award based on a variety of factors. For instance, if a party has a number of children form another marriage, that may have some bearing on the amount of child support to pay in this case. If you are seeking an upward or downward deviation for child support, it is very important to have an attorney.

Child support can be paid by wage withholding, or by good old fashion exchange of money or check. If one party fails to pay child support, the state can engage in a number of actions including suspending the license of the delinquent party, and garnishing their wages until the child support “arrears” (back child-support) are paid. It is important to file child support immediately upon filing for divorce if you are the custodial parent, otherwise you may forgo your opportunity to collect support for the time the case pending.

Oregon Custody and Parenting Time

There are two types of custody in Oregon, joint custody, and sole custody. The important thing to remember here is that if the parties do not agree as to the type of custody and who gets it, the court will award custody to one party or the other. The court will never award joint custody, that can only come through agreement. That said, the party without custody will almost always get parenting time, and sometimes in an equal amount, thus the custody determination is not a termination parenting rights.

Having custody essentially means you get to be the tie breaker on major decisions such as school attendance, medical decisions, and other decisions of your children’s lives. Just because you don’t have custody does not mean you are not a parent. The non-custodial parent still has the right to consult with teachers, doctors, to view school records, and being involved in all aspects of their children’s lives.

When determining who gets custody, the court will look at a variety of factors which are listed in ORS 107.137. This includes who has primarily been the custodial, or “stay at home” parent, the willingness of one parent to work with the other parent, the quality of emotional ties between the child and other family members, the abuse of one parent by the other, the interest of the parties in and attitude towards the child, and the desirability of a continuing relationship with the child. The overarching determination comes down to the best interest of the child. That concept permeates all of the family law statutes relating to custody and parenting time, and underlies any decision the court makes with regard to children.

Generally, the parties or the court will establish a “parenting plan” which will outline the parenting time of each party. This will happen regardless of the custody determination. The sky is the limit when it comes to establishing different parenting plans, and the parties and courts are not constrained to any standard plan.

Oregon Family Abuse Restraining Orders (FAPA)s

FAPA’s are restraining orders that are limited to individuals who are related or have had sexual relations in the past. It is not uncommon when a relationship goes sour for one or both parties to file a FAPA against the other. FAPAs are somewhat common in divorce proceedings. A FAPA can make it illegal one party to contact the other, the other’s family, the other’s children, or all three.

A person can obtain a FAPA by showing: 1) There has been “abuse” within the preceding 180 days between family or household members, and 2) that Petitioner is in imminent danger of further abuse by respondent, and 3) Respondent represents a credible threat to the physical safety of petitioner or the petitioner’s child. Abuse is not limited to physical abuse, but can extend to certain verbal or physical acts if they place another in fear of imminent bodily injury.

Once a FAPA is filed, the person served has a right to a hearing to determine if all the above outlined elements are met. If children are involved, the court must hold the hearing within 5 days of receiving the response. The hearing is very much like a mini-trial, and it is based on what is called a “preponderance of the evidence”. A preponderance of the evidence means more likely than not, or above 50%.

Oregon Grandparent and Third Party Rights

In Oregon, anybody who has established a parent-child relationship with a child has the right to intervene, in other words petition for custody and parenting time. This policy recognizes that sometimes other individuals besides the biological parents can become parents in every way except for birth. However, this often can be a difficult, drawn out battle.

After a recent supreme court case in Washington State, the laws in Oregon were revised so that a presumption exists that the biological parents act in the best interest of their children. This presumption can only be overcome by showing that the parent is unwilling or unable to care for the child, or that circumstances detrimental to the child exists if the requested relief (by the third party) is not granted. However, if you are a grandparent or other third party and you believe that you have established a parent-child relationship with the child, the courts have the authority to decide the merits of your case.

Oregon Post Judgment Relief

There are a variety of solutions available to a party after the court makes it’s general judgment dissolving the marriage or establishes custody and parenting time for an unmarried couple. The court has the authority to revisit spousal support, custody, parenting time, and to order one party to comply with the terms of the judgment.

With regard to custody and parenting time, the courts have the authority to make a new determination anytime there has been a “fundamental change in circumstances” following the prior determination. There is unfortunately no hard or fast definition to what that term means. A fundamental change in circumstances can be anything from once party developing a drug problem, to the loss of a home, to a child changing or developing an opinion regarding who they would like to live with.

When it comes to the terms of the judgment or modifying spousal support, the court has the authority on the motion of either party to grant the appropriate relief. Generally in an action for contempt (enforcement of the original judgment) attorney fees will be available to the prevailing party.

Oregon Spousal Support

In a divorce case, the court has the authority to award spousal support, which is sometimes called called alimony. Spousal support comes in three types, compensatory, maintenance, or transitional. Transitional spousal support is when the parties have similar earning capacities, but one party needs money for a temporary amount of time in order to get back on their feet. Compensatory spousal support is appropriate when there has been a significant financial or other contribution by one party towards the education or vocational training of another. Maintenance spousal support is reserved for long marriages where long term payments to another party is appropriate. This situation generally arises when one party is the bread winner, and the other party raised the children or maintained the home. In this situation the court may order one party to pay the other maintenance spousal support so that the parties enjoy a comparable quality of life to one another after the marriage.

Spousal support, like property dissolutions, are based largely on the laws of equity. The law is based on the concept that each party is contributing equally to the marriage, so it would be unfair to let the CEO spouse continue to live in luxury, while the homemaking spouse is destitute following the marriage. It is the goal of the courts to ensure that each party is on equal footing after the marriage, and sometimes that necessitates the payment of spousal support from a few weeks to many years.

Child support can be paid by wage withholding, or by good old fashion exchange of money or check. If one party fails to pay child support, the state can engage in a number of actions including suspending the license of the delinquent party, and garnishing their wages until the child support “arrears” (back child-support) are paid. It is important to file child support immediately upon filing for divorce if you are the custodial parent, otherwise you may forgo your opportunity to collect support for the time the case pending.

Property

There is not a whole lot of law surrounding what to do with joint-property, and the courts will make a division that they determine is equitable. Property consists of real property, personal property, debts, and assets. In Oregon, there is a presumption that any property acquired during the marriage is going to be considered joint property. Property acquired before the marriage can become joint-property in certain circumstances, and can remain separate property in others. Once the court has determined what property is joint, it will make an equitable, or fair, division of it. Sometimes that means cutting everything in half, and sometimes that means dividing things in a way that makes the most sense. For example, often times the court will require that one party re-finance a house, and pay the other party more than half the value in order to offset other debt or assets.

It seems that all too often one party will give the other party everything out of a feeling of guilt, or a desire to walk away from the whole situation and regret it for years. Please think long and hard before you make this kind of decision, as once the divorce is final you will not have an opportunity to change your mind!

Settlement, Collaborative Divorce, and Fees

Brace yourself… Attorneys cost money, and litigation is expensive. There is an age old expression that when family law erupts in litigation, the only people that win are the lawyers. To a large extent, this is true. In the vast majority of cases, both parties are going to lose things they didn’t want to give up, and nobody goes home with a smile one their face. For that reason, it is the policy of Multnomah Legal to always explore settlement options with our clients so as not to run up unnecessary fees. Although we maintain a flexible billing schedule in order to provide affordable representation to everyone, legal fees can be become expensive so settlement might be a good option.

Sometimes, however, for a variety of reasons, settlement is ill-advisable or not possible. That said, it is always important to have that discussion with your attorney. In a settlement, you know what you are going to get, and you know you can live with it. In litigation, the judge will determine what you are going to get, without regard to whether or not you can accept it.

Along this line, there is a new trend growing among family law attorneys to engage in what is called “collaborative divorce”. In collaborative divorce, both parties sign an agreement to work together in good faith, disclose all assets, and make an effort to settle the matter outside of court. In addition, if at any time negotiations break down and settlement is no longer possible, each attorney must withdraw. The collaborative option is good for parties that can come together on parenting issues, and wish to work together to resolve things quickly, fairly, and reasonably.

Despite the fact that settlement and collaborative divorce are always options to consider, you will find no timid individuals here. At Multnomah Legal, we believe in representing our clients with vigor, creativity, and tenacity regardless of whether we pursuing settlement, collaborative options, or full scale litigation.

Although this section is not to be construed as legal advice, we hope that you found it helpful, and at least allowed you to get your bearings and learn what to expect. If you would like to speak to an attorney, give us a call today to schedule your initial consultation. Multnomah Legal, your family’s lawyer.

Temporary Relief

The court has the authority to order certain temporary relief after filing and before trial in accordance with ORS 107.095. This authority exists because of the lengthy period of time in between filing and the divorce trial date. Often times there are issues that are necessary to solve right away such as custody, parenting time, and child support.

The court can order any of the relief specifically enumerated in section 107.095, which can include issuing an order for any of the following: one party to pay the other enough to prosecute or defend the lawsuit, including witness fees and attorney fees, support for a party of their children, restraining another party from interfering with the children, temporary custody, temporary parenting time, restraining another party from messing with marital assets, and control and use of real and personal property.

A party requests temporary relief by filing what is called a “motion to show cause”. Once the motion is filed and served like the original petition, the objecting party can file a response or simply show up and argue, depending on which county you are in. This process will culminate in a hearing that is very much like a mini-trial. Sometimes the show cause hearing is as important, if not more important than the trial because whatever happens at the hearing is likely to have a large impact on the what happens at the trial. For example, if one party is granted temporary custody at the hearing, they are very likely to be granted custody at trial unless something has changed.

The Legal Process

So you are probably asking yourself one of two things: 1) “I want a divorce, what do I do?” or 2) “I was just served a big stack of papers that say something about dissolution, what now?” This section will give you a crash course in the legal process of divorce.

A divorce begins with what is called a “Petition for Dissolution of Marriage”. That is basically a formal request to the court to end your marriage. Either party can file, and they can do it for whatever reason they want. The days of divorce based on fault are over, so it doesn’t matter who cheated on whom, who threw whose guitar out of the third story window, or who has spent the last eight days at the pub. Although those things may matter when it comes to custody, they are not requirements or necessary prerequisites for getting a divorce. Any person may file for divorce for any reason whatsoever, so long as they say the magic words “irreconcilable differences between the parties have caused the irremediable breakdown of their marriage”.

The Petition for Dissolution lays the background establishing the authority of the courts to dissolve your marriage, as well as lays the roadmap for what it is you want the court to do with your house, children, record collection, etc… A Petition can be filed in any county where one or both of the parties to the marriage have resided for the previous six months. A Petition for dissolution is filed with a few other documents, including a Confidential Information Form (CIF) for each party, a certificate of residency, a certificate of pending child support ordersproceedings, and a summons. The summons is the scary piece of paper on the front of your big stack of papers requiring you or the opposing party to file an “answer” or “response” within 30 days or a default will be taken. Once the Petition and accompanying documents have been filed, they must be served on the other party in accordance with an accepted method of service outlined in ORCP Rule 7.

Once the Petition and accompanying documents are served, the receiving party has 30 days to file what is called an “answer” or “response”. The response is a document filed with the court stating that you received the paperwork, and that you have something to say with regard to the divorce. It is an opportunity for the party that didn’t file for divorce to make the court aware of what they would like to happen.

After the court receives the answer, it will set a trial date (generally 3-6 months away) and the clock starts ticking. There are certain things the parties can request the court to do in the interim that will be discussed in the “temporary relief” section.

If the parties have children, after filing and before the trial date, each party will either have to complete a parenting class, or ask the court to wave the parenting class. Each county has their own parenting class, and both parties must complete it before the court will grant them a divorce.

Eventually, provided you have been unable or unwilling to settle your case, you will have a trial. The trial is where both parties go to court, and put on their case for what they want, and why they want it. That is where you or your lawyer will call witnesses, give arguments, conduct cross examinations, and more. At the end of the trial the judge will make a ruling on custody, property, debt, or whatever else you requested, wave their magic wand, and you will be divorced. If you or the other side has an attorney, the attorney will then draft what is called a “general judgment” that contains all of the judges rulings, both parties will sign it, and it becomes a little piece of law between you and your now ex-spouse. The entire process generally takes six-months to a year.

Unmarried Couples

It is important to note that the Oregon courts are not constrained to only helping married couples dissolve their relationship. There are many laws in Oregon (ORS Chapter 109) dedicated to unmarried parents, and case law allowing the courts of Oregon to divide assets from an unregistered domestic partnership equitably. Thus, generally speaking, the majority of the information concerning children will apply equally to unmarried couples.

When it comes to property, courts treat unmarried couples somewhat differently. The courts are generally unwilling to make a property division between you and your former partner unless the relationship was long, drawn out, and very much like a marriage. If the court finds that you comingled your assets and conducted yourselves as a married couple, there is equitable (equitable essentially means “what is fair”) authority vested with the courts to divide your assets. This is common when two people own a great deal of real property (meaning a house or other real estate) jointly.

Useful Family Law Links

ORS 107 – Dissolution, Annulment, and Separation

ORS 109 – Parent and Child Relationships

Oregon Family Law Forms for Those Representing Themselves

Deschutes County Court Forms

Oregon Child Support Calculator

Oregon State Bar Family Law Resource Page

Oregon State Bar Lawyer Referral Service and Modest Means Program