Frequently Asked Questions
The term “Family Law” covers a variety of topics. This document is intended to explain and clarify some of the most common family law topics under Oregon Law. The information set forth below is not legal advice. It is merely a general discussion of some Family Law topics. Legal advice regarding a specific matter can only be given by an attorney who has full knowledge of all relevant facts about that matter.
B. Custody and Visitation
Child Custody Generally. The custody arrangement for a child is based upon the agreement of the parents, or, if the parents cannot agree, custody is awarded by a judge who is guided primarily by the principle of making a custody decision which is “in the best interests” of the child. Many factors affect such a judicial decision including:
- The emotional ties between the child and other family members;
- The interest of the parent in the child and the parent’s attitude toward the child;
- The desirability of continuing an existing relationship;
- The abuse of one parent by another;
- The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court, and
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
There is a saying that the court does not “award” custody, but rather “affirms” custody. That simply means the court seeks to award custody to the parent who has been the primary caregiver all along unless there is a good reason to do otherwise.
Above all else, parents must think only of the well-being of the children in making custody decisions. Do not think in terms of winning and losing. Think in terms of putting your children first. Parents who fight unreasonably over custody and parenting issues raise children who are likely to have physical and mental health difficulties, as they grow older.
Custody is awarded to fathers more often in recent years than in the past, though custody is still usually awarded to women. This is because in our society women still fulfill the role of primary caregiver to children more often than do men. It is not because men are necessarily poor caregivers.
Sole Custody and Joint Custody. The term “custody” implies to the non-lawyer “possession.” However, in Family Law, the term “custody” has evolved to mean “decision-making.” There is no notion of “possession” at all remaining in the legal term “custody.” There are two, and only two, types of custody in Oregon, sole custody and joint custody. A person who has sole custody has sole decision-making authority over a child. In a joint custody arrangement, the parties share decision-making authority.
A court in Oregon has no authority to award joint custody unless the parties agree to a joint custody award. Therefore, if one of the parties will not agree to joint custody, a final order granting sole custody to one of the parties will ultimately be entered.
In a joint custody arrangement, the parties have the ability to designate that a particular party has final decision-making authority over a particular issue or issues (e.g. religious upbringing, medical decisions, educational choices). Parties who enter into joint custody arrangements are usually parents who are able to get along with each other when it comes to making decisions for the children. As a practical matter, joint custody does not work if one of the parents dominates the decision-making process so that there is no true joint decision-making.
Most commonly, parents who enter into joint custody arrangements do not specify one parent or the other will have final decision-making authority over any particular issue. The parents work together to resolve the major decisions that face a child as those circumstances arise.
There are potential advantages and disadvantages to the two types of custody arrangements, sole and joint. Sole custody puts the sole custodial parent into a very powerful position, both with regard to having final decision-making authority over a child and with regard to future custody modifications. If, after the initial custody determination has been made, a parent who was not awarded sole custody in the initial judgment seeks to have the custody arrangement changed, that parent must first establish that there has been a substantial and unforeseen change of circumstances since the entry of the original judgment which justifies examining the custody arrangement again. Second, and only if the first hurdle has successfully been crossed, the court examines whether a modification of custody would be in the best interest of a child. The most important change of circumstance that needs to be shown is a deterioration in the custodial parent’s capacity to provide appropriate parenting for the child. Many other changes of circumstances are relevant, however.
In a joint custody arrangement, if one of the parties wishes to seek sole custody in a modification proceeding, that parent (generally) is not required to show that there has been a change of circumstances. The parent need only show that an award of sole custody is in the best interest of the child. So, if a custody battle in the future is likely, a parent would usually prefer to have sole custody awarded at the initial proceeding, so that it is more difficult for the other parent ultimately to attain a sole custody award in the other parent’s favor.
Usually, in a joint custody arrangement, one of the parties is designated as the party who will provide the primary residence for the child. If a party is designated the primary residential parent, and if the other party has a regular parenting time schedule, the residential parent is in an extremely strong position for retaining custody should a custody modification proceeding take place later.
When one party is awarded sole custody, the other party is described as the “non-custodial parent.” Non-custodial parents used to have few rights, but under the current law in Oregon, the rights of the non-custodial parent are significant. Non-custodial parents have rights equal to the rights of custodial parents with regard to the right to communicate with and obtain records from schools, doctors, counselors, and law enforcement officials.
Parenting Time (Visitation). Parenting time, formerly known as “visitation,” in Oregon refers to the division of time spent by each parent with a child. An award of “custody,” whether sole or joint, has nothing to do with parenting time. The parenting time schedule is whatever the parties agree upon or whatever the court orders when the parties cannot agree, regardless of whether custody is sole or joint. It is possible for one party to be awarded sole custody while the other party is awarded 50% of the parenting time. It is common for a non-residential joint custodial parent to have parenting time on alternate weekends even though there is a common misconception that an award of joint custody means the parties are sharing parenting time on an equal basis.
Oregon law requires that parenting time be spelled out with some specificity. An award of “reasonable parenting time” is not allowed although an award of “reasonable” parenting time used to be common. Parenting time is usually worked out in mediation.
County Parenting Time Guidelines (Rule 8.075). As of the time this document is being prepared, there is no uniform state-wide parenting time rule. Each county has it’s own local parenting time rule which is generally applied unless the parties agree otherwise or the court orders otherwise. In Marion County, Oregon, the parenting time guidelines is known as Rule 8.075. Remember, these rules are guidelines, starting points from which the parties may vary.
Age-appropriate Visitation Guidelines. What timesharing arrangement is appropriate for a child depends upon the age of a child, the relationship of the child with each parent and upon many other factors. Many county parenting time rules have guidelines which are designed to suggest parenting time which would be appropriate for children of different ages. Very young children, for example, should have frequent but short periods of parenting time with the non-residential parent whereas older children are generally considered to be better served by a schedule which gives the non-residential parent longer, but less frequent, periods of parenting time. By the time children are older teenagers, as a practical matter, any timesharing schedule must take into consideration the children’s desires and activities.
Mediation Regarding Parenting Time. Parents are often required to mediate parenting time. When mediation is required, the parties meet together (unless a Family Abuse Act Protection Order is in effect) with a mediator for the purpose of working out a parenting time arrangement.
Parent Orientation Meeting. Some Oregon counties, including Marion and Polk, require parents of minor children to attend an orientation meeting at which time the parties will watch a movie (about helping children survive broken homes) and will be given information about choosing a mediator who will help the parents mediate a custody and parenting time plan. In Marion County, the Parenting Class Requirement is in addition to the parent orientation meeting.
Parenting Class Requirement. If a divorce, separation or annulment involves minor children, the person who files the suit must take a parenting class. Often, but not always, the other parent is required to take the class as well. The class is basically a single session of about three to four hours with a group of parents where the parents learn about how to help their children adjust to the break up of the family. Information about this class in Marion County, Oregon, can be found at http://ywcasalem.org/family/index.html. These Parent Education Programs can be found throughout the state of Oregon at http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/.
Non-Parent and Grandparent Custody and Visitation. Non-Parents (usually stepparents and grandparents) sometimes seek custody or visitation rights. The rights of non-parents were expanded greatly before being severely curtailed in recent years. Nevertheless, if a grandparent, stepparent or other adult has a very close relationship to a child, there is a possibility that person could get visitation and possibly custody. It is extremely important to consult with an attorney about strategy in these cases whether you are the non-parent or the natural parent because the recent changes in laws relating to non-parent custody and visitation cause this topic to be very complex.
International Custody and Visitation. Various laws and treaties determine the rights of parents in international cases. You might be able to get a divorce in Oregon, but Spain, for example, might have jurisdiction over custody of your child. Careful consultation with a family law specialist is essential before a parent makes major decisions in these areas of law.
Interstate Custody and Visitation. The Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) are the federal and state statutes which govern interstate custody and visitation cases. A common situation occurs when a parent leaves the home state of the family with a child, and then one of the parties files for a divorce, or both file in different states. Specific rules apply which resolve the issues of venue (which state and county takes final jurisdiction over the case), temporary custody and visitation and the final award of custody and visitation. Important strategic decisions must be made before moving a child out of his or her home state.
Another common interstate scenario occurs after the divorce is final when a parent moves his or her home to a new location. This move could result in a modification of the divorce judgment as it relates to child custody, visitation and/or support.
Get more information about this topic at Moving a Child to a New Location.
Moving a Child to a New Location. When a parent with whom a child primarily lives desires to move the child to a new location (new town, new state or new country), the other parent is likely to be concerned about how this will affect the child and the parent/child relationship. The proposed move might cause a reduction in parenting time from every other weekend to only one or two visits per year for the non-residential parent. Courts tend to allow the residential parent to relocate the child if that parent has a slightly compelling reason for the move and if there is no evidence the move is motivated by a malicious intent to interfere with the relationship between the child and the non-residential parent. Moves, for example, have been allowed when a party has found a better job elsewhere, when a party has become engaged to a fiancé who lives in another state, and when the residential parent’s new spouse has been transferred by his employer to a new location. Many factors come into play in such cases. These cases are similar to custody cases and sometimes become custody cases. It is sometimes possible to incorporate into the original judgment of dissolution of marriage or judgment of paternity a geographic restriction, a prohibition from moving the child, but such restrictions are rare and difficult to obtain. Even if you have such a restriction in your judgment, it might not be enforceable.
Ultimately, the court looks to the best interest of the child in determining the result. However, if a residential parent wishes to move, the courts in recent years have tended to defer somewhat to the opinion of the residential parent as to whether the move is in the child’s best interest.
A parent who seeks to prevent the other parent from moving a child should seek legal advice as soon as he or she becomes aware of the possibility of a relocation. The court will sometimes grant a temporary restraining order prohibiting the relocation until the entire case is resolved.
Above all else, put your child first and try to set aside (when negotiating parenting time) your feelings of anger or resentment toward the other parent. Children must not be used as instruments of revenge.
When you are formulating your thoughts regarding what parenting time is best for a child, you do need to be aware that the number of nights each parent has may affect the level of child support awarded.
Modification of Custody and Parenting Time. In order to change sole custody from one parent to the other parent, the parent seeking the change must prove there have been substantial and unforeseen changes of circumstances after the entry of the last custody order which make it in the best interest of the child that custody be changed. Generally, no changes of circumstances need be proven in order to convert joint custody to sole custody. Likewise, no changes of circumstances need to be proven as a prerequisite to a change in the parenting time plan. All of the above modifications require that the new custody arrangement or parenting plan be in the best interest of the child.
Seek legal advice before initiating a modification proceeding because an improvident filing of a motion to modify could result in your being worse off than before you began.
Parenting time can be informally modified by the parties without participation by the court in that the parties may change on their own how they share time with the children. If they agree, the court will not complain or care as long as the children are safe. However, informal arrangements are not legally enforceable because they are not ordered by the court. Informal arrangements can set a precedent for a future court order, though.
C. Child Support and Related Issues
Child Support Generally. In virtually all cases where parties have children under age 18, or children over age 18 who are attending school and not married, the court will order one or both parties to pay child support. Many factors affect the level of child support which will be ordered. The State of Oregon has guidelines for calculating support which are based upon a mathematical formula.
Income of Parents Generally. The first step is to calculate the income of each party, and if a party is not working full time or is unemployed, the court assumes that the child support calculation should be based upon earning capacity (what a person could earn if that person were working full time at his or her earning potential). Generally, the lowest presumed earning capacity is minimum wage.
Overtime Income. Overtime income is counted as income for purposes of calculating support if there is a history of earning overtime. Income from all sources work-related or not, including dividends and bonuses, is counted. Company benefits are taking into consideration if they would not otherwise show up on a pay stub (use of a company car, for example). Certain types of company benefits are generally not taken into consideration directly, such as free medical insurance and employer contributions to a retirement plan.
Child Care Expense. Another factor in the child support calculation is the level of child care which is actually incurred. You should be prepared to present canceled checks or receipts to prove the reasonable day care expense. The day care expense is calculated by figuring the average monthly day care expense over the course of a year taking into consideration that summer day care expense commonly is different from day care expense during the school year.
Medical Insurance Expense. The portion of medical insurance premiums attributable to a child is counted in the calculation. If an obligor pays the medical insurance premiums, the obligor’s child support will be reduced, which has the effect of causing the obligee to share in the cost of the medical insurance. If the obligee provides the medical insurance, the obligor will have to pay additional child support in order to share in that medical insurance premium. The person providing the insurance will need to produce proof (documentary evidence on company letterhead or something similar) demonstrating what portion of the medical insurance premium is attributable to a child.
Medical Insurance Coverage for Children. A sole custodial parent has the discretion to require or not to require the other parent to maintain medical insurance coverage for the benefit of a child. If the custodial parent requires the non-custodial parent to maintain coverage, the non-custodial parent will receive credit (not dollar-for-dollar) in the child support calculation for the portion of the premium for medical insurance coverage which is attributable to a child.
Recurring Medical Expenses of the Children. Recurring medical expenses of a child can be taken into consideration in the formula, and this would normally happen when a child has a chronic medical or psychological problem which causes an expense which is not reimbursed by insurance of more than $250 per year.
Spousal Support As It Affects Child Support. An award of spousal support also affects the child support award because it shifts income from the spousal support obligor to the spousal support obligee. If the primary residential parent is receiving spousal support, the child support award will go down.
Deviating from the Guidelines Level of Child Support. Running a support calculation initially leaves you with the “presumed” correct level of child support. A variety of reasons exist why a particular parent might be ordered to pay more or less child support, which would be called a “deviation” from the presumed level of child support. When parents deviate from the level of child support which was presumed to be correct, the parents are supposed to state in the final judgment the legitimate reason the presumed level is unjust or inappropriate. A court may refuse to grant a deviation if the basis for the deviation is not considered appropriate. For example, sometimes parents agree to no child support being ordered in exchange for no parenting time being granted. Such an agreement would be considered by a court contrary to public policy and unenforceable.
Child Tax Dependency Exemptions. The right to claim a child as a dependent for tax purposes is presumed to belong to the person receiving the child support, usually. An obligor will often argue that he should have the right to claim the exemption because he is the one paying the support; however, the guidelines have already taken into consideration the assumption that he is not getting the exemption and, therefore, the guidelines level of support is lower in recognition of that fact.
It is not uncommon that the parties agree to award to the obligor the right to claim one or more children as dependents for tax purposes, and this is most common when spousal support is being paid. The exemption has greater value to the person who is in the higher tax bracket. Sometimes obligor will “buy” from the obligee the right to claim a dependent for tax purposes. When this happens, both parties can benefit, but it requires a level of cooperation that is unusual between parties getting a divorce.
Life Insurance to Protect Child Support. If a parent dies prior to the time a child is no longer eligible for child support, the child will no longer have the benefit of support from that parent. Social Security benefits payable to the child of a decedent terminate at age 18, and such benefits often are not adequate to replace the support previously provided by the deceased parent. The lack of support is felt most keenly by the child when the child is over age 18 and attending college. For these reason, the court almost invariably orders the child support obligor to maintain life insurance on his or her life for the benefit of the child. It has also become common for final judgments to require that both parties maintain life insurance because the death of the obligee will cause the same financial loss to the child as the death of the obligor.
The amount of life insurance parents should maintain depends upon the ability of the parents to afford life insurance and upon the purpose for which the life insurance will be used. Affluent parents who intend to send their children to expensive colleges will maintain a lot more insurance than others might, for example.
It is probably preferable for the beneficiary of the life insurance to be a trustee who holds the proceeds of the life insurance policy for the benefit of the child; however, for a variety of reasons, many parents do not elect this option. Many parents name the child as beneficiary which means the child will have unfettered access to the money upon the child’s 18th birthday.
It does not matter whether the life insurance policy maintained is whole life or term.
Modification of Child Support. The level of child support may be modified upon application by a parent or by the State of Oregon when there has been a substantial change in the economic circumstances of the parties and/or children which was not foreseeable at the time of the entry of the last child support judgment. The State of Oregon may seek a modification of support at no expense to the parties every two years without having to prove a change of economic circumstances. Be sure to consult with a private attorney before asking the state to seek a modification so you will have an idea in advance about whether a modification might help or hurt you.
The typical changes of circumstances which sometimes justify a modification include substantial increases or decreases in the income of one or both parties, substantial increases in unanticipated debt (such as medical bills), and unexpected windfalls such as lottery winnings or receipt of inheritances.
D. Spousal Support (Alimony)
Three Types of Spousal Support. “Spousal support” is the term used in Oregon for alimony. There are three types of spousal support: transitional, compensatory and maintenance.
- Transitional Spousal Support. Transitional spousal support is designed to help a party to attain education and training necessary to allow the party to prepare for re-entry into the job market or for advancement therein
- Compensatory Spousal Support. Compensatory Support may be awarded when there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party.
- Maintenance Spousal Support. Spousal maintenance is a contribution by one spouse to the other to help the supported spouse maintain a certain standard of living.
Basic Assumptions about Spousal Support. When spousal support is awarded, it is awarded for a specific purpose or purposes and is awarded based upon certain assumptions about the circumstances of the parties. It is extremely important that the purpose for the spousal support be stated clearly and that the baseline assumptions be stated appropriately, because, if circumstances change, the court and the parties will be examining these purposes and assumptions carefully when deciding whether to modify the spousal support. Some of the most important assumptions relating to spousal support include the incomes or earning capacities of the parties, the factors which might affect the incomes or earning capacities of the parties, the health of the parties, the duration of the marriage, whether a party is living with and sharing expenses with another adult, and any other factors which might affect the need for support or the ability to pay support. Statement of these factors in the judgment is so critical that it is essential that the parties get legal advice from an attorney about this topic before the final judgment is entered.
The Effect of Remarriage or Cohabitation on Spousal Support. Remarriage and cohabitation by either spouse after the spousal support judgment has been entered do notautomatically affect a spousal support award. There is no way to anticipate whether a party will cohabit with a wealthy person or a poor person. It is not possible to predict whether cohabitation with another adult will satisfy the original purpose for the spousal support in whole or in part or not at all. For these reasons, it is not generally appropriate to have a provision in a judgment which terminates automatically the spousal support award upon remarriage or cohabitation, and no judge has authority to order such a provision unless the parties agree to the inclusion of the provision in the judgment.
Amount and Duration of Spousal Support. The amount and duration of spousal support depends on so many variables that it is impossible to be specific here. The duration will either be for a specific period of years or will be “indefinite.” Indefinite spousal support means that it will continue until there is a reason for the spousal support to end. Most commonly, indefinite spousal support occurs when there exists a long-term marriage (typically 20 years or more), and there exists a substantial and permanent disparity in the earning capacities of the parties.
Tax Consequences. Spousal support payments are deductible by the obligor and are required to be reported as income by the obligee. If a spousal support award were $100 per month, and if each party were in a 24% tax bracket, it would only cost the obligor $76 net to pay the spousal support, and the recipient of the spousal support would only benefit by $76 net. A person receiving spousal support should set aside each month in a savings account an amount sufficient to pay the taxes on the spousal support received. A CPA can help make the calculation of how much money should be set aside. Using a CPA during the settlement negotiations can also be extremely helpful because the CPA can help each parent calculate how much disposable income he or she will have available after spousal support is paid.
Effect of Spousal Support on Child Support Awards. Spousal support awards directly affect child support awards because the payment of spousal support shifts income from one parent to the other. Usually, when one party is paying both child and spousal support, increasing the spousal support causes a decrease in the child support.
Termination of Spousal Support. Spousal support terminates at the end of the period for which it was originally ordered to run, when a party dies, or when a court, in a modification proceeding, orders that it be terminated.
Life Insurance to Secure Spousal Support. The obligor should be ordered to maintain life insurance sufficient to secure the outstanding balance of the spousal support so that, if the obligor dies, the obligee will not lose the benefit of the spousal support that was awarded.
Reinstatement of Spousal Support. When spousal support is terminated within the original terms of the award, it may be reinstated if the reason for the termination no longer exists. For example, if spousal support is originally awarded for a period of seven years, but is terminated after two because of financial benefits the obligee receives by reason of remarriage, and then the obligee’s new spouse dies in the fourth year, the obligee may seek to reinstate the spousal support.
Lump Sum Spousal Support. “Lump Sum Spousal Support” is spousal support awarded in single sum rather than in monthly installments. Sometimes all of the spousal support is awarded as lump sum. Sometimes part is lump sum and part is in installments. Lump sum spousal support awards can provide significant benefit to both the obligee and the obligor.
The benefit of a lump sum award to the obligee paid at the time of the divorce judgment is entered is that the obligee is guaranteed to get the money. Spousal support paid in installments is not guaranteed. If, for example, the obligee is awarded spousal support in monthly installments over a period of five years but the obligor dies in the second year, the obligee loses the balance of the payments (unless the spousal support is secured by life insurance). If, in the second year, the obligor becomes incapacitated and without resources to pay, the support may be terminated and the obligee loses out.
The advantage of a lump sum award to the obligor is that, if he pays a lump sum at the beginning with no installments, the obligee can never seek more spousal support later. Even if only part of the spousal support is paid in a lump sum, the duration of the spousal support would be shorter making it less likely that the obligee would have circumstances arise which would cause her to seek a modification, an increase or extension of the spousal support.
If the parties elect to use a lump sum spousal support option, they need to consider carefully the tax consequences and the “present value” of the award. It is extremely important that the parties get professional advice regarding this.
As an illustration, an award of $100 per month for 36 months designated as “spousal support” would not give the obligee the benefit of $3,600 gross dollars both because the obligee will have to pay tax on that money and because the payments made in the last year of the award will not be as valuable as the payments made in the first year of the award because of the effects of inflation. If the parties decided to make such an award in a “lump sum,” they might knock off one third (for example) for estimated taxes, bringing the figure down to $2,400. They might also reduce that $2,400 a little more in order to take into consideration the effects of inflation which would have caused payments over time to be worth less.
Using a lump sum approach can be helpful in settling a case. If there are not adequate resources presently with which to pay spousal support, but there is, for example, value in a pension or equity in a parcel of real estate, parties will sometimes give the spousal support obligee the greater share of one of those assets in lieu of spousal support.
Lump sum spousal support is usually designated as property division.
Modification of Spousal Support. Spousal support may be modified when there has been a substantial change in the economic circumstances of the parties which was not foreseen at the time of the entry of the last spousal support judgment. Typical changes which might result in a modification of spousal support include substantial increases or decreases in the income of one or both parties, substantial increases in unanticipated debt (such as medical bills), unexpected windfalls, such as lottery winnings or receipt of an inheritance, or remarriage to a person with strong financial resources.
There are important strategic factors to consider before seeking a spousal support modification. Consult with an attorney regarding these factors before mentioning the possibility of a modification to the other party. Spousal support is rarely modified upward, but the possibility sometimes exists.
Medical Insurance. When people divorce, they sometimes find themselves without medical coverage. Medical insurance covering a spousal and children is not supposed to be terminated while a divorce suit is pending. After the divorce is over, however, you are responsible for your own medical insurance coverage, and provision should be made in the final judgment for Medical Insurance Coverage for Children.
If you were eligible for medical insurance coverage through your spouse’s employer prior to divorce, you might be eligible for continuation of coverage under COBRA, the Consolidated Omnibus Reconciliation Act of 1985. Not all employers are required to extend COBRA medical insurance coverage to you, but many are. If you need coverage, you should call your spouse’s employer BEFORE the divorce is concluded to see whether you are eligible for post-divorce coverage. You will have to pay the premiums and COBRA coverage is limited in duration (usually three years or less). COBRA coverage is only one of many medical insurance options available to you. If you are contemplating divorce, you should begin your investigation of medical insurance coverage options as soon as possible because you don’t want to face a possible lapse in coverage and, depending on the cost of the insurance premiums, your right to receive or your obligation to pay Spousal Support might be affected.
E. Property Division Issues
Overview of Property Division. Premarital assets and items personal to each individual (clothing, jewelry and the like) generally are awarded to each prior to division of the “net” marital estate on a roughly equivalent basis, unless there is a reason to do otherwise. The “net” estate means the value of the assets less the debts (including taxes, when appropriate). There are many circumstances when an equal division of the net marital estate is neither possible as a practical matter nor appropriate. In those instances, the court will consider awarding more than half of the estate to one of the parties. An example would be a situation in which the parties have only one major asset, a home in which the young children of the parties live. If the custodial parent is awarded the home, and if that parent has no way to generate funds with which to pay the other parent his or her share of the equity in the home, the court will consider allowing the custodial parent to keep the home without paying the other parent so that the children will not have to move.
When is Property Valued? Property is generally valued as of the date of separation or as of the date of the divorce. Sometimes the date of valuation is a point in between. So many factors affect this, consultation with an attorney is essential regarding this topic. Generally, when a case is being resolved amicably and is not headed for trial before a judge, parties will use date-of-separation values. When cases are litigated, more often than not, the parties will be using date of trial values, but it is not unusual that date of trial values are used for some assets while other dates are used for other assets. As a practical matter, it is virtually impossible to have every asset valued as of the same date.
Retirement Accounts. There are generally two types of retirement accounts. “Defined contribution plans” are the type of retirement plans where the value (for divorce purposes) is the same as the account balance, less estimated taxes. A 401K plan is a typical example. A “defined benefit plan” is like an annuity, an account which will pay a certain amount per month for life beginning at a certain age or other specified time. Only an actuary can calculate the value of a defined benefit plan. Such a plan might be worth two, three or five times the account balance.
If a divorce involves the award of retirement accounts, it is essential that the parties get competent legal advice about how to calculate the value of the retirement account before the parties strike a deal regarding property division.
If one party is to receive a portion of the other party’s retirement account, it is often necessary to have a special pension order prepared, known as a “Qualified Domestic Relations Order.” Usually, an attorney who specializes in the preparation of such orders needs to be hired in order to draft a QDRO. The parties must seek legal advice if a retirement account is to be divided.
F. Unmarried Heterosexual Couples and Domestic Partnership
Introduction. When people live together, they sometimes acquire legal rights and obligations they might have not expected. These relationships are sometimes referred to as “domestic partnerships.” When these couples of the same or opposite sex break up, the partners should seek legal advice. For a discussion of Same-Sex Couples and Domestic partnership see section F below.
Property and Debts. The court tends to view couples living together as partners. When the partners separate, the court divides the assets and debts of the partners according to the “intent” of the partners to the extent intent can be ascertained. Sometimes partners have written agreements clearly expressing their intent. When no written agreement exists, the court looks to the behavior of the parties and to their oral and written statements in order to determine intent. For example, placing your partner’s name on the deed to the house you owned before the two of you met tends to indicate your intent to share that house with your partner. Letting your partner work for you in your business without pay suggests intent to share the business.
Intent can be very difficult to identify, but in the final analysis, the court will seek a result which is “fair,” in the estimation of the judge.
Children of Unmarried Parents. The rights relating to children of unmarried couples are essentially the same as the parental rights of married parents after paternity has been established. The first step is to establish paternity. The State of Oregon will help couples establish paternity at no cost, but a parent should seek immediate counsel from a private attorney about rights and legal strategy before going to the State of Oregon for services the state will provide. The state will not get involved in setting up a parenting plan or helping you strategize regarding custody.
If paternity has already been established, the rules regarding awards of custody, parenting time, and child support are the same as for married couples. Look in the section of this web site called FAQ (Frequently Asked Questions) for information about those topics.
Spousal Support. Oregon law does not provide for awards of spousal support (alimony) for unmarried couples.
G. International Family Law Issues
International family law issues typically arise when a person who does not have United States citizenship marries or has a child with a citizen of the United States. If a divorce occurs, questions will arise as to whether the laws of the United States or the laws of the other country should apply. Sometimes two married parties who are citizens of another country find themselves in the United States, or perhaps only one of the two is in the United States.
International divorce and custody cases can be very simple (when the parties agree about resolution of the issues), or they can be very complex. Treaties between nations often govern the resolution of these cases and the location of where the cases will be litigated.
H. Interstate Family Law Issues
It is common for parties to live in different states when a divorce is initiated or when a motion to modify the divorce judgment is filed. There are immediate questions about which state should handle the litigation and which laws should apply. Complicated federal and state statutes spell out the answers to these questions, but people often spend far too much money litigating these questions. Consultation with an attorney is helpful in deciding whether it is better to spend your money fighting over jurisdiction or giving in on that issue.
Sometimes a state will have jurisdiction to decide some but not all of the issues in your case. You might be able to get a divorce in Oregon but the state of Oregon might not have jurisdiction to order your spouse to pay support or a property division judgment to you. Consultation with a family law expert is especially important to protect your rights in interstate cases.
Paternity Generally. Paternity law relates to the establishment of who is a child’s natural father. Paternity may be established in a variety of ways including:
- the father signing a written admission, verified by the mother, and filed with the court;
- a filiation suit is filed by mother or putative father resulting in a judgment of paternity;
- an administrative proceeding filed by a state agency resulting in a final judgment of paternity;
- by conclusive presumption of law when the child is born to a wife cohabitating with her husband who was not sterile or impotent at the time of conception of the child;
- by a disputable presumption the father of the child is the husband of a woman born during that marriage at a time when there was no decree of separation.
- by the marriage of the parents of the child after birth of the child; and
- by filing with the State Registrar of the Center for Health Statistics a voluntary acknowledgement of paternity form.
Few paternity cases are litigated as to the paternity issue because DNA testing has become so accurate; however, DNA testing is not always accurate. Paternity might still be contested in spite of the results of a DNA test.
Custody and Parenting Time in Paternity Cases. The rules for determination of custody and parenting time in paternity cases are basically the same as rules for married couples. Learn more about these topics at Child Custody Generally, Parenting Time (Visitation), and Children of Unmarried Parents.
Child Support in Paternity Cases. The rules for child support in paternity cases are similar to the rules for married couples. Learn more about child support issues at Child Support Generally. However, some support rules are unique to paternity cases. For example, it is possible a court could order a father to pay support back to the birth of the child even though the father did not even find out about the existence of the child for many years. Also, a man can sometimes be ordered to pay support for a child not his own even though that man can prove conclusively he is not the natural father. Careful consultation with an attorney is important to protect the rights of the mother, father and child.
J. Same-Sex Couples and Domestic Partnership. In 2007, The Oregon legislature enacted the Oregon Family Fairness Act which allows same sex couples to enter into a civil contract which creates a “domestic partnership.” The county clerk registers the Declaration of Domestic Partnership in a domestic partnership registry. When the domestic partnership is registered, the parties acquire the rights and responsibilities of a married couple. Much remains unclear as to how the courts in Oregon and in other states will handle and view same-sex domestic partnerships registered in Oregon.
K. Attorney’s Fees
Attorneys use formal fee agreements in order to spell out the rights and obligations of both the attorney and the client. It is impossible to anticipate at the beginning of a case exactly how much the case will cost ultimately. Some cases are simple and inexpensive. Others are complex and very expensive. Attorneys usually ask for “retainers” which are sums of money placed into a trust account at the attorney’s office against which he charges as he performs work. At the end of the month, he sends a statement to the client reflecting the balance in the trust account and the work which has been performed.
Sometimes the court will order one party to pay the attorney’s fees of the other party. Many factors are considered when such an award is made. More often than not, no attorney’s fees are awarded. Sometimes attorney’s fees are awarded as a punishment against the party who has acted inappropriately during the course of litigation. Sometimes a high-income spouse might be ordered to pay a portion of the attorney’s fees of a low-income spouse.
Because it is impossible to predict whether an award of attorney’s fees will be made, a party must plan his or her life based upon the assumption that no award of attorney’s fees will be made. If you receive an award of attorney’s fees, consider yourself fortunate, but remember that actually collecting the award of attorney’s fees may prove to be more difficult than obtaining the award in the first place.