Portland Divorce FAQ

Portland Divorce FAQ

Hiring A Divorce Attorney

No. You can show up to court and take your chances. By the end of the day, if the case goes to trial, you will be divorced. The risk is that you do not account for all the assets or debt, or that an asset or debt is mis allocated, that you either do not request the court for some thing you are entitled to receive, such as spousal support, or that you pay to much, or that a parenting plan is not practically and thoroughly constructed by a judge who only has passing familiarity with your situation. If you can live with these risks, then you do not need an attorney.

The legal process is anything but straightforward unless you have been through it before. The attorney will gather all of the information about the assets and liabilities of the marriage, learn about the children, and then develop a plan to achieve either the most practical or most advantageous settlement for the client. If there is no settlement, then the attorney will prepare the case to go to court – where the judge the fate of the couples’ property and liabilities.

A divorcing spouse does not need to hire an attorney. However, it really depends on the situation and the complexity of the couple’s assets and liabilities. For a couple with no assets or debts, the online forms published by the State of Oregon are sufficient, generally. If there are children, the divorce becomes more complicated because in addition to dividing property and debt, the couple needs to work out custody, parenting time and child support. An industrious person can do this, but there are pitfalls an experienced lawyer can help avoid. If there are complicated financial holdings, retirement accounts, business which need to be valued, then an experienced attorney really is necessary.

There are a lot of very good, competent and pragmatic divorce attorneys in Oregon. If you have not been through this process before, you probably should plan on speaking to at least two attorneys. Look for differences in approach. Ask pointed questions about how many cases they to take to trial in your county. Is the attorney attempting to scare you or stoke your anger at your spouse? If so, he or she will probably not be a good hire. Needless to say, look for recommendations from friends, family and other professionals. Experience, more so than impressive credentials, is very important in the legal profession. How long has the attorney been practicing? Do they practice only in this area or also in other areas of law? I recommend hiring someone with at least five years experience, but ten or more is optimal.

A lot of the larger firms are divorce mills. The unspoken emphasis is on billing clients to maximize profits for the owners. You will likely be dealing with an associate or junior associate most of the time. Some of these firms produce outstanding results, no doubt. But, despite the money you will spend, not necessarily. However, the larger firms come with a price. Many of the smaller firms and sole practitioners have been in practice for many years. They are more responsive to clients. The big firms may have deeper wells of collective and institutional experience, but the attorneys in the smaller firms are likely in court more and you will be dealing directly with a partner or owner.

Fees & Costs In An Oregon Divorce

Typically, a lawyer will tell a client that it is difficult to know how much a divorce will cost because a case may settle or it may go to court or it may go up on appeal. The other attorney may be intransigent. One of the parties may cave. All of these things are true. The only rule of thumb is this: the more money there is, the more expensive it will be. Many times when hiring a lawyer, the conversation about money focuses on the amount of the retainer. A new client should focus on what the totals fees will run.

Remember, at $300 an hour, $3,000 is only ten hours’ worth of work and that will be used up in the first couple of weeks as the attorney becomes familiar with the client and the case. The best thing a client can do is talk to the attorney about fees and observe if the attorney is being forthright or evasive. The fact is: divorce is expensive. But, the client should have a good idea what he or she is getting into at the outset.

Fees pay for attorney time. Fees will also pay associates and paralegals’ time. Costs are third party expenses incurred to develop a case. For example, in a custody dispute, the attorney might suggest hiring a custody evaluator. The custody evaluator may charge $5,000 or $10,000. Or, the attorney may suggest taking a deposition of your spouse. The expenses associated with the deposition are also costs. The client is always responsible for costs. Other examples of costs may include office copies, postage, experts or court filing fees. The attorney should explain what costs a client can anticipate and consult with the client before committing to larger costs.

In Oregon, there are really only two types of fee agreements available to divorce and family law clients:

  • an hourly rate or a flat fee. In an hourly rate agreement, clients pay their attorney for the attorney’s time, usually billed in .2 increments. Usually, with an hourly fee agreement, the attorney requires an advanced security payment to be deposited into the lawyer’s trust account.
  • In a flat fee agreement, the lawyer estimates what the fee will be, and the client pays the entire amount up front. The fee is usually non-refundable. There is one additional type of fee agreement. A “contingent fee” agreement is usually the type of agreement available in a personal injury case where there will be a single payment at the end of the case. The Oregon Disciplinary Rules prohibit contingent fee agreements in family law cases on the theory that payment, for example, of fees should not be contingent on whether a parent gets custody of the child.

A retainer is money that is used as security by the attorney to pay for legal services. Money for the retainer is deposited into the Lawyer’s Trust Account. It is a security deposit against future fees. A lawyer will base the amount of the retainer against the complexity of the case and the amount of assets. The attorney may ask the client to keep a certain amount in the trust account. The law firm will credit the monthly invoice against the retainer for payment of the invoice.

The Divorce Trial

The primary difference between a divorce trial and other civil trials is the presence of a jury. In a divorce case, divorcing parties do not have the right to a jury. The process a court goes through in a divorce case is similar to the process the court will go through for any other type of case, except for the seating of a jury. The first part of any trial is about establishing the evidence and facts. After opening statements, both the Petitioner, the person who filed the Petition puts on his or her evidence first. That evidence may take two forms: live testimony from the parties or witnesses or documents. The Respondent has the constitutional right to cross examine the anyone who testifies. At the conclusion of the Petitioner’s case, the Respondent puts on his or case and can offer live testimony or documents. The Petitioner has the right to cross examine any testimony offered by the Respondent’s witnesses. At the close of Respondent’s case, the court will ask for closing argument. Once the closing arguments are completed, the court will either make a ruling then and there or take the case “under advisement.” If the judge takes the case under advisement, the judge will either issue a written, letter opinion or call the parties back to court to read the decision into the record.

In Oregon, there are three broad categories of issues in a divorce case: division of the assets and liabilities; support; and provisions for the minor children.

Yes. There are two types of witnesses you can call: fact witnesses and expert witnesses. Fact witnesses can testify to any issue relevant to your divorce which they know about personally through their own direct experience. An expert witness is qualified by the court to give an opinion on any aspect of your divorce in which they have expertise. For example, an expert witness may give an opinion on the value of an asset such as a home or business. A fact witness may testify about the negligent treatment of a couple’s children which they have witnesses personally.

Every divorce in Oregon ends with the General Judgment of Dissolution. It is the legal document which ends a marriage, divides the property and debt, provides for the minor children, and allocates future income in terms of spousal support. It becomes effective once it is signed by a judge on the Circuit Court.

If a judge misapplies a legal standard or has no factual support for her position, an unhappy litigant can appeal his or her case to the Oregon Court of Appels. Theoretically, if a litigant is unhappy with the Court of Appeals decision, that decision can likewise be appealed to the Oregon Supreme Court. However, it is very rare for the Supreme Court to hear a family law case. The standards to have a case overturned or remanded back to the lower court are extremely high.

Divorce Mediation And Alternative Dispute Resolution Venues

In Oregon, as a general matter, the courts require parties to a lawsuit to speak to one another about settlement before trial. Litigating parties, per the court rules, may need to engage in a process called Alternative Dispute Resolution or “ADR.” In ADR, the parties can either mediator or arbitrate their dispute. If the issues in the dispute are resolved through either of these the mediator or arbitration process, the parties can avoid going to court. If not, then both sides need to prepare for trial.

The primary benefit of ADR is that parties in litigation can avoid going to court. Going to court is stressful, expensive, and the outcome is always uncertain. Parties always risk that a judge or jury will not see the case the same way they see the case. ADR, and particularly mediation, gives parties more control and certainty over the outcome.

Divorce arbitration is a way of resolving disputes through a private process similar to trial. At an arbitration, the arbitrator will hear the evidence of both the parties and make a decision on the issues based on the laws of the state and the evidence introduced at the arbitration. Arbitrations may have relaxed rules of evidence making the process less stressful and expensive. Arbitrations will never have a jury. An arbitration may be court ordered, required by contract, or elected by the parties as an alternative procedure to court.

If the parties to a lawsuit go through arbitration, and one (or both) of the parties are unhappy with the result, the arbitrator’s decision can be appealed to the district or circuit court. This is because litigants have the right to have a judge or jury decide their case. This is called “non-binding arbitration.” On the other hand, if the arbitration is required by a contract, or the parties otherwise elect to go through arbitration before or after a lawsuit is filed, the arbitration will most likely be “binding.” In binding arbitration, the arbitrator’s decision is final and not appealable to the court if one or either of the parties is dissatisfied with the result.

Mediation is the process of resolving a dispute directly between the parties with the assistance of a neutral, third party professional. The role of the mediator is to assist the parties to achieve a result which both parties can accept. The parties problem or negotiate with the assistance of the mediator who keeps the discussion focused and constructive. Similar to arbitration, mediation is less stressful and less expensive than litigation in court. Unlike arbitration or trial, the final decision belongs to the parties. Either party may accept or reject a proposal and can elect to continue the discussions until the process is complete and results in an outcome acceptable to both.

Dividing Property In A Divorce

Oregon law provides a very nebulous standard for the courts to divide property and debt. That standard is “just and proper in all the circumstances.” Needless to say, parties to a divorce are not likely going to see “just and proper” in the same way. The Oregon Court of Appeals fleshed out how the courts should distribute marital property in a seminal case in 2004. The bottom line is this: the longer a couple has been married, the more equally the value of the properties will be divided. The court has the authority to include or exclude property which was separately acquired before marriage. The court has the authority to consider if there has been an equal contribution by both parties.

The Oregon court during a divorce will not, and should not, go through the finances of a marriage and re-litigate every spending decision or compare the finances of both parties to see if they both contributed. Equal contribution means that both parties contributed to the maintenance of the family use. In other words, the parent who stays home to raise the children has equally contributed. On the other hand, if a party leaves the house for years, that party has not contributed. If the parties have an agreement, and live up to it, to maintain separate finances, then there presumption of equal contribution may be defeated.

Suppose a couple has owned a house for fourteen years, since the year they married. The couple paid $300,000. There is $175,000 left on the mortgage. How will the equity in the home be valued and distributed? On these facts, it is impossible to determine the equity without knowing the present market value of the home. It is now certainly worth more than the $300,000 the couple paid for it. To determine the equity, the parties can hire an appraiser, either jointly or separately. The appraiser will give an estimate of the current market value. The couple can hire a relator, either jointly or separately, to do a market comparison of similar houses in the neighborhood to establish a range. Or, if the couple knows the market value of the house, they can jointly agree on the current market value. Once market value is established, it is a simple subtraction problem to determine the equity: market value minus the remaining loan obligation. If the home needs extensive repairs, that might reduce the equity. If the marriage is a long marriage, more than 8 or 9 years, in all likelihood, the equity in the home will be equally divided between husband and wife.

Spousal Support

The legislature provides three grounds for a spouse to receive spousal support: transitional support, maintenance support and compensatory support. Transitional support is generally appropriate in a shorter marriage less than 7 or 8 years where either the husband or wife has been out of the workforce, transitional support may be awarded to help the spouse get back to work. Support may be used for tuition or other job training. Maintenance support is available for longer marriages or where one of the spouses is incapable of working. Maintenance support is intended to prevent the non wage earning spouse from falling too far from the standard of living he or she enjoyed during the marriage. Finally, compensatory support may be available where one spouse has assisted the other in the development of their career. For example, if a husband puts his wife through medical school, and then the wife divorces him, the husband is entitled to a portion of her future income stream in the form of spousal support.

There is no hard or set formula for setting the amount of spousal support. There is good reason for this. A final judgment may have wife paying more of the couple’s debt than the husband, so she may have a reduced spousal support obligation. Support may also be awarded in lieu of a division of property. If there is a child support award, there is a reduced pool of cash available out of which to pay spousal support. Often times, judges will look at the difference between two incomes and award a percentage of the difference. The bottom line: there is no set way to predict how much a judge will award for spousal support.

The amount of child support a parent must pay for the support of a minor child is set by statute. The statute uses a Child Support Calculator to determine the correct amount a parent must pay. The two important factors in setting child support are the income of the father and mother, and the amount of overnights the children will have with each parent. In other words, the amount of the child support obligation is both an objective amount and a set amount. In Oregon, the child support calculator is found on their official website.  Spousal support on the other hand is completely negotiated between the parties. The legislature does not give guidelines for the amount of spousal support except that the support must by “just and equitable.” Also, the other big difference is that there is a large range of legal actions the state can take to punish someone who stops paying child support.

If an ex-spouse is ordered to pay spousal support and stops there are three options. A spouse can go to court and file a Motion to Enforce Judgment, and the judge will order the spouse to pay. A spouse can file a Motion for Contempt which includes fines and possibly jail time, though this rarely happens. And, the spouse can initiate garnishment proceedings against the non paying spouses income or assets

Child Support

The amount of child support a parent must pay is determined by statute. It is not a negotiated amount (unlike spousal support). The objective factors which go into a child support determination are income, number of overnights, number of minor children, income from VA or SSA benefits, and insurance costs for the parent and child, and child care costs. Once these numbers are put into the Child Support Calculator, the calculator determines the amount of support. Under limited circumstances, child support can be deviated upward or downward. The Child Support Calculator is found here: https://justice.oregon.gov/guidelines/

The amount of child support can be modified after the initial amount is set if there is a “substantial change of circumstances.” A substantial change of circumstance may include a change in custody following a custody hearing, a prolonged period of unemployment, illness resulting in an inability to work, or other changes affecting a obligor’s (the person paying) ability to pay.

There are three ways to modify a child support order. Either parent can request the Oregon Department of Justice to modify the Order. Either parent can ask the county District Attorneys office to modify the Order. And, finally, either parent can go to court and request the court to modify the Order. This is usually done when there is a dispute about custody or parenting time.

An obligor (the parent paying support) is obligated to pay child support until the youngest child turns 18, unless that child is a “Child Attending School” or “CAS.” A CAS is an unmarried child between the ages of 18 and 21 who is satisfactorily attending school at least half time. The obligation to pay child support may also terminate if the minor child marries or is declared legally emancipated by the court.

No. Step parents are not legally obligated to pay child support.

Once child support is ordered by the court, of the State of Oregon through the Oregon Department of Justice, an obligor (the parent paying support) must pay regardless of the relationship between the parents. A parent may not withhold parenting time as a result of non-payment of support. Both parents are under court Orders. One parent to pay and the other to make the child available for parenting time. Failure to do either equally violates the court’s Order.

The State of Oregon has numerous administrative remedies to collect and encourage a non-paying obligor (the parent obligated to pay support) to make payments. For example, the state may intercept tax refunds, revoke state issued licenses, withhold unemployment or workers’ compensation benefits, collect support through employee’s wage withholding, and garnishment. The obligee (the parent receiving support) may apply to enforce a judgment or file a Motion of Contempt. The motion of Contempt may include both or either financial penalties or imprisonment. Finally, under rare circumstances, the county’s District Attorney may bring a criminal case for non-support.

Attorney Fees In Divorce Cases

In the American legal system, it is the general rule that each party pays his or her or their own legal fees. Fees can be shifted from one party to the other by statute or by contract. For example, in Civil Rights cases, the losing party will pay the plaintiff’s attorney fees. Many contracts have an attorney fee provision so that the prevailing party receives reimbursement for legal fees from the other party. In divorce cases, there is a provision that the court may award attorney fees as part of a settlement or “suit money” to help one party afford to retain counsel during the divorce proceeding.

After a Petition for Dissolution is filed, either party can file for interim relief. Interim relief is necessary because of the length of time it will take for the case to get to trial. Either party can request to award attorney fees from the other spouse to prosecute or defend the case. The courts will generally award suit money where there is a large disparity in income between the parties. If the parties do not earn a lot of money, the court is not likely to award suit money. If both wife and husband are high earners, it is unlikely that the court will award attorney fees.

Oregon law expressly provides that in a divorce the court may make an award of attorney fees at the end of a case. Oregon law specifies the factors which must be considered by the court in deciding to award fees. Those factors include the complexity of the case, the reasonableness of the parties, whether a party acted in good faith, the reasonableness of the fees, the amount of fees charged, and other factors.

The courts will look too whether there were meaningful negotiations, i.e., did one side attempt negotiations and the other side did not participate. The court will also consider if one side or the other offered reasonable negotiating positions or not. The court will consider whether there was dishonesty in the negotiations or if one party concealed assets.

You may not be able to get the money back, but you the judge may either order your spouse to come up with money for your attorney during the case, or may award you half of the amount in savings at the end of the case to be paid by your ex-spouse to you.

Get Help Now

Contact our divorce Portland divorce attorney, Steven Leskin and start your divorce process discussion through a free consultation. With One Day Divorce and Mediation your divorce will be fast and economical

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