Defend your rights to your property and children

Glossary of Terms

Adoption:

If the biological parent consents to the adoption and can be located, then the adoption process may be relatively simple and inexpensive. However, if the biological parent can not be found then it may be necessary to provide them notice of the adoption through publication. In cases where the biological parent doesn’t consent to the adoption, then it may be necessary to show that he or she has abandoned the child. In rare cases it will be necessary to proceed to court. Liza Langford’s retainer fee is $750 to start an adoption.

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Appeal:

If you are unsatisfied with the final judgment in your family law matter, you may be able to appeal it to the Court of Appeals. Common issues that come up for appeal are custody, child and spousal support awards, property division of premarital property and whether or not a custodial parent may relocate with the children. The Court of Appeals reviews for errors of law, which include when the evidence is insufficient to support the judge’s decision and is not clear and convincing. The Court of Appeals may decide to reverse the trial court judge’s decision if the trial judge failed to follow the statute or the case law interpreting the application of that statute.

A notice of appeal must be filed no later than 30 days from the date the judgment is entered, do not delay in speaking to an attorney. Call Liza Langford to discuss possible issues to raise on appeal and to see if she can help you. Her fees are reasonable.

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Child Relocation:

These cases are typically highly emotionally charged and controversial. If the custodial parent wants to move with the child out of state, then they must either get the permission of the other parent or an order from the court permitting them to relocate the children. In order to prevail in such a case the moving parent must show that is in the children’s best interest to allow the custodial parent to move them out of state. Some Oregon judges typically hold that custody shall switch to the non-moving parent if the custodial parent insists on moving out of state. The Court of Appeals recently overturned a judge for such a ruling, because in essence she was switching custody, not based on whether it was in the child’s best interest to live with her father or her mother, but based on the judge’s impression that both relationships should be preserved and that if she restricted the custodial parent’s right to remove the child from the state, by threatening to switch custody, that this would achieve the end of forcing the custodial parent not to move and preserving the child’s relationship with both parents. See- Hamilton-Waller and Waller, 202 Or App 498, 123 P3d 310, It is best to hire an expert to conduct a custody-parenting time evaluation in these cases and preserve your case for appeal. The test to court will apply is whether or not it is in the child’s best interests to permit the move when this includes moving away from the non-custodial parent. Often times, the stay behind parent counterclaims for custody. The trend is to require the parent who is attempting to modify custody to bear the burden of proof, see Herinckx and Matejsek, 231 Or App 50 (2009)

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Child Support:

If you are granted custody, then you are entitled to child support from the other parent to meet the financial needs of the child. Initially the amount of the support is based on the parties’ income, health insurance costs, number of non-joint children, day care expenses, and how many overnights the child spends in each parents home. It is possible to be the non-custodial parent and receive support, if you have a close to 50/50 parenting plan and the other spouse has more income than you do. These numbers are plugged into the calculator for the Uniform Child Support Computation, (Google Oregon child support calculator), and the initial figure is derived at. It may be possible to rebut this figure based on other factors such as the special needs of the child, or one parent receiving significant income from their spouse or live in significant other.

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Custody:

In Oregon, custody of the children is awarded to the primary caregiver if they are deemed fit by the court. The primary caregiver is the parent who spent more time making them selves available to meet the needs of the children. In today’s society, in families where both parents work, this may be more difficult to distinguish, and it may be that the parenting responsibilities were shared 50/50. The court may be more apt to award joint custody in these types of cases. ORS 107.101 states that it is the policy of the state to “assure minor children frequent and continuing contact with parents who have shown the ability to act in their best interests.” In line with this policy, it is usually best for the children to have adequate time with both parents to preserve and foster both relationships. However, in some cases, due to safety concerns or the unavailability of the other parent, or because frequent transitions from home to home are hard on the children, this may not be possible. The statutes also state that Oregon courts may not award joint custody without the agreement of both parties.

Custody awards are based on what is in the best interests of the children. The courts often look to expert witnesses such as custody and parenting time evaluators to give them guidance in making custody decisions that are in the children’s best interests.

Normally it is in the child’s best interest to award custody to the primary caregiver, however this may not be in their best interests if that primary caregiver is abusing drugs or alcohol, there is domestic violence in their household, or that parent suffers from a mental illness that impedes their ability to parent.

If the parents are unable to jointly parent then it is usually best to award custody of the children to the parent where there is the strongest child-parent bond. This would normally be the primary caregiver. Courts need to use caution when fashioning parenting plans that involve babies and younger children because they do not want to force overnights away from the primary attachment figure when the child isn’t ready, in order to secure the other parent’s fair share of parenting time, as this may cause disruption of attachment to the child’s primary caregiver. If however both parents are equally involved with the baby from the beginning, then more overnights may be encouraged and appropriate.

Legal custody refers to which parent will be making major decisions concerning the child, where as physical custody deals with where the child resides. You can share legal custody and still be the primary residential parent.

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Contempt:

It may be necessary to bring an enforcement action against the other parent in order to force them to comply with court orders. These hearings are fairly effective and inexpensive. You may bring a contempt hearing against the other party to seek enforcement of custody orders, parenting time orders, child support and spousal support orders. You may seek an order that the other party be responsible for your attorney’s fees as part of the contempt proceeding.

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Dissolution of Domestic Partnership:

In some cases the parties never marry but they reside in the same house, share finances, have children and commingle their financial affairs. When this occurs, and the parties part ways, both may be entitled to half of the assets accumulated during the domestic partnership if they can show the intent to commingle. If the parties have children together, then they should file for custody, child support and parenting time at the same time they file for the dissolution of domestic partnership.

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Dissolution of Same Sex Partnerships:

This is an area in flux, until marriage between same sex partners is recognized by Oregon law. Until that time, the same relief is available to same sex domestic partners as to opposite sex domestic partners. Property accumulated during the co-habitation, including the increase in the value of any pre cohabitation property may be subject to 50/50 division. Both parties have rights in regards to children either adopted or conceived during the co-habitation.

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Divorce:

In Oregon, in order to secure a divorce, only one of the parties needs to allege that there are irreconcilable differences. The petition is filed and served on the other party, and then the parties go through a discovery process in order to value and inventory all of the parties’ assets and debts. If the parties can reach an agreement, then it will not be necessary to go to court, and they can have a stipulated general judgment of dissolution of marriage prepared. In Oregon this is the most common resolution of most divorce cases. If the parties can not reach agreement, then a trial may be necessary. Having an experienced trial attorney by your side such as Liza Langford will be essential.

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Domestic Torts:

In the event one party assaults or injures the other then the injured party may be entitled to compensation for this injury through an uneven distribution of the marital assets in the divorce in the injured party’s favor.

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Equitable Distribution of Assets and Debt:

The divorce court is a court of equity, and they strive to achieve a fair distribution of assets and debts in arriving at the judgment of dissolution of marriage.

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Enforcement of Custody and Parenting Time:

In the event a parent does not return the children after their parenting time is over, then they may be in contempt of the court order. The aggrieved party may bring an action to enforce parenting time or custody orders and ask that the matter be expedited. It may be necessary to obtain a writ of mandamus or a habeas corpus order and have the police forcibly remove the child from the other parent. An order to enforce parenting time can also be sought through an expedited hearing.

Parents who go into hiding with their children in violation of the custody order may be guilty of kidnapping, and may be subjected to prosecution for custodial interference. If they leave the state with the child in violation of the custody order, this may be classified as a federal offense, and the FBI may become involved.

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Emergency Custody Orders:

These orders may be sought at the time you file for divorce or separation, or if you were never married, at the time you file for custody. They may also be sought after you file to modify existing custody or parenting time orders. If a child is in immediate danger, then the court may issue you an emergency custody order that grants you custody or suspended or limits the other parent’s visitation until final order in the case. These orders are temporary and you must follow up with your suit for custody or modification.

In the event that there are no custody orders, then you may go to court, ex-parte and seek the order that gives you temporary emergency custody. An example of such a situation in which you would be granted a temporary emergency custody order includes that child is being subjected to abuse of such a degree that the state would see fit to remove the child from the other parents home. Grandparents and third parties may qualify for emergency custody orders if they simultaneously file for custody.

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Equitable Division of Assets and Debts:

Oregon is not a community property state, and arguable, if one spouse had property before entering into the marriage and never commingled it into the marital estate, then he or she may succeed in omitting this asset from the division process. However, if you are the non-propertied spouse, you may want to argue that this asset was commingled into the estate and that you are entitled to if not half at least some share of this asset. Presumably both parties contributed equally to the acquisition of assets acquired over the course of the marriage, and marital assets and debts are divided 50/50. See: Proctor and Proctor, 234 Or App 722 (2010)

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High Value Asset Divorce Cases:

These cases often involve property belonging to one spouse at the time of the marriage or inherited property or funds acquired during the marriage, or funds from the sale or investment of these assets. If these assets are acquired during the marriage, either due to inheritance or gift, then they are classified as marital assets, and there is a presumption that both spouses contributed equally to the acquisition of these assets. However the propertied spouse may be able to rebut the presumption of equal contribution, by showing that they never meant to share this asset and that they kept the ownership and control of this asset separate and at no time had the intent to commingle this asset into the parties common financial affairs. These cases can turn on whether or not the non-propertied spouse can show that the propertied spouse intended to share this asset. If the presumption is rebutted, then the court may still fashion a just and equitable division of assets that takes this asset into consideration.

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Inherited Property:

One or both of the spouses may enter into the marriage with inherited or separate property. At the time of divorce, if this property has been commingled into the financial affairs of the parties, and the intent to commingle can be established, then it may be subject to division by the court. It is possible that it may not be subject to division if the propertied spouse can prove that they never had the intent to share this property with the non-propertied spouse. This can be shown by never having shared decision making responsibilities such as how to manage the property or invest it. Any increase in the value of the asset may be subject to division, unless the propertied spouse can show that the other party did nothing to contribute to the increase in value. If property is inherited during the marriage, then it is part of the marital estate, and there is a presumption of equal contribution in acquiring it. This may be rebutted by showing that it was never the donative intent of the person who gifted the property to give this inheritance to both of the spouses, but rather just to the one. Arguably, the donative intent is not diluted if the party who inherited the property keeps the party in his or her name, and refrains from any act or words that indicate that they intend to share this inheritance with the other spouse. Even if the propertied spouse can rebut the presumption of equal contribution, then the court may still include this asset in the distribution of the marital estate in order to work an equitable division.

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Legal Separation:

Legal separations are like divorce, except that the parties are still married, however they are usually living apart and their financial matters and questions regarding custody and support have been addressed. At any time one or the other party may file to convert the separation into a divorce.

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Limited Custody and Child and Spousal Support Orders:

Pending final orders you are entitled to a limited judgment regarding who shall have custody and what the parenting plan will be. You are also entitled to temporary child and or spousal support and orders regarding which party shall pay the mortgage or other bills. You may seek an order that the other party post a bond with the court for your attorney’s fees.

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Modification to Child Support:

Child support may be modified by bringing a motion to modify and alleging that there has been a significant change in financial circumstances. This may occur when one or the other spouse has new employment or has lost their job, both parties income may change substantially over time, and if so then a modification to support may easily be obtained with comparatively little costs to the party seeking the modification. ORS 107.135

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Modification of Custody:

In the event of a substantial change in circumstances, you may seek a change in custody. These cases are approached on a case by case basis and there is not hard and fast rule, other than, if Children’s Services would remove this child from the circumstances he or she is presently living in, then you will probably prevail on your motion for modification. If you are the parent fighting the modification to custody, then you must show that the child is not in any danger or is not being neglected as the other parent has alleged. See ORS 107.135.

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Non-Contested Divorce:

Non contested divorces are inexpensive and fairly simple depending on the parties’ assets and parenting arrangements. Liza Langford charges a flat low fee for this service. Call her today for the details.

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Paternity:

At the time child support is sought, then paternity must be established, if the This can be done by serving a petition on the biological parent alleging he is the father of the child, and if he fails to contest it or seek a paternity test, and if the child resembles the father, then you may be successful in establishing paternity, by default. Paternity can be undone in a small percent of cases, but if you wish to challenge paternity, consult an attorney immediately, as the more time that passes the narrower your chance of overthrowing the paternity determination. You may be entitled to a DNA test to show you are not the father. It may be possible to go through your Support Enforcement Agency to establish child support and paternity. Caution: if you establish paternity without having established a custody order, then Father may have the right to remove the child from your care.

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Pre-Marital Property:

Equity requires that if one party brings more into the marital estate, that at the time of divorce they be compensated somehow for this contribution. There are exceptions to this rule and if the property is commingled into the estate and a good deal of time has passed or several financial decisions of the party have been made that treated the originally separate property as shared property, then this property will be treated as property of the marital estate and subjected to some fraction of division. Instead of being divided in half, it may be divided into 1/3, 2/3’s value with the party who brought the property into the marriage receiving the larger fraction of the value of the asset.

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Prenuptial and Postnuptial Agreements:

It is possible to enter into a contract with your future spouse designating which assets remain yours in the event of divorce and in the event of death how this asset shall be distributed. These agreements can also be entered into postnuptially, after marriage; however they are still subject to the court’s scrutiny at the time of death or divorce for equity.

Property or custody disputes regarding same sex partners (See dissolution of same sex partnerships)

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Restraining Orders:

FAPA or family abuse prevention act. ORS 107.710. If a party either related to the other party by blood or having been married to or sexually intimate with the other party, is subjected to physical abuse or the threat of physical abuse, and remains in immediate danger of further abuse, then they may be eligible to receive a restraining order, which may initially award them custody of the parties children and force the abusive spouse from the residence. Sometimes restraining orders are obtained to achieve these results when no really abuse has occurred. Sometimes restraining orders are necessary to protect the person subjected to abuse. Either way a hearing may be requested by the party against whom the restraining order is being sought. While you can represent yourself at these hearings, it is best to have experienced counsel at your side. Ms. Langford has years of experience representing those persons seeking to maintain the protection that a restraining order can offer, as well as fighting against frivolous restraining orders, obtained on exaggerated or false claims. Call her today to see if she can be of any service to you.

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Separate Property:

In some cases one or both of the parties have separate property because they inherited it either before or during the marriage or because they came into the marriage with it. An example is when a wife enters a marriage and owns a house, and it is in her own name. At the time of divorce the questions arise whether any increase in value of the house should be shared, or whether or not the whole present value of the house should be shared. The intent to commingle is the major factor in these cases.

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Spousal Support:

At the time of divorce or separation, one party may be entitled to spousal support so that he or she can continue to live in the style in which they have grown accustom to. The amount and duration of support must be reasonable. The court looks at how long the parties have been married, their relative earning capacities whether or not they comingled their financial affairs, their health and age and job skills, education and training, and whether or not the disparity in income is likely to be permanent. Spousal support may be transitional, of such an amount and nature to help the dependant spouse establish themselves away from the moneyed spouse, or maintenance which is based on the disparity of the parties income and length of the marriage or compensatory which compensates one spouse for making significant contributions to the education and training or the other spouse. In some cases, such as where the dependent spouse is disabled, and the difference in earning capacity is never likely to be remedied, then indefinite support may be appropriate.

A recent case in Oregon reflects the court’s current views: McLaughlan and McLaughlan, 227 Or App 476 (2009). In this case the court of appeals held that no single factor is dispositive in determining the duration and amount of support. The court should fashion an award of support with the goal of economic self-sufficiency of both parties, and ending the support dependency relationship over a reasonable amount of time, if that can be done without undue hardship to the dependent spouse. The court must recognize the effect of the marriage on the stay at home spouses’ capacity for self-sufficiency, and ability to earn a living. In this particular case, the court of appeals affirmed the trial court award of $1000 a month for five years to wife, where even though she had four years prior to the divorce to establish her real estate career, her primary focus had been on raising the parties six children while the husband primarily worked to support the family. This amount was reasonable given the disparity in the parties earning capacity (husband made $4,800 a month, whereas Wife made $1,700 a month.) The duration of the award was reasonable in that providing support for four years would give wife enough time to more fully develop her career, and become self- sufficient.

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Spousal Support Modification:

Spousal support may be modified, it may increased or decreased subsequent to the divorce, if the moving party can show there has been a substantial unanticipated change in financial circumstances. If a party can show a substantial unanticipated change in financial circumstances, then the court will adjust the spousal support to maintain the relative positions of the parties in light of their new financial positions. ORS 107.135

See Paresi and Paresi, 234 Or App 426 (2010). In Paresi, the Court of Appeals affirmed the trial court’s decision to increase spousal support from $1500 a month to $4000 a month, after husband filed to reduce the support. This is because of wife’s worsening health condition would impeded her ability to work, and any decrease or termination of support was not necessary to allow husband to adjust to his economic circumstances. The decline in wife’s health was both unanticipated at the time of the divorce and caused a significant change in her economic circumstances.

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Stalking Order Hearings:

If a person subjects another to repeated unwanted contact and has paced the other person in fear of physical injury, then the person subjected to the stalking behavior may be entitled to a stalking order against the other person. However, these orders are easy to obtain and hard to defend in court. If you feel you are wrongly accused of stalking you should see an attorney. If you are frightened and believe you need the protection of the court to protect you from a stalker, you should see an attorney to defend your order.

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Status Quo Orders Concerning Children:

In Oregon upon filing for divorce the court will award you a status quo order that restricts both parties from disturbing the children’s present residence defined as where they resided for the three months before the parent filed for custody. This order not only restricts either parent from moving the children from where they have been living, it also forbids either parent from interfering with the child’s usual contact with the other parent or regular routine. This order acts to secure your normal parenting time with the child. See ORS 107.097 (pre-judgment). These orders may also be sought post judgment at the time the parent files for modification of custody or parenting time, with 21 day notice to the other parent and by setting a hearing seeking such an order. See ORS 107.138 (post judgment)

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Status Quo Property Orders:

In Oregon at the time you file for divorce, statutes forbid either party from disposing of, hiding or encumbering assets. However this statute does not have the effect of a status quo order forbidding such acts. If there is a house, retirement funds or investment account, or you are worried about the family pictures and assets with sentimental value, then it is always advisable to seek a status quo order restricting the hiding or destruction or waste of assets pending final orders.

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Support Enforcement Hearing:

You may apply for child support through the Department of Justice, Child Support Division, commonly referred to as Support Enforcement. If the other party contests the support order and requires a hearing, then you may represent yourself at these hearings but it is better to have an attorney with you. The agency must first confirm or establish paternity, and then they will seek an order of support. Child support is based on each parent’s income, the number of children each parent has, day care and health insurance expenses. If the non-residential parent has the child more than 25% of the time, then they may be entitled to a reduction in child support. Google “Oregon child support calculator” to determine the amount of support you are entitled to or should expect to pay.

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Temporary Orders:

While the case is pending you may seek temporary or limited orders concerning custody and parenting time. You may also seek a limited judgment for support pending final orders.

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Third Party Rights:

Grandparents or third parties may be entitled to custody or parenting time orders with children.

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