As part of the divorce process, one of the most important items your lawyer will work with you on is the amount of support to be paid by one member of the marriage or partnership to the other.

 

“When your personal relationship with your spouse/partner and children changes, your financial relationship with them is bound to change as well,” says Portland lawyer Deanna Jensen.

 

“Although each form of support takes into account a variety of factors, including the ages of the parties, the length of the marriage/partnership, the earning capacity of each of parties, the need for one of the parties to care for children, the health of the parties, the education of the parties, the length of time one party may have been out of the workforce, and, to some extent, the award of assets, such as income-producing property, there is no set formula for determining spousal support.  “Instead, it is based on what is considered ‘just and equitable under the circumstances,’ and the amount and duration of support is discretionary with the court based on the specific facts of each case,” adds Jensen.

 

There are three kinds of spousal support:

 

Transitional support is awarded so that a spouse can get the necessary training and education to allow him/her to re-enter or advance in the job market.  It can be awarded in addition to an award of maintenance support.  For example, transitional support can be awarded for a period of 4 years in addition to a maintenance support award that has a duration of 10 years.  The amount of transitional support is added to the maintenance support to arrive at the total support award.  At the end of 4 years the transitional support amount would terminate, but the maintenance support portion would continue until it terminated at the end of 10 years.

 

Compensatory support is granted where there has been a significant contribution by one party to the other towards education, training or obtaining job skills (i.e. law school or medical school).  This type of support award recognizes one spouse’s/partner’s contribution to the other spouse’s/partner’s income and is generally for a period of years.  It is a very difficult support award to modify.  The amount of compensatory support is generally added to a maintenance support award.

 

Maintenance support is awarded from one spouse/partner to the other for a specified or indefinite period of time.  This is usually the case in long-term marriages and registered domestic partnerships where one spouse/partner has significantly out earned the other.  It is awarded in order to give the dependent spouse/partner an income or lifestyle not overly disproportionate to the one that existed during the marriage/partnership.

 

 

 

In Portland and throughout Oregon, making sure children receive all the benefits and child support they are entitled to is an important undertaking for any parent.

 

Portland based child support lawyers are quick to acknowledge that coordinating health care for a child, collecting support payments, and  determining past due child support can be daunting.  It can also be daunting to find yourself in the position of being entitled to a credit for payments of child support you have made that is not showing on the records of the court or support enforcement.

 

The Oregon Department of Justice, Oregon Child Support Program is an active participant in overseeing the well being of children throughout the state, and while they offer a broad range of support services, one thing they do not offer is legal advice.  They represent the State of Oregon and must remain as impartial as possible, administering laws, regulations and programs within the framework set up by the state.

 

While this provides a good measure of support, it does not always lead to the best possible outcome for a parent struggling to provide for their children.  In fact, in cases where there is criminal nonsupport, an attorney is appointed to represent the person charged, if that person does not have the financial means to pay for a lawyer on their own.

 

Hiring an attorney can be the best possible course of action for issues that will have long term implications for both parents and children involved in support cases.  In fact, if you’ve retained an attorney, the Division of Child Support and a District Attorney must work through your attorney unless your attorney grants them permission to speak with you directly.

 

While retaining an attorney can be a challenging expense to bear during a difficult time in your life, the fact is that retaining an attorney to help you receive the child support payments you are entitled to, or to help you defend against child support that has been collected and needs to be credited back to you, may be one of the wisest investments you can make for the overall health and happiness of your family.

 

Whenever the welfare of children is involved during a family law dispute (initial dissolution or modification of prior judgments), one or both of the parents may seek to gain sole custody of the child or children.  There are various state custody laws in place in Oregon and a good custody lawyer in Portland can help you unravel them.

 

In Oregon, at the outset of the dissolution process, both parents are the joint legal custodians of their children.  However, there is the potential for a court ruling that grants temporary legal custody to one or the other of the parents, with a final determination of legal custody made at the time of the divorce.  Either parent can seek temporary custody, and the decision to award temporary custody, or not, is within the discretion of the court based on the facts of the case and a list of statutory factors related to the child’s best interest.  For example, if there has been physical abuse by one parent of the children or of the other parent, the abuser will not be awarded temporary custody of the children, and likely not be awarded custody at the conclusion of the case.

 

Oregon courts will not make a final award of joint custody to the parents unless both parents agree to joint custody.  If the parents do not agree, the court will give sole custody to one of the parents based on a determination of what is in the children’s best interest.

 

What is custody?  It is the right to make major decisions for your child(ren).  Major decisions include where the children live, where they go to school, who their health care providers are, major medical decisions like surgery, day care providers, religion, joining the military and so forth.  Sole custody means that the decisions for your children involving these matters rests with the parent who has sole custody.  Joint custody means that the parents make these decisions together.  The Oregon legislature determined that if the parents can agree on joint custody, it is likely they can make joint decisions for their children.  On the other hand, if they cannot agree to joint custody, it is likely they will not be good at making joint decisions for their children, so only one parent will have that right.

 

How is custody decided when parents don’t agree?  The court has a list of statutory factors it considers in deciding which parent should have custody.  The list is not exclusive and the court can look at other factors that are important to the children’s best interests, but it always begins with these: (1) The emotional ties between the child and other family members; (2) the interest of the parties in and attitude toward the child; (3) the desirability of continuing an existing relationship; (4) the abuse of one parent by the other; (5) the preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child unless a continuing relationship with the other parent would endanger the health and safety of either parent or the child.

 

What is parenting time (or visitation)?  It refers to the amount of time each parent has with his/her children.  It can be anywhere from a 50/50 split of time to some other percentage split.  The parents can design their own parenting plan taking into account holidays, days off from school, Winter, Spring, and Summer breaks and so on.  If the parents cannot agree on a parenting plan, the Court will impose one after taking evidence from each parent and any other persons or experts about the needs of the children.

 

Custody and parenting time judgments are modifiable based on a substantial change of circumstances affecting the welfare of the children.

 

 

 

 

Family law issues are nearly always emotional.  The stakes for future happiness and well being are high.  That’s why finding the best possible family law lawyer is important for a successful outcome to your situation.

 

Where to start?  Ask friends and family members for a referral.  Search the internet; most attorneys have websites.   There are legal databases that are easy to find and can provide you with several options from which to choose.  You should also check with the Oregon State Bar Association to verify a lawyer’s credentials and if they are in good standing.  Try to develop a short list of lawyers you want to interview.

 

Thanks to social media, many lawyers will also be reviewed to some degree, and while these sites can have a bias and are sometimes not reliable, the search will allow you to spot a consistent problem with an attorney if there are negative comments across several such sites, including an attorney’s record with the bar.

 

Your comfort with and trust in your attorney will make it easier for you to navigate this difficult process.  Some attorneys charge for initial interviews and some do not.  You cannot determine the expertise of an attorney on that basis.  It is important to meet with each attorney you are considering to determine whether or not the two of you will do well together, as well as assessing the attorney as someone able to appropriately represent your interests.  Ask several questions ranging from experience in dealing with your particular kind of case, to fee structure, to explaining the entire process clearly and concisely.  Take as much time as you need to assess the attorneys you interview.  Be particularly conscious of an attorney’s ability to tell you when he or she thinks your position on an issue cannot be supported in law and why.  Attorneys who create false expectations in you will make your case much more difficult and expensive.

 

It is also important to remember that if you thought you had the right attorney and at some point the two of you are either unable to agree on how to approach the case, or your communication breaks down, or you are unable to get your attorney to respond to you, it is time to change attorneys.  Do not be afraid to make that change under those circumstances.  The only time that decision is problematic is when you are so close to trial and the case is so old that you risk the court denying your request for a change or the withdrawal of your attorney.

 

 

An appeal takes place when a case is reviewed by a higher court after a decision by a lower court.  The appeal starts when the loser of a trial, known as an appellant, files a notice of appeal within pre-defined time limits.  ”Filing a timely notice of appeal is one of the few things for which there are no extensions and no excuses.  Even if you are hit by a car on your way to file the appeal, it will not be allowed if the notice of appeal is not filed on time,” says Oregon appeals lawyer Margaret H. Leek Leiberan. After the notice of appeal is filed, the appellant and the appellee must  make written and oral arguments explaining why the lower court decision should be overturned, upheld or vacated.

 

“Usually, a higher court must find a legal or procedural error to change a decision, although the court can take a look at the entire case from scratch if the situation warrants,” says Portland appeals lawyer Deanna Jensen. “When this happens, it is called a de novo appeal.”

 

In general, there are three types of appeals an appeals lawyer can initiate:

 

An undeniable right to appeal – this is one of the basic liberties of the United States Constitution and cannot be abridged by the court system.  If a party in a civil or family law case  believes that an error has been made at the original trial., then that party has the right to file an appeal with the Oregon Court of Appeals.

 

Writ of certiorari – also known as certs, these take place when a higher court orders a lower court to send a case for review.

 

Writ of habeas corpus – these appeals help guilty parties find relief against a guilty conviction.  These appeals can be pursued if an individual is not satisfied with the outcome of their original appeal or they have been denied a writ of certiorari.

 

Both sides of a case can file an appeal in the same case, which on the surface may sound confusing.  A situation where this might apply is if an appellee wins a judgment for damages, but is not satisfied with the amount, they may appeal the decision.

Jensen & Leiberan Attorneys at Law

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