New Law: Upward Modifications of Spousal Support

The general rule in Oregon for a party seeking modification of a spousal support award is that the party must show a “substantial change in economic circumstances” sufficient to warrant a modification. The question often arises as to how Oregon courts handle a situation in which the paying spouse’s income decreases and later increases to a level equal to or higher than it was pre-dissolution. What factors are used to assess whether a “substantial change in economic circumstances” has occurred? The Oregon Court of Appeals recently answered some of those questions in Marriage of Mitchell and Mitchell. Prior to Mitchell, the Oregon Supreme Court had decided Weber and Weber, which stood for the general proposition that an increase in income alone [of the paying spouse] is generally insufficient to constitute a “substantial change in economic circumstances.” However, Weber generally applied to situations in which a receiving spouse sought an increase in support due to a post-dissolution increase in the paying spouse’s income. It left unanswered the question of whether support payments could be restored to original levels after a subsequent reduction and then increase in the paying spouse’s income. The Court in Mitchell held that a trial court is not precluded from restoring spousal support that was reduced due to a temporary reduction in the paying spouse’s income, even if the restoration is based solely on the paying spouse’s increase in income (and absent other factors such as the receiving spouse’s need for additional support, etc.). The Court’s holding takes into account the fact that the receiving spouse should be able to have support restored to its original level as agreed upon by the parties in the dissolution. Additionally, the Court found that it would be fundamentally inequitable to allow a paying spouse to seek a decrease in support due to a decrease in income, but prohibit a receiving spouse to seek a subsequent restoration in support due to an increase in the paying spouse’s income. Thus, the ruling in Mitchell may make it easier for persons receiving support to seek an upward modification to support payments that may have been reduced due to a temporary decrease in a paying spouse’s income.

Time to Get Organized By Jill

It’s a brand new year–a great opportunity to get organized. Being organized will reduce your stress level, increase your efficiency and give your family more time to relax and have fun. Review our five tips to get your family organized:

tip #1: Have a system: The first step in being organized is creating a system. Whether it’s an electronic organizer or a calendar, you need one central place to enter and prominently display your family’s schedule.

tip #2: Plan ahead: Now that you have a system, enter all the events your family is involved with. This is a great time to enter or schedule all of the school vacations, activities, lessons, clubs, medical appointments, summer camps and other such activities. Also, pick a time for a family vacation!

tip #3: Family meetings: Whether you have them at parenting time transitions or once a month, it’s a good idea to set a time where everyone gets together and discusses family plans and issues.

tip #4: Get the kids involved: Start teaching your children organizational skills. Older kids can type up mini-calendars. Make a basic daily schedule for young children. Use different stickers for younger children to help them understand the schedule.

tip #5: Free time: Families today have very busy schedules. Make sure to allow for time to simply enjoy being together. Schedule a little time each day to spend together doing activities that are relaxing and fun for the whole family.

New Law: Changes to the Definition of “Child Attending School.”

In its 2005 legislative assembly, the Oregon Legislature enacted Senate Bill 1050, which made significant changes to ORS 107.108, the statute which provides for continuing child support for children between 18 and 21 who are attending school. The changes became effective on September 1, 2005 and apply to all child support orders, not just the ones that were entered after the new statute became effective. Some highlights of the bill are described below. Senate Bill 1050 changes the old grade requirement from a “C” average, to “making satisfactory academic progress as defined by the school that the child attends.” The term “school” includes four-year institutions, vocational schools, high school completion programs and even home schooling. Even if a child is failing, he or she still has rights under the new amendments. Every child between the ages of 18 and 21, regardless of whether he or she is in school, is now made a party to any proceeding in which the court has the authority to order or modify support. The child (rather than a parent on behalf of a child) may also apply for services, request modification of the support award, receive notice and have the right to participate in proceedings that may affect the his or her rights. Children are now also required to provide written consent allowing each parent to obtain information directly from the school regarding the child’s enrollment, grades, current standing and course load. The change in the reporting requirement prevents children from enrolling just to obtain child support and then dropping out. Under the old law, a parent would have to continue to pay support until the next reporting period. The revised law also allows children who have lost their “child attending school” status to become reinstated if they meet the requirements. Under the old law, children who lost their status were permanently ineligible for continued support. The full text of Senate Bill 1050 can be found on the Oregon Division of Child Support website at http://dcs.state.or.us/.

Be a Savvy Online Shopper

Online shopping can be a convenient way to purchase your holiday presents. However, through the ease and convenience of online shopping lurks the possibility of fraud and identity theft or simply the surprise of a different product arriving on your doorstep than expected. Take some easy steps to minimize some unwanted holiday surprises.

First, shop at well-established online businesses. Sites that adhere to the highest standards often have third-party seals of approval such as the Better Business Bureau Reliability Program or TRUSTe. You can also refer to third party sites such as cnet.com or epinions.com for reviews of products and stores by your fellow shoppers. Second, keep your personal information private. If you feel uncomfortable about sharing certain information, you probably shouldn’t. Fill out only the information needed and that you feel comfortable sharing. Third, use your credit card. If things do go awry and you never receive the package or you have a dispute with the online vendor, your credit card company can help with the disputed charges. Finally, make sure all of your browsers and operating systems are updated. As identity thieves get savvier, it is even more important to make sure your tools have the latest encryption. When transmitting secure information, make sure you are on a secure page. If the website is using secure technology, the web address begins with an https and a tiny locked padlock appears in the bottom right hand corner of the screen. Through it all, have fun bargain hunting and be an aware and savvy online shopper.

Money Saving Tips for the End of the Year

The end of the year is quickly approaching. Now is the time to schedule medical, dental, or other healthcare related visits for you and your children that you may have been putting off from earlier in the year. If you can visit your doctor, dentist, or other healthcare professional (or even refill those expensive prescriptions) before December 31, 2005 you will save on having to pay the renewed deductible come January 1.

Another relatively unknown way to save on health insurance costs is by opening a health savings account. A health savings account is similar to a medical IRA. Money is deposited into a designated account which is used to pay medical expenses as they are incurred. When the deductible on your policy has been met, the insurance company starts paying the bills. The plan is like a medical IRA in that you get to keep any money you contribute but do not use, and it grows tax-deferred until retirement. All payments made toward insurance expenses are tax-free. Health savings accounts are particularly beneficial for those persons who have higher deductible plans ($1000 or more). For more information on health savings accounts, visit the United States Treasury website at http://www.treasury.gov/Pages/default.aspx.

Also, when filing your taxes, keep track of how much you have spent on medical expenses for the past year. Under the Internal Revenue Code, section 213, a taxpayer can deduct expenses for diagnosis, treatment and insurance premiums related to medical care. This provision is only applicable if your medical expenses exceed 7.5% of your adjusted gross income.

L.E.A.D. Communicate and Respond Positively to Negative Situations

Dealing with negative feedback or failure is the most difficult, but often most rewarding aspect of working with the situations life deals us. Each of us has been there before; a business deal falls through, the court decision is not favorable, or any similar unfortunate situation. To properly deal with negative information and augment situations, it is effective to use a model of communication and action constructed by the customer service industry for dealing with unhappy clients called L.E.A.D. The letters stand for Listen, Empathize, Apologize and Do something. When a negative situation arises use the LEAD strategies as such:

• LISTEN- Have someone else explain the problem and really listen. Focus your attention on understanding the situation, probe for specific examples. Listening will help you understand not only the problem itself, but perhaps also areas in which you can improve to eliminate problems in the future.

• Empathize- Place yourself in a similar situation, perhaps one from the past. Realizing that you, as well as others, have been in similar circumstances allows you to feel more confident and understanding, and will facilitate positive progress.

• Apologize- A simple, I’m sorry, can be incredibly beneficial. Whether the mistakes made were personal or unavoidable, an apology serves to create a new beginning, wipe the slate clean and start anew in dealing with the problem.

• Do Something- Action is the most important step in L.E.A.D. After analyzing specific problems you must cooperatively work with others to create a reasonable plan to improve the current situation and follow through with it.

The L.E.A.D. method of communication will assist in calmly finding reasonable solutions for those unexpected curveballs life tosses us.

This Call May Be Monitored: Recording Telephone Conversations in Oregon

One common question is whether it is legal to tape record a phone conversation between two people or parties. Federal law and all states prohibit the recording of any telephone conversation which the recording person is not a party.

However, in Oregon, it is legal to tape record a telephone conversation as long as one party consents to the recording (see ORS §§165.535, 165.540). Typically, this means that as long as the person recording consents, which will almost always be the case, then it is not illegal to record the conversation and use that conversation as evidence in a later court proceeding. Recording oral face-to-face communications, on the other hand, requires the consent of both parties in Oregon.

Some states, such as California and Washington, require that both parties consent to the recording of a telephone call. This means that before the conversation can be recorded, the party doing the recording must let the other party know the conversation is being recorded and that party must then consent to the recording. If you will be recording between states, check the laws for each state and remember that a suit could potentially be filed in either state and that state’s law would then apply.

Ultimately, recording sensitive phone calls can be a serious matter. Violation of all of these laws is a crime and should be taken seriously. However, if done correctly, it can potentially provide helpful evidence in a family law proceeding. If you have any questions about the specifics of these laws, contact your attorney to get clarification.

New Bankruptcy Legislation Offers Increased Protections To Those Receiving Support Obligations

On April 20, 2005, Congress passed the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (“BAPCA”). BAPCA, set to take full effect on October 17, 2005,
will have wide-reaching effects on all people seeking protection under both Chapter 7 and
Chapter 13 of the Bankruptcy Code.

Although the legislation has been widely criticized because of its stricter requirements on
debtors seeking relief (such as the “means test” where those debtors with an income above the
state median may be forced out of Chapter 7 regardless of debt), the BAPCA has significantly
increased the protections to people who receive support payments from a debtor who is filing for
bankruptcy. The new legislation has broadened the definition of “domestic support obligations”
(the current law only includes support obligation such as alimony and child support, where the
BAPCA also includes non-support obligations such as property settlements) and has made those
obligations entirely non-dischargeable through the bankruptcy process. Now both support
obligations and non support-obligations owed to a child’s parent, legal guardian, responsible
relative, or a government agency are entirely non-dischargeable. This ultimately means that those
people filing bankruptcy with the primary objective of avoiding payment on a domestic relations
obligation will be unable to do so. Additionally, the BAPCA has increased the repayment
priority of domestic support obligations from the seventh priority to the first priority. Thus, if
there are significant areas on a support obligation, the person owed the obligation will be first in
line for repayment.

The BAPCA represents a sweeping change to the Bankruptcy Code. Although there are
both critics and proponents alike, the legislation has significantly increased protections for those
persons receiving payments and support through a domestic relations proceeding.

Back to School Tools

The first day of school is just around the corner, and children everywhere are tying up the family phone to find out who has which teacher and what stores have the most stylish clothing. For children, these are the most important issues at hand and can affect how they perceive their role at school, however for parents the emphasis is a bit different. As parents we wish for our children’s success in school. This starts with communication within the family unit, whether both parents reside under the same roof or not. To assist your child’s assimilation into the new school year, both parents should discuss back to school shopping, what current clothing trends are age appropriate, and agree on what will be purchased by whom. Parents also need to determine the study habits they wish to encourage and how to oversee homework time. It is important to remember that both children and parents need to be accountable. If children alternate between two households, consistent rules need to be decided upon and enforced by both parents.

Communication is the key. Plan on a nice family dinner to discuss the first day of school. Ask open-ended questions to encourage your child to talk about their day.    Often areas of interest center around social aspects; whether they made new friends, how was their new teacher, how they found their way around (especially if your child is starting at a new school), and whether they sat with anyone at lunch. This type of communication will serve parents well when those teacher conferences roll around, as well as increase the quality of your relationship with your child.

What Is The Difference Between Oregon and Washington Divorce Law?

The difference between the substantive law regarding divorce in Washington and Oregon is not as extensive as you may think, despite the fact that Washington is a “Community Property” state; and Oregon is an “Equitable Division” state. Both states require a division of property that is “just and equitable” under the circumstances. That means that in both states, the court has the authority to consider and divide assets a party owned even before the marriage. Parenting Plans in Washington and Oregon are fairly consistent with regard to regular, weekly parenting time. However, Vancouver, Washington courts will generally award the non-custodial parent parenting time for half of the summer, while Oregon courts generally award the non-custodial parent a two to three week block of summer parenting time. For those parties who agree to the terms of their divorce and want to have their divorce finalized quickly, Oregon is the best bet. Although both states have 90 day waiting period, couples who have signed an agreed judgment of divorce can waive the 90 day waiting period, while in Washington, even a divorce that has been stipulated to by both parties cannot be finalized until the waiting period has expired.

New Bankruptcy Legislation Offers Increased Protections To Those Receiving Support Obligations

On April 20, 2005, Congress passed the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (“BAPCA”). BAPCA, set to take full effect on October 17, 2005,
will have wide-reaching effects on all people seeking protection under both Chapter 7 and
Chapter 13 of the Bankruptcy Code.
Although the legislation has been widely criticized because of its stricter requirements on
debtors seeking relief (such as the “means test” where those debtors with an income above the
state median may be forced out of Chapter 7 regardless of debt), the BAPCA has significantly
increased the protections to people who receive support payments from a debtor who is filing for
bankruptcy. The new legislation has broadened the definition of “domestic support obligations”
(the current law only includes support obligation such as alimony and child support, where the
BAPCA also includes non-support obligations such as property settlements) and has made those
obligations entirely non-dischargeable through the bankruptcy process. Now both support
obligations and non support-obligations owed to a child’s parent, legal guardian, responsible
relative, or a government agency are entirely non-dischargeable. This ultimately means that those
people filing bankruptcy with the primary objective of avoiding payment on a domestic relations
obligation will be unable to do so. Additionally, the BAPCA has increased the repayment
priority of domestic support obligations from the seventh priority to the first priority. Thus, if
there are significant areas on a support obligation, the person owed the obligation will be first in
line for repayment.
The BAPCA represents a sweeping change to the Bankruptcy Code. Although there are
both critics and proponents alike, the legislation has significantly increased protections for those
persons receiving payments and support through a domestic relations proceeding.

New Child Support Credit: The College Savings Plan

With students once again heading off to college, it is a good time to review the new law which may apply to you if you pay child support and have established a higher education savings plan for your 18-21 year old child.

Generally, child support payments made to a child attending school must come directly out of your pocket each month. However, a new provision has been added to ORS 107.108, which applies to those parents paying child support for college students but who have also established a “higher education savings plan.” When this is the case, the new law allows a court to order that child support payments be made to the child from savings plan funds instead of ordering support payments to be paid directly out of your pocket.

Under the new statute, a “higher education savings plan” is a plan in which a tax-advantaged account has been established by a parent on behalf of a child for the purposes of paying qualified higher education expenses at eligible educational institutions. If you have a question about whether your higher education savings plan qualifies under this provision, contact your attorney or financial planner so the proper steps can be taken to utilize this new law for the benefit of both you and your child. Additional information on this topic is available at the Oregon Department of Justice – Division of Child Support website at http://dcs.state.or.us.

Never Be Ashamed to Say “Sorry”

Never be ashamed to say that you are sorry; you need only be ashamed if you haven’t the courage to muster an apology. All too often, we become overburdened and embarrassed by the idea that we have committed a transgression against someone, and are worried that the other person will think less of us. However, we would not be human if we did err from time to time. Although it may seem uncomfortable to tell someone you are sorry, the situation will undoubtedly become more uncomfortable if you remain silent.

Everyone—children, friends, co-workers, lovers, family— should receive an appropriate apology, no matter how difficult it may seem. Realizing that an apology is necessary shows the other person that you are thinking of them, and placing their needs before your own discomfort. Remembering this can help you to overcome any initial discomfort. What recipient of an apology wouldn’t be flattered to know that you think so highly of them as to offer an “I’m sorry?” However, offering an apology also shows that you value yourself, and don’t take yourself too seriously.

One of the most important lessons that you can teach your children is how to render an appropriate and timely apology. Spend time talking to them about the importance of the words “I’m sorry,” and discuss strategies for overcoming any fears that they may have offended someone else. In doing so, you will teach your children to always consider the needs of other people, while also teaching them to value themselves. Although it may seem difficult at first, your children will quickly learn that an appropriate apology will give them no cause for shame.