What are some examples of negligence?
Duty, Breach, Causation, Damages. Car accidents, Slip and fall in a store, trespasser, guest at a dinner party.
Anxiety in a pandemic (Dealing with COVID-19) Lawyer
The global (and local) COVID-19 pandemic shines a light on the extraordinary stressors that many people can face during these uncertain times.
To help recognize the signs and symptoms of behavioral health disorders that can be adversely affected by such events, this article offers strategies to address potential issues — obviously, from an attorney (Clooten Law’s) perspective.
In an emergency (pandemic) like COVID-19 (corona virus), a lot of behavioral health disorders may be exacerbated (or surface for the first time), including depression, anxiety and substance use disorders. Clooten Law is looking at promoting our own resilience so that we preserve our competence and fitness to practice.
When a state of heightened anxiety persists for long periods of time, the symptoms of anxiety and depression can cause people to anxious, unsure and have a sense of almost paralysis.
These emotions are triggered by stress and can play out differently for anxiety versus depression. Anxiety causes overwhelming feelings of fear and distress. Depression can lead to changes in patterns of sleep, appetite and movement. This pandemic (Covid) is causing everyone to experience extreme stress.
Here are some general strategies to help deal with anxiety:
Although it can be difficult, practice tolerating uncertainty. You are vulnerable to anxiety if you cannot tolerate uncertainty. The solution: take it one day at time. Certainty will return, but until then, try to find little ways to find certainty in our everyday life. Try not to text a friend or family member when you need an immediate answer. Set the phone down, and wait. Another important way to deal with uncertainty is to relish in routine.
THE IMPORTANCE OF ROUTINE IN A PANDEMIC. Finding a routine, is an excellent way to maintain balance and a sense of normalcy. Little things like the time of day you wake up, and when you make meals. The way you go about making meals, and where you eat dinner. Shows you watch with a partner, or child. Having a bedtime routine (not only for children, but yourself!). Whatever routine you have, implement and repeat, and through that pattern, you will feel normalcy and control return to your mind.
Tackle the anxiety paradox. The more you try to not feel anxious, the more anxious you get. One way to deal with this is meditation. Another is to go for a walk, while listening to classical music. Another is to run. I find it very difficult to be anxious when I am completely out of breathe after doing a really hard exercise.
Don’t try to escape anxiety, embrace it. The more we realize that this is our current world, the more we can take back control. Some people relinquish control to “God’s will”. Others to Karma. Whatever your method, the sooner you become comfortable with the lack of control, the sooner you’ll be able to move on and control anxiety.
Practice gratitude daily. It sounds cliché, but even during this pandemic, there is a lot to be thankful for in the United States. Food is delivered to our doorstep. Hopefully, your family is still in good health. Hopefully, you personally are in good health. Find the good in your life, and focus on that rather than the things that you used to be able to do, that have been temporarily halted.
Debrief and connect with others. Misery loves company. Find others to communicate with, at a very base level, we are still humans, and humans crave connection. The more
Limit social media. Consider, shutting it off. I personally disconnected from social media a couple months into the pandemic in an effort to re-connect with the world around me. I find myself looking at the blue mountains, or staring into the Umatilla River a lot more often than I used to. It has been a refreshing change to refreshing my facebook page.
Ask a lawyer: Is a homeowner liable if someone falls on an icy sidewalk?
Question: Given the current time of the year, with icy roads and sidewalks, I shovel my sidewalks every time it snows. I do the same for my two elderly neighbors. So my question is, “Is a homeowner responsible, liable, if an individual slips and falls on a snow covered or icy sidewalk?”
The short answer is, there is a solid legal argument to hold a homeowner liable, within the city of Hermiston, if someone slips and falls (plus an injury) on the homeowner’s sidewalk.
Here’s why: Failing to maintain a sidewalk, in this case failing to keep the sidewalk clear of snow/ice, creates an issue of negligence. There’s two basic types of negligence I’ll discuss briefly, plain old negligence (ordinary negligence); and what is known as Negligence Per Se (a legal doctrine in Oregon whereby an act is considered negligent because it violates a statute or regulation/ordinance).
Let’s first look at negligent conduct (ordinary negligence), as reviewed in the Oregon State Bar Books and jury instruction:
”The law requires every person to use reasonable care to avoid harming others. A person’s conduct is negligent if that person fails to use reasonable care.
Reasonable care is the degree of care and judgment used by reasonably careful people in the management of their own affairs to avoid harming themselves or others. A person fails to use reasonable care when that person does something that a reasonably careful person would not do, or fails to do something that a reasonably careful person would do under similar circumstances.
In deciding whether a person used reasonable care, consider the dangers apparent or reasonably foreseeable when the events occurred. Do not judge the person’s conduct in light of later events; instead, consider what the person knew or should have known at the time.
The law assumes that all people have obeyed the law and have been free from negligence. The mere fact that an accident or injury occurred is not sufficient by itself to prove negligence. It is, however, something you may consider along with other evidence.”
Elements of negligence:
1) The defendant’s conduct was negligent (see above);
2) The defendant’s negligent conduct was a cause of harm to the plaintiff; and
3) The harm was reasonably foreseeable.
This analysis of course does not consider issues of comparative fault. In modified comparative fault, the plaintiff only recovers if they are found 50% or 51% at fault or less. Oregon has a modified comparative negligence law. But the question presented was, “…is the homeowner liable,” which I take to mean more, “can a homeowner be liable?” which is, yes, a homeowner can be liable.
The second, and more interesting question, is violation of Negligence Per Se.
City of Hermiston code of ordinances can help shape negligence per se arguments. Here, if the homeowner is found to have violated a city ordinance, they can be liable for negligence, simply by violating the ordinance.
Example: If you find that the defendant (homeowner) violated this ordinance, the defendant’s conduct was negligent, unless the defendant proves that he or she was acting with reasonable care under the circumstances.
The important ordinances in Hermiston to consider:
130.05 ENDANGERING PEDESTRIANS.
(A) It shall be unlawful for the owner, lessee or occupant of any building or structure to suffer or permit rain water, ice or snow, which has accumulated on the building or structure of such owner, lessee or occupant, to fall from such structure onto a sidewalk or other public way.
(B) The offense described in this section, endangering pedestrians, is a Class C violation.
94.10 REMOVAL OF ICE AND SNOW.
It shall be unlawful for the owner, lessee, occupant or person having control or custody of any premises or unimproved property to allow snow or ice to stand upon any sidewalks abutting upon the premises or property for a period longer than two hours after the snow or ice has ceased to fall thereon; provided, however, that if the snow is falling or the ice accumulating after the hour of 6:00 p.m., the same shall be removed within two hours after 7:00 a.m. on the next day.
(Ord. 1976, passed 10-26-98) Penalty, see § 94.99
What this shows us in Hermiston is that a homeowner may violate city ordinance if they fail to keep snow/ice from accumulating on their sidewalk; and if a person is hurt, the homeowner may be liable under a legal theory of negligence per se.
Thank you for helping your elderly neighbors; and my fellow citizens of Hermiston, please make sure to keep your sidewalks clear of snow and ice as inclement weather approaches. You’ll not only avoid liability, you’ll perform your civic duty!
For more information on city of Hermiston codes please visit: https://www.codepublishing.com/OR/Hermiston/
Your inquiry does not create an attorney-client relationship and any confidential information shared with Clooten Law in your inquiry will not be protected as confidential. For additional disclosures and/or more information about us, or our office, please visit: https://oregonlegalfirm.com.
Ask a Lawyer: How do I collect back child support?
Question: How do I go about collecting back child support when he lives in Canada and I can’t afford a lawyer?
I really need a bit more information, like is there a current order, and if so, when it was put in place? But generally, you can go to the Division of Child Support’s website (www.doj.state.or.us/child-support/apply-for-support/how-to-apply-for-child-support-services/) and file an application for child support if it is a new case.
DCS will have to serve him in Canada, which should be doable if they can find him or if he has an actual address. If there is already an order in place, then you can contact the local DCS office (Child Support Services, 216 SE Fourth St. in Pendleton, 541-278-6280) to get in contact with the case manager and to talk about enforcement.
Essentially, if he went off to hide in Canada and is working under the table, it is going to be very difficult to get the back child support. Also, the Circuit Court can only back date child support from the time of filing, so you are not going to get five years’ worth of child support if you have not yet filed. This is the general policy of the court. Finally, a moving party must keep in mind that if they seek child support, the other party’s paternity must be established if it has not already, which will give the other parent the right to move (ask) for parenting time, and even custody through circuit court. DCS cannot award custody of the child to one or the other party.
The way that child support is enforced if the paying party refuses to pay is by garnishing wages and suspending a driver’s license. If the other party is not working or doesn’t drive, then it will be difficult. The other question is whether or not the other party is a citizen of Canada, which will raise jurisdictional questions regarding the enforcement. My guess is that it wouldn’t be the first time the child support enforcement Deputy District Attorney has dealt with this question, and so starting with calling DCS would be the best course of action.
Your inquiry does not create an attorney-client relationship and any confidential information shared with Clooten Law in your inquiry will not be protected as confidential. For additional disclosures and/or more information about us, or our office, please visit oregonlegalfirm.com.
What is custody (Oregon)
A common misconception people often make about custody is that it equates to the amount of time you’ll see your children. This is not true in Oregon. Custody, also called legal custody, refers to a parent’s authority to make decisions on behalf of their child regarding medical needs, schooling, and some religious practices. So, while legal custody does give authority to a parent to make big decisions regarding certain lifestyles of their child, it doesn’t determine the amount of time each parent will get to spend with the child.
When married, each parent has equal authority in making decisions on behalf of their child. As spouses, you’re expected to work together to come to decisions on what is best for your child as a team. When going through a divorce, and in turn changing the family unit dynamic, the issue of which parent has the authority to make the big or hard decisions for their child needs to be clarified so that their needs can be met and handled promptly.
For example, say your child has Attention Deficit Hyperactive Disorder (ADHD). You notice he or she is falling behind in school, and the doctor recommends they start taking a form of medication, such as Adderall, to help with certain behavioral issues. Which parent has the authority to make the decision to put the child on medication? It’s situations like these that shed light on the importance of having established custody.
A mistake people tend to make when talking about custody is referring to the time that they spend with their kid as physical custody. Physical custody isn’t technically an accurate term in Oregon. Rather, the amount of time that you’ll actually see your children post-divorce is called Parenting Time—a totally separate scheduling process that will need to be determined during the divorce.
It’s important to understand that custody does not determine parental rights. Regardless of your custody arrangement, you still have the right to see your child, and you still have a voice in their life. Assuming you don’t pose any threats to your child’s well-being, no parent has the right to cut the other off of quality time with their child simply because they have sole custody.
If you’re going through a divorce with children, it’s important that you both establish a custody arrangement and parenting plan that allows for your child to thrive, and your relationship with your child to continue growing, which is why it’s so imperative to understand what custody in Oregon looks like. The attorneys at Clooten Law understand the importance of having a voice in your child’s life, and are well-versed in child custody cases. Call us today to set up a consultation at 541-667-7993.
Divorce in Oregon
What happens in an Oregon divorce proceeding?
A divorce, also called a “dissolution of marriage” by the courts, is a way of legally ending a marriage. A divorce judgment will decide:
The date your marriage ends;
-Who gets custody of your children and when you and the other parent see them;
-Who pays child support and how much;
-Who will pay health insurance and medical bills for the children;
-Who should pay past debts;
-How property (including retirement benefits and the family home) will be divided; and
-Whether one spouse will pay spousal support (alimony) to the other.
Do I need a legal reason to get a divorce?
No, Oregon has “no fault” divorce. The only reason you need is that you and your spouse cannot get along and you see no way of settling your problems. The law calls this “irreconcilable differences.”
What if I just moved to Oregon?
In almost all cases, either you or your spouse must have lived in Oregon for six months before filing for divorce. In addition, the divorce must be filed in a county in which one of you live. It is possible for you to obtain a legal separation in Oregon prior to obtaining six months residency and then convert that to a divorce once you have lived in Oregon for at least six months.
Will I need a lawyer to get a divorce?
If the divorce is uncontested — that is, if you and your spouse agree about all the terms of the divorce — you may be able to complete much of the divorce paperwork yourself, but you will probably still want advice from a lawyer. If the divorce is contested, you will almost certainly need a lawyer.
Oregon law creates a “short form” summary dissolution proceeding for people with very simple divorce cases. If you meet all the requirements for a summary dissolution, you can get the forms at the county courthouse or at the court’s website. You can probably do this type of divorce paperwork yourself, but you may want to have a lawyer look it over.
Self-help forms for more complicated divorces may also be available. Many Oregon counties now have family court facilitators available at the courthouse to assist you in completing and filing self-help divorce forms. Call your local court to see if that service is available.
What do I need to do to start a divorce?
If you or your spouse have lived in Oregon for six months or longer, you need to do three things to start your divorce:
-You must file several documents, including a petition for dissolution of marriage, with the circuit court clerk’s office at the local county courthouse. The petition tells the court and your spouse what you are asking for in the divorce.
-You must have the petition and any other required documents officially delivered to (“served on”) your spouse. This lets your spouse know that a divorce action has been started and what you are asking for.
-You must pay or be excused from paying the fees that are charged for filing a divorce petition. There might also be costs for having your spouse served.
How do I serve the divorce papers?
If a lawyer is handling your divorce, he or she will have the divorce papers served on your spouse. If you are using “do-it-yourself” forms, the instructions will tell you what you need to do. Your spouse can agree to sign papers that say he or she has been served. Otherwise, your spouse must be served by either the sheriff, process server, or another adult (not you or your children).
If you receive certain public assistance benefits, or if child support has already been set, the Division of Child Support (DCS) may have to be served with the divorce petition. If you do not have a lawyer, or if the divorce forms you are using do not have instructions about this, you can call DCS to find out how to serve them with the papers.
What if I am served with divorce papers?
If you agree with all the terms of the divorce as listed in the petition, you do not need to respond. If you want to challenge the terms listed in the petition, you must file a written answer —called a “response” — with the court within 30 days after you were handed the papers. Contact a lawyer, your local legal services office, or the courthouse (if your county has a facilitator program) to learn about what you can do. There is a court fee to file a response in a divorce case, unless you qualify for a fee waiver or deferral.
How much does a divorce cost?
The filing fee for each party in a divorce is $287, as of September 2019. The cost to serve your spouse usually starts at $40 and increases depending on the company you use and how difficult it is for them to find your spouse. There may be other filing fees depending on your specific circumstances. If you cannot afford to pay the costs and fees, you can ask the judge to waive the fees or defer them to a later date. You will need to fill out court papers that show your income is low, and possibly that your expenses are more than your income.
If you hire a lawyer, you will need more money. The more complex the divorce is, the more it will cost. The more issues you and your spouse disagree about, the more work your lawyer will have and the more expenses you will have. Ask your lawyer to explain fee and billing procedures at your first conference. Be sure you know what the lawyer’s charges include, and that you get this information in writing. Sometimes a lawyer will agree to represent you on a payment plan or other arrangement, especially if you own a house that has some equity in it.
If your spouse’s income is much higher than yours, the judge may order your spouse to pay your lawyer. If your income would allow you to make monthly payments to a lawyer, you can call the Oregon State Bar Lawyer Referral Service for help finding a lawyer who offers payment plans. The number to call is (503) 684-3763 from the Portland area, or (800) 452-7636 from elsewhere in Oregon. An online referral request form is also available at www.osbar.org/public. In addition, if your income is low you may qualify for the Modest Means Program, where you would be referred to an attorney who has agreed to charge either $60, $80 or $100 per hour, depending on your income.
How long does it take to get a divorce?
The length of time it will take you to get a divorce depends mostly on the complexity of your case. If you are filing for temporary orders, such as custody and child support, or if you and your spouse dispute the issues in the divorce, you may need to have court hearings. Court timelines can affect how long it takes to get the final divorce judgment and many courts require divorce cases to be resolved within one year of filing the petition.
Can I take back my former name?
Yes. The judge must give you back a former name if you ask for it in a divorce.
What is mediation?
Mediation is one or more private counseling sessions in which a trained person tries to help you and your spouse reach an agreement. Most, if not all, counties offer this as a free service through the courts. The judge will probably order both of you to go to mediation in an attempt to agree on divorce issues such as child custody, and parenting time. Some counties allow you to mediate support and property division as well. If this process is not appropriate for you because of safety or other concerns, you may ask that the requirement be waived.
All mediation proceedings are private and confidential. Neither party is required to agree to any solutions proposed by the mediator. If you are able to reach agreement on some or all of the issues, a written summary of that agreement is usually sent to the lawyers by the mediator.
If you and your spouse cannot agree and one of you will challenge the divorce issues in court, a judge will have to make a decision about the issues. Temporary orders may be issued concerning custody, support, parenting time and costs before your divorce trial. A custody decision may be made prior to a decision on any other issue.
What is a legal separation?
A legal separation is a court order that states who gets custody of the children, who pays support for the children, whether spousal support is ordered, and who gets what property. You might want a legal separation if your religious beliefs prohibit divorce or if you or your spouse have not lived in Oregon long enough to file for divorce. A legal separation costs about the same as a divorce. Filing for legal separation does not prevent a divorce from being filed.
The main difference between a legal separation and a divorce is that you are still married after a legal separation. Therefore, you may still have the right to inherit property from your spouse if you are legally separated, unless the separation judgment says otherwise. If you are divorced, you lose that right.
Marriage in Oregon
What is marriage?
Marriage is a binding contract between two people of either sex who agree to take each other as spouses. The marriage contract grants rights and duties on both parties.
What is a domestic partnership?
As of September 2019, two people of the same gender and at least 18 years of age, one of whom being an Oregon resident, are still able to contract to be domestic partners. Called a Declaration of Domestic Partnership, the document is available at each county clerk’s office, or online, and requires a small filing fee.
Who can marry in Oregon?
In Oregon, you must be 17 years old before you can marry. If you are under 18 years old, you must have the written consent of a parent or guardian before you can marry. An exception applies if you have no parent or guardian living in Oregon. You may not marry a first cousin or anyone nearer of kin to you (unless they are your first cousin by adoption).
May a marriage be annulled?
A marriage may be annulled, or set aside by the court as if it had never occurred, if at the time of the marriage: either person was under age; either person was incapable of understanding what he or she was doing; or either person consented to the marriage but that consent was obtained by force or fraud.
Do I need a marriage license?
In order to marry you must apply for a license from the county clerk’s office, for a small fee. The county clerk will issue the license, although the license will not be effective for three days after the date on which the application was signed. This waiting period may be shortened by an order issued by a judge or the county clerk.
Is a physical examination required?
No.
Is a Social Security number required?
Yes.
How long is the marriage license valid?
The license is valid for 60 days. If you do not marry within that time frame you must apply for another marriage license.
Where can the marriage be performed?
Once you have a license from any county clerk in Oregon, you can have the marriage anywhere in Oregon.
Who can perform the marriage?
The marriage may be performed by an Oregon judicial officer, county clerk or a clergyperson of any religious organization or congregation. Use of a judicial officer may include an additional fee.
What does the marriage ceremony have to include?
In the marriage ceremony each person seeking to be married must declare in the presence of the person performing the marriage and two witnesses that they agree to take each other to be spouses.
Do I file a document after the marriage ceremony?
The person who conducted the marriage must complete the original marriage application form and license within 10 days of the ceremony, and the application with the signature must be delivered to the same county clerk’s office that issued the marriage license.
Does marriage affect my will?
Marriage may revoke an existing will. A will written before the marriage may be valid if it was prepared with the marriage in mind. Marriage does not change the beneficiary of any policy or account, so you must make these changes with each institution, such as life insurance companies, retirement plans, bank or investment accounts, using their forms.
What is a prenuptial agreement?
Before marriage, people may sign an agreement that determines their rights and duties regarding their property and support obligations if they divorce. The agreement must be in writing. Both parties to a prenuptial agreement must fully understand the effect of the agreement, including the legal rights they may be giving up. You should ask the advice of a lawyer before signing any prenuptial agreement.
What about debts?
Marriage does not make you or your spouse responsible for the debts either of you incurred before marriage. After marriage, debts related to the family, including costs of children’s education, become the responsibility of both spouses. Creditors may sue either or both of you to collect these debts and can collect unpaid bills from the person whose name is on the bill.
Does a married person under 18 have the same legal rights and obligations as an adult?
Married persons under 18 years of age are now considered to have reached the age of majority for most purposes. However, they still must follow other laws with age limits, such as liquor, cigarette and voting laws.
May I keep my name after marriage?
You are not required to change your name when you marry. You may change your last name to your spouse’s last name or combine the two last names. If you decide to do either of those, you may also change your middle name to your surname prior to the marriage. This is accomplished by filling out the marriage application documents.
Does Oregon have common law marriages?
A common law “marriage” is not created in Oregon. However, if a couple is from a state that acknowledges common law marriages, and the couple meets the requirements of common law marriage of that state, then the state of Oregon will recognize the marriage of that state as valid in Oregon.
Your Will – Oregon
What is a will?
A will is a set of instructions that explains how you want your property distributed after your death. In Oregon, you must be at least 18 years old and of sound mind to make a will. If you are married, you can make a will before you turn 18. Your will must be in writing and must be signed by you and two witnesses. Some people cannot serve as witnesses to your will. It is important to make sure that all of Oregon’s legal formalities are carefully observed.
What are the benefits of a will?
A will allows you to decide who will manage your money and other property after you die, and how it will be distributed. It lets your wishes be heard regarding the care of minor and disabled children. It often prevents disputes among your relatives. In a large estate, a will can also reduce the amount of taxes that may be due at your death.
Who should draft a will?
A will is an important legal document that can have a significant impact on your family. A lawyer can give you good advice on how the will should be prepared and executed. Having a lawyer draft your will gives you the assurance that your voice will be heard regarding how you want your children to be cared for and how you want your property to be distributed.
Does a will avoid probate?
No, but having a will can reduce the cost of probate and the burden to your friends and family. Whether your property needs to go through probate is determined by the value of the property and how that property is titled, not whether you have a will.
Can joint accounts substitute for a will?
Joint accounts, life insurance and retirement accounts usually do not have to go through the probate process, but they are not a complete will substitute, because they only control the distribution of those accounts. Many spouses own real estate, bank accounts, stocks and bonds, and other types of property as husband and wife with the right of survivorship. This means that if you die, any jointly owned property passes automatically to your surviving spouse, regardless of what your will says. Life insurance and retirement accounts are contractual documents. You should fill out the beneficiary designation form for each company you contract with to tell that company who is to receive your death benefit. Your beneficiary designation will determine who gets the benefit regardless of what your will says. Beneficiary designations and jointly owned accounts can be good probate avoidance techniques but should only be considered as part of a complete plan that includes a will.
What happens if I do not have a will?
If you do not have a will, and if you have probate property, your property will be distributed according to instructions made by the Oregon legislature. For example, if you are married and do not have children, all property that is in your name alone will go to your spouse. This is also true if you are married and have children that are born of your current marriage. If you are married and have children from a prior marriage, half of your property will go to your spouse and the other half will go to all of your children. If you have a child under the age of 18, the court may choose someone to take care of the property for that child. If you do not have a will or any family that would be entitled to your property, your property (that is in your name only) may go to the state of Oregon. Your family (heirs) includes a large category of relatives: spouse, children, grandchildren, parents, siblings, grandparents, nieces, nephews and cousins.
Whom may I choose to inherit my property if I write a will?
The only rule is that if you are married, your spouse has a right to claim part of your estate. Generally, unless you entered into an agreement in which you validly waived your right to claim a share of your spouse’s estate, spouses cannot disinherit each other. You are not required, however, to leave anything to your children or other family members. You may instead choose a friend or charity to inherit your property. If you plan to disinherit a family member it is very important that you consult with an attorney experienced in estate planning to make sure that your plan will be followed.
What is a personal representative?
If your estate needs management, a personal representative (“executor”) will be appointed by the court. Having a will lets you decide who that person will be. You may choose someone familiar with your property and affairs or a professional who can serve as a personal representative. If you think there may be hard feelings in your family or your estate has complications such as children from a previous marriage, you may want to name a professional. Many banks and trust companies have experienced people to handle the difficult task of being a personal representative and — since the fee paid to a personal representative is determined by the size of the estate, not by who serves as personal representative — banks and trust companies are generally paid the same fee to serve as personal representative as an individual is paid.
What is a trust?
A trust is another tool used in estate planning that can be created as part of a will or as a separate document. A trust is a legal document that appoints someone (a “trustee”) to manage your property and gives detailed instructions on how the property will be managed and distributed. A trust is one way to take care of a minor child, an elderly person or someone who needs help handling money. A trust may be established during your lifetime, and you may act as your own trustee, or it may be established by your will after your death. Trusts are generally more complicated to create than a will, and you may want to consider having an estate planning lawyer assist you.
Can a revocable living trust substitute for a will?
A properly drafted revocable living trust can work well as a substitute for a will and sometimes may reduce the costs of handling your estate. However, even if you have a trust, most advisors would recommend you also have a will to cover the possibility that some of your assets may not be covered by the trust at the time of your death. Whether a trust is proper for your estate is a decision to be made after receiving competent legal advice.
Is a will expensive?
No, a simple will is not expensive. However, the cost of any will depends on how much work your lawyer does for you. As a will becomes more complicated, the cost rises. Ask your lawyer for an estimate of the cost. In general, the trouble and expense of not having a will far outweigh the cost of the will.
Do I need a will if I don’t have much money?
The amount of property you own does not determine whether you need a will. Your personal and financial circumstances determine when and how a will should be drafted. For example, it is important for new parents to have a will to provide for their children even if they own little personal or real property.
What are estate and inheritance taxes?
Estate taxes are the taxes that need to be paid out of your estate after you die. These are based on the total amount of assets that you own at the time of your death. There are federal estate taxes as well as taxes due to Oregon. These amounts change frequently as Congress and our state legislature determine the amounts. An estate planning lawyer may be able to draft a will, trust or other document, as well as give you advice, to help reduce the amount of taxes your estate may owe upon your death.
Is a will from another state valid?
Yes. Generally, if you made a will in another state according to the laws of that state, it is also valid in Oregon. This is also true if you created a trust in another state.
Can a will be changed?
You can change your will at any time as long as you are of sound mind. Major life events such as marriage, divorce, death of a family member, or a new baby are good reasons to consider changing your will. In fact, in Oregon, marriage may revoke any will you made before your marriage. You may revoke your old will by destroying it or by writing a new will. If you only want to make minor changes, you may create a “codicil,” a document that is attached to your will. The same legal formalities are required for creating a codicil as a will, and therefore it is wise to consult an attorney about the changes you would like to make. In the meantime, do not write on your old will, because you may end up invalidating the entire document.
Should I consider having a medical advance directive and a financial power of attorney?
Yes. A will only takes effect after you die. An advance directive and power of attorney are documents that may be used to manage your health care and finances while you are still living. A power of attorney may be created for any purpose, but most commonly an elderly person will nominate a close friend or family member to be their agent to help manage their money. Because this power can be abused, it is wise to seek the advice of a lawyer before signing a power of attorney. An advance directive is a document in which a person appoints a “health care representative” to make medical decisions such as living arrangements and treatment options when they become incapacitated and unable to make their own decisions. An advance directive can be used to indicate whether you wish to have life support, tube feeding or other heroic measures when you are close to death. A power of attorney and advance directive can be excellent end-of-life planning tools. Both documents expire at death, or can be revoked at any time.
Father’s rights in Oregon
Fair warning, this is an in-depth article delving a bit deep into custody issues. It includes case law and statutory references. There are sections that are broader, but then some get more specific. If you still have questions, feel free to contact us.
CAN UNMARRIED FATHERS OBTAIN CUSTODY?
Oregon family law is gender neutral at least, it is in theory. Courts presume that children do better when both parents are involved in their child(rens) lives. But there are some gaping holes in the law and its application that can leave certain fathers (especially working fathers) at a disadvantage when it comes to obtaining child custody and visitation.
One of biggest statutory disadvantages for working fathers is, “Who is the primary caretaker of the child?” The primary caretaker is the parent who is with the child the most often. This usually disadvantages working fathers. The person who is with the child the most may not be the most caring parent, but the statutory presumption is there. Oregon Revised Statutes (“ORS”) 107.137 “Factors considered in determining custody of child”.
UNMARRIED FATHERS MUST SECURE THEIR RIGHTS
Unmarried fathers can find themselves in especially challenging positions. Under Oregon law, unmarried fathers have no right to be in their child’s (children’s) lives without taking legal action.
Both parents may voluntarily formalize the father’s position by naming him as the father on the child’s birth certificate (usually done at the hospital at the time of birth). They must also sign an acknowledgement of paternity. Doing so grants the father full paternal rights, which may then be exercised.
If one of the two parties refuses to sign the voluntary acknowledgement of paternity, the man may also petition the court (circuit court) by submitting to a paternity test, a non-invasive mouth swab that is quite accurate. Once the court issues an order naming them as the father, the man can then seek custody and visitation, through the circuit court.
THE IMPACT OF LACK OF PATERNITY ON OTHER FAMILY MEMBERS
Under the Oregon Revised Statutes (“ORS”) 109.119 Rights of person who establishes emotional ties creating child-parent relationship or ongoing personal relationship; presumption regarding legal parent; motion for intervention and Troxel v. Granville, 530 U.S. 57 (2000), clear and convincing evidence that the parent cannot act in the best interests of the child and visitation by the non parent is in the best interests of the child. In our experience, unless there exists a clear issue (severe drug addiction, for example) a non parent has a very difficult road toward visitation.
MARRIED DADS WHO DIVORCE CAN ALSO HAVE PROBLEMS
Problems with father’s rights usually arise in the context of contested divorces. Courts prefer parents to work out matters for themselves and submit the agreed-upon custody and visitation arrangements to the court (usually done through mediation). Parents, especially fathers, who litigate custody or visitation matters in court could find themselves fighting an uphill battle in some jurisdictions and some courtrooms, even though the law is clear. Consequently, working fathers often need lawyers who will be their strong advocate in court.
There may also be instances where a non-biological father is listed on the birth certificate for a child, but they are not the biological father (not “bio dad”). The father may file for non-paternity to avoid payment of child support for a child that is not biologically theirs.
In the alternative, if a father turns out not to be a biological parent and the mother has filed a petition for non paternity, the father will have to fight to establish himself as “psychological parent” in order to obtain any rights to the child.
GET HELP FOR YOUR CUSTODY CONCERNS TODAY
Sadly, working fathers often need to meet a higher standard to demonstrate their suitability as parents. Moreover, working fathers appear to be victims of parental alienation campaigns more frequently, making it less likely that they will be seen as appropriate custodial parents.
GOOD NEWS
Oregon is moving toward 50/50 parenting time, so long as both parents have a bond with the child. Working parents are beginning to be recognized as equal providers in the parents relationship.
There is a lot of research to suggest that parents need to spend equal time with kids regardless of whether they are working. There is also a lot of research to support the notion that a child needs to spend time around a working parent so that they can view it (working/successful career) as a goal.
Each parent provides world experience that is important for the child(ren) and those experiences need to be recognized and promoted.
While it is wonderful for one parent to stay home with the children (especially present with mothers at younger ages) the role that a working parent takes should not be diminished. It is often the case that one parent must work and one is then able to stay at home. Neither parent is giving less than the other, in those relationships.
In today’s world, (reality) usually, both parents have to work. And the law needs to keep up with that. It’s important who changes the diapers but it’s also important who buys them.
BIO DAD FIGHTING FOR CUSTODY
107.137 Factors considered in determining custody of child…
(a) The emotional ties between the child and other family members;
(b) The interest of the parties in and attitude toward the child;
(c) The desirability of continuing an existing relationship;
(d) The abuse of one parent by the other;
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.
Because this is the area that most dads we meet with are interested in, we will expand with potential hypothetical situations for each factor. Hopefully, some situations will stick out (ring true) and make sense for you.
Overall this is factors test, and no one factor out-weighs the others. They must all be considered together, based upon your particular circumstances.
(a) The emotional ties between the child and other family members
How close is your immediate family to the child (children)?
Do you have step-children?
Do the grandparents spend time with the children? Is it important for those relationships to continue?
Are the children close with aunts and uncles?
Does the mother of the children facilitate all of these relationships?
(b) The interest of the parties in and attitude toward the child
This factor is difficult to quantify, it comes down to questions like:
Who (which parent) has taken the child to the Dr.?
Who has taken the kids to the parent teach conferences?
Who has invested the most time with relationships with other people and who has taken to the most activities (park, playground, intramural sports)?
Even if you (as a parent) didn’t go to the Dr., did you call the Dr. to find out what happened during the visit?
Did you call the dentist to find out the results of the check-up?
Who takes the kids to daycare?
Who cares about the kid being at daycare (wants to make sure they are enrolled and being properly socialized)?
How involved are you (as a parent) in the day to day lives?
Is your child failing algebra? Are they getting and A in social studies?
What is your discipline style? Judges disfavor spanking and favor time outs and talking through problems. DO NOT SPANK YOUR CHILDREN.
(c) The desirability of continuing an existing relationship
These questions focus around things like the following:
Is the kid happy to be around you?
Does the court want the child to continue the existing relationship (as it stands) with you?
Is it (the relationship) healthy? If it is, present evidence of its health. Explain that if you do not have a relationship with the child, the child will be upset, that it will ultimately be detrimental to the child.
Kids need their dads. Why would you not have dads around unless they were a clear and present danger? You wouldn’t, unless you are only trying to win the case and not interested in the best interests of the child(ren).
(d) The abuse of one parent by the other
This issue focuses on things like the following:
Is there a restraining order in place?
Did you abuse the mom in front of the children? If you did, go to counseling, and ask the counselor to address any issues you have that might involve the child. Then ask the counselor to testify that you are capable of being a father, despite the history of abuse. That the benefits outweigh the detriments. Be honest, it will be coming out if you’re fighting for custody.
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court
This was discussed above in this article. This is where the unfairness in the factors lies for working fathers. A mother this is a “stay-at-home-mom” has an advantage over the working father.
(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child
If there is alienation between father and child, this factor will go in your favor. If mom says, “You cannot see your children,” this will actually favor you in court, as the mom is alienating the children from you, their father.
By the way, it’s worth noting at this point, if you want custody, you had better get a “Custody Evaluator“. Pay the money and take their advice. They are the professional in this regard. If they, the evaluator, say you should not have custody, heed their advice and become a better parent before blaming everybody else.
This is a good start, but it is only part of the story. Do not rely on this as your whole strategy, you should always consult with a lawyer.