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The term joint custody in Oregon means the parents share decision-making responsibilities for a child. Joint custody does not mean that a child lives with each parent half the time. In fact, parents may have joint custody even when a child lives exclusively with one parent.

A judge cannot award joint custody in Oregon unless both parents agree to it.

Joint custody does not do away with a parent’s child support obligation. Child support is determined by the child support guidelines and is based on the parents’ income, the amount of time that the child spends with each parent, and other factors.

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Tax debt may be discharged through bankruptcy. Income tax can be discharged in bankruptcy if the tax meets certain requirements.

In general, income taxes are dischargeable if:

-The due date for filing the taxes is at least 3 years ago. The due date is usually April 15 or October 15 if you filed for an extension.
-The tax return was actually filed at least two years ago. If you have not filed a return, the tax is likely not dischargeable.
-The tax was assessed at least 240 days ago. Taxes can be reassessed when you are audited, but under normal circumstances, tax assessment happens when you file a tax return.
-The tax return was not fraudulent. This means you are not attempting to evade your taxes.

If you have employees and your tax debt is related to withholding tax (Form 941 or 940) from your employee’s pay, then you may not discharge that debt in bankruptcy, ever. You may, however, stop IRS collection activity by filing a Chapter 13 bankruptcy and paying the nondischargeable tax back over 5 years.

In view of the relative intricacy of these provisions, it is always wise to check each particular fact situation against the Code itself. In some cases, when significant amounts of money are involved, it may pay to delay filing until one or more of the time periods listed have expired.

Taxes are the debts that are most frequently nondischargeable in bankruptcy cases. A rather complicated series of cross-references within the code can be followed to the conclusion that, basically, only the types of taxes listed below are are not discharged in consumer chapter 7 cases:

-Any tax for which a return, or equivalent report or notice, if required was not filed, for which a fraudulent return, report, or notice was filed, or which the debtor willfully attempted to evade;

-Any tax with respect to which a later return was filed within two years before the date of filing of the bankruptcy;

– taxes on income or gross receipts
a) for which a return, if required, was last due within three years of the filing of the bankruptcy, or
b) assessed within 240 days before filing of the bankruptcy, or
c) not yet assessed, but assessable after filing of the bankruptcy;

-property taxes assessed before commencement of the case and last payable without penalty less than one year before filing of the bankruptcy;

-excise taxes…

-Taxes required to be collected or withheld by the debtor, such as employment “trust fund” taxes (income taxes and FICA withholding) or sales tax

Once counsel obtains the necessary information the claim for each tax year must be separately analyzed.

What is mediation in family law cases?
Mediation is a process that gives people who disagree on issues in a family law case help in reaching an agreement by a neutral person trained in problem solving. Each Oregon county is required to provide some form of mediation service in family law cases usually associated with custody and parenting time only.

Who is a mediator in family law cases?
Mediators in family law cases are trained as licensed social workers, psychologists and attorneys. Some mental health professionals may not mediate financial issues such as support and property division. Some attorney mediators may not mediate custody or parenting time disputes, so you should inquire before hiring them.

What kind of family law cases are mediated?
Any type of family law case may be mediated. If there is a disagreement over custody of minor children, parenting time with minor children, child or spousal support, or allocation of debt and distribution of property, the parties may (with or without their lawyers) call on a mediator to help them resolve their disputes. Mediation is available whether or not the parents of the minor child were married, and it is available to resolve disputes over grandparent visitation. The courts encourage mediation of disputes in family law cases, because the court process often fails to adequately resolve disputed issues. Mediation is not normally used to address a family abuse prevention restraining order.

What is the cost of family law mediation?
The cost of mediation in family law cases varies from county to county and from case to case. Some counties provide mediation services at no cost through their county’s department of family services, so long as the case is filed in that county. Other counties provide mediation services, but the parties must pay a fee in addition to their filing fee to meet with a mediator who has contracted with the county to provide mediation services. Those fees vary greatly. Some services will reduce or waive the fee for low-income people. Private mediators’ charges vary. Check with your individual county to determine what the charges for these services are in your area.

What is the procedure in family law mediation?
In some counties, as soon as a petition is filed, the parent filing the petition must tell the court that there is a controversy over custody or parenting time with a minor child. The parents are required to attend a mediation orientation session, a parenting class, and meet with a mediator to try to resolve those disputes. In other counties, the court requires the parties to attend mediation when one or more parties ask the court to hold a hearing on custody or parenting time. And in some counties, there is no mandatory requirement of mediation, but the court maintains a list of private mediators who will, upon request, assist parents in resolving custody and parenting time disputes.

If one of the parties in the case reasonably believes mediation is not appropriate because it will expose him or her to violence or intimidation, the mediation can be structured to minimize the danger, or the mediation requirement might be waived.

Even if there are no children, many counties have a number of private mediators, typically lawyers, who will assist parties in family law cases to resolve their disputes. This service covers divorces and other types of family separations.

Each party is encouraged to give information to the mediator prior to the mediation session to help the mediator resolve the dispute. Lawyers for the parties often do not attend the mediation if it is with the county’s mediator but can attend if the mediator is a private party. Lawyers may attend the mediation sessions if both parties agree. A mediator may first meet with both parties (and their lawyers), and then meet with each side confidentially, going back and forth between the parties until an agreement is reached. This is called “caucusing.”

What happens at the end of family law mediation?
If the parties in mediation of custody and parenting time issues reach an agreement, the mediator will usually draw up an agreement that the parties sign. The agreement may be presented to the court for its approval. If the mediation involved financial and support issues, the mediator may draw up a memorandum of agreement, and then the parties take the memorandum to their lawyers, who complete the papers required for court approval. If the mediator is a private party and an attorney, he or she may prepare the necessary legal paperwork to effectuate the agreement.

On the other hand, if the dispute is not settled in mediation, then the case proceeds to trial before a judge. Anything that was said in the mediation is confidential, and the court decides the issues. Therefore, the court may decide custody, support and financial issues without knowing what the parties’ positions were during mediation. Most courts have a standard parenting time schedule that they may impose if the parties do not offer a mediated plan of their own. If the parties reached an agreement in mediation, the mediator may be called to court to testify about the terms of the agreement.

Divorce attorneys in Hermiston Pendleton Oregon.

When you are being overwhelmed by your debts, you may choose to file a Chapter 7 bankruptcy. A Chapter 7 bankruptcy, often called a straight liquidation bankruptcy, gives you the opportunity to discharge, or be relieved of liability for, all or almost all of the debts you owe on the date you file your bankruptcy. You do not have to make any future payments on those debts that are discharged, and your creditors are stopped from attempting to collect those debts. There are some debts that cannot be discharged, such as criminal fines and alimony or child support. Other debts, such as taxes, student loans and debts incurred as a result of your fraud, may not be dischargeable (depending on the circumstances). Personal income taxes are dischargeable if you have filed a tax return and certain time periods have passed. The rules for discharging taxes are complicated; if you have tax liabilities you should consult with an attorney prior to filing bankruptcy. You may receive a discharge in a Chapter 7 bankruptcy once every eight years.

On the date you file your bankruptcy, all of your property, and income which you have earned but not yet received, becomes part of your “bankruptcy estate” and subject to the claims of your creditors. Other property, such as the right to an inheritance or proceeds from a divorce decree or divorce settlement acquired within 180 days after the date you file, may also be included in your bankruptcy. Under certain circumstances, your right to tax refunds for prior years or the current year may also be included in the estate, even though you have not yet received the refunds.

You are entitled to protect, or exempt, certain property. If all of your property and income is protected, you will not lose any of your property in the bankruptcy. Your bankruptcy would then be called a no-asset bankruptcy. Depending on how long you have lived in Oregon you may use either the Oregon exemptions or the federal exemptions. For instance, under the Oregon exemptions some of the property that is exempt includes your interest in a car up to a value of $3000, household furnishings up to $3000, clothes and musical instruments up to $1800, the federal earned income tax credit, a certain portion of wages, almost all government benefits, some bank account balance, and depending on the amount, possibly the equity in your home. The federal exemptions are generally give you greater exemptions, particularly if you do not have equity in a home.

What is the process for filing a Chapter 7 straight liquidation type of bankruptcy?

Before you can file bankruptcy, you must complete a credit counseling course. This course can be completed on the Internet or by telephone. Depending on your financial situation, you may have to pay a fee. Once you complete the course, you will receive a certificate of completion, which is valid for 180 days. After you complete the course, you or your attorney prepare paperwork including descriptions of what you own, the property that you want to exempt, the names and addresses of your creditors and the amount you owe, your current income and expenses, a statement concerning your financial affairs and a statement of what you intend to do with the property you used as collateral to secure consumer debts. You must include all of the creditors that you know about, including friends and relatives and those creditors you want to pay. You can find many of your creditors on your credit report. You can get a free copy of your credit report once each 12 months from Equifax, Experian and TransUnion. You can get your credit reports at www.annualcreditreport.com. It is good idea to print and save each report for future use. You do not need to get all three credit reports at the same time.

All of your information must be prepared on forms that have been approved by the court. They are filed with the United States Bankruptcy Court, along with the certificate of completion of the credit counseling course. You must also pay a filing fee, which is $335 at the time of this writing. (Note that this filing fee changes periodically.) Under some circumstances, if you cannot afford to pay the fee, as part of your petition you can ask the court for a waiver of the fee. If you are not eligible for a waiver of the fee, you may always pay the filing fee in three installments over 90 days after filing. In that event you would not need to pay any fee at the time you file your bankruptcy.

Your bankruptcy is effective at the time you file it. Once you file your bankruptcy, the court will notify all of the creditors you have included with your petition that you have filed for bankruptcy, and will set a date, time and place for a hearing that is called either the section 341(a) hearing or the “meeting of creditors.” It is usually scheduled about 30 to 35 days after you file your bankruptcy petition. You must attend this hearing and answer questions under oath by the trustee and any creditors who appear. The questions are about your financial affairs, including your property, past earnings, past transactions, and the forms you have filed. Your case may be dismissed if you fail to attend as scheduled.

No later than seven days before this hearing, you must provide a copy of your most recent federal tax return to the trustee, or a transcript which you can obtain from the Internal Revenue Service. Your case may be dismissed if you do not do this. You must also bring to this hearing a copy of your bank statements covering the date you filed your petition and, if you are employed, a copy of your pay stub covering the same date. The trustee may request that you bring additional documents, including the title to any cars, and a copy of your most recent filed state tax return.

The trustee is appointed by the court and is the representative of your bankruptcy estate. It is the duty of the trustee to determine whether you have properly completed all of the forms and listed all of your assets and your creditors, and whether there is some reason why he or she should ask the bankruptcy judge to deny your discharge. It is also the trustee’s duty to take possession and sell any of your non-exempt property, to examine claims creditors may file and determine whether they are proper, and to distribute any proceeds of that property among your creditors. You might be required to make further court appearances at the trustee’s request. Also, if anyone objects for any reason to your being discharged from all of your debts, or if any creditor objects to your being discharged from any particular debt, you will have to appear in court to defend your position. In the great majority of cases, these issues do not come up.

After you file your bankruptcy, but no later than 45 days after the date of your meeting of creditors, you must complete a second counseling course to be eligible for a discharge. This course is on personal financial management. It can be completed on the Internet or by telephone. Depending on your financial situation, you may have to pay a fee. If you do not timely complete this course and file the certificate of completion with the court, the court can close your case without discharging your debts.

If all of your assets are exempt, and no one objects to your discharge, you will receive your discharge from the debts about 60 days after the meeting of creditors.

During the entire bankruptcy process you must be honest and as accurate as possible in the information you put in your petition and with your answers to questions.

You may wonder whether you need an attorney in order to file bankruptcy. If you are an individual or unincorporated sole proprietor, the law does not require you to have an attorney. However, completing all the required documents can be difficult. Also, the filing of a bankruptcy petition is only part of a program to regain financial health. If your petition is filed at the wrong time, you may find that the debts you hoped to have discharged are not discharged — and you will not be permitted to seek a discharge again for eight years.

Some of your property, which can be made exempt from being taken by the bankruptcy trustee, will only be exempt if you take certain steps to arrange your affairs before you file bankruptcy. Only an attorney can give you legal advice concerning your exemptions. You must request exemptions. Appropriate planning before your petition is filed can potentially save you hundreds or thousands of dollars in the long run. There may be other problems with respect to the discharge of certain debts. These debts should be discussed with an attorney before bankruptcy is filed because it may be unwise to file bankruptcy immediately, or it may be advisable to take other steps to resolve that particular indebtedness.

If you have pledged property to a creditor to secure a debt, then generally you must either agree to continue to pay for the property or give it back to the creditor. This is true even if the property is exempt. You may have to attend another hearing before the judge if you have worked out a deal with a secured creditor to keep some property, unless your attorney files the proper declaration as to each debt you want to continue to pay.

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

We are attorneys in Hermiston and Pendleton Oregon, serving Umatilla County.

A debtor is someone who owes money to someone else. Generally it is not a crime to fail to pay a debt. There are, of course, exceptions. For instance, the failure to pay some court-ordered debts such as child support or criminal fines may lead to criminal charges. Under some circumstances, the failure to pay taxes could have criminal consequences also. Except in certain bankruptcy situations, a debtor can choose to pay debts in any priority.

Debts often arise from the failure to follow a contract or agreement between you and a creditor. Most oral and written agreements for the repayment of consumer debts (debts for personal, family or household purposes, and debts secured primarily by a person’s residence) are enforceable. However, most debts that are for business or commercial purposes must be in writing to be enforceable. If the agreement requires you to pay a certain amount of money, the creditor does not have to accept a lesser amount. Even if you have lost your job, become ill, or just cannot afford to pay the debt, you still owe the amount stated in the agreement. Also, if there was no actual agreement, but the creditor has lent you money, performed services, or provided you with a product and you have kept the product or benefited from the services, you generally are liable to (and must pay) the creditor.

If you owe money, the creditor may assign the debt to a debt collector, which is typically a collection agency. The creditor may hire an attorney to collect the debt. The attorney may also be considered a debt collector. The debt collector may send you a letter or other notice requesting payment. If the debt is based on a consumer transaction, a federal law called the Fair Debt Collection Practices Act requires that the first notice from a debt collector describe the debt and additional charges, costs and expenses according to the agreement between you and the creditor. If you orally dispute this debt, or any portion of it, within 30 days after receiving the notice, the debt collector cannot assume it is valid. If you dispute the debt in writing within this 30 day period, the debt collector must stop any further contact with you until the debt collector sends you proof of the debt. The fact that you do not respond to the debt collector’s notice cannot be used as evidence that you owe the debt.

An Oregon law called the Unlawful Debt Collection Practices Act also controls how a creditor may try to collect a debt, whether by letter or phone call. Unlawful debt collection practices would include the use of obscene or abusive language. The creditor cannot call your employer about the debt or call you at your place of work if you have notified the creditor not to. The creditor may call you at work only after he or she has in good faith, but unsuccessfully, tried calling you at home during the day or between 6 p.m. and 9 p.m. A creditor can write to you at work only if your home address is not available. In either case, the creditor may contact you at work only once a week. A creditor who willfully violates this law may be liable to you for minimum damages of $200, your legal fees, and in some cases punitive damages.

A creditor may sell your debt to a collection agency. This means that the collection agency buys the right to collect the debt. A collection agency may be operated by one person, or it may be a nationwide business. A collection agency has no greater rights than the original creditor and cannot make you pay any fees that could not be charged by the original creditor. Generally, however, the amount of your debt will be increased because it has been assigned to a collection agency. Debt collectors — both collection agencies and lawyers who try collecting debts — must comply with the federal Fair Debt Collection Practices Act, as well as Oregon state law. The federal law prohibits a debt collector from communicating with anyone about a debt except for those involved in the debt collection process. These include you, your spouse or your parents if you are a minor. The debt collector may not harass you or call you at work if the debt collector knows that your employer prohibits that type of communication. A debt collector is also subject to the same collection rules as an original creditor. You may prevent a debt collector from calling or writing to you by notifying the debt collector in writing that you either will not pay the debt or want to stop all further communication with them. You should keep copies of any such communication, as well as any envelopes. If a debt collector violates this federal law, it may be liable to you for all actual damages you suffer and additional damages up to $1,000.

If you have purchased something on credit and signed an agreement called a “security agreement,” and you have failed to pay the debt for your purchase, the creditor may try to repossess or take it back. This will usually only happen when you purchase a major item like a car or furniture and agree to pay the price in installments. Even though the creditor can repossess your property if you do not pay your debt, the creditor cannot enter your house without permission, assault you or take your property if you physically try to prevent the repossession.

If you have not signed a written security agreement, the creditor does not have a right to take any of your property unless the creditor has first obtained a judgment against you. In order to get a judgment, the creditor must go to court. Either the original creditor or a collection agency may sue you to collect a debt. If this happens, you will be served with a summons and complaint. If you want to dispute the existence or the amount of the debt, you must file a timely response with the court. You must file a response within 14 days of the date you are served if you are sued in small claims court. You must file a response within 30 days of the date you are served if you are not sued in small claims court. Filing a response means filing a motion or answer. The summons and complaint generally do not reflect the service date or provide a hearing date. If you do not respond to the complaint, or if you file a response and ultimately go to court and lose, the creditor will obtain a judgment. This judgment will include the amount of debt and may include interest, court costs and the creditor’s legal fees. It may also create a lien upon any real property, such as a house, that you own.

Every claim is subject to a statute of limitations. The statute of limitations is the time within which a lawsuit must be filed if a person wants to use the court system. There are a variety of statutes of limitations depending on the nature of the claim, as well as considerations as to when the limitation period begins to run. If a person is sued and the person believes the statute of limitations has expired, that defense should be raised in the response to the lawsuit. For many claims based on breach of contract, the statute of limitations is six years, often beginning to run from the date of default. Making a payment typically starts the limitation period running anew.

If you are sued, you may have not only have a defense but also a claim for damages against the plaintiff. Your claim for damages may be raised and pursued as a counterclaim in the lawsuit.

A judgment is not a court order that tells you that you have to pay any money. Instead, it is a way for the court to confirm that you owe the creditor a certain amount of money. If the creditor wants to collect any money from you based on the judgment, further action must be taken. The creditor may try to collect your debt by having the sheriff take some of your real or personal property to sell at a public sale. The proceeds of the sale would then be applied to pay the judgment. The creditor may also take money from your savings and checking accounts, or garnish your wages. It is not a crime to fail to pay most judgments.

Oregon law protects, or exempts, some of the property you own, some types of income, or the equity you have in certain property, from being taken by creditors if they obtain a judgment against you. For example, clothes and jewelry are protected up to a maximum of $1,800 in value. Up to $3,000 in value for a vehicle (cars, trucks and other motor vehicles) is protected. Household goods, including furniture, a television set, and utensils are protected up to $3000. There are a number of other exemptions. The value of these items is often determined by “market value.” Except for a car, market value is often called garage sale value. Social Security benefits, TANF, unemployment benefits, retirement income and many other types of government benefits are protected from garnishment. This income may also be protected when deposited in a bank account. Net wages are protected from garnishment unless they exceed a certain amount. For instance, of the date of this writing the first $218 of net weekly wages are exempt. If you are paid once each month, the first $936 of net wages are exempt. (Note that these numbers will undoubtedly change over time.) Except for certain debts, such as student loans, taxes and child support or alimony, a judgment creditor cannot garnish more than 25 percent of your net wages. Net wages are gross wages minus those deductions required by law.

There is also an Oregon exemption (sometimes call the “homestead exemption”) available for the equity a person has in a residence if the residence qualifies as a homestead and is located within the state of Oregon. A single debtor may exempt up to $40,000 of equity in a homestead. Married debtors may exempt up to $50,000 of equity. A judgment may constitute a lien on your interest in a homestead. The lien could be used to sell the homestead to satisfy the lien. In most cases, the judgment amount must exceed $3,000 at the time it was entered before a judgment creditor can force the sale of a judgment debtor’s homestead.

For many of the exemptions, if two or more members of a household are judgment debtors, each person may be entitled to claim the exemption in the same or different property.

Note that the exemptions can be complicated. You may want to consult with an attorney to determine what exemption value (if any) you have in your home or other property when faced with a judgment or the need to file bankruptcy.

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

We are attorneys located in Hermiston and Pendleton, Oregon.