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Can bankruptcy help me?

September 26, 2019/0 Comments/in News /by clooten

If you cannot pay your debts, are receiving telephone calls from collectors demanding payment or are dealing with a lawsuit, bankruptcy may help you. One of the major aims of bankruptcy law is to give a financially distressed person an opportunity to make a new financial start. Filing bankruptcy generally results in the “discharge,” or release from obligation, of your debts — or at least of many of them — so that no further legal action can ever be taken against you on those debts. In short, bankruptcy gives you a fresh start. However, careful consideration should be given before filing for bankruptcy, because doing so may affect your credit and have other adverse consequences.

Chapter 7 is the most common type of bankruptcy. It is called a “liquidation bankruptcy,” because the debtor is relieved of personal liability for all debts (with certain exceptions). In return, a debtor must give up possession of the debtor’s assets (again, with certain exceptions). While a liquidation bankruptcy is a valuable tool for the debtor, a debtor only will be granted a discharge once every eight years. Once such a Chapter 7 bankruptcy is filed, it generally takes about 3 months to complete.

Some debts are not discharged by a Chapter 7 bankruptcy. The most common of these debts are child support, spousal support, criminal restitution and criminal fines. Other debts may or may not be discharged, depending on the particular circumstances. For instance, debts arising out of giving a false financial statement, fraudulent use of a credit card, or for willful and malicious injury may not be discharged. Personal income tax liabilities may be discharged depending on whether a tax return has been filed and sufficient time has passed. Educational loans can be discharged in whole or in part only after proving the existence of undue hardship, something which requires a separate proceeding from the bankruptcy case. Difficult legal questions come up when looking at these kinds of debts. To avoid serious problems, you should discuss these issues with an attorney before filing for bankruptcy.

Many people ask, “Will I have to give up all of my property if I file for bankruptcy?” The answer is usually that you will not. The law recognizes that some basic property is necessary and allows certain exemptions. “Exempt” means that you will be allowed to keep the property as long as the value of the property does not exceed certain amounts and you take the proper steps to claim the exemption in bankruptcy. You typically will have the option of choosing one of two alternative sets of exemptions: the state exemptions or what are typically called the federal exemptions. Depending on which set of exemptions you use, for many debtors certain property will likely be exempt. For instance, at the time of this writing, under the Oregon exemptions, may exempt an interest in one or more automobiles up to a total of $3,000. Household goods are exempt up to $3,000. Clothes and jewelry are exempt up to $1,800. A single debtor may exempt up to $40,000 of the debtor’s equity interest in a home. Two or more debtors who are members of the same household may exempt up to $50,000 of their home.

If you have lived in Oregon for at least the last two years, you may choose to use the federal exemptions. Under the federal exemptions at the time of this writing, you may exempt an interest in an automobile up to $3,775. Household goods, clothes, jewelry and musical instruments are exempt up to $12,250. A single debtor may exempt up to $23,675 of the debtor’s equity interest in a home. Two or more debtors who are members of the same household may exempt up to $47,350 of their home. If a debtor does not have a home, or is not using the exemption for a home, the debtor has an additional $11,850 to apply to any property, even if the property is already subject to an exemption. In addition to the foregoing, you have an additional exemption of $1,250 that can be used for any personal property.

Only property which you have, and income to which you are entitled, on the date you file bankruptcy is subject to the bankruptcy. Property which is acquired at a later date generally cannot be taken, regardless of the value. Some 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 nevertheless be included in your bankruptcy. Under certain circumstances other property, such as your right to tax refunds for prior years or the current year, may also be included in your bankruptcy, even though you have not yet received the refunds.

If your property is subject to a security interest, or if your house is secured by a trust deed or mortgage, the property will not be exempt from the creditor holding the security agreement or trust deed or mortgage. If you want to keep the property, you will have to continue to make payments to prevent the creditor from repossessing your automobile or foreclosing on the house, despite the exemption from general creditors and from the bankruptcy trustee. For some personal property that is subject to a security interest, such as in purchasing (and financing) of an automobile, you may have to sign a formal agreement called a reaffirmation agreement, where you agree with the seller to continue making payments. This agreement has to be approved by either the court or your attorney as in your best interests. If the agreement is approved, you will not lose the automobile. However, you will have to keep making the payments in order to keep the automobile, and this debt would not be discharged in the bankruptcy.

As of this writing, the filing fee for a Chapter 7 bankruptcy is $335. This fee can be paid in three installments. No money is due on the date of filing and the first installment is due 30 days later. If your income is low enough, you may be entitled to a waiver of the filing fee.

Chapter 7 Bankruptcy does not Make Sense for Everyone

Other types of bankruptcies are available. You may file a Chapter 13 petition if you have debts within a certain range and have a regular income (whether from wages, unemployment or otherwise) and you wish to pay some or all of your debts when you can. Chapter 13 will permit you to propose to the bankruptcy court a plan for paying off your debts gradually, generally within three to five years, but the judge must approve the plan you propose. You will have to agree to give a portion of your income to a trustee who will distribute that money among your creditors on a pro-rata basis. You will not be able to pay only when you can, but will have to make the payments each month for a specified time period. You generally will not lose any of your property in a Chapter 13 case, and the court will restrain your creditors from garnishing your wages or taking other action against you and your property and sometimes even against a co-signer. You may not file a Chapter 13 if you are a corporation or partnership.

A somewhat similar bankruptcy, if you have a large amount of debts and are involved in a partnership or business, is a Chapter 11 bankruptcy. Chapter 11 primarily is used to reorganize business entities, such as corporations. There is also a somewhat similar bankruptcy for certain family farmers under Chapter 12. Finally, there is a Chapter 9 bankruptcy that applies to municipalities, and a Chapter 15 bankruptcy which applies to certain cross-border international situations.

Note that if you are “judgment proof,” bankruptcy may not be helpful. If you have only a few assets of minimal value, no income or your income is from unemployment, TANF or some other type of government benefits, or your wages are low enough, you may be judgment proof. This means that even if your creditors file suit against you and obtain judgments, they cannot take any of your property or garnish your income.

A creditor that does not have a security interest in particular property may not take any of your property or garnish your wages unless it files a lawsuit against you, serves you with a summons and complaint, gives you an opportunity to respond, and ultimately obtains a judgment. A judgment is not a court order that you have to pay any money. Rather, in most circumstances, a judgment is a court determination that you owe a certain amount of money. The judgment creditor has to determine how to collect the money specified in the judgment from your property or income.

Oregon law provides that certain property and income of a debtor is exempt from the claims of creditors, even if the creditors have obtained judgments. As described earlier, your automobile cannot be taken if it is worth less than $3,000. TANF, Social Security, unemployment and certain other government benefits cannot be garnished, and are generally protected even when deposited in a bank account. If you earn net wages of $218 per week or less, your wages cannot be garnished. A creditor can only garnish 25 percent of your net wages or the amount that your net wages exceed $218 per week, whichever is less.

Often factors to consider in deciding whether to file bankruptcy include: Am I likely to incur debts in the future that I cannot pay? Do I have medical insurance, automobile liability insurance, or am I otherwise at risk of incurring unexpected expenses? Do I have any property or income that a judgment creditor could take if I do not file bankruptcy? Even though I have a lot of debts that I cannot pay, will filing bankruptcy result in any more money for me after I pay my basic living expenses? Is my financial situation going to improve in the future and, if so, should I wait to file bankruptcy until that improvement happens? Should I delay filing bankruptcy so that I do not lose any property, such as the right to tax refunds?

There are a number of factors to consider in deciding whether bankruptcy is an appropriate option. You may wish to consult an attorney before proceeding to file for bankruptcy.

Note, exemptions on property amounts change over time, talk with an attorney to confirm that the amounts referenced are the current valuations. We are lawyers in Hermiston and Pendleton Oregon, serving Umatilla County.

Understanding bankruptcy

September 26, 2019/0 Comments/in News /by clooten

What is Bankruptcy?
When you owe money, you are a debtor, and the people or companies you owe money to are your creditors. “Bankruptcy” is a federal law that establishes an orderly process to provide protection to debtors and fair treatment to creditors. Bankruptcy proceedings, though not for everyone, can be very helpful in solving a financial crisis.

There are five different types of bankruptcy proceedings. The two most common types are referred to as Chapter 7 and Chapter 13 bankruptcies. Usually when people talk about filing for bankruptcy, they are talking about Chapter 7. A Chapter 7 bankruptcy gives you the opportunity to avoid (or “discharge”) all or almost all of your debts owed as of the date you file for bankruptcy without having to make any future payments. “Discharge” means you no longer have a legal obligation to repay a debt. This process takes approximately 90 days after your bankruptcy petition is filed. In a Chapter 7 bankruptcy, you may be at risk of losing some of your property, and some debts may not be discharged. In addition, some transfers of property that happened before you filed bankruptcy can be undone.

A Chapter 13 bankruptcy is a three- to five-year repayment proceeding. In Chapter 13 bankruptcy you gain protection for your property, and you are able to repay certain debts such as child support arrearages, taxes, car payments and home mortgage arrearages over a three- to five-year time period rather than having your wages garnished or losing property to foreclosure. In exchange for this added benefit, you must agree to make a monthly payment of your disposable income to repay a portion (or sometimes all) of your debts. When consumer credit counseling or Chapter 7 are not available options, Chapter 13 is often an alternative.

Will Bankruptcy Help My Situation?
Bankruptcy can give you a fresh financial start and can seem very attractive to people with debts they cannot afford to pay. However, the process is not for everyone. Because you can discharge only those debts that you owe as of the date you file your bankruptcy, and cannot discharge any debts you become responsible for after the day you file your bankruptcy, timing of the bankruptcy filing is very important. Filing for bankruptcy may affect your credit for a number of years or have other serious consequences that you will need to consider.

You may wish to consult a lawyer to assess the advantages and disadvantages of filing in your particular situation. Perhaps you will be able to work out a debt repayment plan on your own. Possibly you will do best to get help from consumer credit counseling services. Or perhaps bankruptcy will be your best solution later, but not necessarily at this time. Whatever route you take, you will need to gather some basic information before proceeding further. Many attorneys will give a free consultation to discuss the benefits and risks of a bankruptcy and what alternatives to bankruptcy are available.

Some Factors to Consider
What are your total living expenses? Calculate the total monthly expenses for you and your dependents, such as food, housing, utilities, transportation, insurance, clothing, medical care and some reasonable reserve for the unexpected. You will need an accurate list of these monthly expenses as well as a list of your total monthly income.

Do you have medical and automobile liability insurance? While you may think that you are not going to incur any new debts after you file bankruptcy, medical bills and liability for damages for an automobile accident are often unexpected and outside of your control. If you do not have the applicable insurance, these new debts could eliminate the benefits of the bankruptcy you are considering filing.

Whom do you owe money to? Make a list of all of the names and addresses of your creditors and how much you owe each of them. Identify those creditors to whom you have pledged property (e.g., car loan; mortgage or home equity line of credit; installment loan on furniture, appliances or other property), and the value of the property your creditors have an interest in. You can find information about many of your creditors on a credit report. You can get a free copy of your credit report once every 12 months from Equifax, Experian and TransUnion. You can get your credit reports at www.annualcreditreport.com. Print and save each report for future use. Note that you do not need to obtain all three credit reports at the same time.

Unless a creditor has a security interest in a particular item of property such as your car, a creditor cannot take any of your property or income with obtaining a court judgment against you.

Are you “judgment proof”? When a creditor sues you, the creditor is seeking a judgment. A judgment is generally not a court order that you have to pay a debt, but rather a court determination that you owe a certain amount of money. The creditor has to figure out how to collect the debt reflected by the judgment. A creditor with a judgment can garnish bank accounts or wages, or file a lien against your real property (such as your house), or ask the court to take possession of and sell your personal property. However, under Oregon law, you can protect certain property and income from your judgment creditors. This is called exempt property. Exactly what property and income are exempt depends on the type of property and income, and their value. If all of your property and income is exempt, your judgment creditors cannot take anything. In this situation, you are often called judgment proof. Creditors cannot take any property or garnish the income of a person who is truly judgment proof, so creditors may not bother to sue if they won’t be able to collect any money. However, even judgment-proof people can and do file for bankruptcy relief — often to stop harassing telephone calls.

If Your Current Debts were Erased, Would Your Financial Problems be Over? Bankruptcy is intended to give a fresh financial start and will work best if you will have enough income after the bankruptcy to support you and your family. On the other hand, bankruptcy will only be a temporary fix if you go right back into debt again with no way of paying off any new debts. Chapter 7 is only available once every eight years. It is often best to wait until you have resolved your financial problems before filing bankruptcy. Even if you have filed a previous bankruptcy, the court may allow you to file a Chapter 13 bankruptcy to deal with any new debts you may have incurred; however, this depends on the particular circumstances of your case.

Bankruptcy does not Discharge all Debts
It is important to realize that bankruptcy does not necessarily allow you to avoid paying back every kind of debt. For public policy reasons, several types of debts are specifically excluded from discharge in bankruptcy. The most common debts which cannot be discharged are child support obligations, spousal support, criminal restitution and criminal fines. Some other types of debts are dischargeable in some circumstances. For example, delinquent personal income taxes may be discharged depending on whether a return has been filed and certain time periods have passed. Depending on the circumstances, liability for bad checks or the alleged fraudulent use of a credit card may not be discharged. Student loans are difficult to discharge. As noted above, any debts incurred after the date you file your bankruptcy cannot be discharged. The details of your own particular situation should be discussed with a lawyer or other knowledgeable person before you begin bankruptcy proceedings.

Will I Have to Give Up All My Property?
When you file your bankruptcy, all of your property as of the date you file and your right to income that you have earned but not yet received become part of your “bankruptcy estate.” A trustee is appointed to liquidate the property in the estate and distribute the proceeds to your creditors. Some property that you do not have on the date you file your petition, 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 estate. 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.

Although Chapter 7 is a “liquidation proceeding,” the goal of bankruptcy is to give you a fresh financial start. Consequently, you will be allowed to “exempt” — or keep — certain property and protect it from the trustee and your creditors. The property you can exempt is determined by the type of property and its fair market value. For many types of personal property, the fair market value is often described as “garage sale value,” or how much actual cash you would receive by selling the item to an unrelated party.

Certain property such as your working tools, household furnishings, radio, television, musical instruments, some savings and checking accounts, your car and the equity in your home may be entirely protected or exempt through bankruptcy.

Unlike a Chapter 7 bankruptcy, a Chapter 13 case usually allows you to retain all of your “nonexempt” assets, and over a three- to five-year period of time you pay to the court the value of those nonexempt assets for distribution to your creditors.

Some of your transactions prior to filing bankruptcy may also create an issue. For instance, if you have sold, transferred, given away or otherwise disposed of any property (including money) within two years (and sometimes four years) prior to filing bankruptcy and did not receive reasonably equivalent value in return, the trustee may have the option to take back the property or money from the recipient. Under some circumstances, if you have paid $600 or more on a debt to a creditor within 90 days prior to filing bankruptcy, the trustee may have the option to take back the money from the creditor. If you have paid $600 or more on a debt to a relative (and in some circumstances to a person who is not a relative) within one year prior to filing bankruptcy, the trustee may have the option to take back the money from the relative or other person.

Do I have to go to Court?
In almost all situations the answer is no. However, in both Chapter 7 and Chapter 13 you must attend a meeting of creditors, typically called the section 341(a) hearing. this hearing is usually held about 30 days after you file the case. This hearing is held by the bankruptcy trustee who is administering the bankruptcy process. You will be sworn in under oath, and the hearing will be recorded. Most of the questions will pertain to information in the bankruptcy papers you file with the court. The hearing typically only takes five to 10 minutes, and most creditors do not attend and ask questions.

How Long does the Bankruptcy Process Take?
Prior to filing bankruptcy you need to complete a credit counseling course. You also need to gather all of the relevant information to complete your bankruptcy petition, which takes time, of course. Once a Chapter 7 bankruptcy is filed, it generally takes about three months to complete. However, you are protected from your creditors beginning the day the bankruptcy is filed — they may not repossess your car, foreclose on your house, garnish your accounts, continue sending you letters or making collection telephone calls, or generally take any other collection activity. If all of your assets are exempt, and provided you have completed a second financial counseling course and paid in full any filing fees, you will receive your order discharging the debts about 60 days after the meeting of creditors hearing. This order will reflect that all of your dischargeable debts have been discharged, and the closing of your case.

Timelines for Chapter 13 are different. Chapter 13 cases run between three to five years, depending on the circumstances.

What is the Fee to File Bankruptcy?
The fee to file a Chapter 7 bankruptcy is currently $335. However, you have the option to pay this fee in three installments over a 90-day period, and you do not need to pay any fee at the time you file the bankruptcy. Under some circumstances, you may be able to extend the payment deadline to 180 days. If your income is low enough, you may be eligible for a full waiver of the filing fee.

What will Happen to My Credit Rating?
A Chapter 7 bankruptcy case will be reported by credit reporting agencies for 10 years from the date of filing. A Chapter 13 bankruptcy case will be reported by credit reporting agencies for seven years. Creditors are sometimes willing to approve credit after bankruptcy, because they know that a financial burden has been lifted and that you may now be able to make regular payments on any new debt. Also, they know that if you filed a Chapter 7 proceeding, you will not be able to declare Chapter 7 bankruptcy again for eight more years, so in some ways you are a better credit risk after filing bankruptcy. If you have completed a Chapter 13 plan, then you have demonstrated that you can handle regular payments on your debt obligations. Some creditors will require an extended period of time after bankruptcy before extending further credit.

Do I need a lawyer to file a bankruptcy case?
The law does not require individuals and sole proprietors to hire a lawyer. However, you may want to consult a lawyer to make sure that bankruptcy is the best option for you at this time, and if so, that you are taking the correct steps to file. Completing all the required documents can be difficult. If you wish to pursue a bankruptcy on your own, you can obtain a packet of information by contacting the bankruptcy court.

Are there Alternatives to Bankruptcy?
Yes. There are many credit counseling agencies that exist to help people who have money problems. Most are nonprofit services offering free advice on how to get out of debt and how to use credit wisely. There is no charge to have a counselor review your financial situation and help analyze your problem. If the service handles your payments to creditors under a debt-management plan, a small monthly contribution may be requested. This fee would be waived if the counselor finds it is not possible because of a very tight program. If you do not have enough money to make even partial payments to your creditors, then most counseling services will be unable to help you and may suggest filing bankruptcy.

Bankruptcy to relieve debts

September 4, 2019/0 Comments/in Misc, News /by clooten

The last 35+ years have seen a rapid increase in the effectively simple accessibility for purchasers to obtain credit in the United States. The fundamentally higher obligation burdens conveyed by an ever-increasing number of American buyers, especially those of low and moderate pay, render them and their families defenseless against huge budgetary challenges when they endure salary interference. Over-the-top-loan fees and charges that rapidly aggregate upon a default have left more families than any time in recent memory powerless against monetarily passing winding when they experience a momentary drop-in pay or a crisis cost that disturbs their obligation installments. Aggressive creditors regularly threaten to throw debtors’ lives into chaos, through foreclosures, repossessions, levies, executions, garnishments, collection harassment and utility shut offs.

In many cases bankruptcy is the only option that will bring order, to individuals who are under huge money related weight. Chapter 7 gives a compelling method for making everything fair among debtors (account holders) and creditors (lenders), and it can significantly improve the prosperity of debtors and their families.

It should not shock anyone, at this point, that around one million families file consumer chapter bankruptcy cases every year. As credit grows, bankruptcy turns out to be progressively vital to our monetary and legitimate frameworks, in ever bigger quantities of users and more and more organizations look for bankruptcy alleviation. Bankruptcy offers debtors a chance to reorder their funds and acquire a “fresh start”. In spite of the fact that the 2005 Bankruptcy Legislation ordered by congress made insolvency progressively unwieldy, all the more expensive and, sometimes, less successful, it didn’t change the obvious financial substances that drive individuals to petition for financial protection cases. Purchasers keep on requiring bankruptcy (debt) alleviation and will keep on looking for it in enormous numbers.

It has become impossible to ignore bankruptcy. Not only is bankruptcy an important option (tool) to offer a debtor with financial tumult, but it also frequently impacts individuals and business with whom a debtor may be involved through employment (including garnishment), marriage (and dissolution of marriage), a tenancy (rentals and evictions), a consumer relationships, or as party to a lawsuit.

As the importance of bankruptcy increases, so does the need for low and moderate income clients to have access to the bankruptcy system. Unfortunately, though, because of high filing and attorney fees, it is those with low and moderate incomes who have had the least access to bankruptcy and will have an even more difficult time due to the 2005 bankruptcy amendments (discussed above).

Keyboard with a bankruptcy key in place of enter key

Credit Card Defaults, Credit Card Profits, and Bankruptcy

September 4, 2019/0 Comments/in News /by clooten

Click here for a link to: Credit Card Defaults, Credit Card Profits, and Bankruptcy

Oregon Bankruptcy Attorney. Call today.

Father’s rights in Oregon

August 31, 2019/0 Comments/in Family, Life/Living, News, Tips /by clooten

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.

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.

Oregon – What is a Will?

August 27, 2019/0 Comments/in News /by clooten

At Clooten Law, we specialize in custom tailoring an estate plan for our clients in Hermiston and Pendleton. One of the first questions usually encompasses questions about what a Will is and how it works. Here is a brief synopsis.

WHAT IS A WILL?
A Will allows someone to decide how they want their assets divided after they have passed away. Any person who is 18 years or older or who has been lawfully married or who has been emancipated, and who is of sound mind, may make a Will.

WHAT HAPPENS IF I DIE WITHOUT A WILL IN OREGON?
If you die without a Will your assets are distributed according to the laws of Oregon. Inheriting without a Will is called intestate succession and we have an article that diagrams some of the common ways your assets may be distributed. (Intestate Succession in Oregon)

BENEFITS OF A WILL.
There are many benefits to creating a Will. At the minimum, a Will should appoint a personal representative and waive bond. A Will can allow you to make a charitable gift, create a testamentary trust for your children, or even provide for your pets.

FORMALITIES OF MAKING A WILL.
There are several formalities that you need to follow in order to have a valid Will in Oregon. The most important are that they are in writing and that two witnesses watch you sign your Will.

DOES A WILL AVOID PROBATE IN OREGON?
A Will does not avoid probate but it can make the administration of probate cheaper and easier. Your Will allows you to appoint a Personal Representative to manage your estate and you will be able to waive bond for the personal representative. Just doing those two things will save your estate money and move your estate through the probate court more quickly.

ELECTIVE SHARE.
While your Will ordinarily controls how you distribute your assets, your spouse has a right to claim part of your estate. You are not required to provide for anyone in your Will and Oregon doesn’t allow anyone to claim a portion of your estate except for your spouse.

I HAVE NO MONEY. SHOULD I MAKE A WILL?
How you distribute your assets is only part of what your Will does. Your Will also allows you to make arrangements for your minor children.

HOW DO I CHANGE MY WILL?
You can make changes to your Will be adding something called a codicil. A codicil requires the same legal formalities as a creating a Will.

HOW DO I REVOKE MY WILL?
Your Will may be revoked by creating another Will or by the physical act of destroying the Will with the intent to revoke it. Certain acts automatically revoke your will. If you get married or divorced, you should consult with an attorney to see how it affects you. Getting married may revoke a previously written Will. Getting divorced in Oregon revokes portions of your Will that benefit your former spouse. If you have or adopt children after executing your Will, your Will may be modified by state law to provide for those children.

If would like to learn more about how to plan your estate, schedule a consultation today.

Oregon Estate Tax Rates

August 27, 2019/0 Comments/in News /by clooten

*Disclaimer, this is not legal advice. There is no substitute for talking to a tax planning professional in person.

At Clooten Law, we help clients file probate matters in Umatilla County Oregon. There are certain thresh hold requirements people filing probates need to understand about taxation on estates. These requirements are separate from any federal taxation rules.

The State of Oregon levies a tax on taxable estates that have a value of more than $1 Million. Estates of less than $1 Million are exempt from the Oregon Estate Tax. This is a separate from the Federal Estate Tax. In 2018, individuals with less $11.2 Million and couples with less than $22.4 Million are exempt from the Federal Estate tax. The top Federal Estate tax rate is 40%. More information on determining the Federal Estate Tax rates can be found at IRS.gov.

Oregon Inmate Search

August 22, 2019/0 Comments/in News /by clooten

Click here for a link to the Oregon Dept of Corrections Inmate Search.

Baker County Jail Roster

August 22, 2019/0 Comments/in News /by clooten

Here is a link, to the Baker County Jail Roster.

Divorce in Oregon

August 22, 2019/0 Comments/in News, Uncategorized /by clooten

What are the grounds for divorce in Oregon?
Oregon is a purely “no-fault” divorce state, meaning that you can’t allege that your spouse’s wrongdoing was the cause of the divorce. Instead, most divorces are based on the grounds that the parties have irreconcilable differences that have led to the breakdown of the marriage. However, fault may be considered by the court as a factor in dividing property or awarding alimony.

What is the residency requirement for divorce in Oregon?
At least one spouse must be a resident of Oregon for six months or 180 days before filing for divorce.

How is property divided at divorce in Oregon?
Oregon is an equitable division state. In an equitable division state, each spouse owns the income he or she earns during the marriage, and also has the right to manage any property that’s in his or her name alone. But at divorce, whose name is on what property isn’t the only deciding factor. Instead, the judge will divide marital property in a way that the judge considers fair, but won’t necessarily be exactly equal.

What are the rules about child custody in Oregon?
Like all states, Oregon courts begin with a presumption that it’s best for a child to have frequent and continuing contact with both parents after a divorce. If possible, judges want to support joint custody arrangements. However, the exact nature of the time-share will be determined by the children’s best interests.

What are the rules about child support in Oregon?
Like all states, Oregon requires both parents to support their children, even after a divorce. The amount of child support depends primarily on each parent’s income and other resources, and how much time each parent spends with the children. In addition, sometimes the courts will “impute” income to a parent who has the capacity to earn more than he or she actually is earning.

Does Oregon have resources for do-it-yourself divorce?
Yes. You can usually get fill-in-the-blank forms at your local courthouse or the local law library. And you can go to this online resource for Oregon, where you’ll find extensive information about do-it-yourself divorce, along with court forms (in some states).

If questions still remain, talk to an attorney in your area specializing in divorce law.