Oregon Divorce Is Fault Required?
Oregon is a “no-fault” divorce state. This means that a spouse or partner who is asking for the divorce does not have to prove the other spouse or partner did something wrong. The only reason needed for dissolution of marriage is that the spouses or partners cannot get along and there is no way to fix the problems. The law call this “irreconcilable differences that have caused the irremediable breakdown of the marriage.” A spouse or partner does not need permission or participation of the other spouse or partner to divorce.
Should I File for PIP If I Was Injured in a Car Accident?
When you get injured in a car accident, there are two primary aspects to your recovery. The first is your health: Whether you suffered a broken bone, a concussion, or any other type of traumatic injury, you need to make sure you receive the medical treatment you need to recover from the physical and psychological effects of the crash. The second is your financial condition: Getting the medical treatment you need is expensive, and your physical and psychological trauma can have other direct and indirect financial consequences – potentially for the rest of your life.
For most people, securing the financial resources they need for their recovery involves dealing with the insurance companies. Your health insurance carrier might cover your accident-related medical expenses, but it may also try to deny coverage based on the availability of auto insurance coverage. Either way, making sure you are able to pay your medical bills is just one component of your financial recovery. You may also need compensation for loss of income, and you may be entitled to financial compensation for your pain and suffering, loss of enjoyment of life, and other non-economic losses as well.
Understanding Your Right to PIP Coverage after a Car Accident in Oregon or Washington
For many car accident victims, the recovery process starts with filing a claim for personal injury protection (PIP) coverage. While the specifics of PIP coverage vary from state to state (and even from policy to policy), there are a few hallmarks of PIP coverage of which all policyholders should be aware:
- Coverage for medical expenses and lost wages – PIP generally provides coverage for accident victims’ medical expenses and lost wages. Unlike other types of auto insurance, it does not provide coverage for non-economic losses.
- Low policy limits – Most standard PIP policies have a limit of $15,000. While this may sound like a lot of money, for many accident victims, this will cover just a small fraction of their economic losses.
- No-fault insurance coverage – PIP provides what is commonly referred to as “no-fault” insurance coverage. With no-fault coverage, your insurer is required to pay regardless of who was at fault in the accident. This is true even if you are to blame for your own injuries.
Some states, including Oregon, require drivers to carry PIP insurance. Other states, such as Washington, follow an “opt out” system which allows vehicle owners to choose not to pay for personal injury protection coverage. You can review the terms of your auto insurance policy to see if you have PIP coverage, and if so, the amount of coverage to which you are entitled.
When Should You File for PIP after a Car Accident?
Let’s assume that you have PIP coverage. Maybe you are an Oregon resident, or maybe you live in Washington and “opted in” for coverage. Should you file a PIP claim with your insurance company? If so, when is the right time to do so?
After a car accident, filing a PIP claim can be the quickest way to obtain full or partial relief from the financial effects of the collision. Since you are dealing with your own insurance company, and since PIP is no-fault insurance, the process of securing coverage should be fairly straightforward.
Unfortunately, this is not always the case. Despite the no-fault nature of PIP coverage, auto insurance companies often attempt to reduce or deny coverage to their policyholders. Some of the most common “issues” we see include:
- Waiting too long to file a claim for coverage.
- Failing to adequately demonstrate that physical or psychological injuries resulted from the collision.
- Failing to submit adequate documentation of accident-related medical expenses.
- Failing to submit adequate documentation of lost wages.
- Other claim-related deficiencies that supposedly justify insurers in denying PIP coverage.
While some PIP denials are legitimate, bad-faith denials are common as well. Additionally, even if you fail to submit the documentation required to secure PIP coverage initially, this does not necessarily mean that you have lost your right to coverage entirely. Also, don’t forget that you may be entitled to additional coverage outside of PIP. For all of these reasons, we strongly recommend speaking with a personal injury lawyer regardless of the severity and extent of your accident-related injuries.
What If My PIP Coverage Isn’t Enough?
As we mentioned above, the standard policy limit for PIP coverage is $15,000. This is the amount that drivers are required to carry in Oregon, and it is the amount of coverage purchased by most drivers who “opt in” in Washington. While $15,000 may be enough if your injuries are relatively minor, if you have been severely injured, your losses could easily be far, far more.
In any case, filing a PIP claim is generally going to be a good idea. Even with the challenges involved, it is often easier to secure PIP coverage than it is to secure fault-based coverage under another driver’s bodily injury liability (BIL) policy (or under your own uninsured/underinsured motorist (UIM) policy). So, by filing a PIP claim, you may be able to secure at least partial coverage while your fault-based claim is pending. If you have a BIL claim, your insurance company may eventually be entitled to reimbursement for any PIP coverage it provides, but you are well within your rights to seek financial compensation from all available sources.
Unlike PIP insurance, BIL and UIM insurance provides full compensation for all accident-related losses (up to the relevant policy limit). This includes both economic and non-economic losses. Non-economic losses are often calculated by applying a “multiplier” to the accident victim’s medical expenses and lost wages, and this means that they often represent the largest portion of the victim’s financial recovery. As a result, it is critically important not to rely solely on PIP, and you should speak with a lawyer about your legal rights as soon as possible.
Speak with a Personal Injury Lawyer about Your Car Accident in Oregon
For more information about dealing with the insurance companies after a car accident in Oregon please contact us for a free consultation. To speak with an attorney in confidence, call us today or inquire online.
Oregon – Who gets custody? Factors considered by the court
In Oregon, a Court cannot order joint custody unless both parties agree to it, so if the parties cannot agree, how does a Court determine who should have sole custody?
According to law, it is the policy of the State of Oregon to assure minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child. ORS 107.101. So what does “best interests” mean?
Is there a gender bias?
Contrary to popular belief, in Oregon, there is not a gender bias in favor of the children’s mother. Both parents are viewed equally. It is actually included in our statutes: ORS 107.137(5) provides: “No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father.”
Instead, the Court must consider the children’s best interests. To do that, the Court looks at several factors:
(a) The emotional ties between the child and other family members
This factor looks at the child’s relationships with other family members (grandparents, siblings, stepparents, etc.) As they say, it takes a village to raise a child, so the Court will look at the bonds the child has with other relatives. The Courts are also reluctant to separate siblings unless there are compelling reasons to do so. This extends to half-siblings and stepsiblings as well.
(b) The interest of the parties in and attitude toward the child
This is often judged by a parent’s willingness to put the child as the top priority in the parent’s life. If a parent chooses to go out frequently instead of spending time with the child or misses the child’s activities on a regular basis, this is something the Court will examine.
(c) The desirability of continuing an existing relationship
The Court attempts to maintain existing relationships between the parent and child.
(d) The abuse of one parent by the other
If a parent has committed abuse as defined by Oregon law, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award custody of the child to the parent who committed the abuse. That said, it is very difficult to rebut. If you are subject to a Family Abuse Prevention Act restraining order, it is strongly recommended that you speak to an attorney BEFORE the contested hearing. If the restraining order is upheld against you, it is extremely difficult to overcome.
In addition, if a parent has been convicted of rape and the rape resulted in the conception of the child, there is a prohibition from that parent being awarded joint or sole custody of the child.
According to law, it is the policy of the State of Oregon to assure minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child. ORS 107.101. So what does “best interests” mean?
Instead, the Court must consider the children’s best interests. To do that, the Court looks at several factors:
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court
This is one of the most important factors the Court will consider. Several recent cases from the Court of appeals have upheld the statutory preference in favor of the primary caregiver to be awarded custody. If all other factors are equal, the Court gives this factor considerable weight.
A primary parent is typically the parent who has nurtured the child and taken care of the child’s basic needs. Among other things, the Court considers which parent has been primarily responsible for feeding the child, bathing and dressing the child, taking the child to the doctor, taking the child to/from school, and assisting the child with school work. As discussed above, there is not a gender bias in favor of the mother simply because she is the mother.
(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.
Next to the primary caretaker, this factor is close to the top of the list of importance. The Court will closely examine the behavior of the parents and how they interact. If a parent takes deliberate actions to interfere with the relationship between the child and the other parent, the Court may be hesitant to award that parent custody. Examples of interference can include wrongfully withholding parenting time, not permitting the child to communicate with the other parent, or making derogatory comments to the child about the other parent.
The best interests and welfare of the child in a custody matter is be determined by looking solely at one of the above factors, but must consider all the factors. The Court also cannot ignore any factor.
What about the other parent’s lifestyle?
Often, parents will try to bring up income, the lifestyle choices, or social environment of the other parent as a reason why the other parent should not be awarded custody. In reality, Oregon law provides that the Court will consider the conduct, marital status, income, social environment or lifestyle of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the children.
The Court will not want to hear a parent complaining about the other parent’s lifestyle just to malign the other parent. In fact, too much focus on the other parent’s lifestyle may cause the Court to question the complaining parent’s ability to facilitate the relationship with the other parent. While you may not agree with the other parent’s choices, unless it is something that may be harmful to the child, the Court will not consider it.
Call us today to schedule a consult, or book online.
Timeline for a Personal Injury Lawsuit
Website note, if you have questions about filing, or statue of limitations (deadline to file), please contact an attorney!
If you cannot reach our office, and are in a hurry for an answer, please contact to Oregon State Bar for help with an Attorney.
If you think you might have a personal injury claim, you might be wondering what goes on in a typical case, and how long it takes. This article will walk you through the standard events and timeline of a personal injury claim and lawsuit. (More basics: Do You Have a Personal Injury Claim?)
Get Medical Treatment
The first thing that you should do after getting injured in an accident is to get medical treatment. If you are hurt, go to the hospital or see a doctor. Not only is this the right thing to do for your health, but, if you don’t see a doctor for some time after an accident, the insurance adjuster and the jury will assume that you weren’t all that hurt.
Choose a Lawyer
The next thing that you will have to do for anything more than a minor claim is to choose a lawyer. You should choose the lawyer soon after the injury. You can certainly settle a small personal injury claim yourself (although a lawyer is generally useful even for smaller claims), but you will absolutely need a lawyer for any personal injury claim where you suffered significant injury or other losses.
Where do you draw the line between a small claim in which you don’t necessarily need a lawyer and a larger claim where you will need a lawyer? In general, if you are out of work for more than a couple of days, if you break a bone, or if your medical bills total more than a couple of thousand dollars, you should hire a lawyer.
You should certainly talk to a number of lawyers, and you might want to meet several of them. After you choose a lawyer and sign a fee agreement, he/she will start working on your case.
Lawyer Investigates Claim and Reviews Medical Records
The first thing that the lawyer will do is thoroughly interview you about how the accident happened, your background, and your medical condition and medical treatment. The lawyer wants to know everything that you know about the accident and your injury and treatment. Lawyers don’t want to be surprised, so make sure to answer all questions as completely as you can.
Then, the lawyer will get all of your medical records and bills relating to the injury and will probably also get your medical records for any treatment that you have ever had relating to the condition at issue in the case. This can take months.
After all of the medical records come in, the lawyer will review them to see if, in their opinion, there is a possible case. Many times the lawyer can determine that there is no case and will deliver the bad news to the client very early on in the representation.
Lawyer Considers Making Demand and Negotiating
Many smaller personal injury claims are settled before a lawsuit is ever filed. If the lawyer thinks that the case can be settled, they will make a demand to the other attorney or the other side’s insurance company.
Otherwise, your lawyer will file the lawsuit. In general, if your claim involves a claim of permanent injury or impairment, a good lawyer will not settle it before filing suit.
A good lawyer will also not make a demand until the plaintiff has reached a point of maximum medical improvement (MMI). MMI is when the plaintiff has ended his/her medical treatment and is as recovered as he/she is going to get. This is because, until the plaintiff has reached MMI, the lawyer does not know how much the case is worth.
The lawyer should also not file a lawsuit until MMI. This is because, if the plaintiff is not at MMI by the time that the case goes to trial, the jury might undervalue the case.
It could take months or years for the plaintiff to reach MMI, but a good lawyer will just wait, if the plaintiff can financially afford to wait. Obviously, if the plaintiff needs money, then the lawyer should put the case in suit as soon as possible.
The Lawsuit is Filed
The filing of the lawsuit starts the clock running on when the case might get to trial. Every state’s pretrial procedures are different, but generally it will take one to two years for a personal injury case to get to trial. Keep in mind that a lawsuit needs to be filed within strict time limits that every state has set by passing a law called a statute of limitations.
The Discovery Process
The discovery process is the procedure in which each party investigates what the adversary’s legal claims and defenses are. They send interrogatories (a fancy word for questions) and document requests to each other, and take depositions of all of the relevant witnesses in the case, generally beginning with the plaintiff and defendant. This process can last six months to a year, depending on the court’s deadlines and the complexity of the case.
Mediation and Negotiation
As the discovery period ends, the lawyers will generally start talking about settlement. Sometimes the lawyers can settle a case just by talking among themselves, but, in other cases, they will go to mediation. Mediation is a process in which both clients and both lawyers go in front of a mediator to try to settle the case. (Learn more about Mediation of Personal Injury Claims.)
Trial
Often mediation works, but, if it doesn’t work, the case is scheduled for trial. A personal injury trial can last a day, a week, or even longer. The length may be increased because, in many states, trials are held for only half a day instead of over a full day. That doubles the length of a trial, but also lets the lawyers and judges get other things done in the afternoon.
One important thing to know about trials is that just because a lawsuit is scheduled for trial does not mean that the trial will actually occur on that date. Trials often get rescheduled because of the judge’s schedules. If your trial gets cancelled, you should not automatically assume that the lawyers are conspiring against you or that something unfavorable is happening. Trials are delayed all the time, and for the most innocuous of reasons.
Making a living trust
Website note: In Oregon, a living trust is something different. A living trust is actually an “Advanced Medical Directive”. However, the term is so often confused with Trust (and is used interchangeably), so we’ve left the term the same as originally written, for purposes of this article. Call us with your questions.
What is a living trust?
A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust.
A “living trust” (also called an “inter vivos” trust by lawyers who can’t give up Latin) is simply a trust you create while you’re alive, rather than one that is created at your death under the terms of your will. The beneficiaries you name in your living trust receive the trust property when you die.
In contrast to revocable trusts, irrevocable trusts cannot be revoked or modified after they are signed. Irrevocable trusts can be useful tools for specific goals, like reducing taxes, but they require giving up ownership and control of trust property.
Do I need a living trust in Oregon?
The main advantage of making a living trust is to spare your family the expense and delay of probate court proceedings after your death. But do you really need a trust?
Oregon does not use the Uniform Probate Code, which simplifies the probate process, so it may be a good idea for you to make a living trust to avoid Oregon’s complex probate process.
In Oregon, summary probate is available if the fair market value of the estate is $275,000 or less, and not more than $200,000 of that value is real estate. (See Or. Rev. Stat. § § 114.525.)
In Oregon, if I make a living trust, do I still need a will?
Yes, you always need a will. A will provides a backup plan for any property that doesn’t make it into your trust. For example, if you acquire new property and don’t add it to your trust before you die, that property won’t pass under the terms of the trust document. You can use a will to name someone to inherit property that you haven’t left to a particular person or entity in your trust.
If you don’t have a will, any property that isn’t transferred by your living trust or other method (such as joint tenancy) will go to your closest relatives as determined by Oregon state law.
Can writing a living trust reduce estate tax in Oregon?
Probably not. Most people do not need to worry about estate taxes because the federal estate tax is levied only on estates worth close to $12 million.
That said, if your estate is close to $12 million (or close to the threshold for Oregon’s estate tax), then you may be able to use a more complicated trust (such as an AB trust) to reduce or avoid estate taxes.
How do I make a living trust in Oregon?
To make a living trust in Oregon, you:
Choose whether to make an individual or shared trust.
-Decide what property to include in the trust.
-Choose a successor trustee.
-Decide who will be the trust’s beneficiaries – who will get the trust property.
-Create the trust document. You can get help from an attorney.
-Sign the document in front of a notary public.
-Change the title of any trust property that has a title document—such as your house or car—to reflect that you now own the property as trustee of the trust.