Family Law / Divorce / Custody
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Brindle McCaslin, P.C. handles a variety of family law matters, including, but not limited to divorces, the drafting of prenuptial agreements, post-nuptial agreements, custody and visitation arrangements, modification of existing orders, establishing paternity, and many topics related to spousal support and child support establishment and modification. We have experience in all of these areas.There are a couple of forms that you may find helpful by clicking here. The Uniform Support Declaration is needed by the courts in cases where there is a claim for spousal support or child support being made by either party. We have also included our client questionnaire for your convenience. Existing clients may feel free to complete and submit to us these forms online. This service will expedite the processing of your family law matter.
Marriage is more than a personal relationship between two people. It is also a legal relationship that has certain privileges and obligations, including obligations to support one another financially, the power to authorize medical care for one another, and liability for each other's debts.
Some couples use prenuptial agreements to clarify responsibilities during marriage, or responsibilities when they separate or become divorced. A prenuptial agreement can state who will contribute what to family expenses, give an accurate disclosure of each partner's assets before marriage, explain how property and assets will be divided in the event of separation or divorce, and state how to alter or terminate the prenuptial agreement. To be enforceable by the courts, a prenuptial agreement must be in writing.
FAMILY ABUSE PREVENTION ACT
The Family Abuse Prevention Act (FAPA) allows you to get a restraining order (a court order telling someone to leave you alone) against someone who has been abusing you. The FAPA allows you to file a restraining order against someone you are or were married to; an adult relative; a lover of the same or opposite sex who was your lover in the past 24 months; or the other parent of your minor child.You can get a restraining order by filling out a form available at county courthouses and at some domestic violence shelters and hotlines. There is no filing fee for a restraining order lawsuit. A restraining order will have information about what the respondent cannot do to you, which might include that the respondent cannot telephone you, live with you, come near you, come near your home or job, and cannot send you anything in the mail. Restraining orders are not all the same in every case. The police are required to arrest the respondent if the restraining order is not followed.If you have been served with a restraining order and wish to challenge it, you must do so in a court of law.If you try to speak or reason with the person who has filed the suit, you could be arrested for violating the order. A person who is convicted of a restraining order violation faces a possible 6-month jail sentence for each violation (i.e., 2 telephone calls to a victim could be two 6-month sentences).
An annulment is a court order stating that your marriage no longer exists and never really existed. Annulments can be obtained only in special cases, such as if one of the spouses is already married, one spouse is too young to marry, or one spouse was deceived in some way about the marriage. You cannot get an annulment because the marriage is only a few days old or because you have not had sexual relations with your spouse. The annulment process is similar to getting a divorce.
A legal separation (or a separation without a court order) does not end a marriage. A legal separation is a court order that spells out the financial obligations of the parties and the custody and parenting time of children. A legal separation does not allow the parties to marry other people. Also, a legal separation does not remove the parties' right to inherit from one other. A surviving spouse, even though separated, may still be able to inherit property from a deceased spouse. There are various reasons that parties seek a legal separation, including religious beliefs that prohibit divorce. A legally separated couple can reconcile or become divorced at a later time.
To end a marriage, a couple must obtain a court order, known as a general judgment. Until a general judgment is signed by a judge, the couple will continue to be legally married, no matter how many years they have lived apart. Petitions for divorce are rarely denied, and the court does not require that either party be responsible for the breakup of the marriage. This is known as no-fault divorce. Even if one party does not want the divorce, the judge will most likely grant it.There are many paths an individual can proceed down when it has become apparent that a marriage has ended. There are occasions when the two spouses have already resolved their major issues and simply need the resolution to be put on paper and submitted to the court for finalization. This is called a non-contested divorce. Our office can assist in drafting and filing the necessary paperwork to move this matter forward. These cases can be completed for a flat fee or at an hourly rate depending on the circumstances and what works for the client.There are other circumstances in which divorces are contested. The parties are often in disagreement as to which party should receive custody of the children, which party should receive the home, the business, and other assets and so forth. Contested divorces can be complicated and require a broad knowledge of the law to assist the individual in working his or her way through the process. Sometimes divorces require a working knowledge of other areas of the law including criminal law, bankruptcy, and business litigation. Our office has the breadth of experience and depth of knowledge to advise our clients in all these areas.In a divorce, the parties must divide all their duties and assets. If they cannot agree, a judge will make decisions about division of property, payment of child support or spousal support, custody of children, and parenting time.The party who wants to file a divorce petition will assist a lawyer to a great extent if the party can bring the following types of information to the lawyer (if the party does not have all of this information, the party should bring whatever information is available): a copy of the marriage certificate; birth dates and full names of both parties and the children of the marriage; copies of any prenuptial agreement; lists of the couples' debt obligations; lists of the couples' assets, including real estate, automobiles, and other valuable personal property; federal and state income tax returns; bank account and investment information; recent pay stubs for both parties; an accounting of one month's family expenses; and an accounting of children's expenses. All of these factors will be instrumental in determining division of assets, alimony, and child support.
A man or woman who has a child must pay to support the child. Child support is required even if the parents were not married when the child was born. It is not necessary that a couple be married for a judge to order child support. In divorce cases, the court will usually order the noncustodial parent to pay child support to the custodial parent. Child support includes monthly money payments, insurance coverage, education expenses, or other types of support.The amount of child support ordered depends on the incomes of the father and the mother, the number of children, and other factors. A child support chart prepared by the state of Oregon is used by lawyers and judges to determine the exact amount of monthly support. Parents and attorneys are required to follow this chart (except in the most unusual cases which must be explained and argued in front of a judge if the chart is not followed). Child support amounts can be changed later (increased or decreased) by court order when there is a change in the financial condition of the father or mother.After a child support order is in place, child support must be paid each month by the noncustodial parent until the order is changed. This is true even if the noncustodial parent loses his job, gets fired from his job, or refuses to obtain employment. Not having income will not reduce the monthly child support to zero dollars; the child support charts have a minimum dollar amount (basely loosely on minimum wage) for every child. The minimum monthly dollar amount is never zero dollars.Non payment of monthly child support may be grounds for a contempt of a court order. A conviction of contempt may result in severe penalties including a possible 6-month jail sentence.
SPOUSAL SUPPORT [ ALIMONY ]
In some cases, a judge may order that spousal support be paid by one spouse to another. The judge will look at how long the couple was married, the age and health of the parties, the income earning and job training of the parties, and the degree to which one spouse contributed to the other's education and earning ability. Spousal support may be ordered for any period of time from a few months to life.Non-payment of spousal support may be contempt of a court order. A conviction of contempt may result in severe penalties including a possible 6-month jail sentence. Spousal support can be changed later by court order when there has been a change in financial condition.
CHILD CUSTODY & PARENTING TIME
Child custody applies to parents who are married or unmarried. Any parent has the right to seek custody of a child, even if the parents were never married. Parenting time is the right of the non-custodial parent to visit a child. Others with ties to the child also may have some visitation rights in certain cases.Custody and parenting time arrangements may be made by the mother and father. If the parties cannot agree, a judge will decide in a divorce proceeding, paternity proceeding, or a separate custody proceeding. In a sole custody situation, one parent will have physical custody (the child will live with him or her) and legal custody (control over the child's life decisions, such as where the child will attend school, and what medical treatments he or she will receive). Non-custodial parents may be allowed to exercise parenting time rights (the right to see the child on a prearranged schedule), but they do not exercise physical or legal custody.Under a joint custody arrangement, the parents will together decide issues that affect the child's well-being. In some cases, a child might alternate residences between the two parents. A joint custody arrangement requires that the parents be able to work together.AdoptionAdoption is the process in which an adult who is not a child's biological parent becomes the child's legal parent. Adoptions require the consent of the biological parents, including parents who have neglected or abandoned the child. Consent is not required from parents whose parental rights have been terminated by the state. The law treats adopting parents as the biological parents. If the adopting parents should divorce after the adoption, the adopting parents will still be treated as the biological parents for all purposes, including legal obligations to pay child support.
Others with close ties to the child may be able to get visitation rights as part of a divorce proceeding, or in a separate lawsuit.
PATERNITY [ FILIATION PROCEEDINGS ]
A man is considered the father of a child for purposes of support if :
He was married to the child's mother at the time of conception.
He has legally adopted the child.
He has acknowledged paternity through a sworn affidavit.
His paternity has been proven through a blood test or
He is listed as the father on the child's birth certificate.
A paternity proceeding is a court matter to determine whether a particular man is the father of a particular child. An unmarried father has the right to seek custody of the child. If the man does not obtain custody, the father may petition for parenting time rights and may also be held responsible for child support.
If a woman believes that a man is the father of her child, she can file a filiation suit against him. If the man does not respond to the lawsuit the man will lose automatically and a default order will be taken against him declaring him to be the father. The judge has the power to order the necessary blood tests. If the state is paying welfare support to the mother to help support the child, the Support Enforcement Division will help the mother file a paternity suit.
This information is not intended as legal advice and is not intended to be applied to any specific situation. If you have legal questions, you should consult an attorney.