Drafting Family Law Documents

Transcription

1 Drafting Family Law Documents Thursday, March 7, a.m. 4 p.m. Oregon State Bar Center Tigard, Oregon 6 General CLE or Practical Skills credits

2 Drafting Family Law Documents Program Planners Brittany A. Berkey, St. Andrew Legal Clinic, Portland Kimberly A. Quach, Lechman-Su & Quach PC, Portland The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright 2013 OREGON STATE BAR SW Upper Boones Ferry Road P.O. Box Tigard, OR Drafting Family Law Documents ii

3 Table of Contents 1. a Client Has Retained You Now What? i robert F. Demary, Gevurtz Menashe Larson & Howe PC, Portland, Oregon 2. Discovery in Family Law Cases i Kristin W. Eaton, Yates Matthews & Eaton PC, Portland, Oregon 3. Parenting Plans: What Children Need, What Clients Want, and What Judges Demand... 3 i M. Scott Leibenguth, Leibenguth Law, Portland, Oregon Linda Sherman, Ph.D., Portland, Oregon 4. Practice Tips for Drafting Documents i Mark Kramer, Kramer & Associates, Portland, Oregon 5. Drafting General Judgments of Dissolution of Marriage i Peter Bunch, The Law Firm of Peter Bunch, Portland, Oregon 6. after the Dust Settles: Post-Judgment i ruth E. Pekelder, Pekelder Family Law, Portland, Oregon Drafting Family Law Documents iii

4 Drafting Family Law Documents iv

5 Schedule 8:00 Registration 9:00 a Client Has Retained You Now What? F Petitions F UTCR Confidential Information Form (CIF F Property restraining orders statutory and formal F What to do if no response is filed Robert F. Demary, Gevurtz Menashe Larson & Howe PC, Portland 10:00 Discovery in Family Law Cases F Requests for documents and related rules F Responses to requests for documents F Options when the requested party does not produce the requested documents Kristin W. Eaton, Yates Matthews & Eaton PC, Portland 10:45 Break 11:00 Parenting Plan Construction The Devil Is in the Details F What children need F What clients want F What judges demand M. Scott Leibenguth, Leibenguth Law, Portland Linda Sherman, Ph.D., Portland Noon Lunch 1:00 Limited Judgments and Temporary Orders More than Meets the Eye F Limited judgments vs. temporary orders what s the difference? F A special case: getting temporary relief in third-party cases (ORS F A better status quo order Mark Kramer, Kramer & Associates, Portland 1:45 General Judgments of Dissolution of Marriage F Dissolution of marriage by default F Stipulated general judgment of dissolution of marriage F Dissolution of marriage after trial Peter Bunch, The Law Firm of Peter Bunch, Portland 2:45 Break 3:00 after the Dust Settles: Post-Judgment F Wrapping up a case once the general judgment is signed F Enforcing a general judgment F Modifying a general judgment Ruth E. Pekelder, Pekelder Family Law, Portland 4:00 Adjourn Drafting Family Law Documents v

6 Drafting Family Law Documents vi

7 Faculty Peter Bunch, The Law Firm of Peter Bunch, Portland. Mr. Bunch s practice focuses on family law, including divorce, legal separation, custody, parenting time, support, paternity, third-party custody and visitation, the resolution of complex family law property divisions, including business valuation and inheritance issues, interstate family law disputes, grandparent custody issues, and a wide range of other family law disputes. In addition, he has an active appellate practice in all areas of civil disputes. Mr. Bunch is a Fellow of the American Academy of Matrimonial Lawyers and a member of the Multnomah Bar Association. He is a frequent speaker on a wide variety of topics for continuing legal education seminars. Robert F. Demary, Gevurtz Menashe Larson & Howe PC, Portland. Mr. Demary s practice includes attorney for the child, child support, contempt, custody/parenting time, divorce, domestic violence, grandparent rights, high-asset divorce, interstate/international, juvenile dependency, military divorces, modification, paternity, relationship agreements, stalking orders, and stepparent/coparent issues. He is a member of the Multnomah Bar Association, the Clackamas County Bar Association, and the Oregon Foreclosure Legal Assistance Project. Mr. Demary was the 1995 Multnomah Bar Association Outstanding Volunteer. Kristin W. Eaton, Yates Matthews & Eaton PC, Portland. Ms. Eaton s practice is limited to family law. She is a member of the Multnomah Bar Association, the Clackamas County Bar Association, Oregon Women Lawyers, the Oregon Academy of Family Law Practitioners, and the Oregon State Bar Family Law Section. She has served as the chair of the Multnomah CourtCare fundraising and advisory committees. Ms. Eaton is a frequent speaker on family law issues. Mark Kramer, Kramer & Associates, Portland. Mr. Kramer specializes in family law and civil litigation including personal injury, civil rights, and employment cases. He has more than 30 years of trial experience and extensive experience in family law issues ranging from adoption and contested custody cases to grandparent and psychological parent rights. Mr. Kramer has served as a pro-tem judge for the Multnomah County Circuit Court. He is a cofounder and organizer of the Multnomah County Family Law Group. As cocounsel for the Oregon State Judiciary Committee, Mr. Kramer has drafted family law legislation that is now Oregon law. Mr. Kramer is the author of several articles about family law and is a frequent speaker on grandparent and psychological parent rights. M. Scott Leibenguth, Leibenguth Law, Portland. Mr. Leibenguth has a general practice emphasizing family law mediation, the representation of children, and parenting coordination. Mr. Leibenguth has been trained and practices in the collaborative law process. He is a member of the American Bar Association, the Multnomah Bar Association, the Oregon Mediation Association, the Association for Conflict Resolution, the Association of Family and Conciliation Courts, the Multnomah County Family Law Advisory Committee, and the Oregon Academy of Family Law Practitioners. Mr. Leibenguth has been a speaker at the Oregon State Bar Annual Family Law Conference and for the National Business Institute and has also appeared pro hac vice in the State of Washington on the issue of grandparents custody rights. He has been a speaker on the subjects of family law mediation, parenting coordination, and the representation of children. Ruth E. Pekelder, Pekelder Family Law, Portland. Ms. Pekelder has practiced in the field of family law for over 20 years. She has acted as a mentor through the Multnomah Bar Association, served on committees, and contributed to continuing legal education classes. She is an active member of the St. Andrew Legal Clinic Board. Drafting Family Law Documents vii

8 FacuLTy (Continued Linda Sherman, Ph.D., Portland. Dr. Sherman is a scientific- and evidence-based cognitive behavioral psychologist who specializes in individual, marital, and family psychotherapy, court-involved therapy, family mediation, custody and parenting time evaluations, parenting coordination, and forensic consultations in family law cases. Dr. Sherman is a member of the American Psychology Association, the Oregon Psychological Association, the Association of Family and Conciliation Courts, and the Association of State and Provincial Psychology Boards. She is also a member of the Oregon Board of Psychologist Examiners and has been instrumental in the revision of the educational rules for the practice of psychology in Oregon. Dr. Sherman has presented on various topics related to the role of psychologists and mental health practitioners who function to assist the court in high-conflict, complex, and contested child custody matters. Drafting Family Law Documents viii

9 Chapter 1 A Client Has Retained You Now What? Robert F. Demary Gevurtz Menashe Larson & Howe PC Portland, Oregon Contents Presentation Slides Forms 1-1. Letter of Engagement Petition Summons Vital Stats Certificate Re Pending Child Support UTCR Confidential Information Form for Petitioner UTCR Confidential Information Form for Respondent Notice of Filing of Confidential Information Form UTCR Notice of Filing Temporary Mutual Property Restraining Order (Motion, Affidavit, and Order Acceptance of Service Letter to Opposing Party Notice of Intent to Move for Default Default, Motion, Order, and Declaration Waiver of Response Period (30-Day Motion and Order Waiver of Response Period (30-Day Declaration

10 Chapter 1 A Client Has Retained You Now What? Drafting Family Law Documents 1 ii

11 Chapter 1 A Client Has Retained You Now What? CLE ROBERT F. DEMARY What Do You Do After You ve Been Retained? Petition/Vital Stats Summons Certificate re Pending Child Support UTCR CIF forms both Petitioner and Respondent Notice of Filing CIF Property Restraining Order (statutory and formal orders Request for Production of Documents Acceptance of Service Letter to Opposing Party Drafting Family Law Documents 1 1

12 Chapter 1 A Client Has Retained You Now What? IF NO RESPONSE IS FILED Notice of Intent to Take Default Default Motion and Order Declaration in Support of Default Motion and Order Drafting Family Law Documents 1 2

13 Chapter 1 A Client Has Retained You Now What? Form 1-1 Letter of Engagement The purpose of this letter is to outline some aspects of our attorney-client relationship and the basic stages of the divorce process. It is my goal, and that of [Gevurtz, Menashe, Larson & Howe, P.C.], to provide the best possible service. I will keep you informed concerning the status of your case, answer questions you may have, return your telephone calls as promptly as I am able, and provide an ongoing explanation of billing statements. Please refer to your copy of the Attorney Employment and Fee Agreement regarding our expectation of payment of bills, replenishing the retainer and responses to requests for information. The nature of family law practice often involves litigation and responding to emergencies. Because of the time I spend in court, or in preparation for court, there will be times when I cannot be reached directly. The best way to get in touch with me as soon as possible is to leave a message with my legal assistant, or talk to [him/her] about scheduling a phone conference or a meeting with me. You may also use my voice mail and . At some time in your case, I may be preparing for a trial or a hearing on your behalf. During that time, I will focus entirely on your case to obtain the best results for you. Therefore, when I am engaged in that exercise on behalf of another one of my clients, I ask for your understanding and patience. To help me represent you most effectively, I need you to stay in communication with me, let me know of any change of address or telephone number, and respond promptly if I attempt to get in touch with you. I will do what I can to minimize attorney fees, costs, and delay in your case. However, some things are out of anyone s control, such as the actions of the other party or their attorney and crowded court dockets. It is important for us to be able to speak freely with each other. As long as we follow certain rules, all of our verbal and written communications will be confidential. That means I am not permitted to disclose them without your consent, nor can anyone force me to do so. If you share our communications with any other person, though, you may be surprised to learn that you have waived this protection and made our discussions public. Forwarding an to a friend or family member, for example, could cause such a waiver. Sometimes clients send attorney communications to their friends and family members (even their soon-to-be-ex-spouse. These communications may be discoverable by the opposing attorney and can be used against us. This could have a substantial impact on your case. It is your responsibility to make sure that our communications are not seen by the wrong eyes. Please do not forward any of our communications to third parties without discussing it with me first. I enjoy using and the ease by which I can use it to communicate with clients. If you send me an , I will understand that you consent to me responding by . However, I do have some concerns about the use of . An overzealous soon-to-be-ex-spouse may learn your password or even install programs to monitor your s. Unless you are completely confident your is safe, I suggest only using for communications that would not concern you if someone else were able to see them. Drafting Family Law Documents 1 3

14 Chapter 1 A Client Has Retained You Now What? Even if you decide to use , please do not me through your work system. Most employers consider all communications on their system to be the property of the company no matter who sent the or when. A court may decide that you have no expectation of privacy through your work and determine that the communication is not confidential. If you only have a work account, I suggest you set up a new private webmail account through Google, Yahoo, etc., and choose a new password that would be very difficult for anybody else to determine. I will also communicate with you by mail. When I receive a document on your behalf, I will send you a copy and will often prepare a cover letter to explain the document and to let you know what, if anything, you should do about it. I suggest, to keep costs as low as possible, that you not call or every time you think of a question, but rather collect two or three things for us to discuss before contacting me. For important discussions, it will be best that we communicate interactively, either by telephone or in person. When you do call, if I am not available at that time, you may schedule an appointment through my legal assistant for a time when I will be available. You may also leave a voic message, or send an appropriate message by . Below are the general stages in a family law case. This is a guide to what you can expect over the next several months. 1. INITIATING THE DIVORCE/RESPONDING. Enclosed are drafts of the [opening documents/responsive pleadings] for your review and correction. When they are finalized [and you have signed them], I will file them with the court. Once these documents have been filed, I will give notice to [opposing party] that we have initiated this action. I do this either by engaging a civil process server who will hand the documents to [opposing party] personally or by mailing them to [opposing party] or [his/her] attorney asking [him/her] to sign and return an acceptance of service. 2. DISCOVERY. Discovery is a variety of formal procedures designed to allow each of the parties to the action to obtain the information needed so that an intelligent settlement is possible. Complete disclosure of all assets, debts, and income information is required by the court. We begin by asking you to provide copies of relevant documents. I review what you provide and give the opposing party those documents which are appropriate. Thereafter we may require certain documents from the other party, and sometimes from third parties who might have information helpful to resolve your case. In a deposition, one attorney is permitted to ask questions of the adverse party. A court reporter is present who makes an official record of everything that is said. A deposition can establish evidence to be used at a hearing or trial. Deposition testimony can later be used to challenge the credibility of a witness, and can help us to assess the strengths and weaknesses of the other party s position. Drafting Family Law Documents 1 4

15 Chapter 1 A Client Has Retained You Now What? Depositions can be extremely important, if not pivotal, to resolving a case. However, they are very expensive as they involve a lot of preparation, time in the deposition itself, payment to the court reporter, and payment for a transcript of the deposition. Together we will balance the cost and potential value of this discovery option. Before participating in a deposition, we will talk in much more detail about how to act and what to expect. Another major area of discovery is the valuation of assets in which either party has an interest. This may include pensions, businesses, real property, or professional practices. Usually, I hire professional appraisers. We can either agree with opposing counsel to jointly employ an appraiser or hire someone ourselves to value an asset. At times, in order to maximize your position, we will need to consult and hire someone such as a private investigator, an accountant, or other professional, at additional cost, to advise us. This will only be done after you have specifically authorized it. Discovery is not without limits. Confidential and privileged information (such as communications with a therapist are areas that usually cannot be inquired into. Also, discovery cannot be used to harass or intimidate a party, and if discovery is pursued with an improper aim, I can apply to the court for a protective order to halt such behavior. 3. CHILDREN S ISSUES. You and your spouse will be required to attend a parenting class. Final resolution of your case and formal entry of the judgment may be held up until the parenting class is completed or, in rare circumstances, waived by the court. Some counties provide mediation to help resolve custody and parenting time issues, and require participation in mediation before taking such a matter to hearing or trial. If custody or parenting time remains an issue, we may need to hire an expert to conduct a custody or parenting time evaluation. The evaluator would then recommend an arrangement the evaluator believes would be in your child s best interest. The parties can agree on a particular evaluator, or the court will appoint someone to conduct the study. Both parties must cooperate fully, including signing releases for the evaluator to speak with health care and mental health providers for relevant information. If this occurs, we will spend time preparing for the evaluation. 4. RESOLUTION. At any stage in your case, you are free to enter into settlement negotiations with the other party. If you succeed in resolving every disputed issue, then no hearing or trial will be necessary. Following are some of the options available to pursue settlement. together, directly. A. You and your spouse may discuss possible outcomes Drafting Family Law Documents 1 5

16 Chapter 1 A Client Has Retained You Now What? offers. B. Your respective attorneys can exchange written settlement C. The attorneys and their clients can all meet together, scheduling a four-way discussion to explore settlement options. D. You and your spouse can meet with a professional mediator, either court-provided [depending upon the county in which your divorce is filed and the nature of the matters in dispute] or one in private practice. The attorneys may be included in your sessions with a mediator if you wish. E. Some counties offer the option of a settlement conference, in which the parties meet with a judge whose task is not to decide the case but to help the parties reach a resolution. Every case is different. Sometimes we use one, sometimes another, sometimes a combination. Any issue not resolved in a settlement must ultimately be decided by a judge after trial. 5. MISCELLANEOUS. The State Court Trial Administrator has instructed all local courts that most dissolution cases are to be resolved within nine months and modifications within five months. These deadlines can be extended through application to the court. In addition, unexpected circumstances and delay in a case can lead to one or both sides requesting a continuance of the trial date. Sometimes the court itself will reset a trial or hearing date because of its own calendar issues. Legal claims for damages may exist or may arise in the course of your case. These claims might be against another person, or some government agency, or even your spouse. Although the attorneys of this firm practice only family law, a claim for damages, for you or against you, can significantly affect the just and proper division of your property interests, so we need to address the nature of that claim as part of our work for you. In addition, we are always prepared to refer you to other attorneys, as need be, who can help you with a separate legal action. If you may have reason to claim damages for an actionable wrong, or if facts develop which may provide grounds for such a claim, please let me know without delay. Short time limits may apply. If you wish to continue to obtain medical insurance coverage from the company that provides your ex-spouse s group insurance, you must promptly apply for what is called portability coverage, continuation coverage, or COBRA coverage. The rules vary in how long you have to apply, but it may be as short as 30 days from the date your Judgment of Dissolution is signed, so please act promptly! You should apply to both your ex-spouse s medical insurance company and the Health Benefit Administrator at his or her employment. You will receive no notice of this deadline, and, if you miss it, you will lose your right to obtain this type of medical insurance coverage. New coverage may well be more expensive or exclude any pre-existing conditions that you have. We Drafting Family Law Documents 1 6

17 Chapter 1 A Client Has Retained You Now What? will not be handling this for you unless you specifically ask us to do so. Now is a good time to find out what the cost of such insurance will be. Although this process affects all areas of your life physical, social, economic, spiritual, and emotional, the court system is only able to address a very narrow slice of your very complicated situation. While I will do my best to represent you in the legal realm, do not forget to rely on other experts to give you guidance in these other important aspects. I am happy to coordinate with or refer you to counselors, financial planners, realtors, and other professionals that will help to make this complex and difficult process more tolerable. This letter is not intended to answer every question you might have, or cover every issue that arises in a family law action. It is intended to provide you with a written document that you may reread to ensure you have a good idea of the overall process and the dynamics that you face. Drafting Family Law Documents 1 7

18 Chapter 1 A Client Has Retained You Now What? Drafting Family Law Documents 1 8

19 Chapter 1 A Client Has Retained You Now What? Form 1-2 Petition Filing Fee pursuant to ORS (1 [Subject to Mandatory Arbitration (property only/claim Not Subject to Mandatory Arbitration] Petitioner alleges: 1. The parties were married on [Marriage Date], in [Marriage City, County, State], and ever since have been husband and wife. 2. No other domestic relations suit or any type of support proceeding involving dependents of this marriage is pending in any other court or jurisdiction. [,except ]. 3. [Petitioner/Respondent] has been a resident of and domiciled in the State of Oregon continuously for the past six months. [Petitioner/Respondent] currently resides in County. 4. Irreconcilable differences between the parties have caused the irremediable breakdown of their marriage. 5. Relevant data is as follows: DATE AND PLACE OF MARRIAGE: PETITIONER: Residence: [Marriage Date] ]Marriage City, County, State] [Petitioner] [Petitioner s Address] [City, State, Zip] Social Security Number: Separately filed under UTCR Age/Date of Birth: Separately filed under UTCR Former Names: Separately filed under UTCR Drafting Family Law Documents 1 9

20 Chapter 1 A Client Has Retained You Now What? RESPONDENT: Residence: [Respondent] [Respondent s Address] [City, State, Zip] Social Security Number: Separately filed under UTCR Age/Date of Birth: Separately filed under UTCR Former Names: Separately filed under UTCR CHILD(REN OF THE PARTIES [Child 1 Name], date of birth separately filed under UTCR [Child 2 Name], date of birth separately filed under UTCR [Child 3 Name], date of birth separately filed under UTCR [Number of Kids] children were born or adopted during the marriage. [Petitioner/Respondent] is not now pregnant. 7. There [has/have] been [Number of Kids] child[ren] born as issue of the marriage, namely. The child[ren] s respective dates of birth are separately filed under UTCR [Petitioner/Respondent] is not now pregnant. 8. Petitioner is a fit and proper person to be awarded responsibility for the care, custody, and control of the minor child[ren] of the parties. [A parenting plan should be established as agreed by the parties or ordered by the court./a parenting plan should be established as follows:.] [Custody of the children should be awarded and a parenting plan should be established consistent with the welfare and best interests of each child.] Drafting Family Law Documents 1 10

21 Chapter 1 A Client Has Retained You Now What? 9. The parties should share joint legal custody with [Petitioner] having physical custody. [A parenting plan should be established as agreed by the parties or ordered by the court./a parenting plan should be established as follows:.] 10. With respect to each minor child subject to this proceeding, the child's present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during this period are as follows: CHILD'S NAME AND AGE RESIDENCE RESIDED WITH DATES [Child1 Name] [Child2 Name] [Child3Name] Petitioner: A. Has not participated, as a party, witness, or in any other capacity, in any other proceeding concerning the custody of or parenting time or visitation with the [Children][, except ] [Include the court, case number, and date of any child custody determination]; B. Has no information of any proceeding that could affect the current proceeding [except for: [List any pending enforcement proceeding or proceedings relating to domestic violence, protective orders, juvenile court proceedings, termination of parental rights and adoptions concerning the minor child pending in a court of this or any other state; include the court, case number, and the nature of the proceeding]; C. Does not know of any person, not a party to this proceeding, who has physical custody of the child[ren] or claims rights of legal custody or physical custody of, or parenting time or visitation with, the child[ren] [if known, list names and addresses]; Drafting Family Law Documents 1 11

22 Chapter 1 A Client Has Retained You Now What? D. Is aware of [his/her] continuing duty to inform the court of any proceeding, in this or any other state, that could affect the current proceeding. Oregon has jurisdiction to determine custody of the child[ren] and no other state would have such jurisdiction. Accordingly, this court should exercise jurisdiction. 11. The parties respective obligations for financial support of the children should be determined pursuant to the Oregon Child Support Guidelines, including any applicable rebuttal factors, and support be awarded appropriately for the benefit of the minor child[ren] and for any child qualified as a "child attending school" pursuant to ORS or successor statute [beginning as early as the date this Petition is served]. 12. The parties should be required to maintain satisfactory health care coverage for the benefit of the parties child[ren], providing at a minimum medical, hospital coverage, preventive, emergency, acute and chronic care [and furthermore required to provide optical, psychiatric, psychological, dental?], for so long as a support obligation exists for the benefit of the child[ren]. Each of the parties should be required to pay an appropriate share of all [reasonable and necessary] uninsured and uncovered medical, psychological, psychiatric, counseling, hospital, prescription, optical, dental, and orthodontic expenses of the child[ren] of the parties for so long as a support obligation exists for the benefit of the child[ren]. 13. One or both of the parties should maintain life insurance on his and/or her own life in an appropriate benefit amount with the other parent as beneficiary for as long as a child support obligation continues to exist. Drafting Family Law Documents 1 12

23 Chapter 1 A Client Has Retained You Now What? 14. Respondent should be required to pay transitional, compensatory and/or maintenance spousal support to Petitioner in such an amount and for such a period of time as is just and equitable. 15. Respondent should be required to maintain life insurance in an appropriate benefit amount insuring [his/her] own life with Petitioner designated as the irrevocable beneficiary as long as Respondent has a spousal support obligation for the benefit of Petitioner. 16. The parties have an interest in real and personal property, which should be jointly and properly divided between them by the court, including real property described as: Address: [LEGAL DESCRIPTION] include all real property. [FILE LIS PENDENS?] 17. Each party should pay the debts incurred by that party since their separation on or about [separation date] and hold the other party harmless therefrom. The court should make an equitable distribution of the debts and liabilities incurred before the separation. 18. [Option 1: Pursuant to ORS (1(j, Petitioner should be awarded his or her reasonable attorney fees, costs and expenses reasonably incurred in this action.] [Option 2: Each party should be required to pay his or her own attorney fees and costs.] [Option 3: Pursuant to ORS (1(j, each party should be required to pay his or her own attorney fees and costs unless this matter is contested. If contested, Petitioner should be awarded his or her reasonable attorney fees reasonably incurred in this action, plus his or her costs and expenses to hire experts and otherwise for investigation, deposition, and trial preparation.] Drafting Family Law Documents 1 13

24 Chapter 1 A Client Has Retained You Now What? 19. Petitioner acknowledges that by filing this Petition, he or she is bound by the terms of the restraining order issued pursuant to ORS as set forth in the Exhibit [Notice of Statutory Restraining Order] attached to the Summons to be filed in this action. [20. Petitioner should be restored her former name of.] WHEREFORE, Petitioner prays for a Judgment: 1. Dissolving the marriage of the parties. 2. Granting further relief in accordance with the allegations in this Petition. 3. Granting such further relief as the court finds to be just and equitable. Dated this day of [February, 2013]. [GEVURTZ, MENASHE, LARSON & HOWE, P.C.] STATE OF OREGON ss. County of [Albert A. Menashe], OSB# [[email protected]] Of Attorneys for Petitioner I, [Petitioner Name], state that I have read the Petition for Dissolution of Marriage, and it is true and complete to the best of my knowledge. [PetitionerName], Petitioner SUBSCRIBED AND SWORN to before me this day of [February, Notary Public for the State of Oregon Drafting Family Law Documents 1 14

25 Chapter 1 A Client Has Retained You Now What? EXHIBIT 1 NOTICE TO PARTIES The following is a copy of ORS This law requires each party to provide financial records to the other within 30 days (or three judicial days prior to any scheduled court hearing if a hearing has been scheduled in less than 30 days. Failure to do so may result in the imposition of serious sanctions and penalties against you. Financial Disclosure Requirements Documents parties in suit must furnish to each other under certain circumstances; effect of failure to furnish. (1 If served with a copy of this section as provided in ORS , each party in a suit for legal separation or for dissolution shall provide to the other party copies of the following documents in their possession or control: (a All federal and state income tax returns filed by either party for the last three calendar years; (b If income tax returns for the last calendar year have not been filed, all W-2 statements, year-end payroll statements, interest and dividend statements and all other records of income earned or received by either party during the last calendar year; (c (d (e (f All records showing any income earned or received by either party for the current calendar year; All financial statements, statements of net worth and credit card and loan applications prepared by or for either party during the last two calendar years; All documents, such as deeds, real estate contracts, appraisals, and most recent statements of assessed value, relating to real property in which either party has any interest; All documents showing debts of either party, including the most recent statement of any loan, credit line, or charge card balance due; Drafting Family Law Documents 1 15

26 Chapter 1 A Client Has Retained You Now What? (g (h (i (j Certificates of title or registrations of all automobiles, motor vehicles, boats, or other personal property registered in either party s name or in which either party has any interest; Documents showing stocks, bonds, secured notes, mutual funds, and other investments in which either party have any interest; The most recent statement describing any retirement plan, IRA pension plan, profit-sharing plan, stock option plan, or deferred compensation plan in which either party has any interest; and All financial institution or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently open or closed. (2 (a Except as otherwise provided in paragraph (b of this subsection, the party shall provide the information listed in subsection (1 of this section to the other party no later than 30 days after service of a copy of this section. (b If a support hearing is pending fewer than 30 days after service of a copy of this section on either party, the party upon whom a copy of this section is served shall provide the information listed in subsection (1(a to (d of this section no later than three judicial days before the hearing. (3 (a If a party does not provide information as required by subsections (1 and (2 of this section, the other party may apply for a motion to compel as provided in ORCP 46. (b Notwithstanding ORCP 46A(4, if the motion is granted and the court finds that there was willful noncompliance with the requirements of subsections (1 and (2 of this section, the court shall require the party whose conduct necessitated the motion or the party or attorney advising the action, or both, to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees. (4 If a date for a support hearing has been set and the information listed in subsection (1(a to (d of this section has not been provided as required by subsection (2 of this section: (a By the obligor, the judge shall postpone the hearing, if requested to do so by the obligee, and provide in any future order for support that the support obligation is retroactive to the date of the original hearing; or Drafting Family Law Documents 1 16

27 Chapter 1 A Client Has Retained You Now What? (b By the obligee, the judge shall postpone the hearing, if requested to do so by the obligor, and provide that any support ordered in a future hearing may be prospective only. (5 The provisions of this section do not limit in any way the discovery provisions of the Oregon Rules of Civil Procedure or any other discovery provision of Oregon law. Drafting Family Law Documents 1 17

28 Chapter 1 A Client Has Retained You Now What? EXHIBIT 2 Notice to Parties in a Suit for Marriage Dissolution or Legal Separation Regarding Continuation of Health Coverage If you have filed for divorce or legal separation and currently hold group health insurance coverage through your spouse, you should know that your coverage will typically end when the court grants your divorce or separation. Oregon law offers options, however, that may enable you to obtain continued coverage. This notice outlines the kinds of continued coverage available under Oregon law. Federal laws commonly known as COBRA may also apply. Please note: you must act promptly to continue coverage. This notice summarizes Oregon laws that may apply to you. For more information about Oregon and federal law, you should consult your health insurer, the plan administrator for your insurance coverage, the employer through whom your insurance is provided, or your attorney. The following is a summary of options under Oregon law. 1. Continuation of existing coverage for a divorced or legally separated spouse who is 55 years of age or older (ORS to If you are a divorced or legally separated spouse and if you are 55 years of age or older when the dissolution or legal separation occurs, you may continue your existing group coverage until you obtain other group coverage or become eligible for Medicare. In order to continue coverage, you must do all of the following: A. You must notify the group health insurance plan administrator in writing of the dissolution or legal separation within 60 days of the entry of the decree or the decree of legal separation. B. You must elect to continue and pay for the group coverage. You must make the election on a form provided by the plan administrator. Please note: This provision applies only if you work for an employer who employs 20 or more employees or if you are covered by a group health insurance plan that covers 20 or more employees. 2. Continuation of existing coverage for a divorced spouse when federal law does not provide for continued coverage (ORS If you are not otherwise able to continue your group health coverage under federal law (known as COBRA, you may continue your existing group coverage upon dissolution of your marriage for a period not exceeding six months. The following requirements apply: Drafting Family Law Documents 1 18

29 Chapter 1 A Client Has Retained You Now What? A. You must have been continuously covered by the group policy for at least three months prior to your divorce. B. You must ask the insurer or the group policy holder, in writing, to continue your coverage. You must also pay the required premiums. C. You must make your request by the later of the following dates: (1 10 days after the date that your coverage under the group policy as a qualified family member would end; or (2 10 days after the date on which the employer or group policy holder gives notice of the right to continue coverage. Important Note: In any event, you must make your request and pay your premium not later than the 31st day after your coverage as qualified family member ends. 3. Portability of health insurance coverage (ORS to If you have been covered by a group health plan and you lose that coverage, you may be eligible to continue coverage by switching to a portability health plan rather than staying on your current plan. If you are eligible, you have two choices of portability coverage. The covered services and premiums charged for any portability health plan that you choose must meet state standards. You are eligible for portability coverage if you are an Oregon resident, are not eligible to enroll in Medicare and meet the following requirements: A. You must have been covered by one or more health plans as follows: (1 By one or more Oregon group health plans for at least six consecutive months. (If your group plan was provided by a self-insured employer, you must also have exhausted your federal or state continuation coverage. OR (2 By one or more group or individual health plans for a period of 18 months, but only if your most recent coverage was in a group plan and if you have exhausted your federal or state continuation coverage. B. You must apply within 63 days of losing your group coverage. If your group coverage was provided by an insurance company or HMO plan, contact it for an application. If your group coverage was provided by a self-insured employer, contact the Oregon Medical Insurance Pool for an application ( Drafting Family Law Documents 1 19

30 Chapter 1 A Client Has Retained You Now What? C. You must pay the required premiums for the coverage. Note: Portability coverage takes effect on the day after your group coverage ended. Your premiums are payable from that date. Remember: You have a limited time to apply for continuation or portability coverage. If you need help, consult your health insurer, the administrator of your health benefit plan, the employer through whom your insurance is provided, the Oregon Medical Insurance Pool or your attorney. Drafting Family Law Documents 1 20

31 Chapter 1 A Client Has Retained You Now What? EXHIBIT 3 NOTICE OF PARENTING CLASSES WASHINGTON COUNTY All parents, with minor children, filing a divorce, dissolution, legal separation or annulment action, a petition to establish custody or parenting time, or a post-decree motion involving custody or parenting time, in Washington County, are expected to participate in parenting classes. A nominal fee is charged for the classes. These classes are currently provided by KIDS TURN and include children in most instances. Scheduling of these classes will be done by calling ( The law requires that parties to ANY PROCEEDING to establish or modify parenting time with a child must file a parenting plan with the court. These classes will provide valuable information that may be helpful to you in developing your plan. Each parent will receive a Certificate of Completion TRIAL COURT ADMINISTRATOR S NOTICE OF PARENTING CLASSES CLACKAMAS All parents filing a divorce, dissolution, legal separation or annulment action, a petition to establish custody or visitation, or a post decree motion involving custody or visitation, in which there are minor children, shall attend one educational seminar for parents as ordered by the Court. Final decrees and orders will not be issued until there has been compliance with this rule. The Court, for good cause shown, may waive this requirement. PETITIONER SHALL SERVE RESPONDENT/CO-PETITIONER WITH A COPY OF THE TRIAL COURT ADMINISTRATOR S NOTICE OF PARENTING CLASSES. Clackamas County Family Court Services will conduct the classes, 2051 Kaen Rd., Room 369, Oregon City. ( Each parent shall be responsible for contacting Clackamas County Family Court Services within 15 days of receiving notice regarding attendance, location and time of the classes. The class shall be completed within 60 days of receiving notice. Each parent shall be responsible for the cost of the class which is $70 per person; the fee is automatically reduced to $55.00 if a person registers within 15 days of filing their initial court case (or receiving initial service for respondents. If there is a waiver/deferral allowed by the court on the pending case there will be an allowance for waiver of the fee for indigence. A copy of the waiver/deferral order must be provided to Family Court Services. Drafting Family Law Documents 1 21

32 Chapter 1 A Client Has Retained You Now What? The parties will be required to sign a Certificate of Attendance that will be filed by Family Court Services with the Clerk of the Circuit Court to reflect compliance with this Notice N O T I C E MULTNOMAH COUNTY If you have children under the age of eighteen and you are filing for: Dissolution (Divorce, Annulment, Separation, Custody, Visitation, Filiation (nonmarried with children, Paternity or a modification to your previous divorce decree, you must register for Parent Education classes within the next 15 days at the Multnomah County Courthouse, Room 350, 1021 SW Fourth Avenue, Portland, OR ; phone ( Drafting Family Law Documents 1 22

33 Chapter 1 A Client Has Retained You Now What? Form 1-3 Summons TO: [RespondentName], Respondent. You are hereby required to appear and defend the petition filed against you in the above-entitled cause within thirty (30 days from the date of service of this summons upon you, and in case of your failure to do so, for want thereof, petitioner will apply to the court for the relief demanded in the petition. NOTICE TO THE RESPONDENT: READ THESE PAPERS CAREFULLY! You must appear in this case or the other side will win automatically. To appear you must file with the court a legal document called a motion or answer. The motion or answer must be given to the court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the petitioner s attorney or, if the petitioner does not have an attorney, proof of service upon the petitioner. If you have questions, you should see an attorney immediately. If you need help in finding an attorney, you may contact the Oregon State Bar's Lawyer Referral Service online at or by calling ( (in the Portland metropolitan area or toll-free elsewhere at ( [Attorney Name] [Gevurtz, Menashe, Larson & Howe, P.C. 111 SW Fifth Avenue, No. 900 Portland, OR ( ] TRIAL ATTORNEY IF OTHER THAN ABOVE BAR NO. STATE OF OREGON, County of Multnomah ss. I, the undersigned attorney of record for the petitioner, certify that the foregoing is an exact and complete copy of the original summons in the above-entitled action. ATTORNEY OF RECORD FOR PETITIONER TO THE OFFICER OR OTHER PERSON SERVING THIS SUMMONS: You are hereby directed to serve a true copy of this summons, together with a true copy of the petition mentioned therein, upon the respondent or other legal entity(ies to whom or which this summons is directed, and to make your proof of service on the reverse hereof or upon a separate similar document which you shall attach hereto. ATTORNEY(S FOR PETITIONER Drafting Family Law Documents 1 23

34 Chapter 1 A Client Has Retained You Now What? TO THE PETITIONER AND RESPONDENT: NOTICE OF STATUTORY RESTRAINING ORDER PREVENTING THE DISSIPATION OF ASSETS IN DOMESTIC RELATIONS ACTIONS REVIEW THIS NOTICE CAREFULLY. BOTH PARTIES MUST OBEY EACH PROVISION OF THIS ORDER TO AVOID VIOLATION OF THE LAW. SEE INFORMATION ON YOUR RIGHTS TO A HEARING BELOW. PURSUANT TO ORS , and UTCR 8.080, Petitioner and Respondent are restrained from: 1. Canceling, modifying, terminating or allowing to lapse for nonpayment of premiums any policy of health insurance, homeowner or renter insurance or automobile insurance that one party maintains to provide coverage for the other party or a minor child of the parties, or any life insurance policy that names either of the parties or a minor child of the parties as a beneficiary. 2. Changing beneficiaries or covered parties under any policy of health insurance, homeowner or renter insurance or automobile insurance that one party maintains to provide coverage for the other party or a minor child of the parties, or any life insurance policy. 3. Transferring, encumbering, concealing or disposing of property in which the other party has an interest, in any manner, without written consent of the other party or an order of the court, except in the usual course of business or for necessities of life. Paragraph 3 does not apply to payment by either party of: a. Attorney fees in this action; b. Real estate and income taxes; c. Mental health therapy expenses for either party or a minor child of the parties; or d. Expenses necessary to provide for the safety and welfare of a party or a minor child of the parties. 4. Making extraordinary expenditures without providing written notice and an accounting of the extraordinary expenditures to the other party. Paragraph 4 does not apply to payment by either party of expenses necessary to provide for the safety and welfare of a party or a minor child of the parties. AFTER FILING OF THE PETITION, THE ABOVE PROVISIONS ARE IN EFFECT IMMEDIATELY UPON SERVICE OF THE SUMMONS AND PETITION UPON THE RESPONDENT. IT REMAINS IN EFFECT UNTIL A FINAL DECREE OR JUDGMENT IS ISSUED, UNTIL THE PETITION IS DISMISSED, OR UNTIL FURTHER ORDER OF THE COURT. Drafting Family Law Documents 1 24

35 Chapter 1 A Client Has Retained You Now What? PETITIONER S/RESPONDENT S RIGHT TO REQUEST A HEARING Either petitioner or respondent may request a hearing to apply for further temporary orders, or to modify or revoke one or more terms of the automatic mutual restraining order, by filing with the court the Request for Hearing form specified in Form in the UTCR Appendix of Forms. Drafting Family Law Documents 1 25

36 Chapter 1 A Client Has Retained You Now What? IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF In the Matter of the Marriage of:, Case No. Petitioner, and REQUEST FOR HEARING RE: STATUTORY RESTRAINING, ORDER Respondent. (UTCR I am the Petitioner Respondent in the above-referenced action, and I request a hearing to: a. Apply for further temporary orders (specify in detail; attach additional sheets if necessary: b. Modify or revoke the following term(s of the statutory restraining order: i. Paragraph 1. Revoke or Modify as follows (explain: ii. iii. iv. Paragraph 2. Revoke or Modify as follows (explain: Paragraph 3. Revoke or Modify as follows (explain Paragraph 4. Revoke or Modify as follows (explain: 2. I will will not be represented by an attorney at the hearing. Drafting Family Law Documents 1 26

37 Chapter 1 A Client Has Retained You Now What? Certificate of Document Preparation. You are required to truthfully complete this certificate regarding the document you are filing with the court. Check all boxes and complete all blanks that apply: Submitted by: I selected this document for myself and I completed it without paid assistance. I paid or will pay money to for assistance in preparing this form. Petitioner Respondent, Signature Print Name Address or Contact Address City, State, Zip Telephone or Contact Telephone Certificate of Mailing. I certify that I mailed a copy of this Request for Hearing by U.S. Mail with postage paid to the other party, or the other party s attorney, at the following address: on the following date:. Petitioner Respondent Signature Print Name Drafting Family Law Documents 1 27

39 Chapter 1 A Client Has Retained You Now What? Form 1-4 Vital Stats PUBLIC HEALTH DIVISION Center for Health Statistics RECORD OF DISSOLUTION OF MARRIAGE, ANNULMENT OR REGISTERED DOMESTIC PARTNERSHIP 136- State file number: The petitioner or legal representative of the petitioner is responsible for completing the personal information on this form and shall present this form to the clerk of the court with the petition. In all cases the completed record shall be a prerequisite to the granting of the final judgment. Case number: Judgment type: Dissolution of marriage Annulment Dissolution of registered domestic partnership(rdp 1. Husband/Partner A Legal name: (first, middle, last, suffix 2. Last name at birth: (not required for RDP Husband / Partner A 3. Residence or legal address: (street and number (city or town (county (state 4. Other legal last names used: 5. Date of birth: (mm/dd/yyyy 6. Birthplace: (state, territory or foreign country 7. Wife/Partner B Legal name: (first, middle, last, suffix 8. Last name at birth: (not required for RDP Wife / Partner B 9. Residence or legal address: (street and number (city or town (county (state 10.Other legal last names used: 11.Date of birth: (mm/dd/yyyy 12.Birthplace: (state, territory or foreign country 13.Date of marriage / filing of RDP declaration: (mm/dd/yyyy 14.Date couple last resided in same household: (mm/dd/yyyy Marriage / Declaration 15a.Place of marriage/rdp: (city, town or location 15b.County: 15c.State or foreign country: Attorney 16.Number of children under 18 in this household as of the date in item 14: 17.Petitioner: Number: None Husband/Partner A Wife/Partner B Both 18a.Name of petitioner s attorney: (print 18b. Address: (street and number or rural route number, city or town, state, ZIP code 19a.Name of respondent s attorney: (print 19b. Address: (street and number or rural route number, city or town, state, ZIP code Judgment 20.Marriage/RDP declaration of the above named persons was dissolved on: (mm/dd/yyyy 22.Number of children under 18 whose physical custody was awarded to: 21.Date judgment becomes effective: (mm/dd/yyyy Husband/Partner A Wife/Partner B Joint (shared custody Other (specify No children 23.County of decree: 24.Title of court: Circuit 25.Signature of court official: 26.Title of court official: 27.Date signed: (mm/dd/yyyy Information below will not appear on the certified copies of the record. 28.Husband s Social Security number: (not required for RDP 29.Wife s Social Security number: (not required for RDP Husband / Partner A Wife / Partner B 30.Number of this marriage/rdp first, second, etc.: 31.If previously married or in a RDP date last marriage/rdp ended: 32.Hispanic origin: 33.Race(s: Black, Cuban, Mexican, White, etc. Puerto Rican 34. Education Specify only highest grade completed: By death, divorce, dissolution Date: List all that apply (specify List all that apply (specify Elementary/Secondary: College: (1-4 or 5+ Marriage RDP or annulment (specify below (mm/dd/yyyy below below (grades a. 30b. 31a. 31b. 32a. 33a. 34a. 34b. 30c. 30d. 31c. 31d. 32b. 33b. 34c. 34d (04/12 Drafting Family Law Documents 1 29

41 Chapter 1 A Client Has Retained You Now What? Form 1-5 Certificate Re Pending Child Support EXISTING CHILD SUPPORT ORDERS/JUDGMENTS (UTCR I hereby certify that: 1. PENDING CHILD SUPPORT PROCEEDINGS (include any child support matter being heard by either a court or agency as part of a dissolution, separation, annulment, paternity, juvenile court, support, or modification case: There is no pending child support proceeding in this or any other state involving the parties child[ren]. There is a pending child support proceeding in Oregon in another state that involves the parties child[ren] as follows: Name/County of Court or Agency where pending: Agency Case Number: Court Case Number: 2. EXISTING CHILD SUPPORT ORDERS OR JUDGMENTS (include any order/judgment whether made by an agency or a court in this or any other state and whether or not currently effective: There are no other child support orders/judgments in this or any other state involving the parties child[ren]. There is/are other child support orders/judgments involving the parties child[ren], as follows: ORDER/JUDGMENT #1 (Attach a copy of the signed order Name/County of Court or Agency where issued: Case Number: Date of Order: ORDER/JUDGMENT #2 (Attach a copy of the signed order Name/County of Court or Agency where issued: Case Number: Date of Order: Drafting Family Law Documents 1 31

42 Chapter 1 A Client Has Retained You Now What? ORDER/JUDGMENT #3 (Attach a copy of the signed order Name/County of Court or Agency where issued: Case Number: Date of Order: ORDER/JUDGMENT #4 (Attach a copy of the signed order Name/County of Court or Agency where issued: Case Number: Date of Order: Attach additional sheets if necessary, labeled Attachment 1 to Certificate Re: Child Support Proceedings and Orders. DATED this day of [February, 2013]. [Petitioner s Name], Petitioner Drafting Family Law Documents 1 32

43 Chapter 1 A Client Has Retained You Now What? Form 1-6 UTCR Confidential Information Form for Petitioner Amended This document is not accessible to the public or other parties. Exceptions may apply. See UTCR ATTENTION COURT STAFF: THIS IS A RESTRICTED ACCESS DOCUMENT. The information below is about: Petitioner Name (Last, First, Middle: [Petitioner's Name] The names of the parties and the children, as well as the children's ages, are NOT confidential. Former Legal Name(s (if applicable: Date of Birth: Social Security Number: Driver s License (Number and State: Employer's Name, Address and Telephone Number: [Petitioner s Former Name] [Petitioner s Maiden Name] [Petitioner s Date of Birth] [Petitioner s Social Security Number] [Petitioner s Oregon Driver s License Number] [Petitioner s Employer Name, Address, Phone Number] Children s Names (Last, First, Middle Date of Birth Social Security No. Please attach an additional sheet if there are more than five children involved in the proceeding. I hereby declare that the above statements are true to the best of my knowledge and belief and that I understand they are made for use as evidence in court and are subject to penalty for perjury. Date: [Petitioner Name], Petitioner COMPLETED AND SUBMITTED BY: [Petitioner/Respondent/Co-Petitioner Child who is at least 18 and under 21 Other] NOTE TO COURT STAFF: Unless ordered or authorized under UTCR 2.130, this Confidential Information Form is NOT AVAILABLE to the opposing party or his/her attorney or to the PUBLIC, except for the STATE. Drafting Family Law Documents 1 33

45 Chapter 1 A Client Has Retained You Now What? Form 1-7 UTCR Confidential Information Form for Respondent Amended This document is not accessible to the public or other parties. Exceptions may apply. See UTCR ATTENTION COURT STAFF: THIS IS A RESTRICTED ACCESS DOCUMENT. The information below is about: Respondent Name (Last, First, Middle: [Respondent's Name] The names of the parties and the children, as well as the children's ages, are NOT confidential. Former Legal Name(s (if applicable: Date of Birth: Social Security Number: Driver s License (Number and State: Employer's Name, Address and Telephone Number: [Respondent s Former Name] [Respondent s Maiden Name] [Respondent s Date of Birth] [Respondent s Social Security Number] [Respondent s Oregon Driver s License Number] [Respondent s Employer Name, Address, Phone Number] Children s Names (Last, First, Middle Date of Birth Social Security No. Please attach an additional sheet if there are more than five children involved in the proceeding. I hereby declare that the above statements are true to the best of my knowledge and belief and that I understand they are made for use as evidence in court and are subject to penalty for perjury. Date: COMPLETED AND SUBMITTED BY: [Petitioner/Respondent/Co-Petitioner Child who is at least 18 and under 21 Other] [Respondent Name], Respondent NOTE TO COURT STAFF: Unless ordered or authorized under UTCR 2.130, this Confidential Information Form is NOT AVAILABLE to the opposing party or his/her attorney or to the PUBLIC, except for the STATE. Drafting Family Law Documents 1 35

47 Chapter 1 A Client Has Retained You Now What? Form 1-8 Notice of Filing of Confidential Information Form UTCR Notice of Filing AMENDED CIF I am the (check one box: Name: Petitioner Respondent Co-Petitioner Child at least 18 but under 21 Other: NOTICE: Confidential Information Form Has Been Filed Uniform Trial Court Rule (UTCR requires that parties to domestic relations cases place certain information about themselves and other parties in a CIF when such information is required in a document filed with the court. The CIF is not available for public inspection except as authorized by law. Parties are allowed to see a CIF that contains information about them. A party who wants to see a CIF that contains information about another party must ask for permission from the court or the other party by following the procedures set out in UTCR I filed Confidential Information Forms with the court about the following parties to this case (complete a section for each party for whom you have filled out a CIF: 1 Name (Last, First, Middle: «PetitionerName», Petitioner Confidential Personal Information contained in CIF (check all that apply: Party s Social Security number, Party s date of birth, Children s Social Security number, Children s date of birth, Driver license number, Employer s name, address and telephone number, Former legal name(s. 2 Name (Last, First, Middle: «RespondentName», Respondent Confidential Personal Information contained in CIF (check all that apply: Party s Social Security number, Party s date of birth, Children s Social Security number, Children s date of birth, Driver license number, Employer s name, address and telephone number, Former legal name(s. Drafting Family Law Documents 1 37

48 Chapter 1 A Client Has Retained You Now What? 3 Name (Last, First, Middle: Petitioner Respondent Co-Petitioner Adult Child Other: Confidential Personal Information contained in CIF (check all that apply: Party s Social Security number, Party s date of birth, Children s Social Security number, Children s date of birth, Driver license number, Employer s name, address and telephone number, Former legal name(s. 4 Name (Last, First, Middle: Petitioner Respondent Co-Petitioner Adult Child Other: Confidential Personal Information contained in CIF (check all that apply: Party s Social Security number, Party s date of birth, Children s Social Security number, Children s date of birth, Driver license number, Employer s name, address and telephone number, Former legal name(s. Dated this day of [February, 2013]. [Attorney and Firm] [Client Name] (Contact Address, Contact Telephone Drafting Family Law Documents 1 38

49 Chapter 1 A Client Has Retained You Now What? Form 1-9 Temporary Mutual Property Restraining Order (Motion, Affidavit, and Order (Petitioner/Respondent, by and through [his/her] attorney,, of [Gevurtz, Menashe, Larson & Howe P.C.], moves this court for its order that: Upon service of Summons and Petition upon Respondent as provided in ORCP 7, a restraining order shall be effective against Petitioner and Respondent until a final decree or judgment is issued, until the petition for marital annulment, separation, or dissolution is dismissed, or until further order of the court, restraining both Petitioner and Respondent from: 1. Canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums any policy of health insurance, homeowner or renter insurance, or automobile insurance that one party maintains to provide coverage for the other party or a minor child of the parties, or any life insurance policy that names either of the parties or a minor child of the parties as a beneficiary; 2. Changing beneficiaries or covered parties under any policy of health insurance, homeowner or renter insurance, or automobile insurance that one party maintains to provide coverage for the other party or a minor child of the parties, or any life insurance policy; 3. Transferring, encumbering, concealing, or disposing of property in which the other party has an interest, in any manner, without written consent of the other party or an order of the court, except in the usual course of business or for necessities of life, or the payment by either party of: A. Attorney fees in this action; B. Real estate and income taxes; C. Mental health therapy expenses for either party or a minor child of the parties; or D. Expenses necessary to provide for the safety and welfare of a party or a minor child of the parties; 4. Making extraordinary expenditures without providing written notice and an accounting of the extraordinary expenditures to the other party, except the payment by Drafting Family Law Documents 1 39

50 Chapter 1 A Client Has Retained You Now What? either party of expenses necessary to provide for the safety and welfare of a party or a minor child of the parties. POINTS AND AUTHORITIES ORS Affidavit of attached. Dated this day of [February, 2013]. [GEVURTZ, MENASHE, LARSON & HOWE, P.C.] [Albert A. Menashe], OSB #[77055] [[email protected]] Of Attorneys for Petitioner I,, being first duly sworn, depose and say: 1. I am the [Petitioner/Respondent] in this action. 2. A Petition for marital [annulment/separation/dissolution] [has been/will be] filed. 3. I make this affidavit in support of my motion that the court issue the restraining order required by ORS [upon the filing of the petition in this action]. [Name], [Petitioner/Respondent] SUBSCRIBED AND SWORN to before me this day of [February, NOTARY PUBLIC FOR OREGON Drafting Family Law Documents 1 40

51 Chapter 1 A Client Has Retained You Now What? This matter coming before the court ex parte upon the motion of Petitioner, and the court finding that a petition for marital annulment, separation, or dissolution has been filed, now, therefore, pursuant to ORS IT IS HEREBY ORDERED: Petitioner and Respondent are each restrained from: 1. Canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums any policy of health insurance, homeowner or renter insurance, or automobile insurance that one party maintains to provide coverage for the other party or a minor child of the parties, or any life insurance policy that names either of the parties or a minor child of the parties as a beneficiary. 2. Changing beneficiaries or covered parties under any policy of health insurance, homeowner or renter insurance, or automobile insurance that one party maintains to provide coverage for the other party or a minor child of the parties, or any life insurance policy. 3. Transferring, encumbering, concealing or disposing of property in which the other party has an interest, in any manner, without written consent of the other party or an order of the court, except in the usual course of business or for necessities of life. This paragraph does not apply to payment by either party of: A. Attorney fees in this action; B. Real estate and income taxes; C. Mental health therapy expenses for either party or a minor child of the parties; or D. Expenses necessary to provide for the safety and welfare of a party or a minor child of the parties. 4. Making extraordinary expenditures without providing written notice and an accounting of the extraordinary expenditures to the other party. This paragraph does not Drafting Family Law Documents 1 41

52 Chapter 1 A Client Has Retained You Now What? apply to payment by either party of expenses necessary to provide for the safety and welfare of a party or a minor child of the parties. NOTICE EITHER PARTY MAY APPLY TO THE COURT FOR FURTHER TEMPORARY ORDERS, INCLUDING MODIFICATION OR REVOCATION OF THIS RESTRAINING ORDER. EITHER PARTY MAY REQUEST A HEARING ON THIS RESTRAINING ORDER BY FILING A REQUEST FOR HEARING WITH THE COURT. Dated this day of [February, 2013]. Circuit Court Judge Submitted by: [Albert A. Menashe], OSB #[77055] [GEVURTZ, MENASHE, LARSON & HOWE, P.C.] [[email protected]] Of Attorneys for Petitioner Drafting Family Law Documents 1 42

53 Chapter 1 A Client Has Retained You Now What? CERTIFICATE OF SERVICE I hereby certify that I served the foregoing TEMPORARY RESTRAINING ORDER (ORS on: [Attorney and Firm] by the following indicated method or methods: by mailing a full, true, and correct copy thereof in a sealed, first-class postageprepaid envelope, addressed to the attorney(s listed above, and deposited with the United States Postal Service at Portland, Oregon, on the date set forth below. by hand delivering a full, true, and correct copy thereof to the attorney(s listed above, on the date set forth below. by sending via overnight courier a full, true and correct copy thereof in a sealed, postage-prepaid envelope, addressed to the attorney(s listed above, on the date set forth below. by faxing a full, true, and correct copy thereof to the attorney(s at the fax number(s shown above, on the date set forth below. Dated this day of [February, 2013]. [GEVURTZ, MENASHE, LARSON & HOWE, P.C.] [Albert A. Menashe], OSB #[77055] [[email protected]] Of Attorneys for Petitioner Drafting Family Law Documents 1 43

55 Chapter 1 A Client Has Retained You Now What? Form 1-10 Acceptance of Service I,, Respondent herein, do hereby acknowledge service upon me of true copies of Summons including Notice of Statutory Restraining Order Preventing the Dissipation of Assets in Domestic Relations Actions, Petition for Dissolution of Marriage, Notice Re ORS , Notice to Parties in a Suit for Marriage Dissolution or Legal Separation Re Continuation of Health Coverage, Trial Court Administrator's Notice of Parenting Classes, Record of Dissolution, Certificate of Residency, Certificate Re Pending Child Support Proceedings, Notice of Filing Confidential Information Form (CIF, Notice of Dismissal Date, Request for Mediation and Order, Motion and Order to Appear and Show Cause with Uniform Support Declaration, and Request for Production of Documents in the above-captioned proceeding, on the day of, [2013], in the County of, State of Oregon. I waive any and all deficiencies, defects, or irregularities in the method or manner of service. STATE OF OREGON ss. County of [Name], Respondent On this day of, [2013], personally appeared before me the above-named and acknowledged the foregoing instrument to be [his/her] voluntary act and deed. ` NOTARY PUBLIC FOR OREGON Drafting Family Law Documents 1 45

57 Chapter 1 A Client Has Retained You Now What? Form 1-11 Letter to Opposing Party has retained this firm to represent him/her in an action to dissolve your marriage. I have filed a Petition for Dissolution of Marriage on [his/her] behalf. Enclosed are true copies of the following documents: 1. Summons including Notice of Statutory Restraining Order Preventing the Dissipation of Assets in Domestic Relations Actions; 2. Petition for Dissolution of Marriage; 3. Notice Re ORS ; 4. Notice to Parties in a Suit for Marriage Dissolution or Legal Separation Re Continuation of Health Coverage; 5. Trial Court Administrator's Notice of Parenting Classes.; 6. Record of Dissolution.; 7. Certificate Re Pending Child Support Proceedings; 8. Notice of Filing Confidential Information Forms for Petitioner and Respondent; 9. Notice of Dismissal Date; 10. Request for Mediation and Order; 11. Motion, Declaration, and Order to Appear and Show Cause with Uniform Support Declaration; and 12. Request for Production of Documents. These documents have legal significance. If you have questions, you should consult with an attorney of your choice. I have also enclosed the original and one copy of an Acceptance of Service form. By signing this form, you are not agreeing to the allegations in the Petition, but only acknowledging you have received the documents listed. It begins the 30-day period referred to in the Summons. If you will be representing yourself in this matter, please sign and return the Acceptance of Service to my office within the next 10 days. If you are or will be represented by an attorney, please do not return the Acceptance of Service without conferring with him or her. Please ask your lawyer to contact me at his or her earliest convenience. If I do not receive the Acceptance of Service or hear from an attorney representing you within 10 days, I will arrange for you to be personally served. Drafting Family Law Documents 1 47

59 Chapter 1 A Client Has Retained You Now What? Form 1-12 Notice of Intent to Move for DefauLT Pursuant to ORCP 69A, you are notified that Petitioner intends to submit an Order of Default after the expiration of ten days from the date of this notice. Drafting Family Law Documents 1 49

60 Chapter 1 A Client Has Retained You Now What? CERTIFICATE OF SERVICE I hereby certify that I served the foregoing NOTICE OF INTENT TO MOVE FOR DEFAULT ORDER on: [Attorney and Firm] by the following indicated method or methods: by mailing a full, true, and correct copy thereof in a sealed, firstclass postage-prepaid envelope, addressed to the attorney(s listed above, and deposited with the United States Postal Service at [Portland], Oregon, on the date set forth below. by hand delivering a full, true, and correct copy thereof to the attorney(s listed above, on the date set forth below. by sending via overnight courier a full, true and correct copy thereof in a sealed, postage-prepaid envelope, addressed to the attorney(s listed above, on the date set forth below. by faxing a full, true, and correct copy thereof to the attorney(s at the fax number(s shown above, on the date set forth below. Drafting Family Law Documents 1 50

61 Chapter 1 A Client Has Retained You Now What? Form 1-13 DefauLT, Motion, Order, and Declaration I, [PetitionerName], under penalty of perjury hereby declare: 1. I am the Petitioner in the above-entitled matter. 2. Respondent was served with the Summons and Petition for on, has failed to plead or otherwise defend, and the time to file a Response has expired. [Option 1] 3. Respondent has filed no appearance in this action and has not provided written notice of intent to file an appearance. [Option 2] 3. Respondent filed an appearance in this action. [She/He] was served on with notification of my intent to apply for an Order of Default. [She/He] still has failed to plead or otherwise defend. [Option 3] 3. Respondent provided written notice of intent to file an appearance in this action. [She/He] was served on with my intent to apply for an order of default. [She/he] has failed to plead or otherwise defend in this action. [Option 4] 3. Respondent has waived the right to file an answer or otherwise respond. 4. Respondent [is/is not] now, and was not at the time of service of the Summons and Petition, in the active military service of the United States. Attached as Exhibit 1 is a Defense Manpower Data Center Report confirming this fact, which was obtained from 5. To the best of my knowledge, Respondent is not now and was not at the time of service of the Summons and Petition incapacitated, a minor, a protected person, or a Respondent as defined in ORS Drafting Family Law Documents 1 51

62 Chapter 1 A Client Has Retained You Now What? 6. I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury. Dated this day of [February, 2013]. [Name], Petitioner Drafting Family Law Documents 1 52

63 Chapter 1 A Client Has Retained You Now What? Based on the attached Affidavit, Petitioner requests that this court grant an Order entering the default of Respondent for the reason that Respondent was served with the Summons, Petition for Dissolution, and other documents required by law in the County of, State of Oregon, on, 2013], and has not made an appearance within the time prescribed by law. STATEMENT OF POINTS AND AUTHORITIES ORCP 69 requires the court or clerk to enter an Order of Default on a showing by Affidavit or otherwise that a party against whom a Judgment is sought has been served with Summons or is otherwise subject to the jurisdiction of the court and has failed to plead or otherwise defend within the time set by law. Dated this day of [February, 2013]. [GEVURTZ, MENASHE, LARSON & HOWE, P.C.] [Albert A. Menashe], OSB #[77055] [[email protected]] Of Attorneys for Petitioner This motion is: ORDER ALLOWED. DENIED. Dated this day of [February, 2013]. Circuit Court Judge Submitted by: Albert A. Menashe, OSB# GEVURTZ, MENASHE, LARSON & HOWE, P.C. [email protected] Of Attorneys for Petitioner Drafting Family Law Documents 1 53

64 Chapter 1 A Client Has Retained You Now What? CERTIFICATE OF SERVICE I hereby certify that I served the foregoing on: [Attorney and Firm] by the following indicated method or methods: by mailing a full, true, and correct copy thereof in a sealed, first-class postageprepaid envelope, addressed to the individual(s listed above, and deposited with the United States Postal Service at Portland, Oregon, on the date set forth below. by hand delivering a full, true, and correct copy thereof to the individual(s listed above, on the date set forth below. by sending via overnight courier a full, true and correct copy thereof in a sealed, postage-prepaid envelope, addressed to the individual(s listed above, on the date set forth below. by faxing a full, true, and correct copy thereof to the individual(s at the fax number(s shown above, on the date set forth below. by ing a full, true, and correct copy thereof to the individual(s at the e- mail address(s shown above, on the date set forth below. Dated this day of [February, 2013]. [GEVURTZ, MENASHE, LARSON & HOWE, P.C.] [Albert A. Menashe], OSB #[77055] [[email protected]] Of Attorneys for Petitioner Drafting Family Law Documents 1 54

65 Chapter 1 A Client Has Retained You Now What? Form 1-14 Waiver of Response Period (30-Day Motion and Order I, [Petitioner s Name], state: 1. I am the Petitioner in the above matter. I make this Affidavit in support of Respondent's and my joint motion to waive the remainder of the 30-day and 90-day waiting periods pursuant to ORS Respondent and I have been married for years. We have executed a Stipulated General Judgment of Dissolution of Marriage. We both would very much like to put this matter behind us for personal reasons, and therefore it would benefit no public or private interest to prolong this matter. I therefore ask that the court to waive the remainder of the 30-day and 90-day waiting periods. 3. The emergency is. 4. The necessity is. 5. Immediate action is mandated to protect a parties interest because. 6. I hereby declare that the above statement is true to the best of my knowledge and belief and that I understand it is made for use as evidence in court and is subject to penalty for perjury. DATED this day of February, [Petitioner s Name], Petitioner Drafting Family Law Documents 1 55

67 Chapter 1 A Client Has Retained You Now What? Form 1-15 Waiver of Response Period (30-Day Declaration Pursuant to ORS , Petitioner s affidavit, and the records and files, the parties jointly move the court for an order waiving the remainder of the 30-day period in which Respondent has a right to appear or file such other appropriate pleading so that the court can enter immediately a General Judgment of Dissolution of Marriage. DATED: [Petitioner Name], Petitioner DATED: [Respondent Name], Respondent ORDER IT IS SO ORDERED this day of, 2013]. Submitted by: CIRCUIT COURT JUDGE [GEVURTZ, MENASHE, LARSON & HOWE, P.C.] Of Attorneys for Drafting Family Law Documents 1 57

69 Chapter 2 Discovery in Family Law Cases Kristin W. Eaton Yates Matthews & Eaton PC Portland, Oregon Contents I. Oregon Revised Statutes A. ORS B. ORS II. Oregon Rules of Civil Procedure A. Depositions (ORCP B. Depositions upon Written Questions (ORCP C. Production of Documents and Things; Entry upon Land for Inspection and Other Purposes (ORCP D. Physical and Mental Examination of Persons (ORCP E. Requests for Admission (ORCP F. Subpoenas (ORCP G. Motion to Compel (ORCP Ill. Uniform Trial Court Rules A. Proposed Distribution B. Uniform Support Declaration C. Timing IV. Other Means of Obtaining Evidence and Information A. Court Databases B. Department of Motor Vehicles C. Secretary of State D. Zillow.com E. Comparative Market Analyses F. Trios G. Facebook, Twitter, Other Social Media Appendix ORS Forms 2-1. Certificate of Compliance (ORS Notice of Deposition Subpoena Duces Tecum Request for Production of Documents Response to Request for Production of Documents Order Appointing Custody and Parenting Time Evaluator Request for Admissions Subpoena to Deposition Subpoena to Trial Qualified Protective Order Motion to Compel Proposed Distribution of Assets and Liabilities Uniform Support Declaration

70 Chapter 2 Discovery in Family Law Cases Drafting Family Law Documents 2 ii

71 Chapter 2 Discovery in Family Law Cases Discovery is critical in family law cases and is required by the Oregon Revised Statutes (ORS, the Oregon Rules of Civil Procedure (ORCP, and the Uniform Trial Court Rules (UTCR. Outside of the discovery rules, there are other means of obtaining information, some of which are publicly available and some by subscription. I. Oregon Revised Statutes A. ORS Parties to a legal separation or marital dissolution are mandated to provide financial disclosure if served with a copy of ORS See Appendix A. Tip: A prudent attorney will often include a copy of ORS , attached to the petition or response, when serving the initial pleadings in a case. Then the attorney can supplement with more detailed requests for information through other channels, such as requests for documents, depositions, and subpoenas. 1. Time to Respond. When a party is served with a copy of ORS , that party must provide the responsive documents to the other party within 30 days. ORS (2(a. However, if there is a support hearing scheduled for fewer than 30 days after service, then the responding party must provide to the other party, at least three days before the hearing: (a three years of tax returns; (b if no tax returns have been filed for the previous calendar year, copies of Forms W-2, year-end payroll statements, interest and dividend statements, and all other records of income during that year; (c income records for the current year; and (d all financial statements for the previous two years. ORS (2(b. Note: To ensure proof of compliance, it is a good practice to file a certificate of compliance (ORS and submit a copy to the opposing party. A sample certificate of compliance is attached hereto as Form Failure to Respond. If a party fails to respond and produce the documents required under ORS , the party seeking discovery of those financial records may file a motion to compel their production. If the motion is granted and the court makes a finding of willful noncompliance with the production requirements, the court shall award attorney fees to the moving party. ORS (3. If there is a support hearing scheduled, and the financial documents required under ORS have not been produced, the court may postpone the hearing if requested by the complying party. Such a postponement can have a significant effect on the applicable date for support. If the obligor has failed to produce documents, the applicable date for support will be retroactive to the date of the initial hearing. ORS (4(a If the obligee has failed to produce documents, the applicable date for support will be prospective only, from the new hearing date. ORS (4(b. B. ORS Although not expressly a discovery statute, ORS should keep all attorneys mindful of the need to make full and fair disclosure of all assets and liabilities. In the event one party learns, after entry of the judgment, that assets exist that were not disclosed in an annulment, marital dissolution, or legal separation, that party can seek to reopen the case. 1. Inadvertent Omission. If an asset was inadvertently omitted, the court has the ability to distribute the omitted asset as is just and proper in all of the circumstances. ORS (2. 2. Intentional Omission. If an asset was intentionally omitted, the repercussions can be substantial. In that circumstance, the court can: (a divide the appreciated value of the asset; (b order a forfeiture of the omitted asset to the injured party; (c enter a compensatory judgment in favor of the injured party; (d enter a judgment for punitive damages; or (e make any other distribution that is Drafting Family Law Documents 2 1

72 Chapter 2 Discovery in Family Law Cases just and proper in all the circumstances. ORS (3. These remedies are in addition to a potential award of attorney fees. ORS (5. 3. Time Limitations. To address the omission of assets, a motion must be filed within two years after the discovery of the omitted asset. If the omission was inadvertent, then the action must be filed no later than three years after entry of the judgment. ORS (5(a. If the omission was by intentional concealment, then the action must be filed no later than 10 years after the entry of the judgment. ORS (5(b. II. Oregon Rules of Civil Procedure The Oregon Rules of Civil Procedure provide several means of obtaining discovery. Pursuant to ORCP 36, the methods of discovery are: depositions upon oral examination or written questions; production of documents or things, or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. ORCP 36A. There is additional authority for discovery, in the form of a subpoena, at ORCP 55. In general, a party to litigation may inquire regarding any nonprivileged matter that is relevant to a claim or defense of the party seeking discovery or to the claim or defense of any other party. ORCP 36B(l. Even if the information sought will be inadmissible at trial, it is discoverable if it is relevant and it appears to be reasonably calculated to lead to the discovery of admissible evidence. Id. Since discovery could sometimes lead to annoyance, embarrassment, oppression, or undue burden and expense, the court has the authority, upon the motion of a party or other person from whom discovery is sought, to enter a protective order. ORCP 36C. In the event such a motion is filed, the court may order: (1 that the discovery not be had; (2 that the discovery be had only on specified terms and conditions; (3 that the discovery be had only by a method of discovery other than that selected by the requesting party; (4 that certain matters not be inquired into, or limiting the scope of discovery; (5 that the discovery be conducted with only those persons present who are designated by the court; (6 that a deposition, after being sealed, be opened only by court order; (7 that a trade secret or other confidential research, development, or commercial information not be disclosed or is disclosed in only a designated manner; (8 that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or (9 that to prevent hardship, the party requesting discovery pay to the other party reasonable expenses incurred in attending the deposition or otherwise responding to the request for discovery. ORCP 36C. The court may, of course, deny a motion for a protective order. A. Depositions (ORCP 39 Depositions can be taken at any time after the service of the summons or the appearance of the responding party. However, leave of court is required if the petitioner seeks to take a deposition prior to the expiration of the response period. ORCP 39A. 1. Notice. A party seeking to depose any person upon oral examination must give reasonable written notice to all parties, stating the time and place of the deposition and the name and address of each person to be examined. ORCP 39C(1. If the party seeking discovery is serving a subpoena duces tecum on the person to be examined, the notice of the deposition must also have the subpoena duces tecum attached. Id. Samples of a notice of deposition and subpoena duces tecum are attached hereto as Forms 2-2 and 2-3, respectively. Note: If the person seeking discovery wishes to record the deposition by other than stenographic means, then the notice must designate the manner of recording and preserving the deposition. ORCP 39C(4. Drafting Family Law Documents 2 2

73 Chapter 2 Discovery in Family Law Cases 2. Deposition by Telephone. Parties may stipulate, or the court may order, that a deposition be taken by telephone. In this event, the order must designate the conditions for the testimony, the manner of recording, and other provisions to assure accuracy of the recorded testimony. ORCP 39C(7. 3. Objections. If a party defending a deposition has objections, the objections must be noted on the record and shall be stated concisely and in a nonargumentative or nonsuggestive manner. Evidence is taken subject to the objection, except that the witness can be instructed to not answer the question to preserve a privilege, to enforce a court-ordered limitation on the examination, or when necessary to seek court assistance. ORCP 39D(3. If a party or person subpoenaed for deposition, who has received appropriate notice, fails to appear for such deposition, the court shall require the party failing to act, or the attorney advising such party, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order. ORCP 46D. 4. Court Assistance. At any time during a deposition, a party may submit a motion to the court for assistance, alleging that the deposition is being conducted or hindered in bad faith, or in a manner inconsistent with court rules, or in a manner that is embarrassing, annoying, or oppressive. ORCP 39E. 5. Submission to Witness. If the deposition is recorded by stenographic means, the witness may request that the transcription be submitted to the witness for examination and correction, if necessary. Such a request must take place at the time of the deposition, or leave of court will be required at any other time prior to trial. ORCP 39F(l. B. Depositions upon Written Questions (ORCP 40 Oregon state trial courts do not have a procedure for interrogatories, which are provided for in other state and federal courts. The Oregon Rules of Civil Procedure do have a procedure for depositions upon written questions, although this manner of discovery is rarely utilized. ORCP 40. In order to take depositions upon written questions, the parties to the case must stipulate or obtain leave of court for good cause shown. Id. Thereafter, a party may take the testimony of any person, including a party, in this manner. The deposition upon written questions must be served upon every other party to the case and shall contain a notice of the name and address of the person required to answer. Id. C. Production of Documents and Things; Entry upon Land for Inspection and Other Purposes (ORCP 43 Any party to a civil legal action may submit to the other a request for production of documents and things or request to enter upon land for inspection and other purposes for issues that are within the scope of litigation and that are in the possession, custody, or control of the party upon whom the request is served. ORCP 43A. A sample request for production of documents is attached hereto as Form Procedure. Any request under ORCP 43 must identify any items requested, must specify a reasonable time for compliance, and must be served after commencement of the action and service of the summons. ORCP 43B(1. A request to the responding party cannot require production or compliance before the expiration of 45 days after service of the summons, unless the court specifies a shorter time. ORCP 43B(2. Other requests under ORCP 43 are subject to a 30-day response or compliance requirement. Id. Drafting Family Law Documents 2 3

74 Chapter 2 Discovery in Family Law Cases 2. Response. When responding to a request under ORCP 43, it is important to raise any objections in the initial response. A formal response must also indicate that, except as specifically objected to, the requested item is provided or will be provided or made available within the time allowed. Likewise, all responsive items must be organized and labeled to correspond with the categories in the request. ORCP 43B(2(a. If an item is not within the responding party s possession or control, then he or she must indicate that there has been a reasonable effort to obtain it, or that there is no such item within his or her control, unless specifically objected to. ORCP 43B(2(b. Failure to object waives the objection. However, an objection does not relieve the responding party of the obligation to comply with portions of a request for which there is no objection. ORCP 43B(3. A sample response to request for production of documents is attached hereto as Form Continuing Duty. A party served with a request under ORCP 43 is under a continuing duty to comply during the pendency of the action and must promptly produce any requested item which comes into the party s possession, custody, or control. ORCP 43B(4. This is important in family law cases, where there may be new statements each month for bank accounts, retirement accounts, investment accounts, credit cards, and other assets and liabilities. 4. Electronically Stored Information. If a request pertains to electronically stored information, the request must specify the form in which the information must be produced by the responding party. If there is no such specification, then the responding party must produce the information in the form in which it is ordinarily maintained or in a reasonably useful form. ORCP 43E. Note: It is becoming increasingly common to receive and produce discovery electronically. If an attorney is not technologically savvy, it is critical that he or she specify the manner in which the discovery should be produced, or there may be difficulty in accessing the electronically provided data. D. Physical and Mental Examination of Persons (ORCP 44 When the mental or physical condition or the blood relationship of a party is in controversy, the court may order, upon good cause shown, that party to submit to a physical or mental examination by a physician or a mental examination by a psychologist. Such an order must specify the time, place, manner, conditions, and scope of the examination, specify the person(s by whom it is to be made, and provide notice to the person to be examined and all parties. ORCP 44A. 1. Right to Report. The person examined is entitled, upon his or her request to the moving party, to receive a copy of the resulting report of the examination, unless the party is unable to obtain it. ORCP 44B. If a report is requested, the party who initially moved for the examination shall request the examiner to prepare the report and shall pay the reasonable costs and expenses, including the examiner s fee, necessary to prepare such a report. ORCP 440(1. 2. Failure to Produce Report. If the examined person requests a report and the examiner or moving party fail to provide such report within a reasonable time, the court may require the examiner to appear for deposition or may exclude the examiner s testimony if offered at trial. ORCP 440(2. Note: Pursuant to ORS , parties to a case involving child custody and parenting time can obtain physical, psychological, psychiatric, or mental health examinations. Such an evaluation can be obtained by the court on its own motion or upon the motion of a party. A sample of an order appointing a custody and parenting time evaluator is attached hereto as Form 2-6. E. requests for Admission (ORCP 45 Once a case has commenced, a party is allowed to serve upon the other party a request for admission upon the other party or parties, inquiring as to the truth of relevant, discoverable matters, Drafting Family Law Documents 2 4

75 Chapter 2 Discovery in Family Law Cases including facts or opinions of fact, the application of law to fact, or the genuineness of any relevant documents or physical objects described in or exhibited in the request. ORCP 45A. Each matter for which an admission is sought must be separately stated. A sample request for admissions is attached hereto as Form 2-7. If a party fails to admit the genuineness of any document or truth of any matter and the party requesting admissions thereafter proves the matter, the party requesting admissions may apply to the court for an order requiring the other party to pay the requesting party s reasonable expenses incurred in making that proof, including reasonable attorney fees. The court shall make the order unless it finds that the request was held objectionable, or the admission sought was of no substantial importance, or the party failing to admit had a reasonable ground to believe the party might prevail on the matter, or there was other good reason for the failure to admit. ORCP 46C. 1. Procedure. A request for admissions may be served on the party from whom admissions are sought any time after the service of the summons. ORCP 45A. The request must also contain the following at the start of the requested admissions: FAILURE TO SERVE A WRITTEN ANSWER OR OBJECTION WITHIN THE TIME ALLOWED BY ORCP 45B WILL RESULT IN ADMISSION OF THE FOLLOWING REQUESTS. 2. Response. Unless there is a response or objection filed within 30 days after service of the request, or within such shorter/longer time as the court may allow, the requested admissions will be deemed admitted. To prevent unintentional admissions, the party receiving such a request must serve upon the requesting party a written answer or objection addressed to the matter, signed by the party or his or her attorney. ORCP 45B. Like a request for documents, a party responding to a petition cannot be made to respond any earlier than 45 days after the service of the summons, unless the court shortens the time. Id. 3. Objections. If a party objects to the requested admissions, he or she must give the reasons for the objection. The answer must specifically deny the matter set forth in detail and the reasons why the answering party cannot truthfully admit or deny any matter. ORCP Motion to Determine Sufficiency. When a party serving requests for admissions is not satisfied with an answer that fails to admit or deny a requested admission, that party may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it must order that the responding party serve an answer. ORCP 45C. 5. Effect of Admission. Once a matter is admitted under ORCP 45, it is conclusively established unless the court permits withdrawal or amendment of the admission. An admission under ORCP 45 is an admission only for purposes of that pending case, and not for any other purpose, and cannot be used against the party in any other action. ORCP 45D. 6. Form and Number of Admissions. A request for admissions must contain sufficient space after each requested admission as is reasonably calculated to enable the answering party to insert the admissions, denials, or objections within the space. ORCP 45E. Although a party may serve more than one set of requested admissions upon an adverse party, the total number of requests shall not exceed 30, unless the court otherwise orders for good cause shown. ORCP 45F. F. Subpoenas (ORCP 55 A subpoena is a writ or order that requires the attendance of a person at a particular time and place to testify as a witness on behalf of a particular party to a case. ORCP 55A. When under the authority of a subpoena, the person subpoenaed must remain until the testimony is closed, unless sooner discharged. Id. Sample subpoenas to deposition and trial are attached hereto as Forms 2-8 and 2-9, respectively. Drafting Family Law Documents 2 5

76 Chapter 2 Discovery in Family Law Cases A subpoena can require the person to bring with him or her documents, books, or other tangible things, and is referred to as a subpoena duces tecum. A command to produce books, papers, documents, or tangible things can be joined with a command to appear at trial or hearing or at deposition. Likewise, a command to produce such items before trial can be issued separately from a command to appear at trial, hearing, or deposition. ORCP 55B. A sample subpoena duces tecum is attached hereto as Form Objections. The person subpoenaed to produce documents, papers, books, or intangible things may object within 14 days after service, or before the time specified for compliance if the time is less than 14 days after service. ORCP 55B. Whenever objection is made, the person serving the subpoena is not entitled to inspect and copy the requested materials except pursuant to court order. Id. Upon receipt of an objection, the requesting party may provide notice to the person requested to produce and move for an order to compel production of the requested item(s. Thereafter, the court may (a quash or modify the subpoena, if it is unreasonable or oppressive, or (b condition denial of the motion upon the advancement of costs. ORCP 55B. 2. Issuance. A subpoena may be issued to require attendance at court, or for deposition, or for the production of documents. It can be issued in blank by the clerk of court or by an attorney of record for the party to the action who is seeking the appearance of the witness. ORCP 55C(1. 3. Service. Service of a subpoena must be made by a person over the age of 18 and is made by delivering a copy to the witness personally and simultaneously giving or offering the witness the fees to which the witness is entitled to for travel to/from the place designated and, whether or not personal attendance is required, one day s attendance fees. If a witness is under 14 years of age, service must be made upon his or her parent, guardian, or guardian ad litem. Copies of subpoenas for documents, papers, books, and tangible things must be served on all parties to the case at least seven days before being served on the person from whom such items are sought Thereafter, the person requested to produce such items must be served at least 14 days in advance of the date for production. However, the court may order a shorter period for either the 7- or 14-day timeline. ORCP 55D(1. Note: Service can be made by a party. The proof of service does not need to certify that the server is not a party in the action, an attorney for a party in the action, or an officer, director, or employee of a party in the action. ORCP 55D(5. a. Service on Law Enforcement. When serving a police officer as a result of the employment of the police officer, the subpoena cannot command appearance at trial unless it is delivered at least 10 days before the date of the officer s attendance at trial, the officer continues to be employed as a police officer at the same agency, and the officer is present within the state at the time of service. ORCP 55D(2. b. Service by Mail. It is permissible to serve a subpoena by mail only in limited circumstances. If the serving attorney certifies on the return of service that the attorney or his or her agent had personal or telephone contact with the witness, and the witness indicated a willingness to appear at trial, if subpoenaed, then service by mail is permissible, so long as: (i the attorney or his or her agent made arrangements for the payment of the witness fees and mileage; and (ii the subpoena was mailed to the witness more than 10 days before trial by certified mail or some other designation of mail that provides a receipt for the mail signed by the recipient, and the attorney received the return receipt at least three days before trial. ORCP 55D(3. If the subpoena pertains only to the production of documents, papers, books, or tangible items, but not personal appearance, then it may be served by mail. ORCP 55D(4. 4. Production Without Examination or Deposition. A party who issues a subpoena may command the person who is subpoenaed to produce books, papers, documents, or tangible items (except personally identifiable health information by mail or otherwise, at a time and place listed in Drafting Family Law Documents 2 6

77 Chapter 2 Discovery in Family Law Cases the subpoena, without commanding inspection or deposition. In that instance, the responding person produces the copies in the manner specified and certifies that the copies are true copies of all of the responsive items to the subpoena. ORCP 55F(3. 5. Failure to Comply. Disobedience to a subpoena can be punished as contempt. If the witness is a party, that party s complaint, answer, or reply may be stricken. ORCP 55G. 6. Personally Identifiable Health Information. Personally or individually identifiable health information is subject to subpoena only as provided in ORCP 55H. An attorney seeking to obtain such health information should be aware that other state and federal laws may otherwise restrict and limit access to protected records. Service of a subpoena to the custodian or records may be served by first class mail. ORCP 55H(2(e. a. Qualified Protective Order. When issuing a subpoena for individually identifiable health information, a party must first obtain a qualified protective order or must attach and affidavit or declaration demonstrating that the party: (i has made a good faith attempt to provide written notice to the individual or his or her attorney that the individual or his or her attorney had 14 days from the date of the notice to object; (ii provided the proposed subpoena and sufficient information about the litigation in which the individually identifiable health information was being requested to permit the individual or his or her attorney to object; or (iii did not object within 14 days, or if objections were made, they were resolved. The requesting party must also certify that, upon request, he or she will permit the patient or his or her representative to inspect and copy the records received. ORCP 55H(2(a. A sample qualified protective order is attached hereto as Form b. Compliance. Whenever a subpoena is served upon a custodian of individually identifiable health information in an action in which the entity or person is not a party, and the subpoena requires all or part of the records of care or treatment of an individual, the custodian must deliver by mail or otherwise a true and correct copy of the records responsive to the subpoena within five days after receipt. ORCP 55H(2(c. Delivery must be accompanied by an affidavit or declaration that the responding person is the duly authorized custodian of the records and has authority to certify them, that the copy is a true copy of all responsive records, and that the records were prepared by the personnel of the entity, acting in the ordinary course of the entity s business, at or near the time of the act, condition, or event described or referred to therein. ORCP 55H(3. The copy of the records must be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name of the witness, and date of the subpoena are clearly marked. The sealed envelope or wrapper shall be enclosed in an outer envelope and sealed, and the outer envelope shall be addressed to the location to which the documents must be produced. ORCP 55H(2(c. Any party to the proceeding may inspect the records provided and/or request a complete copy of the records, at his or her own expense. ORCP 55H(2(c. c. Personal Attendance of Custodian of Records. The personal attendance of the custodian of records and production of the original documents is required only if the subpoena duces tecum contains the following statement: The personal attendance of a custodian of records and the production of the original records is required by this subpoena. The procedure authorized pursuant to Oregon Rule of Civil Procedure 55H(2 shall not be deemed sufficient compliance with this subpoena. ORCP 55H(4(a. G. Motion to Compel (ORCP 46 Whenever a party has requested discovery through any permissible method and the responding person has failed to produce such information, the requesting party may file a motion for an order compelling discovery. ORCP 46A. A sample motion to compel is attached hereto as Form Drafting Family Law Documents 2 7

78 Chapter 2 Discovery in Family Law Cases 1. Content. Prior to filing a motion to compel discovery, the requesting party must make a good faith effort to confer with the other parties concerning the issues in dispute. Failure to do so, and to certify such good faith effort to confer, requires the court to deny the motion. UTCR 5.010(2 and (3. Any motion to compel must specifically identify the items the requesting party seeks to discover. ORCP 46A(2. Even if the court denies the motion in whole or in part, it may still enter such protective order as it would have been authorized to issue on a motion made under ORCP 36C. 2. Unclear Answers. The courts are directed to treat evasive and incomplete answers as failures to answer. ORCP 46A(3. 3. Attorney Fees. If the motion to compel is granted, the court has authority to award to the moving party the expenses incurred in obtaining the order, including attorney fees, unless the court determines that the opposition to the motion was substantially justified or that other circumstances would make such an award unjust. ORCP 46A(4. Likewise, if the motion is denied, the court is authorized to award the party opposing the motion reasonable attorney fees for the expenses incurred in opposing the motion, unless the court finds that the making of the motion was substantially justified or that other circumstances would make such an award unjust. 4. Failure to Comply with Order Compelling Discovery. If an ordered person fails to comply with an order compelling discovery, such failure may be considered a contempt of court. ORCP 46B(1. The court may also: (a deem as established any designated facts for the purposes of the action in accordance with the claim of the party who had to obtain the order; (b prohibit the disobedient party from supporting or opposing the designated claims or defenses, or from introducing designated matters into evidence; (c strike out pleadings or parts thereof, or stay further proceedings, until the order is obeyed, or dismiss the action or any part thereof, or render a judgment of default against the disobedient party. ORCP 46B(2. The court shall require the party failing to obey the court order, or the attorney advising such party, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award unjust. ORCP 46B(3. Ill. Uniform Trial Court Rules The Uniform Trial Court Rules provide additional guidance for discovery in family law matters in UTCR A. Proposed Distribution When a dissolution, separation, or annulment action is contested, each party is required to file a statement listing all marital and other assets and liabilities, the claimed value for each asset and liability, and the proposed distribution of the assets and liabilities. The parties are permitted to file a joint statement containing this information in lieu of filing separate statements. UTCR 8.010(4. A sample proposed distribution is attached hereto as Form B. uniform Support Declaration In any case wherein child support or spousal support is contested, each party is required to file a uniform support declaration. UTCR 8.010(5. A uniform support declaration was formerly referred to as a uniform support affidavit, and it contains slightly different information that is presented in a different manner. A sample uniform support declaration is attached hereto as Form Guideline Child Support Only. If neither party seeks spousal support and neither seeks a deviation from the uniform child support guidelines, then the parties must each complete the uniform support declaration and provide the required attachments, but they are not required to complete the schedules. Drafting Family Law Documents 2 8

79 Chapter 2 Discovery in Family Law Cases 2. Spousal Support and Deviations to Child Support. If spousal support, or a deviation to the uniform child support guidelines, is at issue, then each party must complete the uniform support declaration and all schedules, as well as providing all referenced attachments. C. Timing The proposed distribution and uniform support declaration must be filed and served at the time designated by the relevant supplementary local rule or, if there is no supplementary local rule setting forth a timeline, no less than 14 days before the hearing unless both parties stipulate otherwise. In any event, these documents must be filed and served prior to the beginning of trial. UTCR 8.010(7. IV. Other Means of Obtaining Evidence and Information There are a lot of places a lawyer can obtain information and evidence that will assist the client in a family law case. Many of these sources are publicly available, while others are available only by subscription. Some of the more commonly utilized sources will be addressed. A. Court Databases The court databases can be a wealth of information. Information can be obtained about bankruptcy filings, previous criminal actions, domestic abuse cases, and other previous litigation, including previous family law matters. 1. Oregon Judicial Information Network (OJIN and ecourt. All cases filed in the Oregon state courts for civil and criminal court that are not sealed are available on the Oregon Judicial Information Network (OJIN and/or ecourt. (For example, juvenile court and adoption proceedings are sealed and are not accessible on OJIN. Previously, this information was available only on OJIN. However, several counties are now piloting the ecourt program, which contains essentially the same information but presented through a more updated technology that will ultimately allow practitioners to file documents with the court electronically. Current counties piloting the ecourt program are Crook, Jefferson, Linn, and Yamhill. OJIN and ecourt are available by subscription only at this point in time. Practice Tip: In any case involving child custody, it is imperative that the attorney review OJIN for all adults involved with the child. If there is a strong history of violence, drug use, or other activity, the attorney is going to need that information prior to entering the courtroom. Information from OJIN can help an attorney identify potential witnesses, provide information on finances, locate former spouses, and provide necessary information, like dates of birth and driver s license numbers. 2. PACER. PACER is the federal equivalent of OJIN and allows subscribers to view information on cases in federal courts, including bankruptcy court. B. Department of Motor Vehicles The Oregon Department of Motor Vehicles database is available for searches for subscribers. This allows subscribers to identify current addresses of record, if they have a driver s license or license plate number. Subscribers can obtain vehicle identification numbers, driver s license numbers, and other information that can be useful in a divorce. C. Secretary of State The Oregon Secretary of State website ( provides information that is helpful for the service of subpoenas and other purposes. Drafting Family Law Documents 2 9

80 Chapter 2 Discovery in Family Law Cases 1. Business Search. All businesses doing business in Oregon should have listings for their formal business name, principal place of business, mailing address, president, secretary, and registered agent. To serve a business entity, the service must be upon the registered agent. 2. Uniform Commercial Code Search. If any party has a security interest or a loan secured by business or other assets (other than real property or a personal vehicle, then there could be a Uniform Commercial Code filing for the security interest, which could provide valuable information about the lender, debtor, and other information that could give rise to further discovery. Often, the security documents are available online as scanned images. D. Zillow.com Although it should not be relied upon to the exclusion of a comparative market analysis or appraisal, zillow.com can provide approximate values and aerial views of a particular property based upon the street address. This can be useful in settlement negotiations or to see trends in valuation. E. Comparative Market Analyses Often, parties to a divorce do not want to spend the money on an appraisal if they can reach agreement as to the value of any real property they may own. A good solution is to have each party obtain a comparative market analysis from a licensed realtor, which is typically a no-charge customer service provided by realtors. This can also assist the parties in preparing to market a property for sale. F. Trios In judgments that distribute real property, the attorney is required to include the legal description. Legal descriptions for property located in Oregon can be obtained at no charge by requesting a trio from the customer service department of a title insurance company. Chicago Title Company provides a trio (most recent deed, plat map, and metroscan tax information at no charge with an request to [email protected], and they are pretty efficient usually providing a trio via PDF file within 30 minutes. G. Facebook, Twitter, Other Social Media When socializing, a lot of people lack appropriate filters. This can be useful, particularly in custody and parenting time cases, and for other purposes, too. People post photographs and comments that can be used to rebut and impeach testimony or sometimes to bolster it. Practice Tip: It is a good idea for clients to set their social media accounts to private and screen their friends to be certain that opposing parties cannot take postings out of context, if a client is engaging in social media. It is better to have clients refrain from the use of social media entirely during the pendency of a case. Note: Early in the case, it is a good idea to have the client print his or her Facebook wall and that of the opposing party, as well as any stream of posts to other social media. This can preserve evidence that might be removed at a later date. Drafting Family Law Documents 2 10

81 Chapter 2 Discovery in Family Law Cases Appendix ORS Documents parties must furnish to each other; effect of failure to furnish. (1 If served with a copy of this section as provided in ORS , each party in a suit for legal separation or for dissolution shall provide to the other party copies of the following documents in their possession or control: (a All federal and state income tax returns filed by either party for the last three calendar years; (b If income tax returns for the last calendar year have not been filed, all W-2 statements, year-end payroll statements, interest and dividend statements and all other records of income earned or received by either party during the last calendar year; (c All records showing any income earned or received by either party for the current calendar year; (d All financial statements, statements of net worth and credit card and loan applications prepared by or for either party during the last two calendar years; (e All documents such as deeds, real estate contracts, appraisals and most recent statements of assessed value relating to real property in which either party has any interest; (f All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due; (g Certificates of title or registrations of all automobiles, motor vehicles, boats or other personal property registered in either party s name or in which either party has any interest; (h Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has any interest; (i The most recent statement describing any retirement plan, IRA pension plan, profitsharing plan, stock option plan or deferred compensation plan in which either party has any interest; and (j All financial institution or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently open or closed. (2 (a Except as otherwise provided in paragraph (b of this subsection, the party shall provide the information listed in subsection (1 of this section to the other party no later than 30 days after service of a copy of this section. (b If a support hearing is pending fewer than 30 days after service of a copy of this section on either party, the party upon whom a copy of this section is served shall provide the information listed in subsection (1(a to (d of this section no later than three judicial days before the hearing. (3 (a If a party does not provide information as required by subsections (1 and (2 of this section, the other party may apply for a motion to compel as provided in ORCP 46. (b Notwithstanding ORCP 46 A(4, if the motion is granted and the court finds that there was willful noncompliance with the requirements of subsections (1 and (2 of this section, the court shall require the party whose conduct necessitated the motion or the party or attorney advising the action, or both, to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees. (4 If a date for a support hearing has been set and the information listed in subsection (1(a to (d of this section has not been provided as required by subsection (2 of this section: Drafting Family Law Documents 2 11

82 Chapter 2 Discovery in Family Law Cases (a By the obligor, the judge shall postpone the hearing, if requested to do so by the obligee, and provide in any future order for support that the support obligation is retroactive to the date of the original hearing; or (b By the obligee, the judge shall postpone the hearing, if requested to do so by the obligor, and provide that any support ordered in a future hearing may be prospective only. (5 The provisions of this section do not limit in any way the discovery provisions of the Oregon Rules of Civil Procedure or any other discovery provision of Oregon law. [1995 c.800 5; 1997 c ; 1997 c ] Drafting Family Law Documents 2 12

83 Chapter 2 Discovery in Family Law Cases 1 Form 2-1 Certificate of Compliance (ORS IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department 7 8 In the Matter of the Marriage of: [WILDA WIFE], Case No: [ ] 9 10 and Petitioner, CERTIFICATE OF COMPLIANCE WITH ORS [HENRY HUSBAND], Respondent The undersigned, [Alexis Attorney], attorney for Petitioner, [WILDA WIFE] ( Wife, herein, certifies that the following documents are produced in response to the disclosure requirements set forth in ORS : Disclosure Requirement No. 1: All federal and state income tax returns filed by either party for the last three calendar years. Documents Produced in Response to No. 1: Disclosure Requirement No. 2: If income tax returns for the last calendar year have not been filed, all W-2 statements, year-end payroll statements, interest and dividends statements, and all other records of income earned or received by either party during the last calendar year. Documents Produced in Response to No. 2: Page 1 - CERTIFICATE OF COMPLIANCE WITH ORS Drafting Family Law Documents 2 13

84 Chapter 2 Discovery in Family Law Cases Disclosure Requirement No. 3: All records showing any income earned or received by either party for the current calendar year. Documents Produced in Response No. 3: Disclosure Requirement No. 4: All financial statements, statements of net worth, and credit card and loan applications prepared for either party during the last two calendar years. Documents Produced in Response to No. 4: Disclosure Requirement No. 5: All documents such as deeds, real estate contracts, appraisals, and most recent statements of assessed value relating to real property and residential mobile homes in which either party has any interest. Documents Produced in Response to No. 5: Disclosure Requirement No. 6: All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due. Documents Produced in Response to No. 6: Disclosure Requirement No. 7: Certificates of title or registrations of all automobiles, motor vehicles, boats or other personal property registered in either party s name on in which either party has an interest. Documents Produced in Response to No. 7: Disclosure Requirement No. 8: Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has an interest. 26 Page 2 - CERTIFICATE OF COMPLIANCE WITH ORS Drafting Family Law Documents 2 14

85 Chapter 2 Discovery in Family Law Cases 1 Documents Produced in Response to No. 8: Disclosure Requirement No. 9 : The most recent statement describing any retirement plan, IRA, pension plan, profit-sharing plan, stock option plan, or deferred compensation plan in which either party has any interest. Documents Produced in Response to No. 9: Disclosure Requirement No. 10: All bank, credit union, or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently opened or closed. Documents Produced in Response to No. 10: DATED this day of, 20[13]. [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Page 3 - CERTIFICATE OF COMPLIANCE WITH ORS Drafting Family Law Documents 2 15

86 Chapter 2 Discovery in Family Law Cases Drafting Family Law Documents 2 16

87 Chapter 2 Discovery in Family Law Cases 1 Form 2-2 Notice of Deposition IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE,] Petitioner, and [HENRY HUSBAND], Respondent. CASE NO: [ ] PETITIONER S NOTICE OF DEPOSITION TO: [Henry Husband], Respondent, and his attorney of record, [Larry Lawyer]. PLEASE TAKE NOTICE that Petitioner, [Wilda Wife], by and through her attorney [Alexis Attorney], will take the deposition of Respondent, [Henry Husband], on [Thursday, March 14, 2013, at 9:30 a.m.] at the law offices of [Law Firm, P.C.]. This notice of deposition is given pursuant to Rule 39 of the Oregon Rules of Civil Procedure. The deposition will be taken before a qualified court reporter and notary public for Oregon in conformance with the provisions of said Rule. DATED this day of, 20[13]. [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Page 1 - NOTICE OF DEPOSITION Drafting Family Law Documents 2 17

89 Chapter 2 Discovery in Family Law Cases 1 Form 2-3 Subpoena Duces Tecum IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE,] Petitioner, and [HENRY HUSBAND], Respondent. Case No. [ ] CIVIL SUBPOENA DUCES TECUM (RECORDS DEPOSITION TO: [Any US Bank One SW Money Street Portland, OR 97000] IN THE NAME OF THE STATE OF OREGON: Pursuant to ORCP 55F(3, you are hereby commanded to produce, on or before [March 15, 2013, at 10:00 a.m.], at the law offices of [Law Firm, P.C., 611 Discovery Avenue, Portland, Oregon 97000], copies of the items listed on Exhibit 1, attached hereto, as evidence in the above entitled matter on behalf of Petitioner, [Wilda Wife.] You are further commanded to produce, together with the aforementioned items, certification confirming that the copies you are producing are true copies of all of the items responsive to this Civil Subpoena Duces Tecum, or, if all items are not included, why they are not. Certification may be accomplished through any of the following: Certificate of Compliance, individual affidavit, affidavit of custodian or records, or sworn statement. Page 1 CIVIL SUBPOENA DUCES TECUM Drafting Family Law Documents 2 19

90 Chapter 2 Discovery in Family Law Cases If you should have any questions regarding this Civil Subpoena Duces Tecum, you are encouraged to contact the attorney below. Noncompliance with this Civil Subpoena Duces Tecum may subject you to contempt of court. DATED this day of, 20[13]. [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] WITNESS FEE: $ Page 2 CIVIL SUBPOENA DUCES TECUM Drafting Family Law Documents 2 20

91 Chapter 2 Discovery in Family Law Cases Exhibit 1 1. Any and all statements for [Any US Bank] in the name of [Henry Husband], date of birth [January 16, 1946], Social Security number [ ], for the time period [January 1, 2010], to the present. 2. Any and all payroll records for employee [Henry Husband], including, but not limited to, all wages, bonuses, commissions, or other compensation, for the time period of [January 1, 2009], to the present. 3. Any and all employment records for employee [Henry Husband], including, but not limited to, all awards, performance reviews, work schedule, travel history, and disciplinary records for the time period of [January 1, 2008], to the present. 4. Any and all records of employee benefits for employee [Henry Husband], including, but not limited to, life insurance policies, health insurance policies, flexible spending plans, beneficiary designation pages for each insurance policy, and the employee out-of-pocket cost for any selected insurance plan(s Page 3 CIVIL SUBPOENA DUCES TECUM Drafting Family Law Documents 2 21

93 Chapter 2 Discovery in Family Law Cases Form 2-4 Request for Production of Documents IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE], and [HENRY HUSBAND], Petitioner, CASE NO: [ ] PETITONER'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS Respondent. TO: [HENRY HUSBAND], Respondent, and [his] attorney, [Larry Lawyer]. Pursuant to ORCP 43, Petitioner requests that you produce and permit [her] to inspect and copy the following documents, or copies, listed in the attached Exhibit(s. Said documents shall be made available on the [1st day of April 2013], at the offices of [Law Firm, P.C., 611 Discovery Avenue, Portland, OR 97000]. CERTIFICATE OF SERVICE DEFINITIONS The term "document" as used herein means, without limitation, and in the broadest sense possible, all materials within the full scope of Rule 43 of the Oregon Rules of Civil Procedure including, but not limited to, all writings and recordings including the originals and all copies, whether different from the original by reason of any notation made on such copies or otherwise (including without limitation, papers, books, correspondence, records, memoranda, contracts, printouts, tapes, and all other tangible things upon which any handwriting, typing, printing, drawing, representation, photostatic or other copy, magnetic or electrical impulse, or other form of communication as recorded or reproduced, graphic or aural representations of any kind (including without limitation, pictures, photographs, charts, microfiche, microfilm, videotape, recordings, motion YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 23

94 Chapter 2 Discovery in Family Law Cases pictures, plans, drawings, surveys, electronic data compilations, and electronic, mechanical, magnetic, optical, or electric records or representations of any kind (including without limitation, computer files and programs, tapes, cassettes, discs, recordings, electronic mail, instant messaging and includes preliminary drafts, studies, analyses, and reports, as well as a copy or copies of any of the foregoing now in the possession, custody, or control of Respondent and [his] attorneys, accountants, agents, employees, and any and all persons acting on Respondent's behalf. The term "relate" or "relating to" includes referring to, concerning, alluding to, responding to, connected with, commenting on, in respect of, about, regarding, discussing, showing, describing, mentioning, reflecting, analyzing, constituting, evidencing, or pertaining to. These requests do not seek privileged information. If you do not answer any request because of a claim of privilege: (a set forth the privilege claimed; (b set forth all facts upon which you rely to support the claim of privilege; and (c identify all documents for which such privilege is claimed. Unless otherwise stated, these requests seek documents created at any time relating to the marriage of the parties. This Request for Production is a continuing request until the conclusion of the above-referenced proceeding. If Respondent should discover or come into possession of additional documents falling within the terms of this request, the additional documents must be produced. DATED this day of, 20[13]. [LAW FIRM, P.C.] CERTIFICATE OF SERVICE [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 24

95 CERTIFICATE OF SERVICE Chapter 2 Discovery in Family Law Cases EXHIBIT "1" 1. All federal and state income tax returns filed by the parties for the past five calendar years, together with all W-2 forms, 1099 forms and all other attachments that were filed with the tax returns. 2. All records pertaining to your employment compensation and benefits, including, but not limited to, employment contracts or agreements and documentation from your personnel files, information regarding benefits, and whether you are eligible and/or have elected to participate in such benefits. 3. Your most recent Social Security statement, indicating your historic record of Social Security income and estimated future Social Security benefits. 4. All records with respect to all income earned and/or received by you from January 1 of this year to date. 5. All financial statements and loan applications prepared by or for the parties during the past five years for any purpose. 6. All insurance policies insuring you or the parties or in which you or the parties have any interest including, but not limited to: (1 health insurance policies, including a statement of benefits and indication of the cost of insuring dependents, including a list of all dependents covered thereunder, with the cost to provide coverage for dependents under the policies individually and as a group, as well as brochures detailing coverage; (2 life insurance policies with documentation identifying current beneficiaries, death benefits, and any current surrender and/or cash value and loans related to such insurance policies; and (3 insurance policies insuring property, including, but not limited to, vehicular, residential, and jewelry insurance policies. 7. Certificates of title or registrations to any and all automobiles, motor vehicles, boats, or other personal property registered in the name of either or both of the parties or in which they have any interest, together with all documents relating to any YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 25

96 Chapter 2 Discovery in Family Law Cases encumbrances against any such personal property, including, but not limited to, lease agreements, loan documents, and most recent loan statement(s. 8. All documentation relating to all real property owned by the parties or in which either has any interest whatsoever including, but not limited to, deeds, real estate contracts, earnest money agreements, appraisals, sales agreements, buyer s settlement statements, seller s settlement statements and the most recent statements of assessed value and tax statements, and statements of current balances owing to third-party creditors on the properties. 9. All documentation relating to securities owned by the parties or in which either party has an interest, including vesting schedules or other documentation indicating the number of shares and exchange where the securities are traded, initial cost basis for all such securities, and the dates of issuance. 10. Documentation related to any and all safe deposit boxes to which either of the parties has access and evidence of and/or copies of the contents of any such safe deposit box. 11. All records relating to all checking, savings, money market custodial accounts, or other bank accounts of any nature, and certificates of deposits in the name of either party or both parties in which he, she, or they have had any interest during the last 24 months, whether such accounts are presently open or closed, including (1 statements; (2 check registers; (3 certificates of deposit; (4 passbooks; (5 cancelled checks; and (6 any other documents evidencing the value of such accounts, and deposits and withdrawals therefrom. 12. All records for all brokerage accounts, mutual funds, and other investment accounts of any kind in your name or in either or both name(s of the parties or in which they have had an interest during the last 24 months, whether such accounts are presently open or closed, including, but not limited to, monthly and quarterly statements. CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 26

97 Chapter 2 Discovery in Family Law Cases 13. All brochures and other documents relating to any pension, profit sharing plan, pre-tax account, or any other gross retirement benefits in which you or either of the parties has any interest, or had any interest during the last 24 months, and all documents showing the nature and extent of the party's interest, including, but not limited to, plan summary documents; the most recent monthly, quarterly, or annual statement showing the dollar amounts of the parties contributions and the contributions of the party s employer; documents showing any loans or withdrawals, and the monthly benefit, if any, to which the parties would be entitled if the party were terminated as of the present date; and documents containing the name, address, and telephone number of the plan administrator. 14. All records relating to any expenses or sums paid by either party for which either has received reimbursement from his or her employer or anyone else during the last 24 months. 15. All records as to any expenses either party incurred in the last 24 months that were paid by third parties. 16. All records of all wills, trusts, estates, life estates, or any other property in which either party has any beneficial interest, including, but not limited to, a vested interest, a remainder interest, or a contingent remainder interest. 17. A copy either party's current will or testamentary trust. 18. For any partnership, proprietorship, limited liability corporation, subchapter S or C corporation, or any other business entity in which either party has any ownership interest, provide the following documents: (1 all tax returns filed and/or prepared for the last five calendar or fiscal years; (2 year-end income statements and balance sheets for the last five calendar years or fiscal years, and all other financial statements filed or prepared for the last five calendar or fiscal years; (3 all records regarding all receipts of disbursements from the end of the last calendar or fiscal year to date; (4 all documents showing the CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 27

98 Chapter 2 Discovery in Family Law Cases current assets and liabilities and income of any such entity; (5 all appraisals or reports regarding the value of the business; and (6 if the business is a corporation, the corporate record and minute books. 19. All appraisals prepared by anyone for any personal property in which either party has an interest, whether individually or jointly with anyone else. 20. Copies of all promissory notes in either party's name, whether as borrower or lender; any payment records regarding the notes; and any documents describing any security pledged on the notes. 21. Documentation of all monies paid to either party's attorney with regard to this case. 22. Documentation of all monies held by either party's attorney, or any other person, on behalf of either party, or held by any other person or entity on behalf of the parties, to the extent not provided in response to any other request herein. 23. Documentation of all intellectual property in which either party has any interest including, but not limited to, patents, copyrights, and trademarks whether held individually, jointly, or as part of any business entity. 24. All records regarding either party's acquisition of any assets or sale/transfer/disposition of any asset in excess of $500 in the last 12 months. 25. If either party has any interest in any asset(s that is not described elsewhere herein, provide current documentation regarding such asset(s. 26. Your Uniform Support Declaration. 27. Documentation of your current monthly expenses. 28. Monthly itemized statements for all credit card accounts for the last 24 months in which either party is an authorized signator or has charged any items. 29. Copies of all documents evidencing any current debt of the parties. 30. All credit reports prepared for or requested by either party in the last 24 months. 31. Copies of all premarital agreements, postmarital agreements, and any other CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 28

99 Chapter 2 Discovery in Family Law Cases agreements between the parties. 32. All court documents related to any litigation in which either party has been or is entitled to some relief or is subject to any liability pending now or in the last five years. 33. Any and all of the parties resumes prepared during the last five years. 34. All records of any communications between the parties in the last 12 months, including, but not limited to, s, letters, memoranda, cards, voice mail messages, text messages, tape recordings, compact disc recordings, DVD recordings, and video recordings. 35. Any and all documentation containing a description of all computers in either party's possession or control, or that either party uses or has used regardless of location, including make and model of computer, hard drive manufacturer, model and capacity, tape backup or other backup device manufacturer and model, name of operating system and current version, and software and current version loaded on the computer. If the computer is used by either party but not owned by either, please also produce a document containing the name, address, and telephone number of the owner of the computer. If a password is required to access the computer, its hard drive, any portion of the hard drive, any software program, or any file or compilation of data on the hard drive, please provide a document containing the password or passwords. In the alternative, you may permit copying of the entire mirror image in all sectors of the hard drive of each computer in the parties possession or control or that the parties use. 36. Any and all documentation of any asset in which either party had any interest prior to their marriage and that is still in existence, including, but not limited to, documentation showing the initial acquisition of such an asset, its value immediately prior to the marriage, and any conversion or rollover over of such assets into another asset or account during the course of the marriage. CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 29

100 Chapter 2 Discovery in Family Law Cases EXHIBIT 2 1. Complete financial statements of [Name of Company[ ("the company", for the past five fiscal or calendar years, including balance sheets and profit and loss statements, along with all related detailed schedules. 2. Latest interim financial statements and the corresponding financial statement for one year earlier. 3. Complete U. S. income tax returns for the past five fiscal or calendar years, including any audit adjustments. 4. Complete consolidating worksheets for the financial statements listed in 1 and 2, above. 5. Complete financial statements of all companies treated as investments for each year that the company is shown as an investment on the parent company s financial statements. 6. A schedule of fixed assets owned by the company as of the latest financial statement date (either latest fiscal or calendar year end or the interim period that shows for each fixed asset a description, date purchased, cost at purchase, method of financial statement depreciation, method of tax return depreciation, and amount of depreciation taken since purchase for financial and tax reporting. 7. Aged accounts receivable listing as of the latest financial statement date. 8. List of all marketable securities (description, number, cost value shown on the latest financial statements. 9. A summary listing of the inventories of the company as of each of the financial statement dates that disclose allocation (finished goods, work-in-progress, raw materials, etc., and period-end LIFO reserve. 10. List of prepaid expenses for the latest financial statement provided. CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 30

101 Chapter 2 Discovery in Family Law Cases 11. A schedule showing the total compensation paid to each officer and/or shareholder of the company for each of the financial statement periods requested in 1 and 2, above. The schedule or documents provided should show, for each officer/shareholder and each period, cash compensation, stock options issued, stock options exercised, payroll taxes paid, medical reimbursements paid, amounts allocated and/or paid for disability, life, and/or health/dental insurance, amounts paid and/or allocated for personal automobile usage, and amount allocated and/or paid to a deferred compensation and/or retirement plan account. 12. Company budgets and/or projections that have been prepared during the past five years. 13. Copies of any appraisal letters or reports of the company, an interest in the company, and/or assets of the company that have been prepared during the past five years. 14. A current listing of the shareholders/partners showing the name of each shareholder/partner and the class and number of shares owned by each shareholder, or each partner s interest in the capital and income of the partnership. 15. The company s articles of incorporation and amendments, bylaws and amendments, and/or the partnership agreement. 16. Copy of all shareholder or partner agreements (such as buy/sell agreements, stock option agreements, stock purchase agreements, etc. that have been in effect during the past five years. 17. Any document that gives a brief history and/or description of the company or the company s business. 18. Any organizational chart of the company s divisions and/or management and employees. CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 31

102 Chapter 2 Discovery in Family Law Cases 19. All documents pertaining to any sale of the company, a division or unit of the company, or shares (interests in the company during the past five years. 20. A copy of the latest loan application of the company made to a lending institution. 21. Copies of all latest real and personal property tax assessments for property owned by the company. 22. Any filings provided to any governmental regulatory body made by or on behalf of the company during the past five years. 23. Sample copies of the company s marketing literature. 24. List of locations where the company operates, size of each facility, and whether the facility is owned or leased. 25. List of five largest customers (by dollar sales for each of the past five years showing the name of the customer and the sales to that customer. 26. Resumes of all current officers and key employees of the company. 27. Names of all trade organizations to which the company has belonged during the past five years. 28. List of all patents, copyrights, trademarks, and/or other intangible assets owned by the company during the past five years. 29. List of all contingent or off-balance sheet assets or liabilities as of the latest financial statement provided. CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 32

103 CERTIFICATE OF SERVICE Chapter 2 Discovery in Family Law Cases EXHIBIT 3 1. Any and all calendars, diaries, daybooks, journals, notes, and writings of any kind and nature indicating the parenting time schedule or actual parenting time that [Henry Husband] has had with [Charlie Child] in the past three years. 2. Any and all tangible things specifically including, but not limited to, pictures, drawings, photographs, tape recordings, videotapes, and the like prepared by any person, that [Henry Husband] has or has access to, that [he] believes or has been told reflects or indicates either parent s ability to parent. 3. Any and all documents, including medical records, reports, or psychological tests for [Henry Husband[ and [Sally Stepmother] relating to their mental and emotional state, including, but not limited to, any records for counseling, treatment for mental illness, or drug and alcohol rehabilitation or treatment in the past four years. 4. Any and all documents pertaining to any citation for infractions, traffic violations, arrests, allegations of criminal activity, criminal arrests, or convictions of [Henry Husband] and [Sally Stepmother] in the past three years. 5. Any records, resumes, documents, or letters showing the current employment of [Henry Husband]. 6. Any petitions, summons, complaints, citations, tickets, arrest records, or any documents indicating any legal process of any kind that you have received from [January 1, 2010], to the present. 7. Any documents of any type showing the names and/or address and/or telephone number of any persons who can attest to your residence, employment, behavior with regard to drug and alcohol use since [January 1, 2010]. 8. Any documents showing agreements of any kind with State Offices for Services to Children and Families, formerly known as Children s Services Division, regarding care, custody, placement, or visitation with your minor children. YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 33

104 Chapter 2 Discovery in Family Law Cases 9. Any mediation agreements. 10. Any records generated by a mental health professional after visits with [Henry Husband], [Sally Stepmother], or [Charlie Child]. 11. Any documents showing the establishment or existence of a child support obligation, including, but not limited to, a petition and summons for the establishment of paternity and child support and any computer printouts or other tabulated or summarized forms of child support paid or owed since [January 1, 2009], to the present. 12. All records, listings, summaries, or printouts of all phone calls and telephone bills of the [Petitioner/Respondent] from [January 1, 2011], to the present. 13. Any letters, notices, notes, postcards, or any other document sent to you by the [Petitioner/Respondent] from [January 1, 2011], to the present referring to any telephone numbers, residential or mailing addresses, visitation agreements, disputes, or telephone calls or visitation in any way. 14. Any checks, receipts, bills, invoices, airline tickets, stubs, or itineraries concerning any travel for visitation with the minor children of the parties from [January 1, 2011], to the present. 15. Any transcripts, written notes, or tape recordings or video recordings that you have concerning statements made by the [Petitioner/Respondent] or [Samuel Stepfather], concerning visitation, telephone numbers, or residential or mailing addresses from [January 1, 2011], to the present. 16. Any receipts for mailing or shipping of packages or mail to any residences of the minor children from [January 1, 2011], to the present. 17. Any photographs taken of [Charlie Child] by [Henry Husband] or others of any injuries to him [he] claims were caused by [Wilda Wife] or [Samuel Stepfather] anytime in the past two years. CERTIFICATE OF SERVICE YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 34

105 Chapter 2 Discovery in Family Law Cases Form 2-5 Response to Request for Production of Documents IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE,] Petitioner, and [HENRY HUSBAND], Respondent. Case No.: [ ] PETITIONER S RESPONSE TO RESPONDENT S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS Petitioner responds herein to Respondent s First Request for Production of Documents. GENERAL OBJECTIONS 1. Petitioner objects to any requests for documents that are not reasonably calculated to lead to the discovery of admissible evidence, are overly broad with respect to scope and subject matter, and/or would be unduly burdensome to produce. 2. Petitioner objects to all instructions, definitions, and requests for production to the extent they impose obligations beyond those set forth in the Oregon Rules of Civil Procedure (ORCP. Obligations imposed by the request that exceed the ORCP include, but are not limited to, requiring the Petitioner to produce requested documents at the office of Respondent s attorney; requiring Petitioner to bear undue burden and expense of inspecting and copying documents in the possession and control of third parties, and requiring Petitioner to produce documents in the possession and control of third parties to which Petitioner has only the right to inspect and copy but not to disseminate to others. Page 1 PETITIONER S RESPONSE TO RESPONDENT S FIRST REQUEST FOR PRODUCTION Drafting Family Law Documents 2 35

106 Chapter 2 Discovery in Family Law Cases Petitioner will not produce any documents that are covered by the attorney-client privilege that were a product, doctrine, or any other applicable privilege or seek production of documents from other persons or entities. 4. Petitioner objects to requests requiring [her] to obtain documents that are in the control and/or possession of third parties and will produce only those documents that are in the possession of Petitioner. 5. Petitioner objects to the request to the extent that the request requires Petitioner to produce documents already in possession of Respondent. 6. Petitioner s responses are based on information currently available after a reasonable search. Petitioner reserves the right to alter or supplement [her] responses. 7. To the extent Petitioner has the documents requested in [her] possession and control, and subject to the objections and reservations above, the documents are being provided, as outlined below RESPONSES TO REQUESTS FOR PRODUCTION 1. Request No. 1: All federal and state income tax returns filed by you for the calendar years [2010, 2011, and 2012]. 18 Response: OBJECTION. See General Objections 2, 5. Notwithstanding these objections, Petitioner produces herewith [her] federal and state income tax returns for [2011 and 2012] Request No. 2: All records for all checking, savings, or other bank accounts or money market accounts, including, but not limited to, passbooks, statements, canceled checks, check registers, or certificates of deposit for any account in your name or in which you have an interest in since [September 2010] to current date, whether or not such account is presently open or closed. Page 2 PETITIONER S RESPONSE TO RESPONDENT S FIRST REQUEST FOR PRODUCTION Drafting Family Law Documents 2 36

107 1 Response: Chapter 2 Discovery in Family Law Cases OBJECTION. See General Objections 2, 4, 6, 7. Petitioner further objects that this request is unduly broad and burdensome. Notwithstanding these objections, Petitioner produces herewith, the following: A. [Her] check register for the period of [January 1, 2010], to present; and B. Her bank statements for account [Any USA Bank], account ending #[1234], for the period of [September 2012 through February 2013] Request No. 3: All medical records and records of mental health treatment and drug treatment for [Wilda Wife], from [January 1, 2010], to present. 11 Response: OBJECTION. See General Objections 1, 2, 3, 4. Petitioner specifically objects on the basis that this request is not reasonably calculated to lead to the discovery of admissible evidence, as there are no issues regarding minor children or support, and [Wilda Wife] s medical and mental health are not at issue. Petitioner further objects that the requested documents are subject to patient-physician and patient-psychotherapist privileges. DATED this day of, 20[13]. [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Page 3 PETITIONER S RESPONSE TO RESPONDENT S FIRST REQUEST FOR PRODUCTION Drafting Family Law Documents 2 37

109 Chapter 2 Discovery in Family Law Cases Form 2-6 Order Appointing Custody and Parenting Time Evaluator IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE,] Petitioner, and [HENRY HUSBAND], Respondent. CASE NO: [ ] ORDER RE: APPOINTMENT OF CUSTODY AND PARENTING TIME EVALUATOR PURSUANT TO ORS THIS MATTER came before the Honorable [Jeremy Judge] on [February 14, 2013]. Petitioner, [Wilda Wife] ( Mother, was personally present and was represented by [Alexis Attorney] of [Law Firm, P.C.]. Respondent, [Henry Husband] ( Father, was present by telephone and was represented by [Larry Lawyer of Lawyer & Associates, P.C.]. Based upon the stipulations of the parties to obtain a parenting time evaluation, and the argument of their counsel as to allocation of the expense thereof, the court makes the following this matter. FINDINGS: 1. The parties have agreed to obtain a comprehensive parenting time evaluation in 2. The parties further agreed to equally share in the cost of the initial parenting time evaluation. Page 1 - ORDER RE: APPOINTMENT OF CUSTODY/PARENTING TIME EVALUATOR Drafting Family Law Documents 2 39

110 Chapter 2 Discovery in Family Law Cases The parties are the parents of one minor child, namely: [Charlie Child], age [3]. 4. The following information is the correct contact information for each party and his or her attorney: Petitioner/Mother: Respondent/Father: [Wilda Wife Henry Husband 567 Bliss Lane 123 Cheer Street Portland, OR Portland, OR Telephone: Telephone: [email protected] [email protected]] Attorney for Petitioner/Mother: [Alexis Attorney Law Firm, P.C. 611 Discovery Avenue 661 Inquiry Drive Portland, OR Portland, OR Attorney for Respondent/Father: Larry Lawyer Lawyer & Associates, P.C. Telephone: Telephone: [email protected] [email protected]] NOW, THEREFORE, the court adjudges and enters the following ORDER: 1. [Edgar Evaluator, Ph.D., 555 Interview Avenue, Portland, OR 97000, ] ( Evaluator, is appointed for the purposes of conducting a custody and parenting plan evaluation in the above-entitled matter and shall recommend what custody and parenting time schedule would be in the minor child s best interests. 2. There shall be no confidentiality restrictions that might prevent the Evaluator from testifying in court regarding the parenting time recommendation. Either party may call the Evaluator as a witness. 3. Following the investigation, the Evaluator shall prepare a written recommendation and statement of findings. The written recommendation and statement of findings shall be sent to [Ms. Attorney and Mr. Lawyer] upon completion of the draft. [Ms. Attorney and Mr. Lawyer] shall have 10 days following receipt of the written report to provide the Evaluator with Page 2 - ORDER RE: APPOINTMENT OF CUSTODY/PARENTING TIME EVALUATOR Drafting Family Law Documents 2 40

111 Chapter 2 Discovery in Family Law Cases information on any factual errors, omissions, or corrections that either believes should appropriately be made before the report is finalized. The Evaluator shall not be required to make any changes to the report before finalizing but may issue a supplemental statement if appropriate. This procedure is intended solely to provide the attorneys an opportunity to make corrections. It is not an opportunity to provide new or additional information to the Evaluator that a party could have previously presented but failed to do so. 4. Only the Evaluator s final report may be read by the court prior to its submission into evidence unless the parties stipulate otherwise. This may include a party submitting it as part of a party s trial memorandum. 5. Neither party shall allow the minor child to read the Evaluator s written recommendation. Nor shall either party read or summarize the report or its findings to the child or even in a general manner discuss the report with the child. Likewise, neither parent shall tolerate third parties discussing the report with the child in any manner. 6. Both parties shall timely execute any and all releases requested by the Evaluator to enable the Evaluator to obtain any and all reports, records, charts, tests, and other information prepared with regard to either party or the minor child by any other licensed or unlicensed psychologist or psychiatrist, licensed social worker, or mental health professional, including, but not limited to, hospitals and/or clinics. 7. The parenting time study performed by the Evaluator shall include, but not be limited to, any and all psychological testing and examinations as deemed appropriate by the Evaluator of either party and their child, or other adults residing in either party s residence, and each party shall cooperate with the administering of those tests. 8. Both parties shall schedule their appointments with the Evaluator, or the Evaluator s delegate, in a timely and prompt fashion. The parties shall appear with the child, if Page 3 - ORDER RE: APPOINTMENT OF CUSTODY/PARENTING TIME EVALUATOR Drafting Family Law Documents 2 41

112 Chapter 2 Discovery in Family Law Cases appropriate, for all appointments in a timely fashion. If a party is unable to keep an appointment, said appointment shall be rescheduled to the next available time according to the Evaluator s schedule. 9. Prior to the conclusion of the Evaluator s final report, there shall be no verbal ex parte contact by either the parties or their attorneys with the Evaluator, except for the purposes of scheduling or rescheduling an appointment or for the purpose of determining the status of the report s progress. Further, neither the parties nor their attorneys shall provide anything in writing or any audio or audio/visual tape or disk for the Evaluator s review without also forwarding a copy of those materials to the other party s attorney in a prompt manner. In the event either party provides written materials to the Evaluator, whether or not the Evaluator retains those, that client shall keep a copy or maintain the originals of those materials for review and inspection by the other party. Further, in the event either attorney has written communication with the Evaluator, that attorney shall simultaneously provide a copy of that written communication, including any and all enclosures, to the other attorney. 10. Mother and Father shall each be responsible for one-half of all costs related to or arising from the Evaluator s evaluation through production of the written report; provided, however, each party shall be entitled to request from the dissolution court, as part of an ORCP 68 attorney fee and cost award, reimbursement for some or all of the costs incurred with respect to the Evaluator. 11. Any requested clarifications or updates shall be paid by the party requesting such clarification or update. 12. If a party rejects the Evaluator s recommendations and litigation is necessary, the party who thereafter utilizes the Evaluator as a witness shall initially be responsible for all of the costs associated with preparing the Evaluator for trial as well as costs the Evaluator charges for Page 4 - ORDER RE: APPOINTMENT OF CUSTODY/PARENTING TIME EVALUATOR Drafting Family Law Documents 2 42

113 Chapter 2 Discovery in Family Law Cases attendance at trial, except that such party shall be entitled to request from the dissolution court, as part of an ORCP 68 attorney fee and cost award, reimbursement for some or all of the costs that party incurred with respect to the Evaluator. Each party has the preceding right. 13. The court has appointed the Evaluator, who is a qualified expert. As such, should the Evaluator be called as a witness at trial, the report may be admitted into evidence, so long as the Evaluator is present at trial. Further, no privilege, either statutory or otherwise, shall attach to any communication made by any person to the Evaluator. 14. Neither party, nor the court, shall be absolutely bound by the recommendations and findings of the Evaluator. 15. The attorneys for each party shall have an obligation to make the Evaluator aware of the trial date herein, once it is scheduled, and shall confer with each other as to whether the Evaluator s testimony will be necessary. DATED this day of, 20[13] Circuit Court Judge APPROVED AS TO FORM: [LAW FIRM, P.C.] PREPARED AND SUBMITTED BY: [LAWYER & ASSOCIAITES, P.C.] [Alexis Attorney], OSB #[12345] [Larry Lawyer], OSB #[98765] Of Attorneys for Petitioner/Mother Of Attorneys for Respondent/Father Page 5 - ORDER RE: APPOINTMENT OF CUSTODY/PARENTING TIME EVALUATOR Drafting Family Law Documents 2 43

115 Chapter 2 Discovery in Family Law Cases Form 2-7 Request for Admissions IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE] and Petitioner, CASE NO: [ ] PETITONER'S FIRST REQUEST FOR ADMISSIONS [HENRY HUSBAND], Response: CERTIFICATE OF SERVICE Respondent. TO: [HENRY HUSBAND], Respondent, and his attorney, [Larry Lawyer]. Pursuant to ORCP 45, Petitioner requests that you respond to the following Requests for Admissions. FAILURE TO SERVE A WRITTEN ANSWER OR OBJECTION WITHIN THE TIME ALLOWED BY ORCP 45B WILL RESULT IN THE ADMISSION OF THE FOLLOWING REQUESTS. 1. Request No. 1: [Wilda Wife] has been [Charlie Child] s primary caregiver since his birth. Response: 2. Request No. 2 [Wilda Wife] is a fit parent. Response: 3. Request No. 3: [Henry Husband] was convicted of driving under the influence in [June 2012]. YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 45

116 Chapter 2 Discovery in Family Law Cases 4. Request No. 4: [Wilda Wife] inherited $[250,000] from [Gertrude Grandmother] in [December 2005]. Response: 5. Request No. 5: [Wilda Wife] has, at all times since receipt of the inheritance from [Gertrude Grandmother], maintained the inherited funds in an account in her individual name. Response: 6. Request No. 6: [Wilda Wife] and [Henry Husband] have never used the funds inherited by [Wilda Wife] from [Gertrude Grandmother] or planned to use them for their joint retirement. Response: 7. Request No. 7: [Wilda Wife] has contributed to the marital home that is titled in [Henry Husband] s individual name, by assisting with work in the remodel, performing upkeep, and contributing [her] paycheck to the joint checking account that is utilized to pay the monthly mortgage, taxes, and insurance for the marital home. Response: Requested this day of [March, 2013]. [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Admitted, denied, and objected to this day of [April, 2013]. [LAWYER & ASSOCIATES, P.C.] CERTIFICATE OF SERVICE [Larry Lawyer], OSB #[98765] Of Attorneys for Respondent [[email protected]] YATES, MATTHEWS & EATON, P.C. One SW Columbia St., Suite 1800 Portland, Oregon Phone: Fax: Drafting Family Law Documents 2 46

117 Chapter 2 Discovery in Family Law Cases 1 Form 2-8 Subpoena to Deposition IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE], Petitioner, and [HENRY HUSBAND], Respondent. CASE NO: [ ] SUBPOENA (DEPOSITION [WILLARD WITNESS] TO: [Willard Witness, 999 NW 9th Avenue, Portland, OR 97000]. IN THE NAME OF THE STATE OF OREGON: You are commanded to appear at the law offices of [Law Firm, P.C.], located at [611 Discovery Avenue, Portland, Oregon 97000], on [March 29, 2013, at 3:00 p.m.], to testify as a witness in the above entitled cause on behalf of Petitioner, [Wilda Wife], at the taking of a deposition, and to remain until testimony is closed, unless you are sooner discharged. DATED this day of, 20[13]. [LAW FIRM, P.C.] Witness Fee: $30.00 Mileage: $ 1.00 Total: $31.00 [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Page 1 - SUBPOENA (DEPOSITION Drafting Family Law Documents 2 47

119 Chapter 2 Discovery in Family Law Cases 1 Form 2-9 Subpoena to Trial IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE], Petitioner, and [HENRY HUSBAND], Respondent. CASE NO: [ ] SUBPOENA (DEPOSITION [WILLARD WITNESS] TO: [Willard Witness, 999 NW 9th Avenue, Portland, OR 97000]. IN THE NAME OF THE STATE OF OREGON: You are commanded to appear on [Tuesday, May 7, 2013], at the [Multnomah] County Circuit Court, located at [1021 SW Fourth Avenue, Portland, Oregon 97204], at a time and courtroom to be determined, to give testimony and evidence on behalf of Petitioner, [Wilda Wife]. If the case is not assigned that day, this Subpoena shall be continued to such other further time for the above hearing as is ordered by the presiding Page 1 - TRIAL SUBPOENA Drafting Family Law Documents 2 49

120 Chapter 2 Discovery in Family Law Cases family law judge. Failure to comply with this Subpoena may subject you to contempt of court. DATED this day of, 20[13]. Witness Fee: $30.00 Mileage: $ 1.00 Total: $31.00 [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Page 2 - TRIAL SUBPOENA Drafting Family Law Documents 2 50

121 Chapter 2 Discovery in Family Law Cases 1 Form 2-10 Qualified Protective Order IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE], 9 Petitioner, CASE NO: [ ] and [HENRY HUSBAND], Respondent. QUALIFIED PROTECTIVE ORDER Petitioner is represented by [Alexis Attorney] of [Law Firm, P.C.]. Respondent is represented by [Larry Lawyer] of [Lawyer & Associates, P.C.]. Based on the stipulation of the parties: IT IS HEREBY ORDERDED as follows: 1. The person protected by this order is the minor child of the parties, [Charlie Child], who is hereafter referred to in this Qualified Protective Order as the Protected Person. 2. The persons and entities bound by this order are (a Petitioner s attorney in this matter, [Alexis Attorney], together with any and all attorneys and employees of said attorney s law firm, and any successor attorney or employees of the successor attorney, (b Respondent s attorney in this matter, [Larry Lawyer], together with any and all attorneys and employees of said attorney s law firm, and any successor attorney or employees of successor attorney, (c any expert witness or other person or entity retained by Petitioner or Respondent or his or her attorney pursuant to paragraph 6 below to assist either party Page 1 QUALIFIED PROTECTIVE ORDER Drafting Family Law Documents 2 51

122 Chapter 2 Discovery in Family Law Cases in connection with the above proceeding; and (d any other person who inadvertently or otherwise receives or obtains covered documents/ information. All of such persons and entities described in this paragraph are referred to in this Protective Order as the Bound Persons. 3. This Protective Order applies to all documents and information or any portion thereof provided or made available for inspection by [Douglas Doctor], the physician for the Protected Person, and [Connie Counselor], the therapist for the Protected Person, said documents and information being referred to in this Protective Order as the Covered Documents. This Protective Order also applies to all covered documents/information pertaining to the Protected Person that may be received by either party or his or her attorney from sources other than from [Douglas Doctor] and [Connie Counselor], if such documents/information include Individually Identifiable Health Information, as defined in ORCP 55H(1(a. 4. The Bound Persons are hereby prohibited from disclosing or furnishing any Covered Documents to any person or entity for any reason whatsoever, except to other Bound Persons for use solely in connection with the above-captioned proceeding; provided, however, the Bound Persons may disclose contents of the Covered Documents to the parties, as such disclosure may be necessary for the preparation of each party s case. In no event, however, should a copy of the Covered Documents be released to either party. 5. Any Covered Documents provided by [Douglas Doctor] or [Connie Counselor] shall be used by the Bound Persons only in this proceeding regarding modification of the Parenting Plan for the Bound Persons and the Protected Person, and for no other purpose whatsoever. 6. Prior to any disclosure of any covered document to any person described in paragraph 2, the party s attorney shall give a copy of this Protective Order to such person Page 2 QUALIFIED PROTECTIVE ORDER Drafting Family Law Documents 2 52

123 Chapter 2 Discovery in Family Law Cases and require the person to whom disclosure is to be made to sign a copy of the Protective Order containing the following endorsement: I have been given a copy of this Protective Order. I have read it and I understand it. I agree to be fully bound to its terms as one of the Bound Persons. The signed copy shall be retained by the party s attorney. 7. Nothing in this Protective Order is intended to limit the admissibility of any Covered Documents as evidence at any trial or hearing before the court in the aboveentitled dissolution of marriage proceeding. However, the admission of any Covered Documents into evidence at any trial or hearing before the court shall not otherwise release any Bound Persons from the provisions of this Protective Order. 8. The provisions of this Protective Order shall survive the conclusion and termination of this modification proceeding, regardless of how the matter is concluded or terminated, whether by order, judgment, settlement, dismissal, or otherwise. 9. Except as otherwise provided herein, all documents or information received pursuant to this Protective Order shall be either (a returned to [Douglas Doctor} or {Connie Counselor], as may be appropriate, or (b destroyed, in which case each party s attorney shall make, file, and serve a certificate of compliance. After the conclusion of the case, each party s counsel may keep one set of documents, in a sealed folder, which is not to be opened except in the event of future litigation between the parties herein or a party herein and their counsel. In that event, use of the documents in that litigation will be subject to a new Protective Order with identical terms to protect the Respondent and the Protected Persons. DATED this day of, 20[13] CIRCUIT COURT JUDGE Page 3 QUALIFIED PROTECTIVE ORDER Drafting Family Law Documents 2 53

124 Chapter 2 Discovery in Family Law Cases 1 2 IT IS SO STIPULATED AND AGREED. [LAW FIRM, P.C.] [LAWYER & ASSOCIATES, P.C.] [Alexis Attorney], OSB #[12345] [Larry Lawyer], OSB #[98765] Of Attorneys for Petitioner Of Attorneys for Respondent [[email protected]] [[email protected] ] *********************************************************************** I have been given a copy of this Protective Order. I have read it and I understand it. I agree to be fully bound to its terms as one of the bound persons/entities Signature Print Name Date Page 4 QUALIFIED PROTECTIVE ORDER Drafting Family Law Documents 2 54

125 Chapter 2 Discovery in Family Law Cases 1 Form 2-11 Motion to Compel IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF Family Law Department In the Matter of the Marriage of: [WILDA WIFE,] Petitioner, and [HENRY HUSBAND], Respondent. CASE NO: [ ] PETITIONER S ORDER TO SHOW CAUSE RE: COMPEL PRODUCTION OF DOCUMENTS; and MOTION (Oral Argument Requested (Hearing Requested: minutes (Court Reporting Services Requested UTCR 5.010(2(3 CERTIFICATION Counsel for Petitioner, [Wilda Wife], hereby certifies that she made a good faith effort to confer with opposing counsel this issue prior to filing this Motion. [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] ORDER TO SHOW CAUSE Based upon Petitioner s motion and supporting affidavit by Petitioner s counsel, and good cause appearing, YOU ARE REQUIRED TO APPEAR before this court on, 2013, at a.m./p.m., at the County Courthouse, [1 Court Street, Legal City, Oregon 97000] (the court scheduling process requires that you Page 1 ORDER TO SHOW CAUSE RE: COMPEL PRODUCTION OF DOCUMENTS Drafting Family Law Documents 2 55

126 Chapter 2 Discovery in Family Law Cases call the docket clerk two judicial days before the scheduled hearing at [ ] to show cause why the court should not enter an Order to Compel Production of Documents, as follows pursuant to the Motion below. Dated this day of, 20[13] CIRCUIT COURT JUDGE MOTION Pursuant to ORCP 46A, Petitioner, by and through her attorney, [Alexis Attorney] of [Law Firm, P.C.], moves for an order to show cause why this court should not enter the following orders: 1. Compelling Respondent to provide a full and complete response to Petitioner s Request for Production of Documents, dated [September 5, 2012]. 2. Pursuant to ORCP 46A, granting Petitioner a money award in her favor for her reasonable attorney fees and costs incurred in obtaining an Order to Compel Production herein. DATED this day of, 20[13]. POINTS AND AUTHORITIES ORCP 46A ORCP 42B(2 Declaration of [Alexis Attorney] [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Page 2 ORDER TO SHOW CAUSE RE: COMPEL PRODUCTION OF DOCUMENTS Drafting Family Law Documents 2 56

127 Chapter 2 Discovery in Family Law Cases 1 Form 2-12 Proposed Distribution of Assets and Liabilities IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF In the Matter of the Marriage of: [WILDA WIFE], Petitioner, and [HENRY HUSBAND], Respondent. CASE NO. [ ] PETITIONER'S PROPOSED DISTRIBUTION OF ASSETS AND LIABILITIES (UTCR ASSET Value HUSBAND WIFE REAL PROPERTY Marital Lane Dissolution, OR (zillow.com 1/14/ Less Mortgage ***0911 Any USA Bank (12/31/ Net Value $ 50,000 $ 50,000 CASH ACCOUNTS 2. Any USA Bank accounts A. Checking x2222 (Joint (12/31/12 CLOSED B. Checking x5555 (1/31/13 (Wife $ 100 $ 100 C. Savings x7777 (1/31/13 (Wife $ 500 $ 500 D. Checking x4444 (12/31/12 (Husband $ 50 $ 50 E. Savings x6666 (12/31/12 (Husband $ 5,000 $ 5, Page 1 - Petitioner s Proposed Distribution of Assets and Liabilities Drafting Family Law Documents 2 57

128 Chapter 2 Discovery in Family Law Cases ASSET Value HUSBAND WIFE VEHICLES Red Car, VIN # KBB Private Party Value (1/15/13 15,000 Less Any USA Bank loan x888 (01/07/13-2,000 Net value $ 13,000 $ 13, Green Car, VIN # KBB Private Party Value (01/15/13 10,000 Less Any USA Bank loan x1010 (1/10/13-9,500 Net Value $ 500 $ 500 OTHER PERSONAL PROPERTY Joint State and Federal Tax Refunds $ 12,000 $ 12, Furniture, furnishings, tools, etc. x one-half one-half TOTAL ASSETS $ 81,150 $ 55,550 $ 25,600 LIABILITIES: TOTAL HUSBAND WIFE 1. Any USA Bank VISA (H x0101 (1/15/13 $ -10,000 $ -10, Store Credit Card (W x0202 (1/13/13 $ -50 $ -50 TOTAL LIABILITIES: $ -10,050 $ -10, SUMMARY TOTAL HUSBAND WIFE TOTAL ASSETS: $ 81,150 $ 55,550 $ 25,600 TOTAL LIABILITIES: $ -10,050 $ -10,000 $ -50 NET MARITAL ESTATE: $ 71,700 $ 45,550 $ 25,550 AMOUNT TO EQUALIZE: $ -10,000 $ 10,000 NET TO EACH PARTY: $ 35,550 $ 35, Page 2 - Petitioner s Proposed Distribution of Assets and Liabilities Drafting Family Law Documents 2 58

129 Chapter 2 Discovery in Family Law Cases PRE-TAX ACCOUNTS TOTAL HUSBAND WIFE 1. Wife s Work, Inc. 401(k (Wife (1/13/12 132,000 Less loan (1/31/ Net value $110,000 $22,500 $87, Husband s Work, Inc. 401(k (Husband (1/13/12 $65,000 $65,000 NET TO EACH PARTY $175,000 $87,500 $87, Page 3 - Petitioner s Proposed Distribution of Assets and Liabilities Drafting Family Law Documents 2 59

131 Chapter 2 Discovery in Family Law Cases Form 2-13 Uniform Support Declaration IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [WILDA WIFE,] and Petitioner, [HENRY HUSBAND], Respondent. FOR THE COUNTY OF Family Law Department Case No. [ ] SUMMARY INFORMATION UNIFORM SUPPORT DECLARATION OF PETITIONER COMPLETE THIS PAGE LAST After completing Sections 1 through 5 below, insert the information and/or total MONTHLY amounts in this Summary Information section. 1. Number of joint minor children from this relationship 2 2. Number of joint children from this relationship who are over 18 but under 21 and are attending school: 3. Number of non-joint additional children: 0 4. Gross monthly income from all sources: 5. Receiving Temporary Assistance for Needy Families? Yes No 6. Child(ren on Oregon Health Plan/Healthy Kids or other public health plan? 7. Social Security or Veteran s benefits received for child(ren: Person with disability is: Child Me Other parent 8. Spousal Support RECEIVED by you: 9. Spousal Support PAID by you: 10. Mandatory Union Dues paid: Yes No 0 Page 1 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 61

132 Chapter 2 Discovery in Family Law Cases Health care premiums for yourself only if you provide insurance for joint child(ren: 12. Health care premiums paid for joint child(ren: 13. Out-of-Pocket medical expenses paid for joint child(ren: 14. ANNUAL overnights child(ren spend with you (#: 15. Childcare expenses paid for joint child(ren: Preschool City, State where childcare is provided: This form is a DECLARATION under penalty of perjury required for support determinations. It must be completed in its entirety, signed, filed with the court or appropriate administrative agency, and served upon the other party (or their attorney, if represented by counsel. INSTRUCTIONS: Answer all questions. Items marked with an * should be transferred to Page 1. If you are seeking spousal support, you need to complete Schedule 1. Attach an additional page if needed. IMPORTANT: This information will be disclosed to the other party and may be subject to public access. Protections are available using the court s Confidential Information Form process. CHILDREN. A. *List all JOINT CHILDREN (children under the age of 21 born or adopted during this relationship: Child Living With: Over 18 & Under 21 Attending School Name of Child Age Me Other Parent Other Yes No B. *List all NON-JOINT ADDITIONAL CHILDREN (children under the age of 21 born to or adopted by you but not of this relationship / / / / / Name Age Page 2 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 62

133 Chapter 2 Discovery in Family Law Cases YOUR GROSS INCOME. A. From your employment: Description 1 Gross hourly wage 2 Average number of hour worked per pay period 3 Convert to annual. If paid monthly, enter 12". If paid twice monthly, enter 24". Every two weeks, enter 26". Every week, enter 52". 4. Convert to monthly Gross monthly income (#1 #2 #3 #4 6. Gross monthly tips/commissions/bonuses (identify: Subtotal of Monthly Income from Employment (#5+#6 X x Monthly Amount B. Other sources of your monthly income: (Attach verification of your gross monthly income as listed below: Description Monthly Amount Self-Employment Dividends Interest Income Trust Income Annuity Income Social Security Income Workers Compensation Benefits per week multiplied by 52; divided by 12 Unemployment Benefits per week multiplied by 52; divided by 12 Disability Income Expense Reimbursements and/or Per Diem Allowance not listed in item A above Other (specify source/type Page 3 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 63

134 Chapter 2 Discovery in Family Law Cases Other (specify source/type *Total of 2.A+2.B, Enter here and on Page 1, #4 TOTAL Subtotal: 2.B C. * Do you receive Temporary Assistance for Needy Families (TANF? If yes: monthly amount D. *Do you receive Social Security or Veteran s benefits for any joint child(ren due to a parent s disability? If yes, Name of Beneficiary Child(ren: Amount of benefit received monthly: Name of disabled parent: Source: E. *Do you receive Social Security or Veteran s benefits for any joint child(ren due to a child s disability? If yes, Name of Beneficiary Child(ren: Amount of benefit received monthly: Name of disabled parent: Source: F. *Is there an order for you to RECEIVE spousal support from the other party in this proceeding? If yes, monthly spousal amount? Expiration date: G. *Are you ordered to PAY spousal support? If yes, monthly support amount: Paid to whom? Expiration date: H. *Do you pay mandatory union dues? If yes, monthly amount: 26 Page 4 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 64

135 Chapter 2 Discovery in Family Law Cases I. ATTACH COPIES OF YOUR FOUR MOST RECENT PAY STUBS, BENEFIT STATEMENTS, AND MOST RECENTLY FILED FEDERAL AND STATE TAX RETURNS. ATTACH COPIES OF SPOUSAL SUPPORT ORDERS AND ANY CHILD SUPPORT ORDERS FOR NONJOINT ADDITIONAL CHILD(REN NOT LIVING WITH YOU. 3. HEALTH CARE COVERAGE AND MEDICAL EXPENSES. A. *Is there a cost to insure just yourself if you provide Insurance for the joint child(ren? Yes No B. Do you provide health care coverage for your joint child(ren? Yes No C. Does someone else provide health care coverage for your joint child(ren? Yes No D. Are you or any member of your household: i. Enrolled in the Oregon Health Plan, Healthy Kids, or any other public health care coverage? Yes No ii. Receiving a state subsidy for public or private health care coverage? Yes No E. Are any of the joint children enrolled in public health care coverage (Healthy Kids/Oregon Health Plan? Yes No - If yes, name of child(ren enrolled: IF YOU ANSWERED YES TO A, B, C, D, OR E ABOVE: i. Name of all personals covered Relationship to you ii. What is the source of the insurance? (Such as through your employer, spouse, other: iii. Insurance Company: - Phone Number: iv. Monthly amount of any state subsidy received by your household for public or private health care coverage: v. Policy Number: Group Number vi. Address for submission of claims: vii. A. Your total premium cost: $ B. Cost to cover only you: $ C. Total number of people enrolled (not counting yourself: D. Number of joint children enrolled: *The cost for the joint child(ren only is: A minus B, divided by C = $ multiplied by D $ Page 5 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 65

136 Chapter 2 Discovery in Family Law Cases viii. ATTACH PROOF OF INSURANCE PREMIUMS. F. *Do you pay any out-of-pocket medical expenses (not covered by insurance for any joint child(ren on a monthly basis Yes No - If yes, list the name of the child, the reason for the cost, and the monthly amount: G. Does anyone pay a share of the monthly out-of-pocket medical costs for the child(ren? Yes No - If yes, who: Amount they pay: H. ATTACH PROOF OF MONTHLY MEDICAL EXPENSES. 4. YOUR CHILDCARE EXPENSES. A. *Do you pay for childcare for the joint child(ren so you can work, train, or look for work? Yes No - If yes, Paid to: Name of Child Age Average Monthly Payment B. *Does anyone else share the cost of childcare for the joint child(ren Yes No - If yes, name: Amount Paid Monthly: C. *City where childcare is provided: D. ATTACH COPIES OF PROOF OF CHILDCARE EXPENSES. 5. YOUR PARENTING TIME. Is this parenting time Proposed Occurring Existing Plan or Written Agreement A. How many ANNUAL overnights does each joint child spend with YOU? Name of Child # of overnights / / / / / B. ATTACH COPY OF MOST RECENT PARENTING PLAN OR WRITTEN AGREEMENT. Page 6 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 66

137 Chapter 2 Discovery in Family Law Cases YOUR REBUTTAL FACTORS. A. The amount of child support to be paid may be rebutted under OAR I. Are you seeking a rebuttal (an adjustment to the child support amount? Yes No ii. If yes, explain briefly: B. ATTACH SUPPORTING EVIDENCE/ADDITIONAL INFORMATION. I HEREBY DECLARE THAT THE ABOVE STATEMENTS ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND THEY ARE MADE FOR USE AS EVIDENCE IN COURT AND ARE SUBJECT TO PENALTY FOR PERJURY. DATED this day of, 20[13] [WILDA WIFE], PETITIONER ATTACHMENT CHECKLIST Check the box and include the appropriate attachment(s. [ ] Four most recent pay stubs or benefit statements. [ ] Most recent state and federal tax returns (including all applicable schedules [ ] Proof of insurance premiums [ ] Proof of medical costs [ ] Most recent parenting plan or written agreement [ ] Proof of childcare costs [ ] Copies of Spousal and Child Support Orders [ ] Additional Page: Number items to correspond; include your name and case number [ ] Other: Submitted by: [LAW FIRM, P.C.] [Alexis Attorney], OSB #[12345] Of Attorneys for Petitioner [[email protected]] Page 7 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 67

138 Chapter 2 Discovery in Family Law Cases SCHEDULE 1 Spousal / Registered Domestic Partner Support Factors You must complete this schedule and prepare and submit the attachments requested in this schedule if either party seeks spousal support. These are the total household expenses you must pay each month for yourself only and not for others in your household. Utility bills should be averaged for the year. Any other annual, quarterly or other periodic payments should be converted to a monthly average. DO NOT LIST ANY EXPENSE IF IT IS DEDUCTED FROM YOUR WAGES. 1. FIXED COSTS A. RESIDENCE Mortgage: HOA fees Description Second Mortgage/Home Equity Loan Property Taxes (if not included in Mortgage Insurance (if not included in Mortgage B. UTILITIES Electricity: Gas: Water: Garbage: Telephone (land line Telephone (cell: Cable: C. TRANSPORTION Car Payments Fuel: Maintenance and Repairs Other (specify D. INSURANCE Life: Automobile: Medical/Dental: Monthly Amount Page 8 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 68

139 Chapter 2 Discovery in Family Law Cases Other (specify E. Food and Household Items F. Medicine & Pharmaceutical G. Court/DHR-Ordered Support Payments for other than child(ren/spouse/rdp in this case 2. CONSUMER OBLIGATIONS: Name of Creditor TOTAL FIXED COSTS (A-G TOTAL PAYMENTS ON CONSUMER OBLIGATIONS 3. SUMMARY OF EXPENSES Decription SCHEDULE 1: Fixed Costs (item 1 above SCHEDULE 2 SCHEDULE 2: Consumer Obligations (item 2 above TOTALS Monthly Amount Monthly Amount OTHER FACTORS: Other factors that affect my income and expenses or that should be considered (attach supporting documentation when possible:? TOTAL OTHER FACTOR EXPENSES: Page 9 - UNIFORM SUPPORT DECLARATION Drafting Family Law Documents 2 69

141 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand M. Scott Leibenguth Leibenguth Law Portland, Oregon Linda Sherman, Ph.D. Portland, Oregon Contents I. What Children Need A. What Does Psychological Research Tell Us About What Is in Children s Best Interest? B. What Are Children s Developmental Needs, and What Are Parents Tasks? C. What Factors Should Be Considered in Developing a Parenting Plan? D. Parenting Plan Options E. What Is Additionally Important in Crafting an Appropriate Parenting Plan for Children and Parents? F. Types of Coparental Relationships After Divorce II. What Clients Want A. Advising Your Client B. Options for Helping Clients in a Contested Custody/Parenting Time Case C. Dealing with High-Conflict Families III. What Judges Demand A. ORS , Parenting Plan; Content B. ORS , Factors Considered in Determining Custody of Child C. ORS , Joint Custody of Child; Modification IV. Form 3 1 Overview Sample Parenting Plan V. Appendix C Overview Common Time Sharing Options A. Plans 1 4 (Infant and Reunification Plans B. Plan 5 (Continual Overnight Contact Plan C. Plan 6 (Alternating Weekends with Off-Week Overnights and Weekly Dinner Visits Plan D. Plan 7 (2-3 Plan E. Plans 8 and 9 (Alternating Weekend Plans F. Plan 10 (Alternating Weekend with Off-Week Overnight Plan G. Plans (Alternating Days and Alternating Week Plans VI. Parenting Time Case Law A. Right to Reasonable Parenting Time B. Limitations on Parenting Time Appendixes A. Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce (Reprinted with Permission from the Journal of the American Academy of Matrimonial Lawyers, Vol. 19,

142 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Table of Contents (continued Form B. Attachment 101 for Attorneys: Implications for Infant Placement Decisions I. Introduction II. Secure and Insecure Attachment A. What Is Attachment? B. How Does Attachment Need Differ from Related Social Needs? C. The Context in Which Attachment Theory Was Developed D. Two Major Influences on Bowlby s Theory of Attachment E. Key Ideas of Attachment Theory F. How Do We Observe Children s Attachments in Practice? G. How Do Secure Attachments Get Formed? H. What Does Being Securely Attached Do for a Child? I. Summary of the Importance of Early Attachment J. Can a Child Have More than One Secure and Important Attachment? III. Attachment as an Issue for Public Policy A. Disruption to Attachment as Developmental Risk B. Contrast a Placement Policy Based on Attachment Relationships with One Based on Biological Relationships C. The Judges Dilemma D. Proposed Guidelines for Utilizing Attachment Theory in Infant Custody Cases IV. Conclusion C. Parenting Time Examples (from Planning for Parenting Time: Guide for Parents Living Apart, CMCMontana.org; Reprinted with Permission Parenting Plan Examples by Paul Saucy Drafting Family Law Documents 3 ii

143 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand I. What Children Need A. What Does Psychological Research Tell Us About What Is in Children s Best Interest? F Children tend to benefit when parents are able to establish parenting plans without litigation. F Children whose parents were both highly involved before separation benefit from continued involvement by both parents. F Brief dinners and occasional weekend visits do not provide a broad enough or extensive enough basis for parent child relationships to be fostered, whereas weekday and weekend daytime and nighttime activities are important for children of all ages. F Without these opportunities for interaction, fathers drift out of children s lives, and children begin to see fathers as peripheral placing children at risk psychologically and materially. F Some parents are too bound up in conflict to separate their needs from the needs of their children. F In this small minority of cases, it may be in a child s best interest to permit only rare contact with that parent. F Unfortunately, reasoned discussion about the potential benefit of greater involvement for the vast majority of parents in the lives of their children has been drowned out by poisonous rhetoric from two groups: G Those mired in gendered concerns about fairness for parents; and G Those who exaggerate the numbers of separating couples whose level of conflict are sufficiently severe to warrant restrictions on the amount of time children share with each parent. B. What Are Children s Developmental Needs, and What Are Parents Tasks? 1 Age Stage Birth to 12 Months Learn rapidly; retain emotionally Attach via consistent gentleness By six months, recognize parents 12 to 24 Months More aware; can attach to many Begin to self-soothe and comfort Commonly test parents limits Months Developing independent skills May resist No demands May fear the unfamiliar 3 5 Years Attached; separation anxiety predictable (not about parent Need same-age social contact 6 9 Years May worry about parent loss May miss absent parent Common to want parents together 1 Adapted from Formulating Model Parenting to Meet Children s Developmental Needs, Sid Buckman, M.A., Joan B. Kelly, Ph.D., Honorable Bethany Hicks, and Commissioner Leah-Hill, 39th Annual Conference, AFCC, June 6, Drafting Family Law Documents 3 1

144 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Age Years Want independence from parents Becoming attached to friends May side, be angry, or be blameful Years Want independence and freedom Believe capable of own decisions Focus on friends, school, activity Stage Age Stage Birth to 12 Months Need to have caregivers capable of attending to their needs Need regular schedule preserved 12 to 24 Months Appropriate parent responses to build self- esteem as they test Need parents to make transitions easy, predictable, supportive Months Need predicable regular schedule Need transitions free of tension and parental arguing 3 5 Years Need to be happy away from parents If parents can t be pleasant, need limited contact at transitions 6 9 Years Need close parental monitoring of maturity, comfort, skill Need maximal parental access Years Need parents to hear their views Need parents to make decisions Consideration for all activities Years Need parents to understand their resistance and desires while continuing to make decisions Age Birth to 12 Months Stage Need basic sleeping, waking, and feeding schedules preserved Need frequent and predictable contact with both parents 12 to 24 Months Need resistance to be met with support for child s relationship with other parent Months Need routine schedules to help manage fears that both homes are safe places 3 5 Years Parents must not use children as a messenger Holidays need to be routine 6 9 Years Parenting plans can easily be one home or two homes Access can vary with prior notice Years Parents can be flexible, remembering that access to both parents should occur on a regular basis Drafting Family Law Documents 3 2

145 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Age Stage Years Flexibility and variability based on needs of the child while maintaining parents authority C. What Factors Should Be Considered in Developing a Parenting Plan? 1. Minimize Loss F Divorce of parents is a significant loss. F Children lose parents together and one home. F And possibly daily routine, familiar neighborhood. F And possibly financial security. 2. Maximize Relationships F Maximize access to two healthy and involved parents. F Encourage relationships with all family and friends. F Preserve free access to family gatherings, events, and rituals. 3. Protect Children s Feelings and Sense of Well-Being F Reassure children that divorce is not their fault. F Accept responsibility for the change and don t blame. F Do not expose the children to any adult issues. F Do not use the children as a confidante or messenger. 4. increase Security and Predictability F Reduce conflict a major risk to good child outcomes. F Make transfers between parents civil and polite. F Create and maintain a consistent parenting time schedule. F Be flexible only if conflict is low. 5. Be Cognizant of Age-Related Needs F There is no one size fits all. F Schedules need to be tailored to specific child needs. F Schedules need to be tailored to children of different ages. F Schedules need to be tailored to different parental schedules. F Flexibility is ideal and enhanced by low conflict. D. Parenting Plan Options 2 1. Limited Access a. Every Other Weekend (4/28 14% Time Share F Too long separation for most. F NRP relationship diminishes. F RP has little time off. F May be okay if NRP inept/angry/rigid. 2 Adapted from Joan Kelly, Ph.D., Drafting Family Law Documents 3 3

146 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand b. Every Other Weekend Plus Visit (4/28 14% Time Share F F F Too long for most. Midweek visit hectic; rushed. Little time for homework. c. Every Other Weekend Extended (6/28 21% Time Share (Friday Afternoon Through Monday Morning F More expansive/school connection. F One less transition than visit option. F Drop off and pick up at school. 2. Mid-Range Access Every Other Weekend Plus Overnight (8/28 28% Time Share (Friday Through Sunday Afternoon and Wednesday Afternoon Through Thursday Morning F No separation greater than six days. F NRP engages in school and homework. F RP has weeknight off. F Most transfers at school. 3. Shared Access a. Every Other Weekend Extended Plus Overnight (10/28 36% Time Share (Friday Afternoon Through Monday Morning Plus Wednesday Afternoon Through Thursday Morning F NRP assumes more responsibility. F All school transfers. F Shared without equal time. b. Shared and Equal 50% (Sunday Through Thursday with Parent A; Thursday Through Sunday with Parent B F One transfer per week. F Parent A has all school and little leisure. F Parent B has most leisure and no school. c. Shared and Equal 50% (2/2/5/5 Pattern (Split Midweek Plus Every Other Weekend; Parent A Monday Afternoon Through Wednesday Morning; Parent B Wednesday Afternoon Through Friday Morning; Alternating Weekends to Monday Morning F Consistent midweek residence. F All transfers at school. F No separation more than five days d. Shared and Equal 50% (Alternating Weeks; Monday After School Through Monday Morning F Separation okay for children over 6. F Parents and children settle into routine. F May not be best for children under 6. Drafting Family Law Documents 3 4

147 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand E. What Is Additionally Important in Crafting an Appropriate Parenting Plan for Children and Parents? F Read the literature join the Association of Family and Conciliation Courts to become best educated. F Always remember that there are multiple factors to consider. F Parental conflict is a risk factor low conflict is best. F Not all conflict is high, and most diminishes in two years. F Altering parental access due to conflict may not be the best option. F Loss of access to a good and involved parent is as great a risk to children as conflict. F Parental access buffers the impact of conflict. F Children develop the best when both parents are involved in their lives. F Each makes unique an profound contributions to a child s life. F Young children do best with lots of time with parents but can manage well with multiple caregivers children attach well to many people. F Communication between parents makes things easier for children and allows for flexibility, which is in their best interest. F Personal items that transfer back and forth between households should do so with ease they belong to the children not to the household. F Please encourage parents to understand the difference between their adult needs, interests, and reactions and their children s need to have a full and complete with the other parent unhindered by adult issues. F. Types of Coparental Relationships After Divorce 1. Cooperative Parenting 25 30% F Joint planning. F Flexibility. F Provide support as needed. 2. Parallel Parenting More than 50% F Low communication. F Low conflict. F Disengaged. 3. Conflicted Relationship Approximately 20% F Poor communication. F One or both parents may still be enmeshed in conflict. II. What Clients Want A. Advising Your Client Under normal circumstances, clients think and act rationally when it comes to their family. But under the stress of a high-conflict dispute, like divorce, even the most well-meaning of us can have trouble making smart decisions. Clients want (or need an attorney who is truly concerned about their needs and who will advise, coach, and educate them in the process. Advise clients as to the following. Drafting Family Law Documents 3 5

148 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand F Do they really need to divorce, or should they attempt marriage counseling first? F Is their current individual or family therapist equipped to assist with a court-involved case? F Do they understand that family mediation services (county programs or private practitioners are available as an alternative to litigation? F Does the client understand what a custody and parenting time evaluation means with regard to a time commitment and financial cost for their family? F Are they prepared to make their life an open book and air their family secrets in a public forum? F Are they ready to turn their children s custody and parenting time over to a third-party investigator, judge, and/or parenting coordinator? F Ask them to tell children they are not the cause of the divorce. Give their children love and support. Don t completely isolate children from the process. F Set a good example for their children by not bad-mouthing or blaming anyone around the children. F Seek professional help for coping with stress. Don t allow clients to rely on their children or friends for dealing with their anxiety and depression. Children and friends are not trained or prepared to help clients through this type of difficulty. F Ask them to be honest and straightforward in negotiating with their spouse and never use the children as a weapon. F Ask clients to document dates and events they consider important. Memories can be unreliable under stress. F Suggest to clients that they not follow the advice their of well-meaning friends. Ask them to place their trust in experienced professionals instead. F Read helpful materials like Mom s House, Dad s House by Isolina Ricci and Parenting with Love and Logic by Foster Cline and Jim Fay. Try to encourage clients to avoid hateful blog articles. F Educate clients about the logistics of parenting plans, and explain the positive and negative aspects of options as those options relate to the client s goals. F Help clients understand the difference between custody and parenting time and between joint custody and sole custody. F Help clients recognize that the parenting plan may (and likely should be altered in the future as the children grow older and their needs change. B. Options for Helping Clients in a Contested Custody/Parenting Time Case 1. What is the developmental stage of the child (newborn, toddler, preteen, or teenager? 2. What are the financial resources of the family? Is insurance coverage available? 3. Do the family dynamics and personalities indicate that a decision may need to be forced upon the parents at some point? Has mediation been successful in the past? Have previous disputes been settled before trial? Is there a serious concern about alcohol or drug abuse? Is there a serious concern about a personality disorder? Consider ORS options. a. Subparagraph (2, custody and parenting plan evaluator A professional whom conducts physical, psychiatric and/or mental health examinations and reports findings and opinions regarding Drafting Family Law Documents 3 6

149 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand the child s developmental needs and the parents decision making for the child and to the court. The evaluator holds no privileges, confidences, or duties to the child or the parents. What are the therapeutic resources available to the family? Previously involved custody or parenting time evaluators, marriage counselors, child s therapists, reconciliation therapists? b. Subparagraph (3, parenting coordinator (PC A mental health or legal professional with mediation training and experience who assists high-conflict parents to implement their parenting plan by facilitating the resolution of their disputes. A PC is charged with educating parents about children s needs and making decisions within the scope of the court order or appointment contract. The overall objective of parenting coordination is to assist high-conflict parents to implement their parenting plan, to monitor compliance with the plan, to resolve conflicts regarding their children in a timely manner, and to protect and sustain safe, healthy, and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management, and decision-making functions. The PC holds no privileges, confidences, or duties to the child or the parents. A PC may appear in court as a witness and may offer opinion evidence to the court. Considerations when deciding between PC (therapist or PC (lawyer. i. If parental education is the primary issue, then a family therapist (PC may be best. For example: F Parent says inappropriate things to the children; F Child is estranged from a parent or is a runaway threat; F Parent belittles other parent in front of the children. ii. If compliance with orders is the primary issue, then a lawyer PC may work best. For example: F Parent has historically physically harmed the child; F Parent s passive-aggressive personality disrupts parenting time exchanges; F Parent files multiple unfounded DHS or harassment complaints. c. Subparagraph (6, attorney for the child (AFC A lawyer whom represents children by providing a child a strong voice in court and whom independently investigates, assesses, and advocates the child s best interests. The APC holds privileges, confidences, and duties to the child as in any clientlawyer relationship. The AFC holds a duty to the child of zealous representation and must have an understanding of the child s developmental needs as well as the child s comprehension of the dispute. An APC appears in court, presents evidence, files motions, and offers argument. AFCs are always appointed by the court. Do not allow a nonappointed hired gun AFC to double-team a parent. d. Subparagraph (7, judicial interview of children Should a child ever be present in the courthouse? Know your judge! C. Dealing with High-Conflict Families 1. Recognizing a High-Conflict Case. You have a high conflict case if: F Parents who use their children in fighting their disputes putting the children in the middle; F Disputing parents with personality disorders and/or drug and alcohol addictions; F Parents that overuse the adversarial process to express anger/rage, air grievances, and punish. Drafting Family Law Documents 3 7

150 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 2. Priorities in Handling High-Conflict Cases a. Priority 1: Protect the child during the conflict! The child should have access to a trained family therapist whom the child can safely voice concerns and questions. pace. b. Priority 2: The case must be pursued in a financially responsible manner. c. Priority 3: The case must move forward toward a resolution of vital disputes at a reasonable 3. Strategy in High-Conflict Case a. Step One Classes. Always obtain a stipulation or order requiring the parents to complete a high-conflict education class, for example, Parenting Beyond Conflict (provided by Judith Swinney; for additional info and to register, please call ( , visit com/, or [email protected]. This six-week skill-building class helps strengthen parents communication and negotiation skills relating to parenting after divorce or separation, regardless of how much or little conflict exists. In a small supportive group setting, the focus is on personal responsibility, limit-setting, and keeping children safe and out of the middle of conflict. b. Step Two Mediation. Mediation is a process in which a neutral professional assists the parties in understanding the dynamics of their dispute and assists the parties in working toward a resolution that the parties fully participate in and agree upon; the neutral professional utilizes advanced communication skills and experienced negotiation insights. Consider county mediation programs and private mediation resources. III. What Judges Demand A. ORS , Parenting Plan; Content (1 In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under ORS to , there shall be developed and filed with the court a parenting plan to be included in the judgment. A parenting plan may be either general or detailed. (2 A general parenting plan may include a general outline of how parental responsibilities and parenting time will be shared and may allow the parents to develop a more detailed agreement on an informal basis. However, a general parenting plan must set forth the minimum amount of parenting time and access a noncustodial parent is entitled to have. (3 A detailed parenting plan may include, but need not be limited to, provisions relating to: (a Residential schedule; (b Holiday, birthday and vacation planning; (c Weekends, including holidays, and school in-service days preceding or following weekends; (d Decision-making and responsibility; (e Information sharing and access; (f Relocation of parents; (g Telephone access; (h Transportation; and (i Methods for resolving disputes. (4 (a The court shall develop a detailed parenting plan when: Drafting Family Law Documents 3 8

151 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand (A So requested by either parent; or (B The parent or parents are unable to develop a parenting plan. (b In developing a parenting plan under this subsection, the court may consider only the best interests of the child and the safety of the parties. [1997 c.707 2]. B. ORS , Factors Considered in Determining Custody of Child (1 Except as provided in subsection (5 of this section, in determining custody of a minor child under ORS or , the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors: (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. (2 The best interests and welfare of the child in a custody matter shall not be determined by isolating any one of the relevant factors referred to in subsection (1 of this section, or any other relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse as defined in ORS , other than as described in subsection (5 of this section, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse. (3 In determining custody of a minor child under ORS or , the court shall consider the conduct, marital status, income, social environment or life style of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child. (4 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. (5 (a The court determining custody of a minor child under ORS or shall not award sole or joint custody of the child to a parent if: (A The court finds that the parent has been convicted of rape under ORS or or other comparable law of another jurisdiction; and (B The rape resulted in the conception of the child. C. ORS , Joint Custody of Child; Modification (1 As used in this chapter, joint custody means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but Drafting Family Law Documents 3 9

152 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand not limited to, the child s residence, education, health care and religious training. An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions. (2 The existence of an order of joint custody shall not, by itself, determine the responsibility of each parent to provide for the support of the child. (3 The court shall not order joint custody, unless both parents agree to the terms and conditions of the order. (4 When parents have agreed to joint custody in an order or a judgment, the court may not overrule that agreement by ordering sole custody to one parent. (5 Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order. (6 (a The inability of a parent to comply with the terms and conditions of a joint custody order due to the parent s temporary absence does not constitute a change of circumstances if the parent s temporary absence is caused by the parent being: (A Called into active state duty as defined in ORS ; or (B Called into active federal service under Title 10 of the United States Code as a member of the Oregon National Guard. (b As used in this subsection, temporary absence means a period not exceeding 30 consecutive months. [1987 c.795 6; 2003 c ; 2005 c.79 3] IV. Form 3 1 Overview Sample Parenting Plan The format of the plan is intentional. 1. The plan is divided into three sections. The first is the actual parenting schedule. The second contains provisions that involve implementation of the schedule and logistics relating thereto. The third section deals with the responsibilities that each parent will have as a parent, not necessarily relating to the schedule itself. 2. Put headings on each section and number the paragraphs. Such formatting makes it easier for each parent to find the part of the plan that speaks to a specific issue of concern. Remember, this will be the rule book under which each parent will be operating until it is changed or the child turns 18 years of age. Make it as user-friendly as possible. 3. Personalize the plan by using the children s names. Yes, it takes a few extra minutes to do, but your computer s merge program should make this step easy. This is the document to which your client will most likely frequently refer in the future. The client is paying you good money for your assistance in writing the plan, so provide a good-looking, personalized product rather than a form. After all, if the client merely wanted boilerplate language, he could use the county s standard plan. In personalizing the form, be cognizant of personal pronouns. For example, using a plural personal pronoun (or references such as his or her when there is a single male child makes it appear as though you are using a form. 4. The plan is designed to delete paragraphs that might be unwanted without having to renumber all of the paragraphs. For example, the provision that requires both parents to share in the cost of a child s extracurricular activities in section 2.5 is the last subparagraph (2.5.4 because most Drafting Family Law Documents 3 10

153 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand support-paying parents will want it deleted, believing that such expenses should be paid for with the support the residential parent is receiving. The specific provisions may or may not be what your client needs, but they are worth discussing. V. Appendix C Overview Common Time Sharing Options The examples contained in Appendix C are intended as examples only. Clients should tailor these plans with consideration to their children s needs, each parent s work schedules, and family resources. A. Plans 1 4 (Infant and Reunification Plans Plans 1, 2, 3 and 4 are for when: F The child will spend less time with one parent because of work schedules, living arrangements, or great distance between homes, or F A parent has limited parenting skills, or F The child has previously spent most of the time with one parent. B. Plan 5 (Continual Overnight Contact Plan Parents may prefer Plan 5 when: the parenting skills of each parent are adequate, but one parent has less available time than the other to devote to the child. C. Plan 6 (Alternating Weekends with Off-Week Overnights and Weekly Dinner Visits Plan Plan 6 includes overnights. Plan 6 is for parents who: F Have cared for the child about equally, or F Both know how to care for the child overnight, or F Live close enough to each other that the child won t have long car trips between the homes, or F Can communicate and cooperate with each other about the child s care and well-being. D. Plan 7 (2-3 Plan Plan 7 include overnights. Plan 7 is for parents who: F Have cared for the child about equally, or F Both know how to care for the child overnight, or F Live close enough to each other that the child won t have long car trips between the homes, or F Can communicate and cooperate with each other about the child s care and well-being. E. Plans 8 and 9 (Alternating Weekend Plans Plans 8 and 9 are for when: F The child will spend less time with one parent because of work schedules, living arrangements, or great distance between homes, or F A parent has limited parenting skills, or F The child has previously spent most of the time with one parent. F. Plan 10 (Alternating Weekend with Off-Week Overnight Plan Parents may prefer Plan 10 when the parenting skills of each parent are adequate, but one parent has less available time than the other to devote to the child. Drafting Family Law Documents 3 11

154 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand G. Plans (Alternating Days and Alternating Week Plans Plans 11, , and 12, , include overnights. Plans 12 and 13 are for parents who: F Have cared for the child about equally, or F Both know how to care for the child overnight, or F Live close enough to each other that the child won t have long car trips between the homes, or F Can communicate and cooperate with each other about the child s care and well-being. VI. Parenting Time Case Law A. Right to Reasonable Parenting Time Truitt and Truitt, cited in the 2002 text, was modified on other grounds at 125 Or App 621, 866 P2d 497 (1994. In Weaver v. Guinn, 176 Or App 383, 31 P3d 1119 (2001, following the decision in the Truitt case, the Court of Appeals stated that it was not bound by the artificial insemination contract in deciding the parenting time rights of a biological parent. In Shelton & Shelton, 196 Or App 221, 232, 100 P3d 1101 (2004, the Court of Appeals held there was no reason to reduce the father s overall parenting time or his pattern of weekly involvement with the children. The number of overnights was a fair measure of parenting time since household bonds are maintained and identified through overnights visits. Shelton, 196 Or App at 231. The parenting schedule was modified so that the father s percentage of overnights remained consistent with the percentage he enjoyed under the dissolution judgment. In McArthur v. Paradis (In re Christison, 201 Or App 530, , 120 P3d 904, rev. denied, 339 Or 609 (2005, it was in the child s best interests that the father s parenting time schedule accommodate the mother s observance of the Sabbath with the child. In Pooler & Pooler, 206 Or App 447, 136 P3d 1152 (2006, the case was remanded so the court could put adequate parenting time safeguards in place for a measured reintroduction of the father into the children s lives after the mother s testimony about the father s abuse, methamphetamine use, and virtual estrangement from his two young children. B. Limitations on Parenting Time In Cole v. Wyatt, 201 Or App 1, 116 P3d 919 (2005, it was appropriate to deny the father parenting time when he had not had any significant contact with the child for 10 or more years, and the father had physically, sexually, and verbally abused other family members. Drafting Family Law Documents 3 12

155 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 1 3-JAN-06 10:08 Appendix A Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce Vol. 19, 2005 Parenting Following Separation and Divorce 237 Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce By Joan B. Kelly* Introduction With the dramatic rise in the divorce rate in the 1960 s, courts were increasingly called upon to settle disputes regarding living arrangements for children following their parents separation and divorce. Courts drew upon cultural and societal views of fathering and parent-child relationships at that time, and visiting arrangements emerged that delegated mothers, with rare exception, as the primary caretakers, and fathers as visitors in children s lives. 1 This maternal preference reflected society s view that fathers were not particularly important in the development of children s overall social, intellectual, and emotional wellbeing, a view reinforced by Freudian psychoanalytic theory, which dominated the training and thinking of mental health professionals for decades. 2 Early studies of children s attachment processes also focused exclusively on mothers and infants, and the field of child development had not yet studied the father s influence and role in children s overall development. Child development and divorce research of the past twentyfive years provides ample evidence that the traditional alternating weekend visiting pattern failed to meet the psychosocial and emotional needs of many separated children in both the short and longer-term. These empirical findings have shaped the emergence of appropriate and beneficial parenting plan options, which consider children s developmental and psychological needs, and provide alternatives for parents, courts, and professionals to consider as they decide upon the shape of children s * Dr. Kelly is a Psychologist and Consultant in Corte Madre, CA. 1 Joan B. Kelly, The Determination of Child Custody, 4 FUTURE OF CHILD.: CHILD. & DIVORCE 121, 122 ( Id. Drafting Family Law Documents 3 13

156 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 2 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 238 Journal of the American Academy of Matrimonial Lawyers future relationships with each of their parents. This article highlights this accumulating body of social science research relevant to this new development. In Part I, the overall post-divorce risks for children of divorce are summarized, and problems with traditional visiting patterns are described. Part II focuses more specifically on empirical research that is relevant to developing appropriate parenting plans for children, including attachment formation, daycare, and overnights; the views of children and adolescents about contacts with their fathers; the relationship between children s adjustment and father involvement; and the impact of conflict. In Part III, different types of co-parental relationship after divorce are described and Part IV summarizes the rationale for developing parenting plan models that offer multiple access options to parents for professionals and courts to consider, and which are more likely to meet the diverse developmental and psychological needs of children and families. I. Adjustment of Children in Divorced and Married Families A. Empirical Research Regarding Post-Divorce Risk A large body of empirical research provides ample evidence that separation and divorce increase the risk for social and emotional adjustment and academic achievement problems in children and adolescents, when compared with children from continuously married families. 3 Whereas 10% of children in married families have serious psychological and social problems, between 20-25% of children in divorced families have similar problems, as measured on multiple objective tests. 4 Researchers have identified various factors that are associated with increased risk; in particular, the stress engendered by the separation and 3 Paul R. Amato, The Consequences of Divorce for Adults and Children, 62 J. MARRIAGE & FAM (2000; E. Mavis Hetherington, Should We Stay Together for the Sake of the Children?, in COPING WITH DIVORCE, SINGLE PARENTING, AND REMARRIAGE: A RISK AND RESILIENCY PERSPECTIVE 93, 95 (E. Mavis Hetherington ed., 1999; Joan B. Kelly & Robert E. Emery, Children s Adjustment Following Divorce: Risk and Resilience Perspectives, 52 FAM. REL. 352, 355 ( E. Mavis Hetherington & John Kelly, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED (2002. Drafting Family Law Documents 3 14

157 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 3 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 239 divorce process; continuing high levels of parental conflict; diminished parenting following separation and divorce; loss of important relationships; remarriage and repartnering; and reduced economic opportunities. 5 With the continuing refinement and replication of these findings, a parallel search for protective factors reducing risk has been ongoing. 6 A number of studies have pointed to the extent of involvement of the nonresident parent post-separation and divorce as a potential protective factor for children. 7 Since visitation guidelines have historically determined parental access and involvement, the need to address the limitations of traditional access schedules became evident. B. Problems with Traditional Visiting Patterns and Guidelines For reasons not entirely clear, the specific visiting pattern of every other weekend with the nonresident parent, usually the father, became the favored and traditional arrangement for children following separation. This alternating weekend pattern may have gained favor because it was easy to apply, requiring no judicial or psychological analysis. It simply divided the child s leisure time during the school year between parents, assigning divorced mothers all the work of raising children, including discipline, homework, and childcare, and typically excluding fathers from these normal parenting responsibilities and opportunities. In the 1980 s, as the courts gradually adopted best interests standards as a basis for determining custody and access arrangements following separation, the primary caretaker guideline, with every other weekend visits with the nonresident parent, became the accepted definition of children s best interests, in formal and informal visiting guidelines in most jurisdictions in the United States and elsewhere. 8 Such guidelines are inherently flawed because of the onesize-fits-all standard, and because they do not, in fact, address the 5 Kelly & Emery, supra note 3, at Id. at Paul R. Amato & Joan G. Gilbreth, Nonresident Fathers and Children s Well-being: A Meta-Analysis, 61 J. MARRIAGE & FAM. 557 (1999; Kelly & Emery, supra note 3, at 356, Kelly, supra note 1, at 128 (King County, WA By 3, an overnight or weekend ; Mohave County, AZ: Alternate weekends, one additional afternoon/weekend per month. Drafting Family Law Documents 3 15

158 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 4 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 240 Journal of the American Academy of Matrimonial Lawyers best interests of many children. 9 They failed to consider children s ages, gender, and developmental needs and achievements, the history and quality of the child s relationship with each parent, quality of parenting, and family situations requiring special attention. 10 Rigid and mindless adherence to such prescriptive guidelines most often resulted in those children with a warm and supportive relationship with their nonresidential fathers restricted to seeing their fathers only four out of each twenty-eight days, because of the default use of the guidelines, the same amount of time as for children with a self-absorbed, disinterested, or emotionally abusive father. 11 Children accustomed to interacting with a parent on a daily basis were suddenly required, as a sole result of the parents separation, to wait twelve days before seeing that parent for fourty-eight hours, and then wait, yet again, another twelve days for the next fourty-eight hour contact. This protracted separation from a loved parent caused great anguish and confusion for many children, particularly for the youngest children, with poor memory and sense of time, limited or no language skills, and no cognitive capacity to understand why this abrupt decrease in their contact with the object of their affection occurred. 12 While older children had the capacity to understand the visiting schedule, intense dissatisfaction, upset, longing and feelings of deprivation, and in some cases, depression and anxiety about their changed circumstances was common. 13 Early clinical research also documented many fathers intense dissatisfaction, pain, and anger with the sudden and arbitrary limitations on their paternal role Joan B. Kelly, The Best Interests of the Child: A Concept in Search of Meaning, 35 FAM. & CONCILIATION CTS. REV. 377, 380 ( Kelly, supra note 1, at Author clinical and research observations. 12 JUDITH S. WALLERSTEIN & JOAN B. KELLY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE 46-47, (1980; Joan B. Kelly & Michael E. Lamb, Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, 38 FAM. & CONCILIATION CTS. REV. 297, 304 ( WALLERSTEIN & KELLY, supra note 12, at 57-64; Paul R. Amato, Family Processes in One-Parent, Stepparent and Intact Families: The Child s Point of View, 49 J. MARRIAGE & FAM. 327 ( TERRY ARENDELL, FATHERS AND DIVORCE (1995; WALLERSTEIN & KELLY, supra note 12, at ; James R. Dudley, Noncustodial Fathers Speak Drafting Family Law Documents 3 16

159 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 5 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 241 It is remarkable that professionals in the field of mental health did not anticipate the devastating impact that this odd and restrictive schedule would have on children s emotional well-being and their future relationships with their visiting parents. It is even more striking that as divorce research convincingly demonstrated how inadequate and child-unfriendly such guidelines and rules were, they persisted with such tenacity, including to the present day. The Approximation Rule recently adopted by the American Law Institute, 15 which is essentially a modern day guideline, is not an improvement on the traditional guidelines, because it, once again, does not consider the quality and meaning of children s relationship with each parent, the age and developmental needs of children, or the substantial changes in parental role and function necessarily precipitated by the separation of the parents. II. Child Development and Divorce Research Relevant to Parenting Plans A. Traditional Views and Contemporary Research In the early 1970 s, researchers in the child development field began to consider the role of the father in children s development, 16 and commenced intensive study of attachment processes, parent-child relationships, and cognitive, social and emotional development continued thereafter with both mothers About Their Parental Role, 34 FAM. & CONCILIATION CTS. REV. 410 (1996; Edward Kruk, Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce, 30 FAM. CT. REV. 81 ( AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DIS- SOLUTION: ANALYSIS AND RECOMMENDATIONS 2.08(1(2002 (stating that the court should allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caregiving functions prior to the parents separation or, if the parents never lived together, before the filing of the action.. See also Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, 80 CAL. L. REV. 615, 617 (1992 (proposing the approximation rule. 16 For reviews, see Michael E. Lamb, THE ROLE OF THE FATHER IN CHILD DEVELOPMENT (Michael E. Lamb ed., 3rd ed. 1997; Ross A. Thompson, Early Sociopersonality Development, in 3 HANDBOOK OF CHILD DEVELOPMENT PSYCHOLOGY: SOCIAL, EMOTIONAL, AND PERSONALITY DEVELOPMENT 25 (William Damon & Nancy Eisenberg eds., 5th ed Drafting Family Law Documents 3 17

160 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 6 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 242 Journal of the American Academy of Matrimonial Lawyers and fathers. These studies, combined with day care and separation and divorce research have contributed to the evolution of more appropriate parenting plans for children. 17 Initially, in the 1950 s, psychiatrist John Bowlby speculated that infants formed a single relationship, before all others, which remained preeminent, a notion which was never supported empirically. This theory guided clinicians, judges, and custody evaluators for decades in their belief that continuity in the mother-child relationship was more important to preserve than continuity in the father-child relationship, and little thought was given to the psychosocial and economic advantages of maintaining meaning in both relationships in the long-term for children when fathers provided appropriate and nurturing care as well. 18 Research on father-infant attachment processes provided ample evidence that most infants form attachments to both parents at approximately the same age, between six and seven months, even though fathers typically spend less time with their infants than do mothers. 19 As these attachments consolidate during the next eighteen months, children are at risk if parents separate and attachment relationships are weakened or disrupted as a result of infrequent contact and prolonged separation. Even if children prefer their primary caretaker at this age, a preference which often disappears by eighteen months, the infant-fa- 17 See, e.g., JOHN BOWLBY, A SECURE BASE: PARENT-CHILD ATTACH- MENT AND HEALTHY HUMAN DEVELOPMENT (1988; Hetherington, supra note 3, at 103; Michael E. Lamb, Non-custodial Fathers and Their Impact on the Children of Divorce, in THE POST-DIVORCE FAMILY: CHILDREN, PARENTING, AND SOCIETY 105 (Ross A. Thompson & Paul R. Amato eds., 1999; Michael E. Lamb, Nonparental Childcare: Context, Quality, Correlates, and Consequences, in 4 HANDBOOK OF CHILD DEVELOPMENT: CHILD PSYCHOLOGY IN PRACTICE 73 (William Damon, et al. eds., 5th ed., 1998; Michael E. Lamb, Kathleen J. Sternberg & Ross A Thompson, The Effects of Divorce and Custody Arrangements on Children s Behavior, Development, and Adjustment in PARENTING AND CHILD DEVELOPMENT IN NONTRADITIONAL FAMILIES 125 (Michael E. Lamb, ed., 1999; Sarah S. McLanahan, Father Absence and the Welfare of Children, in Hetherington, 1999, supra note 3, at ; Ross A. Thompson & Deborah J. Liable, Noncustodial Parents in PARENTING AND CHILD DEVELOP- MENT IN NONTRADITIONAL FAMILIES 103 (Michael E. Lamb ed., Kelly, supra note 9 at Michael E. Lamb, The Development of Father-Infant Relationships, in THE ROLE OF THE FATHER IN CHILD DEVELOPMENT , (Michael E. Lamb ed., 3rd ed Drafting Family Law Documents 3 18

161 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 7 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 243 ther attachment is still psychologically meaningful to the child. 20 Because of immature memory and poor sense of time, very young children with interested and adequate fathers benefit from multiple contacts with nonresident parents during each week to sustain and consolidate the deepening attachment, and to minimize separation anxiety, just as do mothers. This is important because the loss of important attachment relationships in childhood has been found to cause a profound sense of loss and anxiety among young children and an increased risk of severe depression in later life. 21 One of the more sharply contested issues in custody and access disputes has been whether infants can tolerate overnights away from their primary caretakers, usually mothers, to spend night or weekend time with their fathers. 22 Various writers and researchers cautioned that any overnight time away from mothers before age three 23 or age four 24 is harmful to the mother-infant attachment, and therefore strongly recommended against overnights with fathers. No empirical support has sustained these recommendations, including the research of psychologists Judith Solomon and Carol George, 25 but the prohibitions against overnights for young children with their fathers, who are 20 See Joan B. Kelly & Michael E. Lamb, Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, 38 FAM. & CONCILIATION CTS. REV. 297, 306 (2000 (discussing Judith Solomon & Carol George, The Development of Attachment in Separated and Divorced Families: Effects of Overnight Visitation, Parent, and Couple Variables, 1 AT- TACHMENT & HUM. DEV. 2 ( Id. at Marsha K. Pruett, Applications of Attachment Theory and Child Development Research to Young Children s Overnights in Separated and Divorced Families, in OVERNIGHTS AND YOUNG CHILDREN: ESSAYS FROM THE FAMILY COURT REVIEW, 5-12 ( WILLIAM F. HODGES, INTERVENTIONS FOR CHILDREN OF DIVORCE: CUSTODY, ACCESS, AND PSYCHOTHERAPY ( Judith Solomon & Zeynep Biringen, Another Look at the Developmental Research: Commentary on Kelly and Lamb s Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, 39 FAM. CT. REV. 355, 361 ( Richard A. Warshak, Blanket Restrictions: Overnight Contacts Between Parents and Young Children, 38 FAM. & CONCILIATION CTS. REV. 422 (2000 (cataloguing research that supports continued post-divorce involvement with both parents. Drafting Family Law Documents 3 19

162 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 8 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 244 Journal of the American Academy of Matrimonial Lawyers not strangers but a second important attachment figure, remain central in popular thinking, custody evaluation recommendations, and judicial decision-making. 26 More recently, empirical longitudinal research reported that no detriment to children from birth to three years is associated with overnights with fathers. 27 Mothers and fathers of those children who had overnights reported fewer social and attention problems in their children, and less withdrawn behavior among girls, compared to those without overnights. Among children from age four to six, overnights were associated with significantly fewer psychological adjustment problems, when compared to those without overnights. Consistency of schedule was a most important predictor of good adjustment, as children with inconsistent schedules were reported by mothers and fathers to have more social problems and internalizing symptoms. Daycare research also indicates that young children can successfully sleep apart from their primary attachment figures, and when non-parent daycare is adequate, brief regular separations from mothers do not foster insecure infant-mother attachments. 28 One could assume that this would be true as well when young children spend short but regular time periods with fathers who provide adequate care. Although evidence exists of gender differences in the parenting of fathers and mothers (for example, fathers play with their young children proportionately more than do mothers; physical care giving is a larger component of mother-infant interactions, compared to fathers, parents are more similar in interacting with their young children than different, and both parents make significant contributions to their children s social and cognitive development and their emotional well-being through their nurturance, interest, and approval. 29 Ample evidence abounds that children in both two- and single-parent families appear bet- 26 Author experience as family law judicial trainer and presenter at national and international divorce conferences. 27 Marsha K. Pruett, et al., Critical Aspects of Parenting Plans for Young Children: Interjecting Data into the Debate About Overnights, 42 FAM. CT. REV. 39, (2004, (study excluded families with a history of domestic violence. 28 NICHD Early Child Care Research Network, The Effects of Infant Child Care on Infant-Mother Attachment Security: Results of the NICHD Study of Early Child Care, 68 CHILD DEV. 860 ( Lamb, supra note 16. Drafting Family Law Documents 3 20

163 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 9 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 245 ter adjusted in multiple dimensions when both parents are involved in warm and supportive relationships with their children. 30 Decades of divorce research investigating children s reactions and adjustment to their parents separation and divorce has provided an increasingly reliable and rich source of information for shaping developmentally and psychologically appropriate parenting plans. Children s views of access, as children and later as young adults, paternal involvement and child adjustment, impact of high conflict, sole versus joint physical custody, and the nature of the co-parental relationship are among the research relevant for consideration. B. Children s Views about Access and Father Involvement Over three decades, children have routinely reported the loss of one parent as the most negative aspect of divorce, and with the passage of time, have described their fathers as increasingly peripheral to their lives: no longer involved in discipline, or providing emotional support, more like an uncle or distant relative. 31 Father-child relationships weaken and deteriorate over time as a result of limited time with each other, as well as gradual paternal withdrawal, continued anger and co-parental conflict, and moves to new locations. 32 Based on early research, statutes appeared in the 1980 s stressing children s needs for frequent and continuing contact with their nonresidential parent, 33 however, 30 ROBERT E. EMERY, MARRIAGE, DIVORCE, AND CHILDREN S ADJUST- MENT (2d ed. 1999; Amato & Gilbreth, supra note 7, at ; Hetherington, supra note 3, at ; Joan B. Kelly, Children s Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research, 39 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 963 (2000; Lamb, supra note 16; McLanahan, supra note 17; Ronald L. Simons, et al., Explaining the Higher Incidence of Adjustment Problems Among Children of Divorce Compared with Those in Two-Parent Families, 61 J. MARRIAGE & FAM ( WALLERSTEIN & KELLY, supra note 12, at ; Amato, supra note 13, at E. MAVIS HETHERINGTON & JOHN KELLY, supra note 4; WALLERSTEIN & KELLY, supra note 12, at ; Constance R. Ahrons & Jennifer L. Tanner, Adult Children and Their Fathers: Relationship Changes Twenty Years After Parental Divorce, 52 FAM. REL. 340 (2003; Joan B. Kelly & Michael E. Lamb, Developmental Issues in Relocation Cases Involving Young Children: When, Whether, and How? 17 J. FAM. PSYCHOL. 193 ( Kelly, supra note 1, at 131. Drafting Family Law Documents 3 21

164 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 10 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 246 Journal of the American Academy of Matrimonial Lawyers alternating weekend visitation remained the standard pattern in most jurisdictions. In more recent studies, approximately half of children state a desire for more contact with their fathers, about half think the amount of current contact is just about right, and one-third want the contacts to be longer. Two percent wanted less contact, typically when fathers were difficult, angry, or disinterested. 34 Retrospective studies of adolescent and young adult views regarding what type of parenting plans they would have liked when they were younger indicate that between one-third 35 and one-half 36 of these seasoned divorced youngsters wanted equal time with both parents, or at least a substantial number of overnights with the nonresident parent. Few children and adolescents are adequately informed or invited to ask questions about the many changes initiated in their lives by the parental separation. 37 The majority want the opportunity to provide input to parents or others regarding their living arrangements, including the wish for some reasonable flexibility in schedules to accommodate their lives. 38 When input is permitted through talking directly with parents or in mediation-related child interviews, child and adolescent satisfaction with the pro- 34 Anne B. Smith, et al., Re-Thinking Children s Involvement in Decision- Making After Parental Separation, 10 CHILDHOOD 201, 205 (2003; Anne B. Smith & Megan Gollop, Children s Perspectives on Access Visits, BUT- TERWORTHS FAM. L.J. 259, ( Smith, et al., supra note William V. Fabricius & Jeff A. Hall, Young Adults Perspectives on Divorce: Living Arrangements, 38 FAM. & CONCILIATION CTS. REV. 446 (2000; Lisa Laumann-Billings & Robert E. Emery, Distress Among Young Adults from Divorced Families, 14 J. FAM. PSYCHOL. 671 (2000; Patrick Parkinson et al., Adolescents Views on the Fairness of Parenting and Financial Arrangements After Separation, 43 FAM. CT. REV. 429, 433 ( Judy Dunn, et al., Family Lives and Friendships: The Perspectives of Children in Step-, Single-Parent, and Nonstep Families, 15 J. FAM. PSYCHOL. 272 ( Joan B. Kelly, Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current Research and Practice, 10 VA. J. SOC. POL Y & L. 129, (2002; Kelly & Emery, supra note 3 at 353; Parkinson, supra note 36 at 434; Carol Smart & Bren Neale, It s My Life Too Children s Perspectives on Post-Divorce Parenting, 30 FAM. L. 163 (2000; Smith, et al., supra note 34, at 207. Drafting Family Law Documents 3 22

165 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 11 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 247 cess is high. 39 Adolescents are more likely to view their living arrangements as fair and more satisfactory when they have input, and when they can see the nonresidential parent whenever they desire. 40 C. Father Access and Children s Adjustment Research assessing the extent of access and father involvement on children s adjustment following divorce gives ample evidence that when children of different ages have involved fathers, they are more likely to achieve better social and behavioral outcomes. With children from birth to six years, higher levels of paternal involvement were associated with better adaptive behavior skills, and for the four to six year olds, better communication and socialization skills, compared to those young children with less paternal involvement. 41 School aged children with close relationships with their fathers, who had frequent contacts and actively involved fathers, had more positive adjustment and better academic performance than did those with less involved fathers. 42 Active involvement included: help with homework and projects, appropriate expectations for their children, the use of authoritative discipline, and monitoring of adolescents activities. Reduced father involvement has been linked to more conduct problems for boys; however, when both mothers and fathers were actively involved, and used authoritative discipline, including monitoring, adolescent boys from divorced families had no greater involvement in delinquency than did adolescents in married families. 43 To enable this amount and type of focused activity and parenting to occur, it seems apparent that children s contacts with their adequate and interested fathers should occur during some part of each school week, as well as on alternate weekends, resulting in, more time with their children than has been possible with the alternating weekend schedule. 39 Kelly, supra note 38, at Parkinson, supra note 36 at Marsha K. Pruett, et al., Family and Legal Indicators of Child Adjustment to Divorce Among Families with Young Children, 17 J. FAM. PSYCHOL. 169, ( Amato & Gilbreth, supra note 7, at Hetherington, supra note 3 at ; Simons, et al., supra note 30, at Drafting Family Law Documents 3 23

166 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 12 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 248 Journal of the American Academy of Matrimonial Lawyers More nonresident paternal involvement in their youngster s school was also found to be associated with fewer suspensions, better grades, and a more positive attitude toward school, compared to those whose fathers were less involved. 44 The probability of adolescents completing high school and entering college increased as fathers were more actively engaged and provided financial support, compared to either active engagement or providing support separately. 45 Among adolescents and college students, more frequent access is generally associated with more closeness in the parentchild relationship. Many studies indicate that young adults from divorced families are less affectionate with and have less trust in their fathers than those whose parents did not divorce. 46 However, with frequent access in the context of a good parent-teen relationship, distrust is diminished, and divorced and non-divorced young adults do not differ. 47 A second study found that with each incremental increase in access time that children and their fathers had in the prior decade, college students reported an associated increase in closeness with fathers. 48 Racial and ethnic differences exist in amount of contact and type of activity between fathers and their adolescents. 49 Overall, white adolescents had more overnight visits, contacts, and phone and letter contacts than did Black or Hispanic Adolescents, with Asians reporting the most contacts. White boys had more contact of all types with their fathers than did white girls, and boys in all groups reported being closer to their fathers than did girls. White fathers with high school education or less had the lowest levels of involvement; white fathers with the highest education were most involved, and most close to their adolescents, com- 44 CHRISTINE WINQUIST NORD, ET AL., FATHERS INVOLVEMENT IN THEIR CHILDREN S SCHOOLS ( Chadwick L. Menning, Absent Parents Are More than Money: The Joint Effects of Activities and Financial Support on Youths Educational Attainment, 23 J. FAM. ISSUES 648, ( Paul R. Amato & Alan Booth, A Prospective Study of Divorce and Parent-Child Relationships, 58 J. MARRIAGE & FAM. 356, 364 ( Valarie King, Parental Divorce and Interpersonal Trust in Adult Offspring, 64 J. MARRIAGE & FAM. 642 ( Fabricius & Hall, supra note 36, at Valarie King, et al. Racial and Ethnic Diversity in Nonresident Father Involvement, 66 J. MARRIAGE & FAM. 1 (2004. Drafting Family Law Documents 3 24

167 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 13 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 249 pared to the other groups. Across groups, attending religious services and working on projects (but not playing sports was strongly associated with adolescent well-being. D. Joint Physical and Sole Physical Custody Arrangements Meta-analysis of thirty-three studies found that children living in joint physical custody arrangements had better emotional, behavioral and general adjustment on multiple objective measures, and better academic achievement, when compared to children living in the sole physical custody of mothers. 50 In fact, children in joint physical custody did not differ in their adjustment from married family children. Joint physical custody, generally defined by researchers as between 33-50% time with one parent and the remainder with the other, maintained its benefits even after controlling for the greater amount of conflict between parents in the sole physical custody sample. 51 Another study indicated fewer behavioral problems in children in shared physical custody, compared to those in sole physical custody, when controlling for other variables such as interparental aggression and mother-child relationship. 52 The benefits of shared physical custody were reduced or suppressed by high levels of interparental aggression and child s feelings of sadness. 53 With respect to joint decision-making, parents with joint legal custody did not have more conflict, compared to those where one parent had sole legal custody, after controlling for twenty-eight pre-divorce factors. 54 Traditional visiting plans appear to result in less closeness in father-child relationships over time, and more pain, when compared to those plans which have expanded visitation or shared living arrangements. College students who had lived for ten 50 Robert Bauserman, Child Adjustment in Joint-Custody Versus Sole- Custody Arrangements: A Meta-Analytic Review, 16 J. FAM. PSYCHOL. 91, ( Id. at Mo-Yee Lee, A Model of Children s Postdivorce Behavioral Adjustment in Maternal- and Dual-Residence Arrangements, 23 J. FAM. ISSUES 672, 688 ( Id. at Marjorie Lindner Gunnoe & Sanford L. Braver, The Effects of Joint Legal Custody on Mothers, Fathers, and Children Controlling for Factors that Predispose a Sole Material Versus Joint Legal Award, 25 LAW & HUM. BEHAV. 25 (2001. Drafting Family Law Documents 3 25

168 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 14 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 250 Journal of the American Academy of Matrimonial Lawyers years in sole physical custody arrangements were more likely to report painful childhood memories and experiences; feelings of loss and missing their fathers; wondering if their fathers loved them; and more often viewed their lives through a lens of divorce, compared to students in shared physical custody arrangements. 55 Ten percent of this sample lived in joint physical custody, and 90% of these young adults reported being satisfied with their shared arrangement. E. The Varied Impact of High Conflict The majority of parents reduce their conflict within the first two to three years following divorce, but 8 20% remain highly conflicted, depending on the study and measures used. 56 When parental conflict remained very intense, including violence at transitions, more frequent visits were associated with poorer adjustment, presumably because of increased opportunities for one or both parents to act out their hostilities during the transition. 57 High levels of anger and co-parental conflict, during separation and post-divorce, are also associated with less father involvement, fewer overnights, and more problems long-term in fatherchild relationships, compared to parents with lower levels of conflict. 58 The more recent trend to make transitions between households at neutral locations, for example, with drop offs and pick ups at the beginning or end of school or day care, has not been empirically studied. Based on considerable experience with this type of parenting plan in many jurisdictions, mediators (including this author, clinicians, and lawyers report reduced exposure to 55 Laumann-Billings & Emery, supra note 36, at ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY (Harvard University Press 1992; Hetherington, supra note 3, at 98; Valerie King & Holly E. Heard, Nonresident Father Visitation, Parental Conflict, and Mother s Satisfaction: What s Best for Child Well-Being?, 61 J. MARRIAGE & FAM. 385 ( Paul R. Amato & Sandra J. Rezac, Contact with Residential Parents, Interparental Conflict, and Children s Behavior, 15 J. FAM. ISSUES 191 (1994; Janet R. Johnston, Research Update: Children s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making, 33 FAM. CONCILIATION CTS. REV. 415 ( Ahrons & Tanner, supra note 32, at 340; Pruett, et al., supra note 41, at Drafting Family Law Documents 3 26

169 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 15 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 251 conflict for children on a daily basis. In this respect, parenting plans that extend weekends to Monday morning and use midweek overnights (assuming adequate parenting skills rather than a brief visit, should be preferred and have been incorporated into many models of parenting plans. While low parental conflict is clearly a protective factor for children following separation and divorce, some conflict appears to be normative and acceptable to parents. 59 When intense conflict continues following separation, some studies report negative impact on children s adjustment, 60 but other research indicates that intense marital conflict is a more potent predictor of later adjustment than is post-divorce conflict. 61 It is important to note that high levels of parental conflict following separation and divorce are not universally associated with more symptoms or problems for children and adolescents. Protective buffers have been identified that diminish the impact of conflict on children, including a good relationship with at least one caregiver or mentor, parental warmth, a supportive relationship with a sibling, and the ability of parents to encapsulate their conflict and not express their anger through their children. 62 When parents do not put their children in the middle of their disputes, by asking them to carry hostile messages, for example, or denigrating the other parent, or expressing verbal or physical aggression in front of the child, youngsters with high conflict parents do not differ in depression and anxiety from those with low conflict parents. 63 This does not mean that high levels of parental conflict are not painful, however. Young adults who lived in a high conflict environment for ten years following divorce reported more pain- 59 King & Heard, supra note JANET R. JOHNSTON & VIVIENNE ROSEBY, IN THE NAME OF THE CHILD: A DEVELOPMENTAL APPROACH TO UNDERSTANDING AND HELPING CHILDREN OF CONFLICT AND VIOLENT DIVORCE (1997; Hetherington, supra note 3, at Alan Booth & Paul R. Amato, Parental Predivorce Relations and Offspring Postdivorce Well-Being, 63 J. MARRIAGE & FAM. 197, 206 (2001; Marsha Kline, et al., The Long Shadow of Marital Conflict: A Model of Children s Postdivorce Adjustment, 53 J. MARRIAGE & FAM. 297 ( See Kelly & Emery, supra note 3, at Christy M. Buchanan, et al., Caught Between Parents: Adolescents Experience in Divorced Homes, 62 CHILD DEV (1991. Drafting Family Law Documents 3 27

170 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 16 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 252 Journal of the American Academy of Matrimonial Lawyers ful memories, feelings of loss, and viewed their life more through the lens of divorce, compared to those whose parents had low or moderate conflict, but they did not differ on measures of depression or anxiety. 64 III. Co-Parental Relationships Following Divorce Along the dimensions of conflict, cooperation, and communication following divorce, parents generally divide into three types of co-parental relationships. Approximately 25-30% of parents have a cooperative co-parental relationship, characterized by joint planning, flexibility of schedule, provision of some parenting support to each other, and coordination of children s activities and schedules. The majority, more than half, settle into parallel parenting in which emotional disengagement, low conflict, and minimal communication about their children predominate. While this is less optimal for children than cooperative co-parenting, children do thrive in these arrangements, particularly when the quality of parenting in each home is nurturing and adequate. The remaining parents, about 20%, have a continuing conflicted relationship, with poor communication and little if any cooperation. 65 Particularly with parents engaged in parallel and conflicted parenting, it is important to include specific language in parenting plans that indicates which child-related decisions will be jointly made, if any; what types of child-related information will be shared between parents; and what intervention processes, such as mediation, parenting coordination, or counseling, will be used if parents can not reach agreements on their own. It is also worth noting that while some parents fully and mutually engage in angry behaviors and conflicted communications with each other for many years, there are parents who have emotionally disengaged from a still-angry ex-spouse and are not promoting or instigating the conflict. 66 These parents are reluctantly 64 Laumann-Billings & Emery, supra note 36, at 676, MACCOBY & MNOOKIN, supra note 56, at ; Hetherington & Kelly, supra note 32 at Michael Friedman, The So-Called High-Conflict Couple: A Closer Look, 32 AM. J. FAM. THERAPY 101 (2004; Joan B. Kelly, Parents with Enduring Child Disputes: Multiple Pathways to Enduring Disputes, 9 J. FAM. STUD. 37, 38 (2003. Drafting Family Law Documents 3 28

171 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 17 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Vol. 19, 2005 Parenting Following Separation and Divorce 253 drawn into court as a result of vengeful court filings, noncompliance with orders, and problems with visiting arrangements. The reflexive labeling of high conflict couple in such instances is inaccurate and unfair, and suggests that more attention be given to identifying the behaviors and the impact of these angry parents, who often have serious personality disorders and mental illness, and what specialized interventions are necessary to reduce such behaviors and attacks and protect the less angry parent and the children. 67 IV. Building Useful Parenting Plan Models As empirical research on divorce converged into more reliable findings in the 1990 s, it became apparent that research-based models of parenting plans would improve decisions regarding children s living arrangements by focusing on factors promoting resiliency and decreasing risk. Instead of one standard visiting pattern, a menu of different time-sharing options for children of different ages would encourage parents, professionals, and courts to consider children s ages and developmental needs and achievements; the quality of parent-child relationships; parents interest in being involved with their children; and children s voices and input. Mediation research also suggested that providing a range of possible time-share plans to parents would assist in settlement of custody and access disputes, as contrasted to a single option. 68 Such options range from various forms of shared physical custody, to expanded forms of visitation, to more traditional visiting formats involving limited access to accommodate the enormous variety of parent-child relationships and parenting capacities. They generally include highly detailed templates to guide and include parental choices with respect to legal decisionmaking and parental responsibilities for inclusion into final divorce agreements. The newly developed AAML Model for a Parenting Plan represents an excellent example of time-sharing and parental responsibility options and choices which can assist family lawyers 67 See JOHNSTON & ROSEBY, supra note 60, at 220; Kelly, supra note 66, at 39-40; Kelly, supra note 38, at Raymond A. Whiting, Family Disputes, Nonfamily Disputes, and Mediation Success, 11 MEDIATION Q. 247 (1994. Drafting Family Law Documents 3 29

172 \\server05\productn\m\mat\19-2\mat201.txt unknown Seq: 18 3-JAN-06 10:08 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 254 Journal of the American Academy of Matrimonial Lawyers in guiding parents and in drafting comprehensive, useful, and family-specific plans. 69 Most model parenting plans have been designed to be broadly informative and accessible for parents, some in the form of a workbook, so that parents could work together to settle or narrow the myriad child-related decisions that should be included in agreements, rather than litigate these issues. Several parenting plan models include highly readable research-based information about what situations and parental behaviors are known to harm and or benefit children, and encourage the use of mediation and other dispute resolution interventions when parents can not reach agreement. It is anticipated that more widespread familiarity and use of models for parenting plans will reduce parental conflict following separation, and promote the selection of appropriate parenting time-share schedules which address the needs of children and their parents. 69 For other examples of parenting plan models, see Alaska Court System, Model Parenting Agreement, State Bar of Arizona, Model Parenting Time Plans for Parent/Child Access, Association of Family and Conciliation Courts, Planning for Shared Parenting, org (follow Resource Center from menu; then follow Resources for Parents ; [email protected] (for research annotated schedules. Drafting Family Law Documents 3 30

173 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Appendix B Attachment 101 for attorneys: Implications for Infant Placement Decisions * I. Introduction Recently, the media has highlighted several controversial child custody battles involving very young children. In each case the primary question considered by the courts was which of the caregivers had the right to custody of the child. We consider here the more critical question: What is in the best interest of the child? We will examine this question in relation to the case of Michael H. 11 Michael was conceived in July 1990 by a young engaged couple, Mark and Stephanie. Shortly after learning of the conception, the couple agreed to give the child up for adoption. During the first months of pregnancy, Mark and Stephanie cared for the unborn child together. However, as the months advanced, the stress of pregnancy took a toll on their relationship, and the couple broke up. Shortly after the disintegration of the relationship, Mark attempted suicide and was hospitalized. During this time, Stephanie continued making preparations for the infant s adoption. Also during this time, Mark resolved to make substantial changes in his life. He decided he did not want to give the infant up for adoption, and he began seeking legal counsel to help him prevent it. Michael was born in February, 1991 and placed in the care of John and Margaret Stedmond. In March of that same year, Mark learned of his son s birth, and he began making arrangements to obtain custody. What will happen to Michael as the custody battle ensues, and how will his intimate relationships be affected? How should we, as members of society and investors in future generations, support Michael and help cultivate his attachment relationships? The purpose of this paper is to provide background for an informed consideration of these questions. We begin with the concept of attachment. II. Secure and Insecure attachment A. what Is Attachment? Intimate relationships with others like the one Michael formed with the Stedmonds are the context in which we discover who we are, learn how others feel about life s important issues, and find out how to bridge differences. The emotional security and warmth derived from an initial close relationship with a loving parent provides us with a home base from which we can venture to take the risks that are inevitably part of a life of joy and accomplishment. In short, close, psychologically intimate relationships between babies and their caregivers are central to human life. The theory of attachment is about these relationships; how they are formed, what happens during the first intimate relationship with the nurturing parent, and what the consequences are for later development. We present this theory along with a summary of the research and clinical evidence that supports it. Using this theory as the basis of discussion, we develop a case asserting a societal duty to protect these relationships of attachment as part of the general responsibility to protect the very young. The longing that we all feel for intimate closeness with another human being is moderated, often greatly, by the competing need for autonomy and separateness. Attachment theorists regard this tension between the needs for closeness and autonomy as the central dilemma of human life. * By Eleanor Willemsen, Professor of Psychology, Santa Clara University, and Kristen Marcel, Student, Professional School of Psychology, Fresno, California. The authors wish to acknowledge the collaboration of Katherine Hohn (J.D. 1995, Santa Clara University Markkula Center for Applied Ethics. Reprinted with permission. The views expressed on this site [ are the authors. The Markkula Center for Applied Ethics does not advocate particular positions but seeks to encourage dialogue on the ethical dimensions of current issues. The Center welcomes comments and alternative points of view. 1 Adoption of Michael H., 29 Cal. Rptr. 2d 251 (Ct. App. 1994, rev d, 898 P.2d 891 (Cal The facts set forth below are contained in the court s reported decision. Drafting Family Law Documents 31

174 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand The theory, as expressed in the writings of John Bowlby, 2 develops the interplay between attachment and independence. A satisfying close relationship with a nurturing caregiver a secure attachment provides the base of operations from which a toddler can venture forth into independent activity. Throughout the life span, one continues to feel the rival tugs of closeness and autonomy. If we begin life with an experience of successful closeness, we are not only better able to create closeness in our relationships with friends and partners, but we are also more equipped to take the risks involved in having a sphere of separateness for ourselves. John Bowlby, the main theorist in the attachment literature, identifies the close attachment relationship between responsive caregiver and dependent infant as an adaptation needed for the infant s survival. The emotionally charged connection between caregiver and child ensures the two will remain near each other physically, at least while the child is an infant. At the same time, the security of this very closeness creates the courage the child needs to venture forth away from the close involvement she maintained earlier with the caregiver. This fascinating paradox between creating a close intimate connection and moving away from dependence on that connection is the heart of attachment theory. The attachment we experience in our first close relationship, usually the mother-infant relationship, forms the foundation for much that happens subsequently. We form a mental representation of our experience of being loved and cared for in an intimate context. Before this image is formed, we must be physically near the caregiver to retain the feeling of security required to support play and independence. After the mental image is formed, we create a portable reminder of the closeness, love, and security we enjoyed. Thus, we can separate from the caregiver more often and for longer periods. As adults, what remains with us from our earliest attachment is a system of beliefs, images, and emotions about ourselves in loving relationships. In an ideal scenario, these cognitions denote ourselves as loved and loving. Having experienced an ideal love at least once, we approach new human connections with faith in love s possibility. However, early relationships between caregivers and babies are not always ideal. The theory of attachment addresses how a relationship of poor quality an insecure attachment emerges from interaction that is not responsive to the baby s needs. The theory explores consequences of such an insecure attachment for the beginnings of self-awareness and the ability to be independent. In addition, recent work takes the process forward into adulthood and the formation of romantic relationships. To date, most of the material regarding how to fix either a poor ongoing mother-infant relationship, or the later consequences of one that occurred in the past, appears in clinical or intervention literature. The theory contains a rich set of ideas about the impact of an insecure attachment history, and implies that the impact would be hard to counteract. Yet, clinical evidence suggests that people can and do overcome the negative effects of insecure attachment under the right circumstances. B. How Does Attachment Need Differ from Related Social Needs? Attachment, as a motivational system, is often confused with two other human needs: dependency and sociability. But these two motivational systems are distinct from attachment in important ways that affect how attachment is understood. Dependency is the need to obtain the assistance of other people in order to meet other needs. These other needs may be social, such as attention or companionship during an activity, or physical, such as food or transportation. The social partners are needed because they can help meet other needs, not as an end in themselves. Dependency arises out of our experience or concern with not being able to satisfy our own needs. In contrast, attachment arises out of an inborn need to be close, proximate, and intimately involved with one who is responsive to what we are communicating. Attachment is an end in itself whereas dependency is a state that leads to other ends. A person may 2 1 John Bowlby, Attachment and Loss (1969. Drafting Family Law Documents 32

175 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand be attached to another on whom they depend, but, once an attachment relationship develops and is mentally represented, a person can also be attached to someone on whom they do not depend. 3 Another difference between attachment and dependency concerns the cognitive elements. The experience of a secure attachment results in a mental representation of that experience which becomes a stable element of self representation. Dependency experiences may or may not have mental representations; it is not a defining feature. A second need that is often confused with attachment is a generalized need for companionship and social stimulation which we can call a need for sociability. 4 Babies, like other people, are social creatures and often laugh, smile and express interest in the people around them. We might say they like particular people and have real social relationships with these people. However, a baby is not attached, in the technical sense, to everybody they like. Attachment involves a high degree of intimacy with a particular person and the facilitation through that intimate relationship of exploration and attendant other development. However, sociability is a need for social contact per se and can be satisfied by any number of reasonably warm and attentive people. While babies enjoy a variety of social contacts, there is an absence of reciprocity between partners and a willingness to explore that we see with attachment. Attachment is a psychologically powerful connection between two people who participate in an intimate relationship involving care of one partner by the other or frequent response to one partner by the other. The theory presumes that there is an evolution-based drive to achieve physical and psychological closeness in just such a caregiving relationship. This drive may be related to the dependency and sociability facilitated in the close relationship, but it is not reducible to them. Attachment need is focused on the particular relationship partner who is responding to one with whom one has intimacy. C. The Context in Which Attachment Theory Was Developed Bowlby s first professional experience with attachment occurred during a remarkable social experiment. 5 During World War II, in the Battle of Britain, English cities were bombed daily. The English decided to evacuate their children from the targeted urban areas to the countryside where they were cared for at the estates of lords and ladies. Many health professionals moving to Britain as refugees from Hitler s Germany were available, along with British child welfare professionals, to plan and staff this program. Parents readily agreed overnight to separate from their children in order to be assured of their safety. Professionals had provided every available resource and professional planning possible. Many of the children, especially the younger ones, became withdrawn, uninterested in play, and generally apathetic. These children often huddled together without displaying any genuine social exchange. They were what we would call depressed. These children also had medical problems of various kinds which were unresponsive to medical care. Bowlby was pivotally involved in finding the solution to these problems. The solution involved returning the children to their parents as quickly as possible and sooner than originally envisioned. During the period of the evacuation, Bowlby made several observations that were central to the theory he was to develop. First, he noticed that there seemed to be no connection between meeting these children s physical needs for food and shelter and meeting their psychological needs. This lack of correlation between attachment and physical need satisfaction was at odds with the psychoanalytic orthodoxy of Sigmund Freud. According to Freud, attachment evolves from dependency; however, 3 Robert R. Sears et al., Patterns of Child Rearing ( Jerry Burger, Personality (2nd ed John Bowlby, Child Care and the Growth of Love (Mary D. Salter ed., 2d ed Drafting Family Law Documents 33

176 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Bowlby observed that this simply was not true. These children were not becoming close to and secure with their physical caregivers. Bowlby s second observation was that these children were not forming any new attachments with caring adults. Thus, it could be deduced that what such attachments depend upon was apparently not present. The children seemed unable to care enough about the details of their caregivers comings and goings to form a connection. In addition, the children initiated little communication, even in the form of crying. It was as if these children had lost faith in their capacity to influence anyone else. Bowlby s last observation during the Battle of Britain evacuation regarded play. He noted with alarm that these children were not playing. This revelation planted the seed for the idea that attachment might paradoxically be connected to a child s independent behavior. Since he had been trained in psychoanalytic theory, Bowlby was not initially convinced of the importance of emotional needs not derived from biological drives. However, he had studied and admired Darwin s theory of evolution, and soon he began seeing a connection between this theory and his own observations of the evacuated children. D. Two Major Influences on Bowlby s Theory of Attachment Two major theories influenced Bowlby as he struggled to make sense of his observations of the evacuated English children. The first was classic psychoanalytic theory as presented by Freud which formed the core theoretical background in Bowlby s psychiatry and child development training. The other important influence was Darwin s theory of evolution, which Bowlby had encountered throughout his education and which had intrigued him greatly. The classic psychoanalytic perspective on human nature was built on four key ideas. First and foremost was the idea that human nature revolves around innate biological drives, specifically the sex drive and the aggression drive. 6 Second, Freud postulated that much of the time our biologically driven motives operate outside our awareness. Third, Freud perceived our conflicts regarding these unconscious biological drives to be the source of our development. Thus, in order to mature properly, we must learn to channel our driven behavior into realistically adaptive and socially acceptable paths. Finally, Freud asserted, based on a physical science model, that psychic energy is finite in supply. This conception, sometimes referred to as the hydraulic principle, asserts that if energy is expended in one direction, there will be that much less energy available to expend in another direction. For example, if an infant spends a great deal of energy crying to be fed, it will have less energy left to communicate with the caregiver. In conjunction with his clinical experiences with disturbed adults, these ideas allowed Freud to design a theory depicting human development as a matter of distributing psychic energy among various biologically ordained but conflicting goals. Thus, attachment between child and caregiver was viewed as a byproduct of the child s struggle to meet its own sexual and survival needs. From this perspective, it was surprising that the evacuated children in World War II England failed to develop attachments to those who provided for their basic survival. Because of Freud s pervasive influence on society s mainstream beliefs about the parent-child relationship, people often expect that any caregiver who regularly meets a baby s needs will become an attachment partner for that baby. It is important to note that the evidence does not support this connection between a caregiver s physical ministrations to a child and the formation of an attachment relationship between that caregiver and child. 7 Bowlby s observations of the children s responses to the disruptions in their parent-child relationships led him to question the idea that the attachment need derives from other needs. It seemed 6 Calvin S. Hall et al., Introduction to Theories of Personality ( Mary S. Ainsworth & Barbara A. Wittig, Attachment and Exploratory Behavior of One-Year-Olds in a Strange Situation, in 4 Determinants of Infant Behavior 111, (Brian M. Foss ed., Drafting Family Law Documents 34

177 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand clear to Bowlby that the evacuated children needed to be with their mothers and were suffering because of separation. He began to integrate his observations with Darwin s writings regarding the inheritance of motives. 8 From an evolutionary perspective, needs evolve when their satisfaction will be adaptive and will ensure species survival. Proximity to, communication with, and physical contiguity with a caregiver are all objectives that facilitate care. Thus, Bowlby postulated that a drive or evolved motive to obtain such proximity, communication, and closeness exists to ensure human survival. This attachment need may facilitate the meeting of needs identified by Freud survival and sexual expression but is separate from them. E. Key Ideas of Attachment Theory Bowlby s theory of attachment presents several cardinal ideas. 9 Together, these ideas constitute a powerful general principle: human relationships drive human development. We have organized Bowlby s discussion of these key ideas into four general principles. I. attachment is a Biologically Based Need Separate from Other Such Needs. Attachment is a motivational system separate from others such as those for food, water, sex, and social connection. Attachment involves an emotional sense of secure closeness to the caregiver. In infancy, actual proximity, physical contact, or communication through eye contact or gesture is required to produce this feeling of closeness. Thus, when separation or loss of contact occurs, the infant experiences its need for attachment and becomes motivated to seek proximity or contact using communication as one of the tools. When the feeling of closeness is restored, in other words, when the child feels refueled, the seeking of proximity and closeness recedes, and the child turns to other interests. We see in the above analysis that the attachment motive and attachment behaviors are two distinct entities. The motive is a need for closeness with a particular partner with whom the child is involved in an intimate relationship. The behavior proximity seeking and so on is evident only when the need is not being met. An important implication of this fact is that we cannot tell much about the intensity or quality of a particular child s attachment by observing only its efforts to get nearer to or have contact with the mother. An evaluation of a particular mother-child attachment relationship requires us to observe the pair in disquieting situations that put the availability of the mother in question (in the child s mind and in more comfortable situations where the availability of the mother is clear. Only then can we determine if the frequency of attachment behavior varies with the situation. 2. attachment Need and Exploratory Behavior Have a Reciprocal Relationship. The second key idea of attachment theory also regards the variations in behavior in situations that differ with respect to mother availability. When secure in the presence of its mother, the child meanders off to explore the toys, people, or other interesting materials around. During this time, an abundance of exploratory behavior and little or no attachment behavior is displayed. However, if the child toddles off too far or plays intently for a while, concern about separation from the mother builds until the child stops exploring after a few minutes and returns to refuel the attachment need by being close to and communicating with the mother. After checking in with its mother, the child leaves to explore again. This pattern of alternation between attachment behavior and exploratory play is called the secure base. When a child is securely attached to its mother or other regular care provider, the child is able to use that person as a base of operations from which to explore. Paradoxically, we see more independent exploration of the environment in children who are closely and securely attached than we do in those who are insecure in their attachments. The comfortable use of the caregiver as a base of operations is a central idea of attachment theory. 8 Charles Darwin, The Expression of Evolution in Man and Animals ( See Bowlby, supra note 2. Drafting Family Law Documents 35

178 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 3. Each Person Forms a Mental Representation of the Early Attachment Experience. Bowlby follows psychoanalytic theory closely by presuming that securely attached children form mental images of their ongoing relationships with their mothers. Subsequent research, based on a structured interview method more reliable than the psychoanalytic approach, has confirmed the existence of these representations. 10 This mental representation of the attachment relationship is called an Internal Working Model of Attachment. The working model is dynamic; in other words, it is a representation of the ongoing and varying experiences of being cared for and recognized by the mother. An essential component of this complex mental representation is an image of the self as someone who is and can be cared for and loved. A reciprocal part of the representation is an image of the mother caring for the child. In attachment theory, this mental model of the attachment relationship is carried forward in development and is the foundation for either our faith in love s possibility, or our doubts about that very issue. Once we form a clear mental representation of self and caregiver in relationship, we no longer need the concrete physical reassurance the younger child needs. Instead, we can carry a mental image inside us as we explore, go to school, meet new people, and so forth. Thus, internalization of a close emotional bond actually facilitates our growing independence. The mental model is also the foundation of our capacity to form, sustain, and commit to close relationships in the future. 4. awareness of the Self as an Autonomous Person is Facilitated by the Close Intimate Connection We Call Attachment. An important feature of the working model is its recognition of the self having impact on another. Part of the model, then, is a representation of the self as an effective influence on others. Attachment theory also illuminates the fact that the origin of self-image is the perception of self in relationship to others. Combined, these four ideas summarize attachment theory. Attachment is a basic human need for a close, intimate relationship with at least one other person. At first, it is expressed concretely by the child seeking proximity to and physical contact with the caregiver. Later, after the mental working model has been formed, the child is able to tolerate separation due to its portable reminder of the relationship. Thus, secure attachment actually facilitates exploration and independence as well as the formation of an autonomous self and new relationships. F. How Do We Observe Children s Attachments in Practice? Mary Ainsworth, an American developmental psychologist who studied with Bowlby, developed a controlled laboratory situation that allows researchers to classify children according to the quality of their attachment to the parent or other caregiver. 11 Ainsworth s procedure is called The Strange Situation because it is a novel experience for the child. Ainsworth modeled her design for the analysis on the patterns of comings and goings of parents and strangers that are commonplace in children s lives. The child is observed playing for twenty minutes in a small playroom through eight episodes of increasing distress. The episodes begin with only the mother as a companion and proceed through the introduction of a stranger, the departure of the mother, being alone, the return of the stranger, and the reunion with the mother. This Strange Situation procedure allows us to observe how two kinds of behavior attachment and exploration increase or decrease in intensity as the situation changes. A child who is securely attached to its caregiver will explore the room and the toys it contains when the mother is present, continue exploring but with less involvement when the stranger enters, explore minimally when alone with the stranger, and perhaps not explore at all when entirely alone. Gradually, exploratory play 10 Carol George et al., The Adult Attachment Interview (1985 (on file with University of California, Department of Psychology, Berkeley. 11 Mary S. Ainsworth et al., Patterns of Attachment: A Psychological Study of the Strange Situation (1978. Drafting Family Law Documents 36

179 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand resumes when the stranger returns, but it is only after the final reunion with the mother that play is restored to the level it was at the beginning of the procedure. Thus, even with a baby who does not cry when separated, we have a barometer of how it responds to such events. Attachment behavior reveals a reciprocal pattern: a baby performs little proximity seeking and protesting when playing with the mother present, but protests the mother s departure and greets her avidly upon reunion. Based on observations of this reciprocal play pattern, Ainsworth established three different categories of attachment relationships. 12 The first category is secure attachment. The securely attached infant actively explores while alone with the mother and is visibly upset by separation. The infant greets the mother warmly upon return and welcomes physical contact with her. The child is outgoing with strangers while the mother is present. The second category of attachment is anxious-ambivalent insecure attachment. The anxiousambivalent child appears anxious and is unlikely to explore while the mother is present. In addition, the child becomes extremely distressed when its mother departs. Then, when the mother returns, the child reacts very ambivalently, trying to remain near the mother, although resenting her for having left. The child is also likely to resist contact initiated by the mother. The child is quite wary of strangers, even when the mother is present. The third category of attachment is anxious-avoidant insecure attachment. The avoidant infant appears uninterested in exploring when alone with the mother. Moreover, the child displays little distress when separated from the mother and often avoids contact with her when she returns. The child is not particularly wary of strangers, but may avoid them as it does the mother. To illustrate these attachment categories, we will look at Sarah, Julie, and Amy three hypothetical one-year-olds regularly attending day care. When Sarah s mother drops her off, Sarah is slightly hesitant at first to leave her mother. When she spies something she wants to investigate, however, she leaves her mother to explore. She checks back a couple of times to make sure her mother is watching, and then continues exploring. When Sarah s mother leaves, Sarah says bye bye but does not fuss, and she continues to play happily while her mother is absent. When her mother arrives to pick her up, Sarah greets her warmly. Sarah is securely attached. Julie, on the other hand, screams loudly when her mother attempts to leave her at the day care center. She clings to her mother, crying, and screams louder as her mother walks out the door. Julie is not comforted by the other adults at the center, nor does she make much attempt to explore the environment and interact with the other children. When Julie s mother arrives to pick her up, Julie at first runs to her mother for the comfort she has been anticipating all day. Yet, soon her anger at her mother for leaving her interferes, and she pushes her mother away. Julie maintains an anxious-ambivalent attachment to her mother. Finally, Amy moves away from her mother as soon as she arrives at the day care center. She explores the environment but rarely interacts with the other children. Unlike Sarah, who also did much exploring, Amy does not check to see if her mother is watching. In fact, she appears to ignore her mother altogether. Amy does not acknowledge when her mother leaves, nor does she acknowledge when her mother returns to pick her up. There is no visible reunion scene. Amy is avoidantly attached. 12 A fourth pattern of attachment called disorganized/disoriented insure attachment has been recognized by developmental psychologists. Due to its recent identification and primarily clinical use, however, the authors have chosen not to include it for further discussion in this paper. Drafting Family Law Documents 37

180 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand The classifications made by clinicians trained in attachment theory have been robust in their ability to predict other aspects of mother-child interaction in the manner consistent with attachment theory. 13 For this reason, it is becoming increasingly common for clinical evaluators to look at attachment issues when working with the under three age-group. What is distressingly uncommon, however, is for social workers and attorneys involved in the placement of children up to three-years-old to be looking at or taking account of the attachment relationships of these children. G. How Do Secure Attachments Get Formed? Mary Ainsworth s original classic research followed a group of twenty-six families over the first year of the children s lives. 14 She had home observers visit the families four times for a number of hours, and numerous interviews were conducted as well. The Strange Situation test was performed within a week of the child s first birthday. Ainsworth observed that the mother-child classification of securely, insecurely-avoidant, or insecurely-ambivalent attachment was related to many measures of their interaction over the first year of life. What emerged was a clear finding which has been replicated many times since this first study. 15 The use of a mother s caregiving style that Ainsworth and the rest of the child development community deems responsive is associated with the infant s secure attachment at one year. Responsive mothers are mothers who give physical care, emotional communication, and affection to children in clear relation to their signals of need. 16 They are also giving their children space when they are playing, crawling, or otherwise doing their own thing. The critical aspect of responsive caregiving is that the mothers are aware of the child s needs and wants and are responding to that information. Less responsive mothers may do a lot of nursing, holding, or playing, but only in relation to their own needs rather than the child s needs. Another kind of unresponsive mother is simply disengaged from the child. The involved but nonresponsive mother is associated more often with the avoidant style of attachment in which the baby plays steadily through episodes of stranger entry, mother departure, being left alone, etc. The uninvolved mothering style is associated with the ambivalent attachment pattern in which the baby first makes an effort to connect and then withdraws, and may alternate these responses through several cycles. 17 H. What Does Being Securely Attached Do for a Child? The experience of being securely attached to at least one parent or important other caregiver in the first three years of life yields enormous dividends for human development. Indeed, this early relationship can be said to drive development. This is a strong statement and requires some justification in relation to the evidence. Fortunately, the literature relating early attachment to other aspects of development is extensive. Let us take a look at the ways in which the attachment experience affects what happens to us throughout the different stages of life. 1. The First Three Years. The first impact of secure attachment is paradoxical on the surface. Children who are securely attached at one year are better able to explore alone, separate when 13 L. Alan Sroufe, Relationships, Self, and Individual Adaptation, in Relationship Disturbances in Early Childhood 70 (Arnold J. Sameroff & Robert N. Emde eds., Ainsworth et al., supra note Elizabeth Anisfeld et al., Does Infant Carrying Promote Attachment? An Experimental Study of the Effects of Increased Physical Contact on the Development of Attachment, 61 Child Dev. 1617, ( Ainsworth & Wittig, supra note Marc H. Bornstein & Catherine S. Tamis-LeMonda, Activities and Interactions of Mothers and Their Firstborn Infants in the First Six Months of Life: Covariation, Stability, Continuity, Correspondence, and Prediction, 61 Child Dev (1990. Drafting Family Law Documents 38

181 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand necessary, and operate independently from the caregiver. 18 Independence is the legacy of the close interdependence that is secure attachment. Theoretically, the securely attached child has formed the mental image of the self as a cared about person in conjunction with the mother or other partner as a caring person. This mental image maintains a form of emotion regulating function that enables the child to tolerate being separated from the caregiver, both physically and mentally, without anxiety increasing enough to disrupt play. The evidence now available confirms that securely attached toddlers are more independent than insecurely attached children, but this evidence does not reveal the direction of cause and effect, and it does not yet confirm that emotion regulation is the process that facilitates independence for securely attached children. Another outcome of a positive experience with attachment is the beginning of self-awareness. 19 After the child experiences this base of operations pattern for awhile, there begins to form a mental representation of the child and its mother as two separate but closely related people. Sometimes the mother is responding in this image and sometimes not, but she responds often enough for the child to have an internal representation of a good self and a good mother. Once these mental images are formed, there is less need for the frequent physical proximity between mother and child. The child now has an internalized picture of responsiveness that can be carried around for security. Thus, we see that a solid sense of self, as well as a picture of the other as a separate person, are the immediate but permanent products of the attachment relationship in the infant and toddler period of development. After the mental representations of the cared for self and the caring parent develop, the next step is the realization that the self and the caregiver are two separate people. The representation of self begins with the child s sense that it is making things happen, that it is having influence. This is what psychologists call a sense of agency. 20 The child with a clear sense of agency then proceeds, as cognitive skills increase, to understand that this self who affects influence belongs to various categories girl, three-years-old, Smith family and has various traits good, big girl, helper. Securely attached children show better defined self-awareness than those that are insecurely attached. 21 Thus, one function of attachment is the provision of the base from which we define ourselves. An additional effect of a secure attachment on development is in the intellectual domain. Children with a history of secure attachment develop more superior sensorimotor skills than those with a history of insecure attachment. Thus, secure children are better able to master the environment using the senses, then perform related actions than insecure toddlers. 22 Let us return to our example children to obtain a better understanding of the effects of attachment for an infant or toddler. As an infant and toddler, Sarah displays increasingly skillful cognitive and language abilities. While at home, Sarah finds her mother preoccupied with doing dishes. Sarah confidently leaves her mother to go to the other room to play with a new toy. The toy is a large block with different shaped holes in it the object being to put respectively shaped pegs in the holes. Sarah studies the pegs and begins putting them in their proper holes the star in the star hole, the circle in the circle hole. She attempts to put the rectangle in the square hole. When it does not fit, she thinks about it, studies the block, and moves the peg to the rectangular hole. At one point, Sarah becomes confused about the different 18 Everett Waters et al., Attachment, Positive Affect, and Competence in the Peer Group: Two Studies in Construct Validation, 50 Child Dev. 821 ( Margaret S. Mahler et al., The Psychological Birth of the Human Infant: Symbiosis and Individuation ( Jerome Kagan, The Second Year: The Emergence of Self Awareness ( G.J. Suess et al., Effects of Infant Attachment to Mother and Father on Quality of Adaptation in Preschool: From Dyadic to Individual Organization of Self, 15 Int l J. Behavioural Dev. 43, ( Leah Matas et al., Continuity of Adaptation in the Second Year: The Relationship Between Quality of Attachment and Later Competence, 49 Child Dev. 547 (1978. Drafting Family Law Documents 39

182 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand triangular shapes. She brings the toy to her mother and asks for help by pointing to the triangle with a sad, confused expression on her face. Sarah s mother instructively shows her how the pegs fit in the holes. After completing the project, Sarah smiles at her mother as a sign of accomplishment. Then, Sarah s mother sits with her, and as Sarah points to different shapes, her mother states the name of the shapes. Sarah mimics the words as best she can as her mother smiles, encouraging her language development. Sarah s mother corrects Sarah s pronunciation and then expands the conversation by telling stories about the shapes. Sarah returns to play by herself reciting the new words to herself as she plays. When Julie realizes her mother is doing dishes, she continues to stand right by her side, clinging to her leg. Julie s mother, slightly irritated by the weight on her leg, tells Julie to go to the other room and play. Julie reluctantly leaves the room and sits down with her new toy. She looks at it briefly and then attempts to put the pegs in their appropriate holes. She places the star in the star hole and then gets stuck. She tries forcefully to push the oval peg into the circular hole, and when she realizes it just won t fit, she gives up. Frustrated and anxious, Julie runs back to her mother. Her mother, still consumed with the dishes, does not respond to Julie immediately. Julie resumes her post at the leg of her mother and calms down. When her mother finally notices her, Julie works hard to keep her mother s attention by clinging and eliciting response. Amy does not even realize her mother is doing the dishes. Amy has been playing in a different room for quite some time. She plays with one toy, but soon becomes disinterested or confused or frustrated and moves on to another toy. As she moves to the peg block, she quickly places a few of the pegs in their respective holes. She soon becomes challenged and reaches a stopping point. She stares at the block for a few seconds and then walks away from it. She makes no attempt to obtain assistance from her mother which stunts her cognitive growth. In addition, since she makes no attempt to communicate her needs either verbally or nonverbally, she does not experience the exposure to important verbal relationships which might arise out of a more comfortable encounter. 2. The Preschool Years, Ages Three to Five. As development continues in the preschool period where basic concepts like color, shape, and number are mastered, the advantage of having been securely attached continues. Bowlby s theory provides us with a straightforward understanding of how this link between emotional development and cognitive development forms. The toddler in a secure attachment relationship spends less time checking out where mom is and more time exploring the environment. That same child, the securely attached toddler, is able to obtain feedback on her discoveries colored leaves, light switches, the cat s tongue in her brief refueling interactions. It is this combination of intense exploration with social exchange that fuels cognitive advancement. In addition, language development occurs earlier and more effectively in the securely attached preschooler. 23 A toddler who develops communication skills in the context of a warm, supportive, and intimate relationship will discern the message that there is a connection to be maintained. Then, as the child discovers the power of words to give voice to one s thoughts and perceptions, it will naturally direct those words to the intimate partner. The responsive caregiver resonates with the child s messages even though they are difficult for others to decipher at first. The securely attached child is able to separate, but then reconnect, through verbal communication. Simply put, we are more likely to learn to talk when we have faith that somebody wants to hear what we have to say. Attachment probably has its impact on language development largely through this motivating effect. A secondary route of influence is through the securely attached child s greater exposure to important verbal messages 23 Adriana G. Bus & Marinus H. Van Ijzendoorn, Attachment and Early Reading: A Longitudinal Study, 149 J. Genetic Psychol. 199 (1987. Drafting Family Law Documents 40

183 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand which have been directed to it over the course of its relationship. Much evidence in the language development literature points to the importance of adult communications that are child-centered and near but just above the complexity of the child s own developing language. Particularly critical are conversations on topics the child initiates, even if nonverbally. 24 Usually, the securely attached child has more language-rich experiences than the insecurely attached child does. Another area of development on which attachment has demonstrable influence involves a child s social relations. Extensive literature documents that securely attached toddlers are better able to play with their peers nondestructively, develop into more socially skilled preschoolers, and go on to be successful negotiators in the more complex play of the early grade school child. As our example children move from the toddler stage into preschool, we witness these differences in cognitive and social development. 25 While in preschool, Sarah excels. The experiences she had as a toddler, confidently exploring the environment and gaining feedback on her discoveries, provided a good foundation for academic learning. Sarah is able to easily master basic concepts like color, shape, and number. She has learned how to obtain the assistance of adults both verbally and nonverbally because she has developed a faith that others are interested in her and want to hear what she has to say. This same faith allows Sarah to interact more confidently with her peers. Often Sarah initiates games and invites others to join. She is very fair regarding the rules of play and trusts that others will be as well. Thus, she is able to play without feeling anxious or scared. Her assured style leads to play that is nonviolent and without name-calling, teasing, etc. Julie does not have such a comfortable time in preschool. She does not have as much familiarization with such basic concepts as color, shape, and number as Sarah does. She struggles with identifying the concepts and putting them together in coordinated groups. Julie works more slowly, thus taking longer to learn new things. In addition, since Julie did not experience herself to be capable of procuring a reliable adult response when she has a problem, she does not make much of an effort to obtain help from her teachers. However, when teachers offer assistance, Julie is comforted slightly. Anxious about her own needs and how others may respond to them, Julie often sits by herself, crying and sucking her thumb. Needless to say, Julie does not socialize with her peers much. Most of the children do not want to play with someone who is crying all the time, so Julie is not approached very often with invitations to play. Conversely, Julie s lack of confidence and inexperience with engaging others prevents her from taking much initiative in inviting others to play with her. Amy experiences preschool similarly to Julie. She, too, has not developed as strong a cognitive foundation as Sarah; thus, she too struggles with identifying and utilizing basic concepts. In addition, she also refrains from obtaining assistance from others. Instead of crying, however, Amy is just quiet. Because of this, Amy is often overlooked by teachers moving about the room to engage with the children. When teachers do approach her, Amy often ignores their presence. This lack of recognition often shuts them out and pushes them away making it difficult for Amy to learn new skills or establish relationships with them. Likewise, Amy excludes herself from the games other children are playing due to her own lack of confidence and inexperience with engaging others. Thus, she too misses out on the opportunities to develop into a more socially-skilled preschooler. 24 Michael Tomasello & Michael J. Farrar, Joint Attention and Early Language, 57 Child Dev ( L. Allen Sroufe et al., Individuals in Relationships: Development from Infancy Through Adolescence, in Studying Lives Through Time: Personality and Development (David C. Funder et al. eds., Drafting Family Law Documents 41

184 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 3. Middle Childhood. Children s symbolic, artistic, and story-based mental representations of their early attachment experiences continue at six years of age to reflect the earlier attachment classifications, exhibiting some continuity across the years of infancy, toddlerhood, and early childhood. 26 The earlier category, usually assigned between one and two years of age, continues to predict a child s well-being on a number of counts. School adjustment and early reading skill are both related to attachment at approximately one year of age. 27 Peer relations, as well as relations with teachers, in the early school years are better for children with a history of secure attachment than for those with an insecure history. 28 As the middle years continue, early attachment quality continues to predict important features of school and peer adjustment. Those with secure histories stand out from the others with their stronger academic aspirations, persistence, ability to elicit positive responses from teachers and avoid problem behavior, and actual school achievement. Securely attached toddlers also proceed, in middle childhood, to be more empathic, better at complex negotiation, less aggressive and withdrawn, and basically more socially competent with peers in general than those who are insecurely attached. Such securely attached children are also more independent of adults in appropriate fashions. Returning to our example children, we can better comprehend how the differentiations among the girls are more pronounced as they continue to grow older. As Sarah moves into elementary school, she continues to succeed with her studies. The communication, social, and academic skills she has thus far developed assist her with transitioning from a preschool setting to a more formal grade school setting. She is able to communicate in an appropriate and friendly style with the teachers due to her faith and trust in others. Her communication style allows her to form sound relationships with her teachers which inevitably lead to her ability to elicit assistance from them and their reciprocal desire to assist her. The positive and encouraging attitudes and behaviors of the teachers motivate Sarah to study hard and, thus, aspire to succeed academically. In addition, the autonomy Sarah has developed gives her the opportunity to work independently for long periods of time, thus maturing the traits of persistence and selfdiscipline. Sarah s steadily improving social skills also make it easy for her to form new friendships. Once again, her faith in love s possibility, her trust in others, and her own selfassurance opens her up to all kinds of friendships. Others are attracted to this openness and, in turn, welcome her. Sarah s emotional security and awareness of herself as loving allow her to be empathic with her friends rather than judgmental. Thus, during times of conflict, Sarah can negotiate rather than fight or ignore them. Julie, on the other hand, does not transition as well into the more formal environment of elementary school. Her anxiety and need to be close to another make it difficult for her to sit still, work independently, and remain focused on anything for very long. In addition, her less sophisticated communication skills thwart her ability to appropriately gain the attention of the teachers. Julie often resorts to such methods as crying, yelling, getting out of her seat, wandering around the room, disrupting other children, and engaging in activities she is not supposed to do at the time. Julie puts most of her effort into monopolizing the teachers time and attention rather than learning. Thus, her academic skills do not develop at the rate of the other students, and she tends to fall behind. Her aspirations for academic success diminish as her problem behaviors increase, and the 26 Mary Main & Jude Cassidy, Categories of Response to Reunion with the Parent at Age Six: Predictable from Infant Attachment Classifications and Stable over a One Month Period, 24 Developmental Psychol. 415 ( Sroufe et al., supra note Id. Drafting Family Law Documents 42

185 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand teachers spend more time punishing her than they do encouraging her. Julie s behavior also interferes with her relationships with her peers. The other children do not want to become friends with someone who disrupts them while they are learning, creates tension in the classroom, and monopolizes the teacher. In addition, Julie s constant desire to be close to others often comes across as intrusive and overbearing which pushes other children away. As Amy moves into elementary school, she becomes even more withdrawn than she was in preschool. She is often quiet and refrains from engaging in activities that involve other people. The teachers find it difficult to establish a relationship with her since she rarely says anything. Amy is able to work independently, but she seldom asks for assistance. Thus, when she hits a stumbling block, she often gives up and moves to another activity or puts her head down as though she is going to sleep. This lack of persistence leads to less advanced cognitive skills which prevents Amy from succeeding academically. At first, the teachers diligently try to work with Amy, both to establish a relationship with her and to assist her with her academics, but Amy s lack of communication skills, distrust of love s possibilities, and resistance to forming relationships makes working with Amy tiring and time consuming, and often the teachers cannot put the effort into working with her that is required. In the same manner, Amy s peers often do not want to put the effort into getting to know her that is needed to become Amy s friend. Thus, they give up trying and exclude her from their activities. 4. Adolescence. By adolescence, the mental models people possess of their parent-child attachment experience can be studied through structured interview or questionnaire procedures. Retaining one or another kind of insecure working model of attachment during adolescence has been associated with several indications of nonoptimal development. Compared to adolescents with secure mental models of attachment, adolescents with insecure models have less adequate social adjustment as seen by their peers 29 and by researchers, 30 less internalization of behavioral standards, less skill with regulating their own emotions, and less resiliency when they must cope with stress. 31 In sum, an adolescent individual s early experience of attachment, as represented in the mental model, continues to predict that individual s success in social relationships and adapting to life s challenges. To better portray the influence of the early attachment experience on the social relationships of adolescence, we again return to the lives of our example children. As Sarah matures into the adolescent stage of her life, her social sphere becomes of utmost importance. Fortunately, the social skills she has been developing throughout her life and her internalized experience of attachment have prepared her for the powerful influence of her peers. Sarah s various experiences with establishing different relationships and her own self-awareness allow her to easily adjust to different social groups and social situations. Although Sarah readily meshes with different peer groups, she finds one group of friends with whom she feels most comfortable and spends most of her time with them. This group contains people most like herself, so the influence of peer pressure is reduced. This is important since Sarah has a clear sense of her behavioral standards. Sarah is able to communicate effectively and express her feelings appropriately with her friends; she does not irrationally lose her temper, cry, or become jealous. When Sarah encounters frustrating, somber, incensing, or otherwise stressful circumstances, she does 29 Mary S. Ainsworth, Attachments Beyond Infancy, 44 Am. Psychologist 709 ( Sroufe et al., supra note Sroufe et al., supra note 25; R. Rogers Kobak & Amy Sceery, Attachment in Late Adolescence: Working Models, Affect Regulation, and Representations of Self and Others, 59 Child Dev. 135 (1988. Drafting Family Law Documents 43

186 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand not become so overwhelmed that she crumbles from the pressure and gives up. Instead, she takes a few deep breaths to calm herself, thinks logically through the situation, gives herself a pep talk, and then tackles the quandary head on. Unfortunately, Julie has a more difficult time during the adolescent period. Her experiences over the past several years in conjunction with the mental representation of attachment she has developed have left her with a poor self-image and a desperate desire to be loved. Usually, this desire to be loved is translated into a need to feel accepted by her peers. During adolescence, when peer groups become the focal point of one s life, Julie s anxiety regarding acceptance heightens. As a result, she often tries too hard to make friends. In an attempt to sound knowledgeable and connected to people, she frequently adds irrelevant or repetitive comments to conversations. She also interrupts and speaks loudly to make sure she is heard. Julie invites herself to activities to which she is not invited and then tags along with the people with whom she wants to be. She does not develop her own sense of style, but instead attempts to look and act like those with whom she wants to be friends. Tragically, this lack of identity and desperation for acceptance make Julie extremely vulnerable to the influence of peer pressure. In an effort to look cool or be like her peers, she disregards her own behavioral standards and engages in deleterious behaviors such as consuming alcohol and drugs, smoking, skipping school, stealing from the convenience store, etc. Eventually, Julie does make some friends, but her inadequacy with expressing her feelings appropriately causes turbulence within the relationships. She often becomes angry and upset when she feels neglected by the group and jealous if she discovers that one of her friends is spending more time with another friend than with her. In addition, since Julie easily becomes anxious, she has a difficult time coping with stressful situations. She often breaks down in tears and depends upon her friends to help her adjust to the situation. Like Julie, Amy also has a difficult time during the adolescent period. She too has developed a distressed mental representation from her past experiences and has been left devastated by a poor self-image. Instead of overcompensating for this desolate feeling as Julie does, Amy polarizes to the opposite extreme and withdraws from her peers. She often sits by herself at lunch reading, doing homework, or listening to her walkman, and she rarely participates in class discussions. After school, she usually goes home and escapes into the television. She is not interested in boys, and she lacks the confidence to easily make friends, although she does have a couple. Amy is considered extremely introverted by her teachers and a loner by her peers. Although Amy does not instigate any trouble at school, she sometimes experiments with cigarettes, alcohol, and drugs in the privacy of her bedroom in an effort to lift her spirits or cope with stress. She often seems depressed or annoyed, and she is overly critical of most people. Sometimes, she displays outbursts of tears or anger with apparently no clear antecedent. 5. adult Attachment. The continuing influence of an individual s early experience with attachment in adulthood has been studied with structured interviews and questionnaires. 32 These adult measures focus entirely on the mental model. It is especially important for those interested in policy to understand the distinction between a mental model of a psychological experience here, it is one of being cared for in the context of intimacy and direct memory of that experience. The reader might be appropriately skeptical about the accuracy or mental availability of any memories of early care. 32 George et al., supra note 10; Malcom L. West & Adrienne E. Sheldon-Keller, Patterns of Relating (1994; Cindy Hazan & Phillip Shaver, Romantic Love Conceptualized as an Attachment Process, 52 J. Personality & Soc. Psychol. 511 (1987 [hereinafter Romantic Love]; Cindy Hazan & Phillip Shaver, Love and Work: An Attachment-Theoretical Perspective, 59 J. Personality & Soc. Psychol. 270 (1990 [hereinafter Love & Work]. Drafting Family Law Documents 44

187 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Thus, the research with adults utilizes only the mental representation of the experience of early care constructed by the person. The measurement techniques used with adults allow us to classify the adults into attachment categories that are similar to the ones used to classify mother-baby pairs in the laboratory. West and Sheldon-Keller 33 have identified these categories and the characteristic styles of relating used by adults in each classification. Adults whose working models are analogous to the insecure-avoidant category in Ainsworth s paradigm 34 demonstrate compulsive self-sufficiency, avoiding dependence on romantic partners, friends, or family. Those with a model similar to Ainsworth s anxious-ambivalent pattern may compulsively care for their partners, friends, and families. The patterns of adults internal working models of attachment have been correlated with the strength of these adults romantic relationships. Security of the mental model predicts higher relationship satisfaction and the use of one s romantic partner as a secure base in a laboratory interaction situation. The connection between security of the mental model of attachment and relationship satisfaction 35 is present to a much greater extent for women than for men, 36 suggesting continuity from one intimate relationship to another for women, but not men. For men, relationship satisfaction may pertain more to current life events than with their thoughts (mental models about attachment; whereas for women, thoughts about the relationship conform to thoughts regarding earlier important relationships. Beyond romance, the security of mothers internal working models of attachment has been used to predict the secure or insecure category of the infant attachment formed by the mothers with their own infants. 37 Research has found that parents with insecure models recall their own parents less well than other parents 38, which may indicate a lack of any coherent mental representation of good parenting. As a result, mothers with insecure attachment representations are much less likely to be sensitive to their babies cues than mothers with secure representations. 39 In fact, research findings implicate insecure attachment representations due presumably to maltreatment in infancy in physical abuse of infants and young children by their parents. 40 Romantic relationships and the parent-child relationship are the most studied aspects of adult life that attachment significantly impacts. We also note, however, that secure mental models have been 33 West & Sheldon-Keller, supra note Ainsworth & Blehar, supra note Romantic Love, supra note R. DeBlasio & Eleanor W. Willemsen, Attachment Security and Relationship Satisfaction (paper presented at the Western Psychological Association Conference, May 1994, Kona, HI. (on file with author. 37 Peter Fonagy et al., Maternal Representations of Attachment During Pregnancy Predicts the Organization of Infant-Mother Attachment at One Year of Age, 62 Child Dev. 891 ( Jeffrey A. Simpson et al., Support-Seeking and Support-Giving Within Couple Members in an Anxiety-Provoking Situation: The Role of Attachment Styles, 62 J. Personality & Soc. Psychol. 434 ( Judith A. Crowell & Shirley S. Feldman, Mothers Working Models of Attachment Relationships and Mother and Child Behavior During Separation and Reunion, 27 Developmental Psychol. 597 ( Patricia M. Crittenden et al., Family Patterns of Relationship in Normative and Dysfunctional Families, 3 Dev. & Psychopathology 491 (1991; Charles H. Zeanah & Paula D. Zeanah, Intergenerational Transmission of Maltreatment: Insights from Attachment Theory and Research, 52 Psychiatry 177 (1989; Mary Main & Ruth Goldwyn, Predicting Rejection of Her Infant from Mother s Representation of Her Own Experience: Implications for the Abused-Abusing Intergenerational Cycle, 8 Child Abuse and Neglect 203 (1984. Drafting Family Law Documents 45

188 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand associated with positive self-esteem, 41 self-disclosure in one-on-one situations, 42 more cooperative workplace interactions, 43 and greater job satisfaction. 44 The adult literature demonstrates a continuing influence of the mental models we developed of our early attachment relationship. To conclude our understanding of the life-long attachment experience, let us see how the lives and relationships of our example children culminated in adulthood. As an adult, Sarah meets the challenges of career, romance, and parenthood with confidence and positive self-esteem. She enters a vocation where she excels professionally and interacts cooperatively with her colleagues, thereby making her occupation a fulfilling experience. Sarah is attracted to men she likes and believes the feeling is mutual. She expects a balance of give and take between herself and her partner, and she respects the idea they both need their independence as well as quality time together. Fundamentally, Sarah is happy when involved in a relationship; however, she is human, and not every relationship progresses as desired. Eventually, after experiencing several different loves, she finds the love that is right for her and marries. Sarah depends on her spouse for love and support and often seeks him out for comfort when she is upset or stressed, but once comforted, she is able to return to her normal level of functioning. In return, she provides the same love and support for her spouse. When Sarah has children, she is able to provide the same type of responsive caregiving that her mother provided her. Her image of this responsiveness derives from the mental representation she developed based on her own experience of being loved by a loving mother. Julie, on the other hand, is more challenged by career, romance, and parenthood. Her lack of confidence and lower self-esteem thwart her ability to excel professionally and stifle her aspirations. Thus, she obtains a job inferior to her actual abilities. In addition, her efforts to please her seniors and gain acceptance from her peers often overwhelm her colleagues and provoke the opposite reactions of annoyance and animosity. Her personal relationships are equally skewed. Julie is usually attracted to men who crave attention as much as she does. In addition, she often uses sex to obtain the attention and affection of men. She and her partner frequently fall into the pattern of relying on each other exclusively for a sense of love, identity, and fulfillment without regard to a need for independence. By establishing a relationship with someone as needy as herself, she can focus her attention on caring for him as a means of keeping him close to her. Despite their considerable time together, Julie does not feel completely satisfied, for a person who is also needy can not provide the constant love, support, and attention that she has desired all her life. Nonetheless, Julie does find a marriage partner with whom she bears children. Unfortunately, her anxiety, unfulfillment, and poorly constructed mental representation prevent her from being responsive to her children s needs. She does not possess the model of being loved by a loving mother that Sarah does; thus, she has no guidelines to follow. Finally, Amy also experiences an arduous challenge with career, romance, and parenthood. Like Julie, her lack of confidence and lower self-esteem interfere with her professional development. Although skillful, she lacks the assertiveness necessary to advance her 41 Judith A. Feeney et al., Assessing Adult Attachment, in Attachment in Adults: Clinical and Developmental Perspectives 128 (Michael B. Sperling & William H. Berman eds., Mario Mikulincer & Orna Nachshon, Attachment Styles and Patterns of Self-Disclosure, 61 J. of Personality & Soc. Psychol. 321 ( Nancy L. Collins & Stephen J. Read, Cognitive Representations of Adult Attachment: The Structure and Function of Working Models, in 5 Advances in Personal Relationships 53 (Daniel Perlman & Kim Bartholomew eds., Love & Work, supra note 32. Drafting Family Law Documents 46

189 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand career. In addition, Amy s lack of faith and trust in people and her fear of relying on others prevent her from working cooperatively and effectively with colleagues. This same attitude also impedes her personal relationships. All her life Amy has avoided becoming emotionally close to others, and this pattern persists into her later life. The inability of her own mother to meet her needs as a child formed a mental representation plagued with an apprehension of dependency. As a result, Amy cannot bring herself to depend upon a romantic partner for love, support, happiness, or anything. Since she will not depend upon him, she cannot completely commit to him, thereby making lasting relationships almost impossible. Amy maintains very few relationships, and those she does often dissipate over a brief period of time. Eventually, she meets a man who, like herself, also needs little emotional support. Their compatibility in this area leads them to marry. Unfortunately, such a relationship void of emotional closeness does not provide Amy with much happiness and satisfaction. As a parent, Amy s avoidant mental representation influences her own parenting skills. The absence of a model of being loved by a loving parent lays the foundation for such an absence in the relationship with her own children. I. Summary of the Importance of Early Attachment We do not yet have definitive evidence that securely attached and insecurely attached children do, in fact, grow up to become adults with corresponding mental representations; however, there is indirect evidence that they do. 45 It is becoming more and more clear that early attachment experiences are the primary learning ground upon which one learns how to relate to other people. In the case of love, we learn in our early attachments to have faith in love s possibility for ourselves. This faith includes the belief that we are lovable and the essential parallel belief that we can love. These beliefs encourage us to keep faith in important intimate partnerships when the going gets tough. Concurrently, as we learn to love intimately, we develop more general skills of attending to other s thoughts and feelings which enables us to establish better social relationships. Attachment is given enormous emphasis by child development professionals because of its powerful impact on all aspects of human development. Attachment in infancy gives the individual a base of operations from which to venture forth to learn about the world, connect to other people in it, and acquire a firm sense of one s self and one s place in that world. J. Can a Child Have More than One Secure and Important Attachment? A frequent concern in discussions of a particular baby s placement is whether or not the baby will be confused by too many caregivers and whether or not her attachment to a parent will be disrupted by close involvement with other caregivers such as day care providers, a father with joint custody, or a foster mother. The evidence reveals that babies clearly can and do form more than one attachment relationship. 46 They can, for example, be attached securely to mother, father, and regular caregiver. We do not yet know the upper limit regarding how many close attachments infants can form, but the 45 J.C. Rothbard & Phillip R. Shaver (1994, Continuity of Attachment Across the Life Span, in Attachment in Adults: Clinical and Developmental Perspectives (M.B. Sperling & W.H. Berman eds., 1994; Deborah B. Jacobvitz et al., The Transmission of Mother-Child Boundary Disturbances Across Three Generations, 3 Dev. & Psychopathology 513 (1991; Zeanah & Zeanah, supra note 40; Marinus H. Van Ijzendoorn, Intergenerational Transmission of Parenting: A Review of Studies in Nonclinical Populations, 12 Developmental Rev. 76 (1992; Main & Goldwyn, supra note Suess et al., supra note 21; Frits A. Goossens & Marinus H. Van Ijzendoorn, Quality of Infants Attachments to Professional Caregivers: Relation to Infant-Parent Attachment and Day Care Characteristics, 61 Child Dev. 832 (1990; Susan Kromelow et al., The Role of the Father in the Development of Stranger Sociability During the Second Year, 60 Am. J. Orthopsychiatry 521 (1990. Drafting Family Law Documents 47

190 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand intimate and responsive nature of the caregiving relationship that produces secure attachment would suggest the number is not great. As mentioned previously, researchers studying attachment classify their subjects into categories which include secure, insecure-avoidant, and insecure-ambivalent. When children are observed in the Strange Situation with their mothers and fathers separately, we detect no relationship between the category assigned with the mother and that with the father. It is possible for infants to be secure with mother and insecure with father, insecure with mother and secure with father, secure with both parents, or insecure with both parents. What we do know is that a secure attachment with at least one caregiver seems to buffer a child from the poor development we might otherwise see following insecure attachment with others. This buffering effect can be critical for the development of a child in foster care who was unable to form a secure attachment relationship with a biological parent who abused or neglected her. The buffering can only happen, however, if the natural consequence of responsive intimate caregiving is allowed to transpire. That is, if attachments that occur between responsive foster parents and needy babies are supported by social service workers. A great deal of harm is done when social service professionals uneducated in attachment theory act in order to prevent babies from forming attachments to caregivers in the belief that such attachments must later be given up for normal development to occur. All of the evidence points to the opposite conclusions: The child needs a secure primary attachment as a base from which other relationships can develop, and the child can sustain the first attachment while forming another. III. attachment as an Issue for Public Policy From this brief review of the extensive literature on the special intimate relationships of attachment that babies and toddlers develop with their caregivers, we see that these relationships are essential to the healthy development of any child. Attachment is the laboratory of human connection, the experience that prepares us for a life in which we have the opportunity to thrive. As part of our general duty to protect the young, we must support them in these early important relationships and do whatever we can to preserve the family relationships that support them. In this section, we present four key sets of ideas. First, we introduce the concept of developmental risk and argue that disruption to ongoing attachment relationships constitutes such risk. Second, we contrast the implications of two alternative policies society might create for resolving disputes about the placement and legal custody of children from zero to three years of age. One policy is based on the biological ties between the disputing parties and the child and the other is based on the attachment relationship(s between them. Third, we propose specific guidelines for resolving disputes about placement and custody of these young children. Finally, we apply our guidelines to the case of Michael H. in order to illustrate their effectiveness in practice. A. Disruption to Attachment as Developmental Risk The concept of developmental risk factor is a statistical one. A child who has a risk factor is a member of a group of children for whom the percentage who will go on to develop an illness, poor mental health, inadequate school achievement, unsuccessful social relationships, etc. is higher than the percentage who will develop such problems in a group lacking the risk factor. 47 The development of any one human being is not perfectly predictable from one event, even one as powerful as the loss of early attachment. We are not arguing that every single child who experiences an abrupt loss of an important attachment partner will necessarily grow up mentally ill, underachieving, or unable to relate to others. However, we are making a related point: When circumstances cause the disruption of a baby s 47 Clair B. Kopp, Trends and Directions in Studies of Developmental Risk, in Threats to Optimal Development: Integrating Biological, Psychological, and Social Risk Factors (Charles A. Nelson ed., Drafting Family Law Documents 48

191 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand or toddler s early attachment(s, that child is at a much greater risk for those negative developments than he or she would be without that disruption. When the policies of the state create the disruption, the state is placing its most vulnerable citizens at risk. What is it that these children are at risk of developing? When they experience disruption of attachment, children s mental models of attachment become insecure, which means they develop difficulties with entering into new intimate relationships that they could use as secure bases for exploration, risk-taking, and perception of themselves as separate persons. Attendant to these insecure working models are all the characteristics we have discussed for children with such models less developed social skills, lower levels of communication skills, and less mature cognitive development. Over time, the individuals with a history of insecure attachment models become adolescents and adults who are less successful in romantic, family and other relationships than their peers with secure models. In sum, when we deliberately remove a very young child from the only home he or she has ever known, we move that child into the group of children who mentally represent close relationships as untrustworthy. In other words, when the state places any child at risk of failing at human connection, we are effecting an irreparable harm. B. Contrast a Placement Policy Based on Attachment Relationships with One Based on Biological Relationships In most jurisdictions today, the biological relationship between a child up to three-years-old and a candidate for legal and physical custody is given great weight, whereas the existing intimate bond between the child and a candidate is given less weight. The American preference for basing custody decisions for the very young on biology rather than on relationships is based on three ideas about parent-child relationships. First, our society assigns to biological parents a presumptive right to form and maintain a nurturing parent-child relationship with the child. In other words, the biological parent s right to custody is recognized, whereas any right the child may have to continue any nurturing relationship he or she has developed with someone other than a biological parent is not recognized. Either we do not believe children this young actually have psychologically important relationships, or we recognize that they do, but see them as readily alterable. Second, we believe the best interests of children will generally be served when they are living with and cared for by their biological parents. Therefore, we do not feel the need to evaluate the effects of placing a child with his or her biological parent barring the existence of clear evidence that the parent is inadequate. The cultural assumptions behind this belief include the idea that the biological tie between us and our children motivates us to care for them in accordance with their needs, and that their emerging awareness of our biological tie as they grow up will foster a stronger sense of self or identity. The third belief underlying our current preference for biology over attachment is part of a more general belief that infancy is a time of little permanent psychological importance. We acknowledge that a change in custody might be upsetting temporarily, but we think she ll get over it, or he ll like his new home. The effects of disrupting an attachment are presumed to be temporary and reversible with adequate care. If we substituted a policy based on greater respect for existing relationships rather than on biological ties, we would be doing so because of beliefs contrary to the ones outlined above. We advocate such a changed policy which we will call an attachment-centered policy. This new policy would be based on the idea of the baby as a person involved in relationships. The baby s right to continue in these close relationships would take precedence over the biological parent s rights to form a relationship with the child, because the child is more vulnerable and because an existing relationship is more important than a potential one. Drafting Family Law Documents 49

192 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand The attachment-based policy we advocate is founded on the knowledge base we just reviewed and our belief that the continuation of early attachment relationships is in a child s best interest since these relationships provide the secure base from which healthy social, cognitive, and mental health related development proceeds. A corollary belief is that disruption to such relationships is a serious risk factor. Such disruption destroys the child s positive mental representation of relationships and, thus, puts the child at risk for failure in future as well as present relationships. A policy for infant/toddler placement that centers on issues of attachment will better serve the developmental needs of individual children than one based on the rights of biological parents. Such a policy will also better serve the need of society for its members to be capable of strong, robust relationships with each other in romantic contexts and family settings, as well as in the educational and workplace spheres. C. The Judges Dilemma Existing law is often written in terms of competing rights of adults and, depending on the jurisdiction, either ignores the interests and rights of children especially those under three-yearsold or subordinates the interests of children to those of adults. Judges who are knowledgeable about young children and their relationships are thus unable to apply this knowledge in their decisions. That is, they are unable to apply it unless they identify a new right the right of a child to maintain the nurturing, care-providing relationships they have developed. The cases of contested adoption, disputes over post-divorce housing for very young children, and debates about foster care policy bring this controversy between parent s rights and the child s need for nurture into focus. Something like a right to nurture or right to continued family relationships must soon be identified. D. Proposed Guidelines for Utilizing Attachment Theory in Infant Custody Cases The evidence we reviewed offers several implications for cases involving custody of babies and toddlers, and we have identified four general principles to guide the judicial process. Each principle leads to one or more specific recommendations for judicial practice. 1. Principle 1: Time Is of the Essence. Babies lives move swiftly, and attachment relationships are continuously forming. Disruption of intimate caregiving relationships becomes more and more problematic with passing time. Periods of time allowed for disputing parties to act must be set in relation to the baby s age. We recommend the following policies as minimally adequate to protect babies security: a. During the period between conception and age 90 days, either parent must act affirmatively to care for or arrange to care for the baby to be considered a presumed parent. A presumed parent is, according to California law and that of many jurisdictions, a parent who enacts the nurturing role that society regards as the essence of parenting. b. After age 90 days, in any dispute concerning custody, a best interest test is automatically invoked. c. The issues of a parent s standing (right to be heard in a judicial proceeding involving the child, that same parent s fitness to parent, and the custody placement in the child s best interest should be decided in a combined hearing. d. One hearing involving the combination of issues just mentioned should be expedited. Baby custody matters should be given priority for immediate review with the appointment of special masters as hearing officers if needed. Appeals from the findings of these hearings should also qualify for immediate review. Drafting Family Law Documents 50

193 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 2. Principle 2: Decision Makers Must Be Educated About Aspects of Child Development Discussed in This Paper a. Judicial education in this area should be mandated. b. Mediation by knowledgeable child development professionals should play a role in the resolution of all disputes regarding infant placement. 3. Principle 3: Respect for the Personhood of the Very Young Child. Equal protection by society through its laws must be given to every baby who requires society s intervention in his or her life. A key aspect in our personhood is our ability to form and maintain relationships. It is urgent that we both respect and protect the relationships into which babies have entered. Ideally, one legal procedure would exist for all matters of child placement either after divorce, after dependency petitions by the state have been granted, or after a biological parent disputes an adoption. 4. Principle 4: Best Interest and Detriment Issues. Best interest and detriment issues must be resolved in terms of the scientific evidence regarding the impact on the child s future development of various alternative scenarios. Babies are at great risk when their intimate relationships with caregiving parents are disrupted. When we allow the courts to sever a child s most important relationships while disregarding the attachment literature, we are tolerating a moral wrong. IV. Conclusion Children have the right to the intimate relationships that provide them security, and it is our social responsibility to protect this right. Thus, we must offer our collective societal encouragement to those courageous enough to offer them love and commitment in adoptive families. Unfortunately, four years later, the custody battle for Michael H. still rages. Michael lives with the prospective adoptive parents, the Stedmonds, who are struggling to maintain custody of him. Mark has spent the past four years proving his status as a presumed parent. After two appeals, Mark has won this leg of the race. However, the issues of Mark s fitness to parent and custody placement still need to be addressed. Thus, there could be another four years of courtroom contention before Michael s custody placement is finally determined. By that time, Michael will be eight-years-old and will have intensified his primary attachment with the prospective adoptive parents. Thus, if custody is granted to Mark, Michael will have been robbed of his first attachment relationship. We propose that the father s right to custody and the infant s right to form secure attachments could both have been honored if our principles had been utilized. First, because Mark made preparations to care for Michael during the period between conception and 90 days after the infant s birth, he would automatically be considered a presumed parent. This issue resolved, the case could be immediately heard within a month. The issues of standing, fitness, and custody would be heard in a combined hearing, and any appeals would be addressed in the same expedited manner. Attachment and other issues involved in the child s best interest would be identified by the specially-educated judges and the professional child development mediators. Because of the stringent time frame and new respect for the personhood of the infant, Michael s interests would be served no matter what the outcome of the trial. Whether he be left in the custody of the adoptive parents or given over to his father, he would have the opportunity to develop secure, loving relationships with his caregivers. Drafting Family Law Documents 51

194 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Drafting Family Law Documents 52

195 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Appendix C Parenting Time Examples PARENTING TIME EXAMPLES The following are examples of the parenting schedules. Each parenting schedule shows 4 weeks. There are two time slots on each day. The parenting time for Parent A is shown by white space. G The parenting time for Parent B is shown by shaded space. O These are only examples. Clients should feel free to change the day of the week or the hour suggested. Clients must consider their child s needs, each parent s work schedules, etc. Drafting Family Law Documents 53 Appendix 4 Page 1 of 11

196 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLANS 1, 2, AND 3 Parenting Time: Plan 1 Three periods of 3 5 hours spaced throughout each week Wk Sun Mon Tue Wed Thu Fri Sat hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours 3-5 hours Advantages of Plans 1, 2, and 3: The child has frequent but short visits with the non-custodial parent. Offers consistency and predictability. The custodial parent gets a few breaks throughout the week. Disadvantages of Plans 1, 2, and 3: There are 6 exchanges each week, which might be difficult if the parents don t get along. The week may seem a bit choppy or broken up. Parenting Time: Plan 2 2 Two periods of 4 6 hours spaced 3 throughout each week Parenting Time: Plan 3 Two 3 5 hour periods spaced through each week Wk Sun Mon Tue Wed Thu Fri Sat hours 4-6 hours 4-6 hours Wk Sun Mon Tue Wed Thu Fri Sat hours 3-5 hours 3-5 hours 3-5 hours 4-6 hours 3-5 hours 3-5 hours hours hours 4-6 hours 3-5 hours 3-5 hours hours hours 4-6 hours 3-5 hours 3-5 hours Drafting Family Law Documents 54 Appendix 4 Page 2 of 11

197 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLANS 4 AND 5 Parenting Time: Plan 4 Two periods of 3 6 hours and 1 overnight each week Wk Sun Mon Tue Wed Thu Fri Sat Excha nge Excha nge Excha nge 3-6 hours 3-6 hours 3-6 hours 3-6 hours 3-6 hours 3-6 hours 3-6 hours 3-6 hours Over night Over night Over night Over night Advantages of Plan 4: The child has frequent but short visits with the non-custodial parent. The custodial parent has a few breaks throughout the week. There is consistency and predictability. Disadvantages of Plan 4: There are 5 6 exchanges each week, which might be difficult if the parents don t get along. The week may seem a bit choppy or broken up. Advantages of Plan 5: The child has frequent but short visits with the non-custodial parent. The custodial parent has almost daily breaks. Disadvantages of Plan 5: There are many (almost daily exchanges, which might be difficult if the parents don t get along. The week may seem a bit choppy or broken up. Parenting Time: Plan 5 One period of 3 6 hours and 2 nonconsecutive overnights each week Wk Sun Mon Tue Wed Thu Fri Sat Over night Over night Over night Over night Excha nge Excha nge Excha nge Excha nge Over night Over night Over night Over night Excha nge Excha nge Excha nge Excha nge 3-6 hours 3-6 hours 3-6 hours 3-6 hours Drafting Family Law Documents 55 Appendix 4 Page 3 of 11

198 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLANS 6 AND 7 6 Parenting Time: Plan 6 One period of 3 6 hours and two consecutive overnights each week Wk Sun Mon Tue Wed Thu Fri Sat 1 All day Advantages of Plan 6: The child sees the parent with primary parenting time almost daily and the other parent 3 5 days per week hours 3-6 hours 3-6 hours 3-6 hours Over night All day Over night All day Over night Over night Exchange Exchange Exchange Exchange Over night All day Over night Disadvantages of Plan 6: Only Mondays are consistent every week. May seem choppy or fragmented There are 3 5 exchanges each week, which might be difficult if the parents don t get along. Over night Over night Advantages of Plan 7: Each parent has solid blocks of time (2 3 days with the child. Disadvantages of Plan 7: Inconsistent from week to week (what happens on Monday in Week 1 doesn t occur in Week 2. It may be confusing for the parents to follow and remember which days they are to care for the child. Only rarely would a parent have a full weekend. It might be hard to arrange the child s extracurricular activities unless both parents agree. For example, if one parent wants to enroll the child in karate on Mondays and the other parent doesn t agree, the child may miss several lessons. Parenting Time: Plan 7 Two days with one parent (including overnights followed by 3 days with the other parent (including overnights with this schedule continuing over time Wk Sun Mon Tue Wed Thu Fri Sat 1 All day All day All day All day Over night All day Over night All day Over night All day All day All day Over night All day All day All day Over night Exchange Exchange Exchange Exchange Exchange Exchange Over night Drafting Family Law Documents 56 Appendix 4 Page 4 of 11

199 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLANS 8 AND 9 Parenting Time: Plan 8 Two consecutive overnights every other week. An additional 3 6 hour period or overnight may be added each week Wk Sun Mon Tue Wed Thu Fri Sat All day Over night All day Over night 3-6 hours 3-6 hours 3-6 hours 3-6 hours All day Over night All day Over night Advantages of Plans 8 and 9: Consistency/predictability throughout the school week. Disadvantages of Plans 8 and 9: Limited time for one parent. The child does not see one parent for 6 days in alternative weeks. 9 Parenting Time: Plan 9 Three consecutive overnights every other week and an additional 4 6 hour period each week. Alternate Sundays can be overnights 9 Parenting Time: Plan 9 Modification Three consecutive overnights every other week and an additional 4 6 hour period each week. Alternate Wednesdays (before other parent s weekend can be overnight Wk Sun Mon Tue Wed Thu Fri Sat All day Over night All day Over night 4-6 hours 4-6 hours 4-6 hours 4-6 hours Over night Over night All day Over night All day Over night Wk Sun Mon Tue Wed Thu Fri Sat All day Over night All day Over night 4-6 hours Over night 4-6 hours Over night Exchange Exchange Exchange Exchange Exchange Exchange Exchange Exchange Over night Over night All day Over night All day Over night Drafting Family Law Documents 57 Appendix 4 Page 5 of 11

200 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples Parenting Time: Plan 9 Modification Three consecutive overnights every other week and every Wednesday is overnight Wk Sun Mon Tue Wed Thu Fri Sat All day Over night All day Over night Over night Over night Over night Over night Exchange Exchange Exchange Exchange Exchange Exchange Over night Over night All day Over night All day Over night Parenting Time: Plan 9 Modification Three consecutive overnights every other week and alternate Wednesdays are overnights Wk Sun Mon Tue Wed Thu Fri Sat All day Over night All day Over night Exchange Exchange Over night 4-6 hours Over night 4-6 hours O Exchange Exchange Over night Over night All day Over night All day Over night Drafting Family Law Documents 58 Appendix 4 Page 6 of 11

201 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLAN 10 (ALTERNATING WEEKENDS Parenting Time: Plan 10 Four consecutive overnights during Week 1 and one overnight during Week 2 Wk Sun Mon Tue Wed Thu Fri Sat 1 All day All day Over night All day Over night All day Over night All day Over night All day Over night All day Over night Over night All day Over night Exchange Exchange Exchange Exchange All day Over night All day Over night Advantages of Plan 10: Minimal parental face-to-face contact (none if exchange is Monday morning at school and pick up is every Thursday at school. Consistency and predictability most weekdays (school days. Alternate prolonged weekends (Thursday Sunday often appealing in the summer for short trips. Disadvantages of Plan 10: Six-day block every other week when the child does not see the nonresidential parent. Some children may have difficulty on Monday at school after being away from the primary parent for four days. Parenting Time: Plan 10 Modification Four consecutive overnights during Week 1 and one overnight during Week 2. End weekend on Sunday night Wk Sun Mon Tue Wed Thu Fri Sat All day All day All day Over night All day Over night All day Over night All day Over night All day Over night All day Over night All day Over night All day Over night Parenting Time: Plan 10 Modification Four consecutive overnights during Week 1 and one overnight during Week 2. Add Wednesdays in alternate weeks Wk Sun Mon Tue Wed Thu Fri Sat 1 All day All day Over night All day All day All day Over night Over night All day Over night All day All day All day Exchange Exchange Over night Over night Over night All day Over night Exchange Exchange Exchange Exchange Exchange Exchange All day Over night All day Over night Drafting Family Law Documents 59 Appendix 4 Page 7 of 11

202 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLAN 11 (SPLIT WEEK Parenting Time: Plan 11 Split each week and weekend Wk Sun Mon Tue Wed Thu Fri Sat All day All day All day Exchange Over night Over night Over night All day All day All day Exchange Over night Over night Over night All day All day All day Exchange Over night Over night Over night All day All day All day Exchange Over night Over night Over night Advantages of Plan 11: The child never goes more than three days without seeing a parent. Consistency and predictability each week. The child can settle in at each household for a few days. Most children enjoy having a stay home (weekend day with each parent every week. Disadvantages of Plan 11: Neither parent has a full weekend (although this can be accommodated with flexibility and/or with the holiday and vacation plans. Parenting Time: Plan Modification 11 Split each week and weekend. The exchange can occur on Saturday night Wk Sun Mon Tue Wed Thu Fri Sat All day All day All day Exchange Over night Over night Over night All day All day All day Exchange Over night Over night Over night All day All day All day Exchange Over night Over night Over night All day All day All day Exchange Over night Over night Over night Over night Over night Over night Over night Parenting Time: Plan 11 Modification Split each week and weekend. The exchange can alternate between Saturday evening one week and Sunday morning the next week Wk Sun Mon Tue Wed Thu Fri Sat Over night All day All day Exchange Over night Over night All day All day All day Exchange Over night Over night Over night Over night All day All day Exchange Over night Over night All day All day All day Exchange Over night Over night Over night Over night Over night Drafting Family Law Documents 60 Appendix 4 Page 8 of 11

203 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLAN Parenting Time: Plan 12 Each parent has the same 2 consecutive weekday overnights each week and alternates the weekends Wk Sun Mon Tue Wed Thu Fri Sat 1 All day All day Over night All day Over night Over night All day Over night Over night All day Over night Over night All day Over night Over night Over night All day Over night All day Over night Advantages of Plan 12: All exchanges can occur at school or daycare, which is easier for most children to handle. No parental face-to-face contact, which makes this an ideal plan for high-conflict parents Consistency and predictability on weekdays Full weekends for each parent Five-day blocks may be appealing to many parents (especially in the summer for mini vacations. Disadvantages of Plan 12: Five days may be too long to be away from one or both parents. Transitioning every 2-5 days may seem hard for some children (especially ensuring that their clothes, books, toys, etc., accompany them. 12 Parenting Time: Plan 12 Modification Each parent has the same 2 consecutive weekday overnights each week and alternates the weekends. The Wednesday Thursday parent s time can end on Sunday evening Wk Sun Mon Tue Wed Thu Fri Sat 1 All day Over night All day Over night Over night All day Over night All day Over night All day Over night All day Over night All day Over night Over night All day Over night Exchange Exchange Exchange Exchange Exchange Exchange Exchange Exchange Over night Over night All day Over night All day Over night Drafting Family Law Documents 61 Appendix 4 Page 9 of 11

204 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Parenting Time Examples PARENTING TIME SCHEDULE: PLAN 13 (ALTERNATING WEEKS Parenting Time: Plan 13 The parents share time with the child during alternative 7-day periods. Wk Sun Mon Tue Wed Thu Fri Sat 1 All day Over night All day Over night All day Over night All day Over night All day All day All day Over night Over night Over night All day All day All day Over night Over night Over night All day Over night All day Over night All day Over night All day Over night Parenting Time: Plan 13 The parents share time with the child during alternative 7-day periods. Add midweek visit (limited hours or overnight Wk Sun Mon Tue Wed Thu Fri Sat 1 All day All day Over night All day Over night Over night All day Over night All day Over night All day Over night Advantages of Plan 13: Limited Transitions (actually none if transitions occur at school. The child is able to settle in at each parent s home. By starting the alternate week on Friday, the child has the weekend to adjust to the upcoming family environment. Disadvantages of Plan 13: Requires effective parental communication and cooperation to arrange weekly activities (for example, soccer on Tuesdays would have to be agreed upon, flute lessons on Thursday, etc.. Seven days away from each parent may be unsettling for some children (particularly younger ones. Transitioning to the other parent s household after being gone a week may be difficult. 3 All day All day All day All day All day All day Over night Over night Over night Over night Over night Over night 4 Drafting Family Law Documents 62 Appendix 4 Page 10 of 11

205 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand All Rights Reserved Portions of these Parenting Guidelines are adapted from Planning for Parenting Time: Arizona s Guide for Parents Living Apart copyrighted by the Arizona Supreme Court, Court Services Division, Court Programs Unit, 1501 W. Washington, Suite 410, Phoenix, AZ They are used with permission of the Arizona Supreme Court Portions of these Parenting Guidelines are adapted from copyrighted material from the Oregon Supreme Court, Office of Oregon State Court Administrator, 1163 State Street, Salem, OR They are used with permission from the Oregon Supreme Court This document may be copied, reproduced, and used by parents and professionals who are attempting to resolve parenting issues. But, no part of this publication may be reproduced in any form or by any means, except for non-profit purposes, without permission in writing from the copyright holders. Drafting Family Law Documents 63 Appendix 4 Page 11 of 11

207 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand Form 3-1 Parenting Plan Examples by Paul Saucy 1. Parenting Schedule. Father shall have the right to have [Wendy, Jonathan, and Michael] with him at such times and places as the parties may mutually agree upon, but not less than is set forth in the following schedule. 1.1 Monthly Visits Local Plan Alternating weekends during the school year if Father lives within a geographic proximity to Mother where such a schedule is practicable A weekend is defined as commencing after school but not later than 7:00 p.m. on Friday and ending at 7:00 p.m. on the following Sunday Father shall be entitled to retain the children visitation until 7:00 p.m. on Monday if the visitation weekend falls on a weekend during the school year on which the next Monday is a state or federally recognized holiday on which there is no school The alternate weekend parenting time schedule shall rotate each year as follows: Father s first weekend in even numbered years shall begin at 7:00 p.m. on the Friday of Labor Day Weekend and end Monday night at 7:00 p.m Father s first weekend in odd numbered years shall begin on the first Friday following the Labor Day Weekend Long Distance Plan One weekend per month during the school year if Father lives too far from Mother to make alternating weekends with the children practicable It is anticipated Father shall choose as his monthly weekend a weekend on which Friday is a Teacher s In-Service Day on which there is no school, or on which the next Monday is a state or federally recognized holiday on which there is no school. This will give Father the opportunity to have a three-day weekend with the children. Father shall be entitled to start his weekend on Thursday night if the children have no school on Friday Father shall notify Mother at least one month in advance of the weekend he intends to utilize for his monthly parenting time after the initial schedule is established Father shall also have the right to spend time with the children on other occasions when he may be in the area. Mother shall use every reasonable effort to adjust her schedule so that Father can spend time with the children There shall be no weekend parenting time in December. 1.2 winter Vacation Every: Even-numbered year beginning the day the children s school recesses for winter vacation. The exact number of days shall be one-half the number of days the public school district in which the children reside is recessed for the winter holiday. For example, if the school recesses on December 19 and resumes January 4, Father shall have parenting time for eight days (one-half of the 16-day vacation period equals eight days. Mother shall have the children during the remainder of the vacation period Odd-numbered year for the second half of the winter vacation as determined in paragraph The vacation shall begin on the first day and continuing until the evening prior to the resumption of the children school. Mother shall have the children during the first half of the winter vacation period. Drafting Family Law Documents 65

208 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 1.3 Spring Vacation Local Plan. [Wendy, Jonathan, and Michael] shall be with Father during the period of school spring vacation in the school district in which the children reside in even-numbered years if the Local Plan is in effect. This period begins at 7:00 p.m. the day school adjourns and ends at 7:00 p.m. the day before school resumes. Mother shall have the children with her during this period in odd-numbered years Long Distance Plan. The children will be with Father for spring vacation every year if the Long Distance Plan is in effect. This period shall be deemed as Father s weekend during the month that it occurs. 1.4 Summer Vacation [Wendy, Jonathan, and Michael] shall be with Father for a period beginning one week after school recesses for the summer holiday and lasting until one week prior to the resumption of school in the fall Mother shall be entitled to one week of time with the children during Father s summer vacation parenting time. Mother shall select and notify Father by April 1 of each year in writing of the time during which she chooses to have the children. 1.5 Holidays. [Wendy, Jonathan, and Michael} shall be with Father on the following holidays or during the following holiday periods in even-numbered years. Mother shall have the children with her during these times during odd-numbered years [Wendy, Jonathan, and Michael] s birthdays, from 9:00 a.m. to 7:00 p.m. if the birthday falls on a non-school day and 5:00 p.m. to 8:30 p.m. if the birthday falls on a school day. All of the children shall be together on the birthday Thanksgiving holiday, commencing on Wednesday and ending on the following Sunday. This shall be Father s weekend during November during even-numbered years if the Long Distance Plan is in effect. 1.6 Father s Day. [Wendy, Jonathan, and Michael] shall be with Father on Father s Day weekend each year. 1.7 Mother s Day. [Wendy, Jonathan, and Michael] shall be with Mother on Mother s Day weekend each year. 2. rules for Use of Parenting Time. The following rules shall apply to the use of parenting time. 2.1 Flexibility. This parenting plan shall be construed and implemented in a way that fosters the children s best interests by providing liberal, predictable, and wholesome time between the children and both parents. While a written plan promotes stability for the children, each parent acknowledges that reasonable adjustments will be needed from time to time and that an element of flexibility will be required in administering the plan. Each parent shall be flexible in arranging dates and times with the children so important family events and the children s activities are maintained with minimal disruption or hard feelings. 2.2 Personal Plans. Neither a parent s nor the children s personal plans (for example, school or church activities justify a parent s failure to follow the parenting time schedule. 2.3 Promptness Required. All parenting time shall be exercised in a prompt manner so both parents can make their plans accordingly. 2.4 Transportation. Each party acknowledges it is a -mile round trip between Mother s and Father s residence over a highway that is greatly impacted by weather and other unforeseeable conditions. As a result, it is not possible to set precise departure and arrival times. However, each Drafting Family Law Documents 66

209 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand parent shall strive to be considerate of the other as much as possible by using a cellular telephone to give notices prior to departure (and in route if practicable of delays or other problems that may arise Parenting times shall begin as closely to the time the children are recessed from school as practicable on the first day of a parenting period and shall end in the evening on the last parenting period day Unless the parties agree to exchange the children at a point that is halfway between each of the parents residences, Father shall pick up the children from the front steps of Mother s residence to begin his time with them and Mother shall pick the children up from the front steps of Father s residence to end the parenting period Each parent shall cooperate in using air travel as a method of accomplishing visitation. This requires each parent to take and pick up the children from the airport and to coordinate travel schedules Only recognized major air carriers will be used. Timing of the flights shall be reasonable, taking into consideration a child s age. For example, it is unreasonable for a nine year old to arrive at his destination at 11:00 p.m Mother and Father shall alternate responsibility for the purchase of the airline ticket with Father purchasing the first ticket. Father s failure to purchase a ticket shall be deemed a forfeiture of his right to spend time with the children on that occasion. Mother s failure to purchase a ticket shall be grounds for Father to file a contempt charge against her and recover, as liquidated damages, any expense for travel that he may have incurred on that occasion and for the next two parenting times that he would otherwise have been required to pay for Each parent is entitled to retain for his or her own use any frequent flier miles that may be earned on the child s ticket. 2.5 Child s Input. A child is not permitted to determine whether he or she spends time with Father. However, older teenagers are often involved in their own activities and are unable (or unwilling to spend time with their parents on a regular schedule as they did when they were younger. Both parents shall be considerate of older teenagers and recognize that they wish (and need to spend more time with their peers rather than their parents. Both Mother and Father will need to make adjustments to accommodate these life changes. 2.6 Children s Activities. Each parent has the right to visit with the children at school, attend their school activities (such as an open house or sports activities, and have full access to school teachers and administrators for complete information about the children in school. This includes parent-teacher conferences, although there is no requirement that the conference be held jointly with the other parent. Each parent shall be responsible for keeping himself or herself advised of each child s activities and events. 2.7 no-shows and Make-Ups. Only medical reasons will be considered sufficient for postponement or cancellation of parenting time. A makeup time shall occur on the following weekend if a child is ill and unable to visit. There will be no makeup parenting time if Father misses a scheduled parenting opportunity. The illness of one child does not mean that another child s time with Father is also canceled. 2.8 nonassigned Time. Unless otherwise agreed in writing, Mother is responsible for the children during all times that they are not scheduled to be with Father. This does not mean that either parent is restricted from attending public events where the children are in attendance such as school programs and athletic events. Drafting Family Law Documents 67

210 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 2.9 Clothes. Father shall maintain a supply of basic clothing (socks, underwear, a shirt, a pair of pants, etc. and toiletry items for [Wendy, Jonathan, and Michael] at his residence. Mother shall make sure that the children have with them any specialized clothing (coats, sport uniforms, etc. or equipment needed for the time they are to be with Father. Father shall advise Mother in advance if special items are needed for an activity such as providing warm clothing for a ski trip. Each parent shall return all clothing that the child came with writing and Telephoning. Each parent shall have the right to correspond with the children during reasonable hours without monitoring by the other parent or anyone else. This correspondence may take the form of letters, fax transmissions, , instant messenger (or a similar computer program, or telephone calls. Neither parent shall read, censor, or otherwise interfere with the other parent s correspondence or listen in on a child s telephone conversation with a parent, either directly or on an extension Unless otherwise agreed, a parent shall make no more than three telephone calls per week to the children. The calls shall not last later than 8:00 p.m. A parent at whose residence a message has been left for a child shall make every reasonable effort to assist the child in returning the call A child may telephone a parent whenever the child wants but not more than two times per day. Long distance telephone calls made by a child shall be paid for by the parent receiving the call Conflicting Dates. The holiday schedule in this parenting plan takes precedence over the alternating weekend schedule. The holiday schedule may create times when the children will be with the same parent for three weekends in a row. This happens when a vacation or holiday defined in this plan replaces the normal schedule for a given weekend or time period Changes to the Parenting Schedule. Changes to the parenting plan are allowed whenever both parents agree to a change. Agreed-upon changes will be temporary and will not be enforced by the court unless the change is in writing, dated, signed by both parents before a notary public, and submitted to the court leaving a space for the judge s signature. See ORS Parental Responsibilities. The following rules shall apply regarding the custodial relationship and each parent s responsibilities to [Wendy, Jonathan, and Michael]. 3.1 Parental Rights. Each parent shall continue to have the following authority, to the same extent as the other parent has To inspect and receive school records, and to consult with school staff concerning [Wendy, Jonathan, and Michael] s welfare and education To inspect and receive governmental agency and law enforcement records concerning the children To consult with any person who may provide care or treatment for [Wendy, Jonathan, and Michael] and to inspect and receive their medical, dental, and psychological records To authorize emergency medical, dental, psychological, psychiatric, or other health care for the children if the custodial parent is, for practical purposes, unavailable To apply to be [Wendy, Jonathan, and Michael] s guardian ad litem, conservator, or both. 3.2 Daily Care. Mother is responsible for the children s primary care. Father shall provide care for the children only while they are staying with him and will make only emergency medical or dental decisions on their behalf. Decisions about bedtime, hygiene, minor disciplinary actions, curfew, Drafting Family Law Documents 68

211 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand chores, allowances, social, dress, etc., may be different in each parent s home. Neither parent is required to follow the other parent s rules on these issues. 3.3 Safety. The following rules apply to each parent and are designed to protect a child Neither parent shall leave a child under the age of 11 unattended or unsupervised. Each parent shall be responsible for arranging daycare during his or her time with the child Neither parent shall operate a vehicle after using alcohol or drugs when a child is in the car or use alcohol carelessly when a child is in the parent s care Each parent shall assure that the child uses a child safety seat or a seat belt at all times in accordance with Oregon law when being transported in a vehicle Neither parent shall allow a child to be a passenger in a car unless the operator has a valid driver s license and vehicle insurance liability coverage Neither parent shall smoke cigarettes in the presence of the children or allow anyone else to do so because of the general danger associated with second-hand smoke. 3.4 religious Freedom. Unless otherwise agreed, each parent shall have the right to involve the children in that parent s religious belief and practices during that parent s scheduled time with them. Each child has the right to make his or her own religious choices as that child matures. 3.6 notice Requirements. Each parent shall have a continuing responsibility to: Provide their home (not just mailing address; home, work and cellular telephone numbers; and address to the other parent Notify the other parent of any emergency circumstances or substantial changes in a child s health, as well as any disciplinary action, educational difficulties, vehicle accidents involving a child, awards, or any other such occurrences Neither parent shall contact the other at work without permission to do so unless it is an emergency. Neither parent shall directly contact the other s employer. 3.7 Health Care. Mother shall be responsible for providing for a child s primary health and dental care, including regular examinations, dental check-ups, required immunizations, etc Each parent has authority to consent to emergency health care treatment for a child. The parent providing the emergency care shall notify the other parent of the emergency as soon as reasonably possible. Reasonableness shall be determined based on the circumstances of the emergency The children shall use the same health, dental, vision, and mental health care providers that they currently use unless both parents agree to a change. Neither parent shall unreasonably withhold consent to make a change, particularly if the change is necessitated by a change in applicable health insurance coverage Mother shall supply any prescription glasses as well as prescription or over-thecounter medications that a child will need while in Father s care Mother and Father shall use their best effort to discuss and resolve all matters calling for nonemergency or elective medical, dental, psychological/psychiatric, or other physical or mental health-related treatment for a child. Either parent has the right to obtain a second opinion, at his or her own expense, on any nonemergency medical, mental health, or dental matter, but consent to the treatment shall not be unreasonably withheld. Mother and Father shall cooperate with each other in making the children available for a second opinion. Drafting Family Law Documents 69

212 Chapter 3 Parenting Plans: What Children Need, What Clients Want, and What Judges Demand 3.8 Exchanging Parenting Information. Mother and Father shall make plans and exchange information directly with each other rather than through the children. It is unfair for the children to serve as the message carrier for two parents who find it difficult to communicate directly with each other. Children who find themselves in this position learn to manipulate and play one parent off against the other. 3.9 Child s Name. Neither parent shall at any time or for any reason allow a child to be known, identified, or designated by any surname other than [Darling]. Neither parent shall initiate or cause the designation of father or mother or their equivalents to be used by a child with reference to any person other than the child s natural mother and father Support of Parenting Time. Neither parent shall discourage a child from spending time with the other parent. Contrary to common belief, Oregon does not allow a child to determine where he or she is going to live at any age Parenting Time Is Independent from Support. Father s right to spend time with the children is not dependent on his payment of child support. It is not permissible to withhold the children from Father as a way to encourage the payment of support Joint Agreement Required. The following shall not occur without the consent of both parents Neither parent shall allow a child to undergo cosmetic surgery, get a tattoo, marry, or enlist in the armed services without the other parent s written consent. Father shall not allow a child to pierce any body part or make any substantial change in a child s physical appearance (for example, changing the way a child s hair is cut without Mother s prior written permission Neither parent shall enter the other parent s home without that parent s permission. Neither a child nor a childcare provider has authority to invite a parent to enter the other parent s home Mutual Respect Toward the Other Parent. Neither parent shall make bad or unflattering comments about the other parent or in any way try to diminish the love, respect, and affection that the children have for the other parent Stepparents. Stepparents and live-in spousal equivalents are not to assume parenting responsibilities over the children and shall never be allowed to use physical discipline or physically strike a child. Issues regarding the children are to be dealt with by his or her parents. Mother and Father shall provide each other with the name of any nonrelated person who resides with or is visiting that parent for a period of more than three weeks Mediation. Mother and Father shall seek appropriate, competent assistance if they cannot by themselves resolve a conflict involving [Wendy, Jonathan, and Michael]. The matter shall be referred for mediation to a counselor or professional person skilled in the area of resolution of the problems of children and their families unless an emergency exists. It may be appropriate for a party to initiate a modification proceeding so as to benefit from court approved and sponsored mediation services. WARNING: One parent s failure to comply with the rules does not excuse the other party from following the rules. Each party has been put on notice that an intentional failure to follow the rules of this parenting plan is punishable through the contempt powers of the court. Drafting Family Law Documents 70

215 Chapter 4 Practice Tips for Drafting Documents Mark Kramer Kramer & Associates Portland, Oregon Contents Practice Tips for Drafting Documents Forms 4-1. Stipulated Parenting Time Order Limited Judgment Re Support and Debt Payment Appendixes A. ORS (1 and ( B. ORS (2 and (3(a C. Temporary and Final Relief, Family Law (OSB Legal Pubs 2013 rev. in progress (10/12 (reprinted with permission of author Introduction Overview of Statutory Framework Marital Dissolution, Annulment, and Separation Unmarried Parents Third-Party Rights Domestic Partnerships Table of Statutory Authority Temporary Relief Available Immediately Financial Restraining Order Emergency Custody/Temporary Protective Order of Restraint Family Abuse Prevention Act Stalking Protective Orders Pendente Lite Relief Types of Relief Available by Statute Relief Available by Stipulation Procedural Issues The Temporary Relief Hearing Modification of Temporary Relief Drafting the Order: Temporary Orders and Limited Judgments Final Relief Judgments and Money Awards Judgments Postjudgment Relief and Modifications Effect of Bankruptcy on Domestic Relations Cases Form 3-1 Sample Money Award Section (Including Support Award and Information Required by ORS (

216 Chapter 4 Practice Tips for Drafting Documents Drafting Family Law Documents 4 ii

217 Chapter 4 Practice Tips for Drafting Documents Practice Tips for Drafting Documents 1. Use Mother/Father or Wife/Husband in lieu of Petitioner/Respondent. 2. Use counterparts language so that multiple signature pages can be used. 3. Seek to limit precedential effect of limited judgments/temporary orders: The foregoing agreements as to are intended by the parties to be temporary. Neither the parties nor the court are bound by such determinations in the final adjudication of the parties dissolution. 4. Avoid a custody designation, if one is not necessary. 5. Name children ages as parties, even though they may not be attending school at the time of filing of the initial action. 6. Name as third-party respondents persons who have or claim an interest in property owned or claimed by husband or wife. 7. Status quo orders (reference Family Law (OSB Legal Pubs 2013 rev. in progress (10/12, Section 3.3-2(b(2. Consider defining with specificity in the order: a. The child s usual place of residence ; b. The child s present placement and daily schedule ; and c. The other party s usual contact and parenting time with the child. 8. Temporary relief under ORS (reference Family Law (OSB Legal Pubs 2013 rev. in progress (10/12, Section ORS (3 allows the court to issue temporary custody and visitations orders: a. Presumably after the court finds a child-parent or ongoing personal relationship and that the legal parent presumption has been rebutted; b. But ORS doesn t expressly provide for a temporary protective order of restraint; c. ORS provides for temporary custody and temporary parenting time orders and temporary protective orders of restraint but only specifically references ORS in connection with custody and parenting time and not status quo orders. d. Arguably, if the legislature empowers courts to order a custody or visitation order under ORS , it may be presumed that the legislature also intended the courts to order status quo orders in ORS cases. If so, is it enough to demonstrate the status quo or must a petitioner, in addition, demonstrate a parent-child or ongoing personal relationship and overcome the legal parent presumption? If so, must a petitioner plead it? Show a prima facie case? Prove it by a preponderance of the evidence? By clear and convincing evidence (for ongoing personal relationship cases? Drafting Family Law Documents 4 1

218 Chapter 4 Practice Tips for Drafting Documents Drafting Family Law Documents 4 2

219 Chapter 4 Practice Tips for Drafting Documents Form 4-1 Stipulated Parenting Time Order IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [AMBIGUITY] Department of Family Law In the Matter of [the Marriage of] [JANE DOE], No. Petitioner, STIPULATED PARENTING TIME ORDER and [JOHN DOE], Respondent. THIS MATTER comes before the court on the motions of Petitioner [Jane Doe] (hereinafter Mother and Respondent [John Doe] (hereinafter Father. Based upon the stipulation of the parties as reflected by their signatures and the signatures of their attorneys below, pending further court order or the entry of a general judgment of dissolution in this matter, whichever first occurs, the court orders as follows: The court makes no custody determination at this time. 2. Father shall be entitled to liberal and flexible parenting time with the child[ren], consistent with his employment schedule, and subject to the following parameters: 2.1. No more than three overnight in a seven-day period; 2.2. No more than three weekends in a five-weekend period; 2.3. No more than two consecutive weekends; 2.4. For the purpose of this paragraph, weekends shall be considered as Friday, Saturday, and Sunday; 2.5. Father shall also be entitled to reasonable non-weekend overnights consistent with his work schedule, in consultation with Mother and with due regard to the child[ren] s prescheduled activities; and 2.6. Because of the flexible schedule that the parties have agreed upon, Father shall provide Mother with notice of his work schedule as soon as it becomes available to him, and the parties shall then in good faith attempt to specify Father s parenting time within such given work schedule and the above-stated parameters. 3. Each party is entitled to reasonable, unobstructed, and unmonitored phone, text, and other media contact with the child[ren] when the child[ren] are with the other parent. 4. For winter break 2012, Father shall have the child[ren] on Christmas Eve day from 12:00 p.m. until Christmas Day at 12:00 p.m., and Mother will have the child[ren] from Christmas Day at 12:00 noon until December 26 at 12:00 p.m. 5. For spring break of 2013, Father shall have the child[ren] from the end of the last day of school preceding the spring break, until the Sunday evening prior to the resumption of school at 9:00 p.m. Drafting Family Law Documents 4 3

220 Chapter 4 Practice Tips for Drafting Documents 6. The parents are encouraged to be flexible with respect to this parenting time plan and may jointly agree to change the plan, but such plan shall remain the binding and default plan for the parties in the event that they cannot agree to any requested modification. 7. The foregoing agreement as to parenting time is intended by the parties to be a temporary agreement. Neither the parties nor the court are bound by such determinations in the adjudication of the parties dissolution. 8. This Order may be executed in several counterparts, each of which when so executed shall be deemed to be an original copy, and all of which together shall constitute one Order binding on all parties hereto, notwithstanding that all the parties shall not have signed the same counterpart. DATED this day of, 20[13]. Submitted By: [Attorney], OSB No. Of Attorneys for Petitioner Circuit Court Judge IT IS SO STIPULATED: [Jane Doe], Petitioner Date: [John Doe], Respondent Date: Attorney, OSB No. Of Attorneys for Petitioner Date: Attorney, OSB No. Of Attorneys for Respondent Date: Drafting Family Law Documents 4 4

221 Chapter 4 Practice Tips for Drafting Documents Form 4-2 Limited Judgment Re Support and Debt Payment IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [AMBIGUITY] Department of Family Law In the Matter of [the Marriage of] [JANE DOE], No. Petitioner, LIMITED JUDGMENT RE SUPPORT AND DEBT PAYMENT and [JOHN DOE], Respondent. THIS MATTER comes before the court on the motions of Petitioner [Jane Doe] (hereinafter Mother and Respondent [John Doe] (hereinafter Father. Based upon the stipulation of the parties as reflected by their signatures and the signatures of their attorneys below, pending further court order or the entry of a general judgment [of dissolution] in this matter, whichever first occurs, the court orders as follows: 1. For the purposes of this limited judgment, Mother has monthly employment income of $ and Father has monthly employment income of $. The parties stipulated child support amount of $ is consistent with the Oregon Child Support Guidelines, but the parties disagree on certain guideline factors. Both child support worksheets are attached to this Limited Judgment. Based on the guidelines and the parties stipulations, Father will pay child support to Mother for the benefit of the parties joint child[ren] in the amount of $ per month commencing [month and year]. Such support payments shall be made in two equal installments of $, payable no later than the 1st and 15th day of each month. Until such time as Father receives notice that a child support account has been established with the Department of Justice Child Support Program, Father shall make such child support payments to a bank account that Mother designates. When Father receives notice that a child support account has been established with the Department of Justice Child Support Program, he shall arrange to make his payments via electronic funds transfer to the Child Support Program, so that the $ installments are received by such program no later than the 1st and 15th day of each month. So long as Father remains current on his child support obligation, no wage withholding order shall issue. 2. As additional support, Father shall pay one-half and Mother shall pay one-half of jointly agreed-upon activity expenses of the child[ren]. The following expenses are predetermined to be subject to this provision: [gymnastics, dance, piano]. Such list is not exclusive and the parties will in good faith share equally in other jointly agreed-upon activities of the child[ren]. 3. In addition to Father s child support obligation, he shall contribute $ (50% of the mortgage payment to Mother no later than the 4th day of each month. Father shall be entitled to take as a tax deduction the mortgage interest attributable to each mortgage payment he makes during the term of this temporary order. 4. Father shall contribute allowance payments to [child] in the amount of $ monthly, assuming the child[ren] meet the standards normally set by the parents to receive allowance (e.g., semester grades above a 3.0 GPA and completing household chores, commencing [January Drafting Family Law Documents 4 5

222 Chapter 4 Practice Tips for Drafting Documents 2013]. Allowance will be given based on semester grades and paid until the next semester grades are distributed. 5. Father shall be responsible for the vehicle payment on his vehicle, in the amount of $ per month, commencing [January 1, 2013]. Father shall promptly establish an auto debit program so that his payments are made automatically to the creditor on or before the due date of each month, and once such auto debit program is established, he shall provide documentation of the same to Mother. 6. The parties shall separate their current combined auto insurance program to such separate insurances by the end of [December 2012]. Thereafter, Father shall be responsible for the insurance payment on his vehicle, and Mother shall be responsible for the [make and model] vehicle insurance payments on the [make and model] vehicle used by [child] and on her [make and model] vehicle. 7. Commencing January 2013, Father shall pay Mother $ (one-half of the monthly life insurance expense on or before the 15th day of each month. 8. Mother shall pay the remaining PERS overpayment debt payments in the amount of $ due in [January and February 2013]. 9. Mother shall pay the parties annual obligation for their [location] time share in the approximate amount of $ on or before the due date, obtaining such funds from the parties instant access bank account. 10. Each party shall be responsible for his or her own cell phone payments. 11. Father shall pay, indemnify, and hold Mother harmless from his VISA card debt in the approximate amount of $ and shall make no less than the minimum monthly payments on such obligation. 12. Mother shall pay, indemnify, and hold Father harmless from the credit cards in her name, including and. 13. Father shall continue to provide health care and dental insurance for the minor child[ren] so long as it is available to him at reasonable cost through his employment. The parties shall share equally in the cost of reasonably incurred uninsured medical, dental, optical, and orthodontic expenses on behalf of the child[ren]. The party paying such expense shall provide documentation to the other party of the payment, and the responding party shall reimburse the paying party his or her 50% share within 30 days of the receipt of such documentation. Father shall pay Mother directly 50% of the outstanding costs for counseling for the child[ren] within 30 days of receipt of documentation of such outstanding expense. 14. The foregoing agreements as to child support and debt division are intended by the parties to be temporary. Neither the parties nor the court are bound by such determinations in the final adjudication of the parties dissolution. 15. This Judgment may be executed in several counterparts, each of which when so executed shall be deemed to be an original copy, and all of which together shall constitute one judgment binding on all parties hereto, notwithstanding that all the parties shall not have signed the same counterpart. MONEY AWARD CHILD SUPPORT Creditor Jane Doe Creditor s Address [1600 Pennsylvania Avenue, Portland OR 97204] Creditor s Social Security No. [xxx-xx-xxxx] Creditor s ODL Oregon [xxx] Creditor s YOB [1965] Creditor s Attorney [Attorney] Drafting Family Law Documents 4 6

223 Chapter 4 Practice Tips for Drafting Documents Attorney s Address [520 SW Sixth Avenue, Suite 1010, Portland OR 97204] Attorney s Phone Number [ ] Debtor [John Doe] Debtor s Address [1601 Pennsylvania Avenue, Portland OR 97204] Debtor s Social Security No. [xxx-xx-xxxx] Debtor s ODL [Oregon xxx] Debtor YOB [xxxx] Debtor s Attorney [Attorney] Attorney s Address [Address] Attorney s Phone Number [ ] Support Amount $ Beginning Date [January 2013] Ending Date Entry of Dissolution Judgment or further court order Prejudgment Interest None Attorney Fees & Costs None Post Judgment interest 9% per annum upon entry of judgment DATED this day of, 20[13]. Circuit Court Judge Submitted by: [Attorney], OSB No. Of Attorneys for Petitioner IT IS SO STIPULATED: [Jane Doe], Petitioner Date: [John Doe], Respondent Date: [Attorney], OSB No. Of Attorneys for Petitioner Date: [Attorney], OSB No. Of Attorneys for Respondent Date: Drafting Family Law Documents 4 7

225 Chapter 4 Practice Tips for Drafting Documents Appendix A ORS (1 and ( Ex parte temporary custody or parenting time orders; temporary protective order of restraint; hearing. (1 Except as otherwise provided in subsection (3 of this section, a court may not enter ex parte a temporary order under ORS , or providing for the custody of, or parenting time with, a child..... (3 (a A court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if: (A The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and (B The court finds, based on the facts presented in the party s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger. Drafting Family Law Documents 4 9

227 Chapter 4 Practice Tips for Drafting Documents Appendix B ORS (2 and (3(a Rights of person who establishes emotional ties creating child-parent relationship or ongoing personal relationship; presumption regarding legal parent; motion for intervention. (1 Except as otherwise provided in subsection (9 of this section, any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under subsection (3 of this section. (2 (a In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child. (b In an order granting relief under this section, the court shall include findings of fact supporting the rebuttal of the presumption described in paragraph (a of this subsection. (c The presumption described in paragraph (a of this subsection does not apply in a proceeding to modify an order granting relief under this section. (3 (a If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2(a of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order. Drafting Family Law Documents 4 11

229 Chapter 4 Practice Tips for Drafting Documents Appendix C Temporary and Final Relief Chapter 3 TEMPORARY AND FINAL RELIEF BARBARA J. AABY, B.A. (with honors, cum laude, Ohio State University, (1973; M.S.S.A., Case Western Reserve (1977; J.D., Lewis & Clark Law School (1993; member of the Oregon State Bar since 1993; owner, Aaby Family Law, Beaverton. 3.1 INTRODUCTION OVERVIEW OF STATUTORY FRAMEWORK Marital Dissolution, Annulment, and Separation Unmarried Parents Third-Party Rights Domestic Partnerships Table of Statutory Authority TEMPORARY RELIEF AVAILABLE IMMEDIATELY Financial Restraining Order (a General Provisions (b Prohibited Acts and Exceptions (c Request for a Hearing (d Enforcement Emergency Custody/Temporary Protective Order of Restraint (a Ex Parte Temporary Custody or Parenting Time (a(1 General Provisions (a(2 Terms of the Order (a(3 Request for a Hearing (a(4 Issue at the Hearing Revision Drafting Family Law Documents 4 13

230 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief 3.3-2(a(5 Postjudgment Ex Parte Temporary Custody and Parenting Time (b Temporary Protective Order of Restraint (b(1 General Provisions (b(2 Specific Provisions (b(3 Request for a Hearing (b(4 Issue at the Hearing (b(5 Postjudgment Temporary Status Quo Order Family Abuse Prevention Act Stalking Protective Orders PENDENTE LITE RELIEF Types of Relief Available by Statute (a Suit Money and Support for a Party (b Custody, Parenting Time, and Support of Children (c Restraint from Molesting or Interfering (d Requiring a Party to Vacate Residence (e Protection of Real and Personal Property (f Temporary Use, Possession, and Control of Real and Personal Property, and Payment of Installment Liens and Encumbrances (g Requiring a Party to Vacate Residence Relief Available by Stipulation Procedural Issues The Temporary Relief Hearing Modification of Temporary Relief Drafting the Order: Temporary Orders and Limited Judgments Revision Drafting Family Law Documents 4 14

231 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter FINAL RELIEF JUDGMENTS AND MONEY AWARDS Judgments (a General Judgment (a(1 Final Relief for Divorcing Couples and Domestic Partners (a(2 Final Relief for Unmarried Parents (a(3 Final Relief for Third Parties who Establish Emotional Ties with a Child (b Supplemental Judgments (c Money Awards (d Bifurcated Judgments Postjudgment Relief and Modifications Effect of Bankruptcy on Domestic Relations Cases Form 3-1 Sample Money Award Section (Including support award and information required by ORS ( INTRODUCTION The majority of statutory provisions relating to domestic relations cases are contained in Title 11 of the Oregon Revised Statutes (ORS, chapters 106 through 110. Provisions relating to temporary relief, final relief, and postjudgment relief are scattered throughout these chapters, as well as contained in the Uniform Trial Court Rules (UTCRs and the various county Supplemental Local Rules (SLRs. The purpose of this chapter is to provide a roadmap of where the laws and rules relating to temporary, final, and postjudgment relief can be found, describe the specific types of relief that may be available, and provide practical guidelines and suggestions on how to obtain relief through the court Revision Drafting Family Law Documents 4 15

232 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief Although this chapter will touch on many of the issues commonly present in the various types of domestic relations proceedings, many of these issues are addressed more thoroughly in other chapters of this book. The lawyer should consider this chapter a starting point in his or her analysis, and then determine if there is another chapter that will explore specific issues in more detail Revision 3.2 OVERVIEW OF STATUTORY FRAMEWORK Marital Dissolution, Annulment, and Separation The foundation of Oregon domestic relations law is found in ORS chapter 107. Written primarily from the perspective of married couples seeking divorce, annulment, or separation, this chapter contains key provisions relating to custody, parenting time, child and spousal support, property division, restraining orders, and a variety of other topics. ORS chapter 107 includes both procedural and substantive provisions, from the filing of petitions, to obtaining temporary relief, to final judgment, and postjudgment modification. Substantive provisions include factors the court must consider in determining custody, policies regarding the enforcement of stipulated agreements, and factors for spousal support awards. Many of these provisions apply to disputes between unmarried couples, either through incorporation by other statutes, or by specific reference within a chapter 107 statute Unmarried Parents Key provisions relating to paternity and parent-child relationships between unmarried parents are contained in ORS chapter 109. The primary statutory provision for seeking to establish custody, parenting time, or support between unmarried parents is ORS As a prerequisite, paternity must first be established under ORS ORS (1. From there, ORS (1 incorporates the provisions of ORS , so that the provisions of those statutes that relate to custody, support and parenting time... apply to the proceeding filed under ORS Also, all provisions of ORS that relate to mediation procedures also apply to the ORS proceeding. ORS (1. Drafting Family Law Documents 4 16

233 Chapter 4 Practice Tips for Drafting Documents Third-Party Rights Temporary and Final Relief / Chapter 3 ORS is a unique provision of Oregon law that allows third parties to establish custody and/or parenting time rights for minors if they established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child[.] Unlike ORS , this statute does not have a blanket incorporation of any ORS chapter 107 provisions. However, the text of ORS specifically allows a court to determine temporary custody or temporary visitation rights pending a final order. ORS (3(a. There are also some specific statutory provisions of other statutes that refer to ORS , including ORS (ex parte temporary custody and ORS (1(b (parenting time for interveners in dissolution proceeding Domestic Partnerships ORS , the Oregon Family Fairness Act, extends the same family law rights and responsibilities as are available to married couples under Oregon law to same-sex couples who file a Declaration of Domestic Partnership. ORS (1, ORS Although many federal-law provisions relating to married couples are not recognized or valid for same-sex couples, for purposes of this chapter, there is no distinction that needs to be made between registered domestic partnerships and married couples. See generally 2.1-2(c to 2.1-2(c(17, (a to Table of Statutory Authority The following table can be used to quickly locate statutes that allow for the various types of relief in domestic relations cases. See the outline of this chapter to find sections addressing these issues in further detail. Note that this table is not meant to be an exhaustive list of all relief that may be available, but rather is meant to provide a quick reference to the statutory provisions governing the most common issues. Also note that there are a multitude of Oregon Court of Appeals and Oregon Supreme Court cases that have interpreted and applied the statutory language. Citations in italics refer to postjudgment relief (both temporary and final Revision Drafting Family Law Documents 4 17

234 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief Legal Issue Temporary Relief Final Relief Custody of Minor Children Parenting Time Child Support Married and Unmarried Couples: ORS , ORS (3, ORS , ORS Third-Parties: ORS , ORS (3 Married and Unmarried Couples: ORS , ORS (2, ORS Third-Parties: ORS Married and Unmarried Couples: ORS Married Couples: ORS (1(a, ORS Unmarried Couples: ORS , ORS Third-Parties: ORS Married Couples: ORS , ORS , ORS (1(b, ORS Unmarried Couples: ORS , ORS Third-Parties: ORS , ORS (1(b Married Couples: ORS (1(c, ORS , ORS , ORS ch 25, ORS , ORS Unmarried Couples: ORS , ORS ch 25, ORS , ORS Revision Drafting Family Law Documents 4 18

235 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 Legal Issue Temporary Relief Final Relief Spousal Support Protection / Use / Award of Property Married Couples: ORS Married Couples: ORS , ORS , ORS Unmarried Couples: ORS Married Couples: ORS (1(d, ORS , ORS Married Couples: ORS (1(e (g 3.3 TEMPORARY RELIEF AVAILABLE IMMEDIATELY Sections to address protective measures and temporary orders that are automatic or that can be obtained ex parte and without a contested hearing prior to the issuance of an order. These forms of immediate relief are generally very limited in scope or require situations involving abuse or immediate danger to a party or a child. Each provides procedures for hearings to be held to contest the order that may be granted, but an initial order can be obtained with little or no advance notice to the other party. In each case, it is important to understand what notice provisions, if any, are required Financial Restraining Order 3.3-1(a General Provisions ORS states: After a petition for marital annulment, separation or dissolution is filed and upon service of summons and petition upon the respondent as provided in ORCP 7, a restraining order is in effect against the petitioner and the respondent until a final judgment is issued, until the petition for marital annulment, separation or dissolution is dismissed, or until further order of the court Revision Drafting Family Law Documents 4 19

236 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief This statute requires that a copy of the restraining order be attached to the summons, and further provides that a party who violates the statutory financial restraining order is subject to remedial sanctions for contempt of court under ORS ORS (5 (6. It is not required that a judge sign the order for it to be effective. See UTCR 8.080( (b Prohibited Acts and Exceptions The financial restraining order primarily prohibits the parties from changing the terms of insurance policies, changing beneficiary designations, or disposing of any marital property until the issues can be addressed by the court in a subsequent order, the case is dismissed, or a final judgment is entered. ORS Both parties are enjoined from allowing any insurance policies to lapse for nonpayment of premiums, including health insurance, homeowner or renter insurance or automobile insurance that one party maintains to provide coverage for the other party or a minor child of the parties, or any life insurance policy that names either of the parties or a minor child of the parties as a beneficiary. ORS (2(a. With regard to property, the restraining order prohibits either party from [t]ransferring, encumbering, concealing or disposing of property in which the other party has an interest, in any manner, without written consent of the other party or an order of the court[.] ORS (2(c. However, these property restrictions have several notable exceptions that are allowed under the statute, including: Expenditures in the ordinary course of business or for the necessities of life, Payment of attorney fees in the existing action, Real estate and income taxes; Mental health therapy expenses for either party or a minor child of the parties ; or Expenses necessary to provide for the safety and welfare of a party or a minor child of the parties. ORS (2(c Revision Drafting Family Law Documents 4 20

237 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 PRACTICE TIP: Given the breadth of the exceptions to the financial restraining order, if a party is concerned that the opposing party will dissipate marital assets, it may be wise to immediately file a motion for a more restrictive order with fewer or no exceptions. For example, an order could specify that liquid funds from a savings account be segregated into a specific account and not be used by either party except by court order. Before filing the petition and serving the summons, and until a hearing can be held to obtain a more restrictive order, the lawyer should review and discuss with each client how the joint debts and expenses will be paid until such time as the matter can either be settled or presented to the court. Are there liquid funds that need to be preserved and, if so, how and when? Advising a client to race to the bank to empty bank accounts will always result in notching up the emotional factor of a case and should never be routinely advised (c Request for a Hearing ORS (3 and (4 provide that either party may at any time file a request for a hearing for further temporary orders, including modification or termination of the financial restraining order. ORS provides that forms must be established by court rule for both the restraining order and the request for a hearing. These forms are found in the UTCR Appendix, Forms and UTCR (d Enforcement ORS (6 states that a party found in violation of the financial restraining order is subject to remedial sanctions for contempt of court under ORS However, criminal prosecution and the imposition of punitive sanctions are specifically excluded. PRACTICE TIP: Due to the many exceptions in the statutory restraining order (see 3.3-1(b, establishing a violation and imposing sanctions may be difficult and not cost effective. As noted in 3.3-1(b, a better practice may be to take preventive measures to ensure that a significant violation is less likely to occur, such as segregating property ahead of time or requesting a more restrictive court order. It is also wise to consider whether a Revision Drafting Family Law Documents 4 21

238 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief copy of the financial restraining order should be sent to banks or investment companies who are holding assets in the name of one or both of the parties. Should a violation occur despite such measures or under the statutory restraining order, another option would be to treat the disposed of assets as a predistribution of marital assets to be factored into the overall property division Emergency Custody/Temporary Protective Order of Restraint Provisions for immediate relief, including temporary legal custody and parenting time, are set forth in ORS There are two types of circumstances addressed by this statute, commonly referred to as emergency custody orders (see 3.3-2(a(1 to 3.3-2(a(5 and status quo orders (see 3.3-2(b(1 to 3.3-2(b(5. Note that this statute allows relief to a party and not specifically a parent. Thus relief may be available to an intervening party or petitioner under ORS This statute is also available to unmarried parents involved in a case under ORS (a 3.3-2(a(1 Ex Parte Temporary Custody or Parenting Time General Provisions ORS (3 is one of the few provisions of Oregon law that allows a court to enter an ex parte temporary custody order, but only if (A The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and (B The court finds, based on the facts presented in the party s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger. The key requirement for an order under this statute is the immediate danger of the child. The party requesting the order must provide the court with the telephone numbers where the party may be reached as well as a contact address. ORS (3(b. A copy of the order, if issued, must be served on the other party in the manner of service of a summons under Revision Drafting Family Law Documents 4 22

239 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 ORCP 7, and include a notice required by the text of the statute regarding filing a request for a hearing. ORS (3(c. PRACTICE TIP: The term immediate danger is not defined in ORS Many judges and attorneys take the view that the danger must amount to the type of abuse that would require a mandatory reporter to report the abuse to the Department of Human Services (DHS if abuse has already occurred, or involve a situation in which the danger is the sort that would require a report to DHS if the danger is carried out. Thus, the threshold is quite high. Depending on the current level of conflict between the parties, attempting to obtain an emergency custody order may serve to heighten the tension. Hence, an alternate route to address legal custody and parenting time issues is to file a request for temporary orders under ORS However, this procedure does not provide for immediate relief, and it may take months for an order to be issued. PRACTICE TIP: The lawyer should check local court rules for any notice requirements to the adverse party, as well as the court s ex parte hearing times or other requirements. Most courts require that at least an attempt be made to contact the other party before appearing at ex parte. Many courts also have local forms available from the clerk s office or online that may be used. Wise practice is to include information that will satisfy the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA requirements in the affidavit filed in support of the motion. See ORS It is also wise to review the Oregon Rules of Professional Conduct, specifically, Oregon RPC 3.5, regarding notice requirements when appearing in court (a(2 Terms of the Order If the court finds that the child is in immediate danger, the court may issue a temporary order providing for legal custody and temporary parenting time with the child. ORS (3. Given the level of danger required to obtain the order (see 3.3-2(a(1, the adverse party s parenting time will likely be extremely limited, require supervision, or be Revision Drafting Family Law Documents 4 23

240 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief eliminated altogether. The order will remain in effect until a hearing is held (a(3 Request for a Hearing A party against whom an emergency custody order is issued may request a hearing at any time while the order is in effect. ORS (4(a. The court is required to make reasonable efforts to hold the hearing within 14 days of the request for a hearing, and must hold the hearing no later than 21 days from the date of the request. ORS (4(b. Forms to request a hearing are generally available from the local courts (a(4 Issue at the Hearing The issue at a hearing to contest an immediate-danger temporary custody order is specifically limited to whether the child was in immediate danger at the time the order was issued. ORS (4(d(B. If the party against whom the order was issued fails to appear at the hearing, the court will continue the order. If the party who obtained the order fails to appear at the hearing without good cause, the court shall vacate the order. ORS (4(c. PRACTICE TIP: An attorney representing either party in an emergency custody situation, depending on the strength of the facts, may find it more effective to attempt to negotiate temporary custody and parenting time issues with the adverse party rather than litigate the immediate danger issue. If it is not established that the child was in immediate danger, the court will likely vacate the order, potentially leaving the parties with no custody or parenting time order in place. Either way, a motion for temporary custody and parenting time under ORS is a natural follow-up to an emergency custody order (a(5 Postjudgment Ex Parte Temporary Custody and Parenting Time ORS is the statute that applies to postjudgment situations and essentially mirrors the ORS emergency custody and parent Revision Drafting Family Law Documents 4 24

241 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 ing time provisions. See 3.3-2(a(1 to 3.3-2(a(4. Some of the key differences are as follows: ORS requires that the parent seeking the order attempt, in good faith, to confer with the other party regarding the purpose and time of the court appearance to request the order. ORS requires that the court find by clear and convincing evidence that the child is in immediate danger; ORS has no such evidentiary standard. ORS requires that the court hold a hearing, when requested, within 14 days of the date of the request. Except for the above differences, the procedural and other requirements are virtually the same between the two statutes (b 3.3-2(b(1 Temporary Protective Order of Restraint General Provisions Under ORS (2, a temporary protective order of restraint (TPOR may be applied for without notice to the adverse party, and if issued, will ensure that a child s normal routine, place of residence, and other circumstances remain in place until further order of the court. The party requesting a TPOR must file an affidavit that contains the Uniform Child Custody Jurisdiction Enforcement Act information required by ORS ORS (2(a (b(2 Specific Provisions ORS (2(b restrains and enjoins each party from the following: (A Changing the child s usual place of residence; (B Interfering with the present placement and daily schedule of the child; (C Hiding or secreting the child from the other party; (D Interfering with the other party s usual contact and parenting time with the child; (E Leaving the state with the child without the written permission of the other party or the permission of the court; or Revision Drafting Family Law Documents 4 25

242 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief Revision (F In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined. The terms used in ORS (2(b are defined in ORS , a parallel statute that applies to postjudgment situations. The child s usual place of residence is defined as where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time. ORS (3(a. Similarly, the remaining terms are essentially defined to be the contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed. ORS (3(b. QUERY: Given the time components of the definition of the child s usual place of residence, could a parent who has moved out of the marital home with a child file for divorce a few days later and request a temporary protective order of restraint (TPOR? Which parent s residence would fit the statutory definition, and if neither residence meets the definition, what is the court to order? What if the motion is filed the day before the children s summer vacation ends, or the day before a holiday break? Given these issues, if there is no clear historical pattern the party wishes to maintain, a motion for temporary custody and parenting time under ORS may be more appropriate than a TPOR. But see ORS (4(d(B, discussed in 3.3-2(b(4. PRACTICE TIP: The attorney is well advised to proceed with caution under ORS (2. Although the legislative history suggests that the writers of ORS did not contemplate prior notice and the statute itself does not require it, ORS does not fully negate the requirement, under certain circumstances, that proper notice be given to the opposing party or opposing attorney. Based on this, each attorney filing for relief under ORS (2 should consider the notice requirement before proceeding and review the ethics opinions in which attorneys were sanctioned for failure to give prior notice of appearance at ex parte. Drafting Family Law Documents 4 26

243 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 The attorney also needs to be aware that certain counties do not allow the moving party to state with specificity in an affidavit or declaration what the child s usual place of residence is or what the present placement and daily schedule of the child include, as this is tantamount to providing for a temporary parenting schedule. Therefore, the attorney should know the judge and the county procedure. If the intent is to preserve an informal parenting schedule, school placement, etc., it may be wise to consider filing a motion for temporary relief (ORS along with an ORS motion (b(3 Request for a Hearing As with an emergency custody order, a party against whom a temporary protective order of restraint (TPOR is issued can request a hearing at any time while the order is in effect. ORS (4(a; see 3.3-2(a(3. The court must make reasonable efforts to hold the hearing within 14 days of the request for a hearing, and must hold the hearing no later than 21 days from the date of the request. ORS (4(b. Forms to request a hearing are generally available from the local courts (b(4 Issue at the Hearing The issue at a hearing to contest a temporary protective order of restraint (TPOR is limited to a determination of the status quo at the time the order was issued. If the child s usual place of residence cannot be determined, the court may make any further order the court finds appropriate in the best interests of the child. ORS (4(d(A If a parent is able to establish the child s usual place of residence, then under the statute that place of residence and its attendant daily routine, contact with the other party, etc, is what must be maintained. However, if there is no clear usual place of residence, then the court may make further temporary orders to address these issues. ORS (4(d(A (b(5 Postjudgment Temporary Status Quo Order ORS is the statute that applies to postjudgment situations and essentially mirrors the ORS temporary protective order of restraint (TPOR provisions. Some of the key differences are as follows: Revision Drafting Family Law Documents 4 27

244 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief An order under is properly termed a status quo order rather than a TPOR. ORS requires a previously or simultaneously filed motion to modify judgment (such as under ORS Advance notice of 21 days is required to obtain a status quo order (ORS (1(c. A hearing to contest a status quo order is limited to the issue of a determination of the status quo at the time the motion was filed (ORS (1(c. There is no exception allowing a judge to make further orders if the court is unable to determine the usual place of residence as with a TPOR hearing. PRACTICE TIP: The lawyer should check the court s Supplemental Local Rules for the procedures for scheduling and appearing for postjudgment status quo hearings. Some courts require that a notice of intent to appear be filed at least 21 days before presenting the motion to the court at the court s ex parte time. Other courts may require that the motion be filed with the court, at which time the court will schedule the hearing at least 21 days out. For purposes of a subsequent hearing, the issue will be a determination of the status quo on the date the motion was filed, not the date the hearing is held Family Abuse Prevention Act The procedures and criteria for obtaining a Family Abuse Prevention Act (FAPA restraining order are set forth in ORS These orders can be obtained ex parte without any notice to the adverse party. Among the provisions the order can include are excluding a party from locations where the petitioner may be located (including a residence and place of work, prohibiting the respondent from contacting the petitioner in any way, and a variety of other protective provisions. Significant for the purpose of this chapter, a FAPA order can include an order for temporary custody to the petitioner and for parenting time with the respondent Revision Drafting Family Law Documents 4 28

245 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 See chapter 4 for more information regarding the requirements to obtain FAPA orders, the scope of protective provisions they can contain, and the related procedural requirements and issues Stalking Protective Orders A stalking protective order (SPO can be obtained ex parte without any prior notice to the respondent, and is addressed in detail in chapter 4. Much like a Family Abuse Prevention Act (FAPA order, the primary purpose of an SPO is to prevent or restrict contact from the respondent to the petitioner. In contrast to a FAPA order, an SPO is not able to make provisions for temporary custody or parenting time, although the contact restrictions of an SPO can certainly interfere with a party s practical ability to exercise parenting time. See chapter 4 for more information. 3.4 PENDENTE LITE RELIEF NOTE: ORS was amended in the 2011 Legislative session, with an effective date of January 1, The amended statute applies to all proceedings commenced on or after the effective date of the act Or Laws ch 115, 1. This section only discusses the amended statute. The type of temporary relief that is available to litigants in a divorce is set forth in ORS This temporary relief protects the rights of a party after the commencement of a suit and before a judgment. Traditionally referred to as pendente lite relief, it is also simply referred to as temporary relief. A pendente lite order or temporary order may be issued after a hearing on temporary issues. By its terms, ORS applies to suits for marital annulment, dissolution, or separation. It also equally applies to registered domestic partners. See ORS Provisions relating to custody, support, and parenting time apply to unmarried parents involved in an ORS proceeding. Although the list of remedies authorized by ORS is quite extensive and encompasses most issues that can also be resolved in a final judgment, there are some key distinctions outlined in to 3.4-1(g. It is also important to note that although courts may only order remedies that are authorized by statutory authority, parties are generally Revision Drafting Family Law Documents 4 29

246 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief free to stipulate to provisions that a court would otherwise be unable to order over the objection of either party. Thus, it is possible to include terms and provisions in a stipulated order (such as the responsibility for the payment of unsecured debts during the pendency of a case that could not be ordered by a judge as a result of a contested hearing. As is further addressed in 3.4-6, an award of suit money or temporary spousal or child support must be entered as a limited judgment under ORS chapter 18. However, such orders may not be appealed. Consequently, there is essentially no case law to give guidance on what might be an appropriate amount of suit money or temporary support. It is therefore extremely important that attorneys carefully read the statutory language and be familiar with their local judicial practices and personalities Types of Relief Available by Statute Sections 3.4-1(a to 3.4-1(g discuss the specific types of relief authorized by ORS ( (a Suit Money and Support for a Party As amended by the 2011 Legislative Session (2011 Or Laws ch 511, 1, ORS (1(a allows a court to order a party to pay suit money as may be necessary to enable the other party to prosecute or defend the suit, including costs of expert witnesses to the other party. The statute also authorizes an order for the payment of money as may be necessary to support and maintain the other party. ORS (1(a. Commonly referred to as suit money and temporary spousal support, such an order can be either a lump sum payment or monthly installments, or some combination thereof as may be appropriate. In contrast to ORS spousal support awards, there is no requirement under ORS (1(a that temporary spousal support be designated as transitional, compensatory, or maintenance support. See generally chapter 10 (spousal support. PRACTICE TIP: If the lawyer is preparing for a temporary relief hearing and is unfamiliar with the judge hearing the case, the lawyer should seek input from other attorneys more familiar with Revision Drafting Family Law Documents 4 30

247 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 the judge in question. Because there is no case law, some courts have developed their own methodologies in making suit money and temporary support awards. For child support, most courts will use the Child Support Guidelines Calculator, though this is not required by ORS See chapter 9 (child support. PRACTICE TIP: When drafting the initial petition or a request for temporary support, the lawyer should plead when the desired support should begin. ORS (1(c (d specifically provides that support ordered in a final judgment may commence no earlier than the date the petition or motion was served on the nonrequesting party, but proper pleading requires that the opposing party be put on notice of the relief that is sought, including the effective date of requested support. NOTE: Before the 2011 amendment, ORS (1(a required that suit money be paid to the clerk of the court, and that temporary support be paid to the Department of Justice, court clerk, or court administrator. Despite this limiting statutory language, common practice among attorneys and judges was to order that suit money or temporary support be paid directly to the opposing party. The 2011 amendment made payment directly to the other party standard. Income withholding and payment to the Department of Justice is still available per ORS See and for procedural and drafting requirements for money awards and support awards (b Custody, Parenting Time, and Support of Children The court may provide for the care, custody, support and maintenance, by one party or jointly, of the minor children as described in ORS (1(a and for the parenting time rights as described in ORS (1(b of the parent not having custody of such children. ORS (1(b. Except for an emergency custody order (ORS (3 or a Family Abuse Prevention Act restraining order (ORS , this is the only method a parent can use to obtain sole legal custody of a child before a final judgment. Before the court can hear any issues relating to custody or parenting time, ORS requires that Revision Drafting Family Law Documents 4 31

248 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief the parties at least attend a mediation orientation, unless the court makes a finding of good cause to proceed with a hearing. PRACTICE TIP: Some courts, by local rule, require that the parties attend and complete mediation prior to any contested custody or parenting time hearings, as well as complete a parenting class. It is crucial that the lawyer advise his or her client regarding the length of the county s parenting class and the scheduling availability. Some counties have a course that can be completed in one evening; other counties have parenting classes that span several weeks. In determining temporary custody, the court must consider the factors set forth in ORS , as required by ORS (1(a. ORS (1(b. Because of the risk of having custody established by the court at a contested hearing in the early stages of the proceeding, parties will often stipulate to temporary custody with the condition that the temporary award be nonprejudicial at any subsequent hearing or trial. In ordering temporary parenting time, the statute requires that a parenting plan be developed as required by ORS and in consideration of the best interests of the child and the safety of the parties. ORS (1(b. Extensive contact and joint responsibility for the child is to be encouraged when practicable, and the court may only deny parenting time to the noncustodial parent if parenting time would endanger the health or safety of the child. ORS does not specify that temporary child support be established in accordance with the Oregon Child Support Guidelines. However, ORS , which applies to any judicial or administrative proceeding for the establishment or modification of a child support obligation, states that the amount determined under the Child Support Guidelines is the presumed correct amount of the support obligation. There are some situations (such as for tax purposes when it might be beneficial for the parties to agree to undesignated support, or that all temporary support be classified as spousal support deducted from the income of the payor and included in the income of the recipient for income tax purposes. See chapter 9. Regardless of the amount of child Revision Drafting Family Law Documents 4 32

249 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 support ordered, there are many provisions of ORS chapter 25 (support enforcement that apply to any order of child support, such as health insurance coverage, statutory notices, etc. See chapter 7 for more detailed information on custody, parenting time, and child support. See chapter 8 for more detailed information regarding child support (c Restraint from Molesting or Interfering ORS (1(c allows the court to issue an order restraining the other party from molesting or interfering in any manner with the other party or the minor children. Although there are no specific provisions provided by the statute, if such relief is sought, it is important to plead the specific acts that are to be prohibited. This is both to put the other party on notice of the relief being sought, as well as to ensure that there is an enforceable order that clearly spells out the behavior that is to be prohibited. If a Family Abuse Prevention Act (FAPA restraining order has been obtained before a temporary relief hearing, it is common for the restraining order to be dismissed or consolidated with the domestic relations case, and for a similar order to be entered as part of the temporary relief. Unlike a FAPA order, there are no requirements under ORS that abuse occurred between the parties; the court simply has the authority to issue an order of restraint. Furthermore, if the court provides for an expiration date of the order of restraint, ORS (5 provides a procedure for the order to be entered into the Law Enforcement Data System and the databases of the National Crime Information Center of the United States Department of Justice. Thus, the order of restraint issued under ORS can have the full force and effect of a FAPA restraining order, including the ability for the order to affect the restrained person s ability to bear firearms and ammunition. See (d Requiring a Party to Vacate Residence ORS (1(d, allowing the court to order a party to vacate a residence, only applies when there are minor children in the home, and regardless of whether the home is rented or owned by one or both parties Revision Drafting Family Law Documents 4 33

250 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief Under this section, if the court determines it is in the best interests of the children, the court may order either party to move out of the home. See 3.4-1(g for situations when there are no minor children in the home (e Revision Protection of Real and Personal Property The court may restrain either or both parties from encumbering or disposing of any of the real or personal property of either or both of the parties, except as ordered by the court. ORS (1(e. Although such an order is likely redundant with the financial restraining order under ORS , because of this provision a temporary relief hearing could be used as an opportunity to otherwise modify the statutory financial restraining order (f Temporary Use, Possession, and Control of Real and Personal Property, and Payment of Installment Liens and Encumbrances The court may grant either party temporary use, possession and control of the real or personal property of either party. ORS (1(f. The court can also order either party to pay any installment liens and encumbrances on such property. ORS (1(f. The statute does not give the court authority to order a party to be responsible for payments on unsecured debts, such as credit cards. However, a party s financial obligations can be used to argue the amount of temporary spousal support that should be ordered (g Requiring a Party to Vacate Residence The court may order one party to move out of the home, even if no minor children reside in the home, but only if a party has assaulted or threatened to assault the other party. ORS (1(g. This statute applies regardless of which party owns, is renting, or is purchasing the residence. QUERY: If there has been no assault or threat of assault, and there are no minor children, could the court still order a party to vacate a residence as part of an award of temporary use and Drafting Family Law Documents 4 34

251 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 possession of the residence under ORS (1(f? What if the residence is being rented and is not owned by either party? Depending on the circumstances, it may be more of a landlordtenant issue than a family law issue Relief Available by Stipulation Parties often wish to have temporary relief provisions ordered that may not be authorized by ORS For example, the temporary relief statute contains no provision for the payment of unsecured debt such as credit cards, the payment of which may be necessary to protect a party s credit. Although obligations of that nature may be included as a basis for an award of temporary support, if the parties are willing to stipulate to payment of unsecured debt, they are free to do so. As long as the resulting terms of a stipulated order are not against public policy, they are enforceable by the courts. See When drafting a motion for temporary relief, the lawyer should review the provisions of ORS to ensure that the relief requested is authorized by the statute. If responding to a motion that requests unauthorized relief, a motion to strike may be appropriate Procedural Issues Some of the procedural requirements for seeking prejudgment relief under ORS are addressed in UTCR The moving party must file a motion and supporting affidavit detailing the specific relief sought and the basis for the relief requested. If the motion regards temporary support, then it must be accompanied by a Uniform Support Declaration. UTCR 8.040(3. At least seven days before the hearing, the opposing party also must serve and file a Uniform Support Declaration on the moving party when either spousal or child support is at issue. UTCR 8.040(4. Any motion for the temporary custody of a minor child must be supported by an affidavit that states the child s present location, the person with whom the child presently resides, the persons with whom and the places where the child has resided for the last 6 months, including Revision Drafting Family Law Documents 4 35

252 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief the length of time with each person and at each residence, and the reasons why a temporary custody order is sought. UTCR 8.040( Revision PRACTICE TIP: The lawyer must be certain that the pleadings ask for the specific relief that the client needs. The general rule is that a lawyer who fails to request a certain type of relief in the pleadings is foreclosed from raising it at a hearing. But see In re Marriage of Triperinas, 185 Or App 283, , 59 P3d 586 (2002, in which the court affirmed that the wife could raise the issue of spousal support at her trial even though her lawyer failed to allege it in the petition. Notwithstanding the rule in Triperinas, a wise lawyer will never neglect to assert all bases for relief. Each county has different practices for filing and scheduling temporary relief hearings, so the lawyer should check with the Supplemental Local Rules and with the local docket clerk. Some counties will schedule a hearing on the date the motion is filed, while others will only schedule a hearing after a response has been filed. Some counties do not require a response to the motion. Whether a response is required or not, it is good practice to file a response within 30 days of the date of service of the motion. QUERY: Can a party request substantive relief in a response to a request for temporary relief? Although some courts may grant relief requested in a response, the better practice is to file both a response and a separate motion seeking relief, conforming with all the affidavit and other requirements. Generally the court will consolidate the hearings so that all issues will be addressed at one time The Temporary Relief Hearing The lawyer should be familiar with the county and specific judge for any temporary support hearing. Temporary support orders and judgments are not appealable, ORS (2; consequently, there is very little case law addressing temporary relief issues. Many courts will attempt to maintain the circumstances of the parties as much as possible during the pendency of the case and until full discovery can be completed and the issues fully litigated. Given the cost of litigating such issues, and Drafting Family Law Documents 4 36

253 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 the impact that a court ruling may have on the same issues at a later date, it is often effective to seek stipulated resolution of temporary issues. If a contested hearing is held, the party seeking relief will have the burden of proof to present evidence to establish that the relief requested should be granted. Because discovery may be limited, it is important to discuss these issues before filing the motion for relief Modification of Temporary Relief Given that some divorces may take up to one year to complete, it is possible that a temporary order obtained in the beginning of a case will need to be modified before the end of the case. ORS does not address modification of previously ordered temporary relief. However, a motion to modify a temporary order should suffice. It will likely be necessary to include information showing that there has been a substantial change in circumstances that warrants another court hearing. Depending on how much time remains before trial, it may be wise to file the motion but defer the issues until the final divorce trial. ORS (1(c and (d allow the court to order temporary support previously requested but not ordered to be included in the final judgment, with an effective date no earlier than when the motion requesting relief was served on the opposing party. In this manner the relief can be obtained without needlessly duplicating the litigation costs involved Drafting the Order: Temporary Orders and Limited Judgments A limited judgment may be entered for a support award or other money award. ORS (2. By definition, a limited judgment is a judgment that is rendered before entry of a general judgment in an action that disposes of at least one but fewer than all requests for relief in the action and that is rendered pursuant to a legal authority that specifically authorizes that disposition by limited judgment. ORS (13(d. As required by ORS chapter 18, a judgment document is necessary for a money award to be entered. ORS (14. Properly completed money awards are necessary for judgment liens to be created under ORS Revision Drafting Family Law Documents 4 37

254 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief Although ORS (2 specifies that a limited judgment may be entered for temporary support, the statute does not address what type of order should be used to address nonsupport issues. Based on the definition of a limited judgment, it appears that nonsupport related issues such as temporary custody or a temporary parenting plan should not be included in a limited judgment. For example, any ruling on temporary custody or temporary parenting time does not dispose of the custody issue or the parenting time issue in the action but is only a preliminary determination effective during the pendency of the case. Instead, any ruling or agreement on custody or parenting time is, as the name suggests, temporary in nature, and ceases to be effective immediately on entry of the general judgment. Since a limited judgment is a final decision and does not involve or imply a limitation on the time or duration of the decision, there is no place for a temporary determination such as temporary custody or temporary parenting plan in a limited judgment. Another feature of a limited judgment under ORS is that any amounts not paid before entry of the general judgment continue to be enforceable after entry of the general judgment. ORS (1(i. In contrast, terms of a temporary order under ORS regarding custody, parenting time, property restraint, etc., automatically end upon entry of the general judgment and are thereafter no longer enforceable. Finally, ORS (3 states, [a] judgment document must be separate from any other document in the action. After stating that the term judgment has the same meaning under the Oregon Rules of Civil Procedure that it has under ORS , ORCP 67 A defines order as any other determination by a court or judge that is intermediate in nature. Therefore, it appears that a temporary order is the document that would best address support issues. PRACTICE TIP: What this means in several counties across Oregon (e.g., Washington County is that if the matter includes a money award (e.g., child support, spousal support, and suit money, the document must be in the form of a limited judgment. If, on the other hand, the matter involves nonsupport issues (e.g., Revision Drafting Family Law Documents 4 38

255 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 temporary custody, parenting time, and exclusive use of residence, the document must be in the form of an order. If the matter involves both support and nonsupport issues, the best approach at this time is for the lawyer to prepare two documents. The first document would be called a Limited Judgment and would contain all the support orders and related money awards. A second document would be called a Limited Order, Pendente Lite Order, or simply Temporary Order and would contain all nonsupport issues. However, there is no standardized rule in terms of whether a limited order and limited judgment must both be prepared when support issues and nonsupport issues are present at a temporary hearing. Some counties may allow the limited judgment to include the custody and parenting-time orders, although this seems to be a contradiction of ORS The best practice is to ask the judge at the end of a hearing whether he or she will require a separate limited judgment and temporary order or whether the issues can be combined into one document. If the parties stipulate to a resolution before a hearing, the best practice is to contact the judge s judicial assistant and inquire whether the judge will require a separate order and limited judgment when addressing support and nonsupport issues. 3.5 FINAL RELIEF JUDGMENTS AND MONEY AWARDS Judgments A judgment is the concluding decision of a court on one or more requests for relief in one or more actions, as reflected in a judgment document. ORS (8. There are three kinds of judgments: (1 limited judgments (see 3.4-6, (2 general judgments (see 3.5-1(a to 3.5-1(a(3, and (3 supplemental judgments (see 3.5-1(b. A judgment document must be plainly titled as a judgment. ORS (1. Furthermore, the title of a judgment document must indicate whether the judgment is a limited judgment, a general judgment or a supplemental judgment. ORS (2. If the title of a document filed with the court administrator states that the document is a judgment but fails to state whether the judgment is Revision Drafting Family Law Documents 4 39

256 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief a limited judgment, a general judgment, or a supplemental judgment, the court administrator is prohibited from noting in the register that a judgment document has been filed, and must return the document to the judge unless the judgment is exempt under ORS (2. ORS ( (a Revision General Judgment A general judgment is the judgment entered by a court that decides all requests for relief in the action except (1 a request for relief previously decided by a limited judgment and (2 a request for relief that may be decided by a supplemental judgment. ORS (7. A general judgment must be clearly titled as such, though it is common practice to include additional descriptive terms, such as General Judgment of Dissolution of Marriage or General Judgment Custody, Parenting Time, and Child Support (a(1 Final Relief for Divorcing Couples and Domestic Partners The ultimate relief that parties seek in a dissolution or annulment of marriage proceeding is the termination of the marital relationship of the parties. The ultimate relief that parties seek in a separation proceeding is the legal separation of the parties. ORS provides a list of additional relief provisions the court may grant when rendering a final judgment in such cases. These additional relief provisions include the following: (1 Legal custody of the children born, adopted, or conceived during the marriage and minor children born to the parties before the marriage (see chapter 8; (2 Parenting time rights for the parties and any interveners (under ORS (see chapter 8; (3 Support for the children by applying the Oregon Child Support Guidelines pursuant to ORS (see chapter 9; (4 Spousal support, which must be designated as transitional, compensatory, or maintenance support, or a combination thereof (see chapter 10; Drafting Family Law Documents 4 40

257 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 (5 Delivery of personal property from one party to the other; (6 Division or other distribution of the property of the parties, real or personal, and including retirement, pension plans, or interests in such plans (see chapter 6; (7 Creation of trusts for the benefit of the parties children, for the support of the parties, and for the disposition of such trust property after the purpose of the trust has been accomplished; (h Change of the legal name of a party to a name held by the spouse prior to the marriage (see chapter 21 (i A money award for unpaid temporary support previously ordered in the case; and (j An award of attorney fees and costs and expenses reasonably incurred in the action in favor of a party of a party s attorney (see chapter (a(2 Final Relief for Unmarried Parents Unmarried parents are entitled to the same relief available to married persons under ORS to the extent those statutes relate to custody, support, and parenting time of the children. Thus, the custody, child support, and parenting time provisions of ORS apply to a general judgment issued in an ORS proceeding. Although the incorporation language of ORS specifically includes provisions relating to custody, support, and parenting time, the court of appeals has held that an award of attorney fees may also be granted. See State, Dept. of Justice, Support Enforcement Div. ex rel. Binschus v. Schreiber, 141 Or App 288, 293, 917 P2d 1063 (1996 (attorney fee provision of ORS is incorporated by and applies to a case under ORS Thus, it is common practice for parties in ORS cases to plead for attorney fees under ORS (1(j in the initial case, and under ORS (8 for subsequent modification proceedings Revision Drafting Family Law Documents 4 41

258 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief 3.5-1(a(3 Final Relief for Third Parties who Establish Emotional Ties with a Child The type of relief that may be granted in a proceeding under ORS depends on the type of relationship between the third-party and the child. If it is established that a child-parent relationship exists (and the other statutory criteria are met, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship. ORS (3(a. If the court determines that an ongoing personal relationship exists (and the other statutory criteria are met, the court shall grant visitation or contact rights to the person having the ongoing personal relationship. ORS (3(b. Additionally, a step-parent who has a parent-child relationship and is involved in a dissolution proceeding involving the child may petition for adoption of the child and postjudgment modification of a judgment relating to child custody. Attorney-fee awards can be assessed against a party for the reasonable attorney fees and costs for the benefit of another party pursuant to ORS (7(b (b Supplemental Judgments A supplemental judgment is a judgment that may be rendered after a general judgment pursuant to a legal authority. ORS (17. Typically, this definition includes all judgments that are entered under ORS (e.g., modification of parenting plan or child support. ORS specifically provides that a judgment entered under ORS chapter 107 may be altered or modified only by the entry of a supplemental judgment under ORS chapter 18 (emphasis added. By extension, supplemental judgments are also used to modify custody, parenting time, and child support awards made in cases under ORS (custody and support between unmarried parents and ORS (rights of third parties who establish emotional ties to child. See also regarding postjudgment relief and modification proceedings Revision Drafting Family Law Documents 4 42

259 3.5-1(c Chapter 4 Practice Tips for Drafting Documents Money Awards Temporary and Final Relief / Chapter 3 A money award is a judgment or portion of a judgment that requires the payment of money. ORS (14. The judgment document for a judgment in a civil action that includes a money award must contain a separate section clearly labeled as a money award. ORS (1. A judgment document that fails to comply with this requirement does not create a judgment lien, but the award may still be enforced using any other judgment remedy. ORS (1. PRACTICE TIP: Money awards in domestic relations cases are commonly used for child-support awards, spousal-support awards, and balancing judgment money awards in property divisions. Attorneys often list attorney fee awards as separate money awards, but they can also be included as part of a support or other money award. Particularly if it is anticipated that a party may file for bankruptcy, having attorney fees included as part of a support award is wise, as such awards are generally nondischargeable in bankruptcy. In contrast, property division money awards can sometimes be discharged in a Chapter 13 bankruptcy, as can attorney fee awards that are not clearly tied to support-related issues. See generally chapter 22. The separate section labeled as a money award must include all of the following information as required ORS (2: (a The name and address of each judgment creditor and the name, address and telephone number of any attorney who represents one or more of the judgment creditors. (b The name of each judgment debtor and, to the extent known by the judgment creditor: (A (B The address of each judgment debtor; The year of birth of each judgment debtor; (C The tax identification number of each judgment debtor, or the final four digits of the Social Security number of each judgment debtor; Revision Drafting Family Law Documents 4 43

260 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief (D The final four digits of the driver license number of each judgment debtor and the name of the state that issued the license; and (E The name of any attorney for each judgment debtor. (c The name of any person or public body, as defined in ORS , other than the judgment creditor s attorney, that is known by the judgment creditor to be entitled to any portion of the money award. (d The amount of money awarded in the judgment, exclusive of amounts required to be included in the separate section under paragraphs (e to (h of this subsection. (e Any interest owed as of the date the judgment is entered in the register, either as a specific amount or as accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals. (f Information about interest that accrues on the judgment after entry in the register, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals. (g For monetary obligations that are payable on a periodic basis, any accrued arrearages, required further payments per period and payment dates. (h If the judgment requires the payment of costs and disbursements or attorney fees, a statement indicating that the award is made, any specific amounts awarded, a clear identification of the specific requests for relief for which any attorney fees are awarded and the amount of attorney fees awarded for each request for relief. In addition to the above information, ORS (8 requires that additional information be included in any judgment or order establishing paternity or containing a child-support award. This information is generally included immediately before the money award section, although it may be included elsewhere in the judgment. The information required by ORS (8 is: Revision Drafting Family Law Documents 4 44

261 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 (A The residence, mailing or contact address, Social Security number, telephone number and driver license number of each party; (B The name, address and telephone number of all employers of each party; (C parties; and The names and dates of birth of the joint children of the (D Any other information required by rule adopted by the Chief Justice of the Supreme Court under ORS NOTE: UTCR requires the segregation of protected personal information in proceedings brought under ORS chapters 25, 106, 107, 109, 109, 110, and 416. Thus, although ORS (8 requires full information, such as Social Security numbers and dates of birth, this information should not be placed in any document that will be available to the public. Instead, the full information should be placed in the Confidential Information Form (CIF, and reference to the CIF should be made in court documents where the protected personal information would otherwise appear. See Forms 1-4, 1-5; see also UTCR form The information required by ORS should be fully included for the judgment to have full effect as a lien against property of the judgment debtor. See Form 3-1 for a sample money award that includes the information required by ORS (8 as well as a support award and balancing judgment money award (d Bifurcated Judgments There are instances when holding separate trials and entering separate judgments for different issues is necessary in a domestic relations proceeding. For example, if the parties are in the midst of a bankruptcy, the filing of a bankruptcy results in the creation of a bankruptcy estate that has ownership over the assets of the parties until the bankruptcy is closed or until the assets are administered or abandoned by the bankruptcy trustee. Under those circumstances, the parties would not be able to dispose of the assets of the marriage in a dissolution Revision Drafting Family Law Documents 4 45

262 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief judgment, and the court would be without authority to make awards of property. The bankruptcy does not prevent the court from awarding support, custody, parenting time, or dissolving the marriage of the parties. Thus, if the parties are unable or do not want to wait until the bankruptcy is discharged or the assets released by the trustee, the parties would have to bifurcate the dissolution. ORCP 53 B, regarding separate trials, states, [t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or of any separate issue or of any number of claims, cross-claims, counterclaims, or issues. For an example of a bifurcated divorce, see In re Marriage of Berg, 211 Or App 703, 156 P3d 171 (2007. In Berg, the trial court entered a limited judgment on July 12, 2006, that dissolved the parties marriage but left other issues unresolved. On November 15, 2006, a general judgment was entered that determined the issues of child support, parenting time, and insurance matters. Berg, 211 Or App at 705. The court in Berg ruled that, [t]he fact that there remained important ancillary matters for resolution did not preclude the entry of a judgment that dissolved the parties marriage. Oregon law allows bifurcation of other issues. ORCP 53 B allows the trial court to bifurcate issues. ORS (1 allows the trial court to determine custody prior to deciding other issues. Berg, 211 Or App at 706. See Thus, by statute and according to the court in Berg, it appears that it is permissible to bifurcate the issues in a dissolution into multiple judgments. A general judgment can be entered dissolving the marriage, and a subsequent supplemental judgment can be entered at a later time to handle any remaining ancillary issues. Whether this practice should be encouraged is another matter. PRACTICE TIP: If the lawyer intends on bifurcating the proceedings by first entering a general judgment dissolving the marriage, he or she should clearly recite in the general judgment that there are ancillary issues that will be handled in a subsequent Revision Drafting Family Law Documents 4 46

263 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 supplemental judgment, and that the court retains jurisdiction to address these ancillary issues at a later date. The lawyer should also schedule a subsequent hearing, with the court s permission, to address the ancillary issues if they are not resolved by agreement of the parties. Even with these precautions, there are generally some risks and added complications to this approach so it should be avoided if possible Postjudgment Relief and Modifications Postjudgment modification of domestic relations judgments is generally sought through ORS This statute addresses such issues as modification of custody, parenting time, child support, spousal support, and some other limited issues. Property divisions ordered in a judgment under ORS are not subject to modification. See Similarly, if spousal support was not granted in the original judgment, it may not later be sought through a judgment modification or otherwise. For more information about judgment modification proceedings, see chapter Effect of Bankruptcy on Domestic Relations Cases This section will briefly highlight some of the issues that arise if either or both parties to a domestic relations suit file or are in a bankruptcy proceeding before, during, or after the filing of a domestic relations case. Given the scope and complexity of bankruptcy law, this section will assume the reader has a basic understanding of the key bankruptcy concepts. See chapter 22 for more information about bankruptcy generally and how it relates to family law. Whenever a party to a domestic relations proceeding files for bankruptcy, or is in a bankruptcy when the domestic relations case is filed, it is critical that the parties and their lawyers seek competent bankruptcy counsel. The filing of a bankruptcy can have significant impact on many aspects of a domestic relations case, including pending cases as well as cases in which a judgment has already been entered. The bankruptcy laws have many provisions specifically designed to protect the debtor in the bankruptcy from various activities by creditors and other interested parties, including current and former spouses and their attor Revision Drafting Family Law Documents 4 47

264 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief neys. Great care must be taken so as to not violate the bankruptcy s automatic stay provisions or, for a debtor whose debts have been discharged, the bankruptcy discharge provisions. Although many aspects of a domestic relations case are stayed while a bankruptcy is pending, there are several notable exceptions. 11 USC 362(b(2 states that the filing of a bankruptcy does not operate as a stay: (A of the commencement or continuation of a civil action or proceeding (i for the establishment of paternity; (ii for the establishment or modification of an order for domestic support obligations; (iii concerning child custody or visitation; (iv for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate; or (v regarding domestic violence; (B of the collection of a domestic support obligation from property that is not property of the estate; (C with respect to the withholding of income that is property of the estate or property of the debtor for payment of a domestic support obligation under a judicial or administrative order or a statute; (D of the withholding, suspension, or restriction of a driver s license, a professional or occupational license, or a recreational license, under State law, as specified in section 466(a(16 of the Social Security Act; (E of the reporting of overdue support owed by a parent to any consumer reporting agency as specified in section 466(a(7 of the Social Security Act; (F of the interception of a tax refund, as specified in sections 464 and 466(a(3 of the Social Security Act or under an analogous State law; or Revision Drafting Family Law Documents 4 48

265 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 (G of the enforcement of a medical obligation, as specified under title IV of the Social Security Act; Thus, even if a bankruptcy is pending, the court can still address custody and parenting time issues, establish temporary or final child and spousal support, and grant the legal dissolution of the parties marriage. However, the most notable exception to the stay exclusions listed above is that the domestic relations court does not have authority to divide the property of the parties that is part of the bankruptcy estate. Because the division of property is often the most contested aspect of many divorces, the filing of a bankruptcy during the pendency of a divorce is a major issue that must be carefully dealt with. Another major issue is the collection of past-owed support arrears or other financial obligations. If a bankruptcy is pending, a party to a divorce case may not take any action (such as contempt or enforcement proceedings to collect on support arrears that were outstanding as of the date the bankruptcy was filed. These claims will need to be addressed as part of the bankruptcy, in which they will likely be treated as priority claims. There are significant differences in how these obligations are handled depending on whether the bankruptcy is filed under Chapter 7 or Chapter 13, and if a Chapter 7 case, whether there are expected to be assets distributed to creditors, or if it is a no asset case. When a bankruptcy is filed after a judgment has been entered, it is important to speak with a bankruptcy attorney to determine which, if any, of the financial obligations created by the divorce are subject to being discharged by the bankruptcy. This can be an extremely complicated topic that, if litigated in the bankruptcy court, would ultimately be decided based on federal-law principles. Generally speaking, no financial obligations from a domestic relations case can be discharged in a Chapter 7 bankruptcy. This is not true for Chapter 13 bankruptcies, however, which are able to discharge obligations that are not for a domestic support obligation as defined by the bankruptcy code and under federal law. 11 USC 523(a(5, ( Revision Drafting Family Law Documents 4 49

266 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief Form 3-1 Sample Money Award Section (Including support award and information required by ORS (8 Information notated within brackets [ ] should be inserted for each individual / entity. REQUIRED INFORMATION The information required by ORS (8 is as follows: Petitioner s Information: Petitioner s Employer(s: Respondent s Information: Respondent s Employer(s: Child(ren s Information: [petitioner s full name] [petitioner s residence, mailing, or contact address] [petitioner s city, state, and ZIP code] Telephone: [petitioner s telephone number] Social Security number: See CIF (UTCR Date of birth: See CIF (UTCR Driver license number: See CIF (UTCR [name, address, and phone number of all employers] [respondent s full name] [respondent s residence, mailing, or contact address] [respondent s city, state, and ZIP code] Telephone: [respondent s telephone number] Social Security number: See CIF (UTCR Date of birth: See CIF (UTCR Driver license number: See CIF (UTCR [name, address, and phone number of all employers] [child s name]: Social Security number and date of birth contained in CIF (UTRC [child s name]: Social Security number and date of birth contained in CIF (UTRC Revision Drafting Family Law Documents 4 50

267 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 MONEY AWARD CHILD SUPPORT Judgment Creditor: Judgment Creditor s Attorney: Judgment Debtor: Judgment Debtor s Attorney: Others Entitled to Portion of Judgment: Judgment Amount: Prejudgment Interest: Postjudgment Interest: Periodic Accrual: [judgment creditor s full name] [judgment creditor s address] [judgment creditor s city, state, and ZIP code] [attorney s full name] [attorney s address] [attorney s city, state, and ZIP code] Telephone: [attorney s telephone number] [judgment debtor s full name] [judgment debtor s residence, mailing, or contact address] [judgment debtor s city, state, and ZIP code] Year of birth: [debtor s year of birth] Social Security number (last 4 digits: [debtor s Social Security number (last 4 digits] Driver license (last 4 digits: [debtor s driver license (last 4 digits] [attorney s full name] [identify, if any, otherwise list none ] $ per month as child support for [number of children] children beginning [date]. None. [Note: If there are unpaid arrears on temporary support, these should be included in a separate money award for unpaid temporary support.] 9% per annum simple interest, calculated monthly, on all support arrears not paid within one month of the accrual date. 9% per annum simple interest, calculated monthly, on all costs, disbursements, and attorney fee awards included in this money award, beginning 30 days after the date of entry of this judgment. Child support accrues on the first day of each month. Child support will continue until a child reaches the age of 18, dies, marries or is otherwise emancipated, or until further order of a court of a competent Revision Drafting Family Law Documents 4 51

268 Chapter 4 Practice Tips for Drafting Documents Chapter 3 / Temporary and Final Relief jurisdiction, whichever event first occurs. Child support may continue after the child reaches the age of 18, and continue until the child is 21 years old, as long as the child is a child attending school consistent with ORS Costs and Disbursements: Attorney Fees: $ for court costs; $ for disbursements. $ for attorney fees in relation to child support, custody, and parenting time issues. MONEY AWARD BALANCING JUDGMENT Judgment Creditor: Judgment Creditor s Attorney: Judgment Debtor: Judgment Debtor s Attorney: Others Entitled to Portion of Judgment: Judgment Amount: Prejudgment Interest: [judgment creditor s full name] [judgment creditor s address] [judgment creditor s city, state, and ZIP code] [attorney s full name] [attorney s address] [attorney s city, state, and ZIP code] Telephone: [attorney s telephone number] [judgment debtor s full name] [judgment debtor s residence, mailing, or contact address] [judgment debtor s city, state, and ZIP code] Year of birth: [debtor s year of birth] Social Security number (last 4 digits: [debtor s Social Security number (last 4 digits] Driver license (last 4 digits: [debtor s driver license (last 4 digits] [attorney s full name] [identify, if any, otherwise list none ] $ as a property division balancing judgment, due on [specific date or period of time from entry of judgment]. None Revision Drafting Family Law Documents 4 52

269 Chapter 4 Practice Tips for Drafting Documents Temporary and Final Relief / Chapter 3 Postjudgment Interest: Periodic Accrual: Costs and Disbursements: Attorney Fees: 9% per annum simple interest, calculated monthly, on judgment balance owed and on all costs, disbursements, and attorney fee awards included in this money award, beginning [specific date or period of time from entry of judgment]. None. $ for court costs; $ for disbursements. $ for attorney fees in relation to property division. COMMENT: See 3.5-1(c. CAVEAT: This form is illustrative only. Each lawyer must depend on his or her own legal research, knowledge of the law, and expertise in using or modifying this form. COMMENT: See UTCR form (family law confidential information form Revision Drafting Family Law Documents 4 53

271 Chapter 5 Drafting General Judgments of Dissolution of Marriage Peter Bunch The Law Firm of Peter Bunch Portland, Oregon Contents I. Statutory Authority for General Judgments II. Drafting a Stipulated General Judgment of Dissolution of Marriage and Money Awards A. Findings of Fact Matter! B. Information Gathering C. Drafting Effective Child Support Findings D. Drafting Effective Spousal Support Findings E. Other Drafting Traps and Tips III. Drafting a General Judgment of Dissolution of Marriage and Money Awards After Trial IV. Drafting a General Judgment of Dissolution of Marriage and Money Awards by Default Appendixes A. List of Statutes and Cases B. IRC Section C. Suggested Judgment Language D. Sample Child Support Calculation E. Sample Child Support Calculation Forms 5-1. Stipulated Judgment Notice of Intent to Take Default Prima Facie Affidavit in Support of a Default Judgment Default Judgment Parenting Plan

272 Chapter 5 Drafting General Judgments of Dissolution of Marriage Drafting Family Law Documents 5 ii

273 F F F F Chapter 5 Drafting General Judgments of Dissolution of Marriage I. Statutory Authority for General Judgments ORS (definitions. ORS (preparation of judgment documents. ORS (form of judgment documents. ORS (money awards. A. Findings of Fact Matter! II. Drafting a Stipulated General Judgment of Dissolution of Marriage and Money Awards The single most important task in drafting a judgment often involves the drafting of findings of fact. Jurisdictional facts must satisfy the statutory grounds on which the court may grant the divorce. When there are minor children, the judgment must contain findings pursuant ORS et seq. (Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA. Carefully crafted child support findings are essential as well. Finally, in cases that involve spousal support or that involve creative contractual provisions, findings are often an area of considerable negotiation and are of the utmost importance. That is because poorly drafted findings may cause substantial problems in post-judgment modification or enforcement proceedings. This portion of the program will focus on how to assess the need for findings and how to draft them. B. information Gathering 1 In every dissolution of marriage proceeding, obtaining good information is the foundation upon which preparing appropriate findings is based. This program will focus on child support and spousal support findings, as well as other findings that involve creative solutions to specific problems. It is important to gather detailed information so that you can draft appropriate support findings. For child support, determine the income or income capacity for each spouse. Inquire as to whether a child of the parties has any special medical or educational needs. Review OAR for any other applicable rebuttal factors. Make a preliminary investigation into how parenting time will be allocated. Make sure that you get detailed information about the availability and cost of health insurance for the children. Finally, under proposed revisions to the Oregon Administrative Rules, the cost of life insurance will be factored into child support. Accordingly, you will need to determine whether the potential obligor has life insurance, and, if not, whether he or she is insurable at a reasonable rate. You also need to assess the type, amount, and duration of spousal support that you are seeking. 2 This will inform the specific findings. Obtain information about each spouse s education and work experience, including income and earning histories. Assess the amount of assets each party will likely receive, including liquid assets and assets that generate income. Determine whether either party now has or had in the past any professional certifications, such as a nursing license, teaching credential, or other similar professional designation. If one spouse has been homemaker, unemployed, or out of the workforce for a prolonged period, consider using a vocational evaluator. An experienced vocational evaluator and rehabilitation specialist can be a valuable resource for determining a party s earning capacity. This may be especially important where the breadwinner spouse is unemployed and contends that he or she is unable to find suitable employment. 1 The author assumes that the audience is familiar with the basic provisions of ORS chapter 107 and what jurisdictional facts must be included in a divorce judgment. The author also assumes that the audience is familiar with the basic tenets of the UCCJEA. Sample language regarding jurisdictional facts and UCCJEA findings are included in the program materials. 2 In cases where spousal support is at issue, make that you are familiar with key spousal support cases. A list of representative cases is included with these materials. See Appendix A. Drafting Family Law Documents 5 1

274 Chapter 5 Drafting General Judgments of Dissolution of Marriage In awarding spousal support, the court is required to consider earning capacity instead of actual earnings. ORS (1(d(C(v, McCarthy and McCarthy, 170 Or App 183, , 12 P3d 519 (2000. Therefore, retaining an expert to establish a party s earning capacity, as well as the time it may take the unemployed spouse to obtain appropriate employment, may have a substantial impact on resolution of spousal support cases. Keep in mind that the ability to pay is also an issue in situations where a spouse is underemployed or unemployed. Waterman and Waterman, 158 Or App 267, 271, 974 P2d 256 (1999. In dealing with a case in which the breadwinner spouse is unemployed or is earning much less than in prior years, consider adding step-ups in support, contingency-based findings of fact, and judgment provisions regarding spousal support. Ask detailed questions about each party s health, and obtain medical records if appropriate. Inquire as to whether there are any lifestyle issues that may impact a party s employment opportunities, such as drug or alcohol abuse. Again, carefully drafted findings regarding spousal support are essential for both the prosecution and defense of any post-judgment modification proceeding. C. Drafting Effective Child Support Findings Attorneys frequently fail to include appropriate child support findings in judgments. Instead, they apply some version of guideline calculations in the ordered and adjudged part of the judgment. There is an important legal distinction between a finding of fact and a court-ordered directive to pay support. A finding does not impose a legal obligation to take or defer taking action. An order to pay support imposes an enforceable legal obligation. It is therefore important to ensure that your drafting recognizes this legal distinction and appropriately separates findings from orders. Following is a child support scenario that illustrates some of the issues you might encounter in drafting appropriate child support findings. The parties were married on May 1, The parties have one child, Martin, who is age 10. Jim is Martin s father. He is employed at Intel and earns $100,000 per year. Maddy is Martin s mother. She worked in retail sales before the marriage and earned about $25,000 per year. Since Martin s birth, Maddy has been a stay-at-home mother. Martin has dyslexia and ADHD. He has a tutor for his dyslexia at a cost of $200 per month. Most of Martin s health care costs are covered by insurance. Martin is in private school at a cost of $500 per month, but the local public school is excellent. With an appropriate IEP, Martin s father believes the public school would be a good fit for Martin. Intel provides health insurance for the family. The cost to insure Jim is $200 per month. The cost to add Martin to the policy is $180 per month. There are no work-related day care costs. Pursuant to the parties agreement, Jim is entitled to a parenting time credit of 37%. Jim also agrees to pay Maddy $2,000 per month for spousal support for four years. Jim does not want to pay support through wage withholding. You represent Maddy. What findings do you should you include in the judgment regarding child support? Suggested findings of fact are attached in Appendix C. D. Drafting Effective Spousal Support Findings There is a growing body of law regarding how much leeway parties to a divorce have in crafting enforceable divorce agreements. Generally, agreements entered into by parties to a dissolution of marriage should be enforced as a matter of public policy. This general rule is subject to two exceptions: (1 an agreement will not be enforced if doing so would contravene the law; and (2 an agreement will not be enforced if doing so would contravene public policy. McInnis and McInnis 199 Or App 223, , 110 P3d 639, rev den, 338 Or 681 (2005. The parties cannot by contract divest the court Drafting Family Law Documents 5 2

275 Chapter 5 Drafting General Judgments of Dissolution of Marriage of its power to approve a spousal support agreement or to modify spousal support. The parties may, however, waive their right to invoke the power of the court and may agree that they are estopped from invoking the jurisdiction of the court to contravene (e.g., modify an agreement regarding spousal support. McInnis, 199 Or App at That is because statutory rights regarding spousal support are subject to a knowing and intentional waiver. Id., 199 Or App at 236. Those principles provide the practitioner with a wide range of options in crafting a spousal support award that takes into account fluctuating income and employment issues. Enlisting the help of a CPA is also a good idea. As an example, provided that all of the requirements of IRC section 71 are met, 3 mortgage payments may be characterized as spousal support. Following are findings for hypothetical cases. Also following are judgment provisions that demonstrate how to implement those findings. 1. Case Number 1. Rich works for a publicly traded construction company that specializes in commercial construction, Mother of Pearl Condo Kings. Rich s base annual gross income is $100,000. Rich received incentive bonuses that averaged $50,000 per year until 2011, when his bonus declined to $10,000. Rich and his wife, Jane, were married for 10 years. They have three children, who are ages one, six, and eight. Jane worked as a dental hygienist, but her license lapsed eight years ago. At her last job, Jane earned $50,000 gross per year. Jane could take classes and renew her license, but she wants to continue staying at home with the children until the youngest child enrolls in first grade. Rich is age 44. He has a high school education. Rich is in good health, but he drinks to excess. His father died of cirrhosis of the liver at age 51. Jane is age 42. She has a Bachelor s of Science degree in anatomy, in addition to her training as a dental hygienist. Jane is a fitness buff and is in good health. You represent Rich. You want to settle the case. What kind of spousal support should Jane be awarded? For how long? How much? What findings should you include? 2. Case Number 2. Frank and Meagan have been married for 25 long years. They have two children, Jake, who is age 19 and is in jail awaiting sentencing on his second DUII (his parents will not post a bond, and Sarah, who 20 and is attending the University of Oregon. Frank is age 55. He is overweight and has high blood pressure. He has a Bachelor s degree in English literature. Frank has a 50% interest in a mortgage company (Sky s the Limit and is its managing partner. He historically enjoyed a high income, with an average of about $250,000 per year in 2010 and 2011, but claims his company is no longer doing well. He says that he will walk away from his business if the support is set too high. Meagan s lawyer consulted with local mortgage companies to assess Frank s claims. Because of government incentives, historically low interest rates, and the availability of FHA loans, competent mortgage brokers are doing well financially. Although the parties agree that Meagan should be awarded transitional support of $1,000 per month for the period during which Meagan completes her education, and for a period of three months thereafter, Meagan s lawyer believes that Frank is manipulating his income. Meagan s lawyer also is concerned that Meagan will have a difficult time obtaining a full-time teaching job, in view of Oregon s lack of commitment to adequately funding education. 3 A copy of IRC section 71 is attached as Appendix B. In general, for an award of money to be tax-deductible support, these elements must be met: (1 a cash payment is received by or on behalf of a spouse under divorce or separation instrument; (2 the divorce or separation instrument states that the payment is included in as income to the recipient; (3 in the case of a divorce or legal separation, the parties are not members of the same household when the payments are made; and (4 there is no liability to make a payment after the death of the recipient spouse. Drafting Family Law Documents 5 3

276 Chapter 5 Drafting General Judgments of Dissolution of Marriage Meagan is age 50. She is in good health. Meagan was a homemaker during the marriage. She is in school to become a teacher and will graduate in June You represent Meagan. You want to settle the case. What kind of spousal support should she receive? For how long? How much? What findings should you include? 3. Case Number 3. The parties were married in Rex is age 42 and is in good health. He is a highly successful app developer. Pam is age 40 and is in good health. The parties have one child, John, who is age six. Pam has a college degree in psychology but did not work during the marriage. Pam is receiving a money award of $1.25 million, as well as other property. The parties agreed to a 6% interest rate on the balance owing on the money award. They also agreed to characterize the interest as tax-deductible spousal support. You represent Rex. What kind of spousal support should Pam receive, if any? For how long? How much? What findings should you include? E. Other Drafting Traps and Tips While there is great leeway in drafting creative stipulated divorce judgments, there are many potential perils. Following is a summary of some of the most common issues you may encounter in drafting a stipulated judgment. 1. Health Insurance and Unreimbursed Health Care Expenses. Poorly drafted judgment provisions regarding the allocation of unreimbursed health care expenses for children are a common source of post-judgment disputes. It is therefore imperative that you carefully draft this portion of the judgment. Make sure there is a simple, easy-to-follow process for the parties to exchange information about uninsured health care expenses. You should also consider including a provision that requires a party to request reimbursement within a specified period, so that your client is not hit with a request for payment of expenses that accrued over a long period. 2. Life Insurance. There are many potential issues regarding life insurance. ORS sets forth the statutory framework that will inform the drafting of life insurance provisions. There are also potential traps when a party does not maintain insurance as required by the judgment. You should also review Tupper v. Roan, 349 Or 211 (2010, and McIntire v. Lang, 241 Or App 518 (2011, for discussion on this important issue. 3. Sale of the Family Home. There are a multitude of issues you may need to deal with in drafting language regarding the sale of a family home. This section will set forth some common scenarios you may encounter. a. Scenario 1. Joe and Helen purchased their home for $400,000 on an interest-only loan in They took out a $100,000 home equity line of credit (HELOC in 2007, which they used to purchase a car, to retire credit card debt, and for a long vacation in Europe. The home is now valued at $350,000. The mortgage balance remains at $400,000, and the HELOC is $80,000. Neither wishes to retain the home. The parties have agreed on a listing agent and a listing price. What other issues should you address in your judgment? b. Scenario 2. Ray and Cindy owned two properties. Cindy is keeping the parties rental home. The family home is being sold. This is a high-conflict case. The parties cannot agree what day it is, let alone how to sell their house. What issues should you address in your judgment? 4. Division of Retirement Accounts. Poorly drafted judgment language dividing retirement accounts is a recurring problem and can lead to malpractice claims and ethics complaints. Many kinds of retirement accounts are subject to the Employee Retirement Income Security Act (ERISA. Unless you are familiar with ERISA and have experience drafting judgment language that divides retirement accounts, you should consider associating with a lawyer who has expertise in this field to Drafting Family Law Documents 5 4

277 Chapter 5 Drafting General Judgments of Dissolution of Marriage draft judgment language and any necessary post-judgment documents to divide retirement accounts. Even the division of individual retirement accounts can be problematic if the judgment language lacks precision. Consider the following example: Ralf has a Morgan Stanley IRA that consists of a wide variety of individual stocks. The account had a value of $200,000 as of December 31, Jody owns an USAA IRA that consists solely of cash. It had a value of $100,000 as of December 31, The parties divorce will be final on March 31, What issues will you deal with in dividing these accounts? 5. Tax Issues. Divorce proceedings can involve a number of issues involving state and federal income tax laws. As is the case with the division of retirement accounts, even in simple cases, consulting with a CPA can help alert you to tax issues. You can then, in turn, draft appropriate language to protect your client. Consider the following example: George owns a popular food cart, Big Burritos, Inc., which is a subchapter S corporation. Many of his customers pay in cash. The parties filed joint tax returns through Molly, George s wife, confided to you that the parties did not report all of the cash George received from his business on their joint income tax returns. George kept Molly out of the loop in Tax returns for 2012 have not been prepared. Molly will have legal custody of and primary parenting time rights as to the parties two children. George is receiving two rental properties. Molly is receiving the family home. What tax issues should you address in the judgment? 6. Contract Provisions. Because a stipulated judgment is also a contract, it is appropriate to include contract provisions in the judgment. Like spousal support findings, some provisions can be the source of great contention. Examples include a provision regarding enforcement of the judgment and a mutual release. Other contract provisions are commonly used boilerplate. Pay attention to the facts of your case. Tailor the provisions you use to the particular needs of the case and your client. Consider the following example. Edna contracted an STD from Wilber. She came to your office immediately after she learned of this issue. Moreover, Edna is convinced that Wilber began moving money about six months before she filed for divorce. She believes that he has hidden assets. If you are Edna s lawyer, what kind of mutual release would you draft, if any? If you are Wilber s lawyer, what kind of releases would you seek to include in the judgment? 7. Other Provisions. Drafting a stipulated divorce judgment can be a challenging task. There are many, many unusual and sometimes sophisticated issues you may face. Those can range from the division of stock options, restricted stock units, business interests, interests in commercial properties, partnerships, and stock accounts to the division of furnishings and priceless family photographs. The main tasks are to ensure you deal with every asset and liability and to be a problem predictor and problem solver. The program materials include a sample stipulated judgment, which includes many of the issues addressed today, as well as provisions dealing with commonly recurring issues. III. Drafting a General Judgment of Dissolution of Marriage and Money Awards After Trial. As is the case in drafting a stipulated general judgment of dissolution of marriage, appropriate findings matter a great deal in drafting a general judgment after trial. Before trial, you should evaluate the findings that you believe are necessary to advance your client s interest. For example, you should draft findings regarding spousal support before trial. Draft findings regarding the disposition of any premarital assets or gifted or inherited assets. Based on the facts of your case, consider drafting other findings that will help frame the issues you need to address at trial. Drafting Family Law Documents 5 5

278 Chapter 5 Drafting General Judgments of Dissolution of Marriage Request that the court make special findings of fact and conclusions of law, pursuant to ORCP 62 A. The best practice is to make the request in a stand-alone pleading, served and filed before trial. You may also make the request in the caption of your trial memorandum, if you are certain that the court received the memorandum before trial. The caption should include these words: ORCP 62 A Special Findings of Fact Requested. ORCP 62 B and 62 C set forth the procedure for filing and serving proposed findings. IV. Drafting a General Judgment of Dissolution of Marriage and Money Awards by DefauLT The key decisions and work necessary to draft a general judgment of dissolution of marriage and money awards by default generally take place early on in the case. In your initial client interviews, you should be able to obtain sufficient information about the opposing party to determine whether taking a default is more or less likely than not. If you believe that it may be possible to take a judgment by default, draft a detailed petition for dissolution of marriage. You should review and be familiar with the provisions of ORCP 69. Remember, your judgment cannot seek relief beyond what you pleaded. ORCP 67 C(1; Cooley v. Fredinburg, 146 Or App 436 (1997. But see Kerschner v. Smith, 121 Or 469, 474 (1927 (trial court may grant complete relief, even if doing so affords relief beyond the pleadings, if the relief granted is within the issues framed by them. Finally, there is ample authority that an opposing party may rely on to set aside a default judgment. There are several steps you can take that will likely limit the chances of having a default judgment set aside. Consider serving the opposing party with a notice of intent to take a default. This will help limit the opposing party s ability to make an argument to set aside the judgment under ORCP 71 B(1(a. Depending on the facts of your case, you may also consider serving a copy of the proposed default judgment on the opposing party. So long as your judgment falls within the scope of the relief requested, it would likely be extremely difficult for the opposing party to set aside a judgment that had previously been served on him or her. Enclosed with the program materials are sample forms for (1 Notice of Intent to Take Default; (2 Prima Facie Affidavit in support of a default judgment; and (3 sample default judgment. Drafting Family Law Documents 5 6

279 Chapter 5 Drafting General Judgments of Dissolution of Marriage Appendix A List of Statutes and Cases F ORS , 035, 038, and 042 (statutory provisions relating to judgments and money awards F ORS (policy regarding settlement. F ORS (1(d (court may approve an agreement for the support of a party. F Cullen and Cullen, 223 Or App 183, 194 P3d 866 (2008 (discussion of when step-downs are appropriate. F Erwin and Erwin, 100 Or App 64, 784 P2d 1109 (1990 (a stipulated judgment is a contract; if the parties enter into a settlement on the record and the court approves that settlement, the only grounds for setting aside the settlement would be contractual, such as fraud, mistake, or misconduct. F Harris and Harris, 349 Or 393, 244 P3d 801 (2010 (discussion of three types of spousal support. F Hughes v. Misar, 189 Or App 258, 76 P3d 111 (2003 (a settlement is a contract. F Hutchinson and Hutchinson, 187 Or App 733, 69 P3d 815 (2003 (discussion of limits on parties ability to craft support agreements. F Grove and Grove, 280 Or 341, 571 P2d 477, mod 280 Or 769, 572 P2d 1320 (1977 (seminal case addressing spousal support and the interplay of support and property division. F Ken Hood Construction v. Pacific Coast Construction, 201 Or App 568, 577 (2005 (interpretation of contracts. F McDonnal and McDonnal, 293 Or 772, 652 P2d 1247 (1982 (the court has a responsibility to discover and give effect to the intent of the parties, provided that their agreement does not conflict with the court s statutory powers, and further provided that the agreement is just and proper under all of the circumstances. F McInnis and McInnis, 199 Or App 223, 110 P3d 639, rev dismissed 338 Or 681, 115 P3d 246 (2005 (discussing what authority parties have to resolve support issues. F Newton/Boldt v. Newton, 192 Or App 386, 86 P3d 49, rev den, 337 Or 84 (2004 (a settlement agreement reached in court is a contract. F Pierce and Pierce, 206 Or App 699, 138 P3d 889 (2006 ( [p]arties to a dissolution can agree on an inequitable settlement and often do, for a myriad of reasons. F PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993 (template for statutory construction. F State v. Gaines, 346 Or 160, 206 P3d 1042 (2009 (use of legislative history in statutory construction. F Steele and Steele, 254 Or App 79, P3d (2012 (recent case importing property division analysis into spousal support. F Yogman v. Parrott, 325 Or 358, 937 P2d 1019 (1997 (interpretation of contracts. Drafting Family Law Documents 5 7

280 Chapter 5 Drafting General Judgments of Dissolution of Marriage Drafting Family Law Documents 5 8

281 Chapter 5 Drafting General Judgments of Dissolution of Marriage Appendix B IRC Section 71 United States Code Annotated Title 26. Internal Revenue Code (Refs & Annos Subtitle A. Income Taxes (Refs & Annos Chapter 1. Normal Taxes and Surtaxes (Refs & Annos Subchapter B. Computation of Taxable Income Part II. Items Specifically Included in Gross Income 26 U.S.C.A Alimony and separate maintenance payments (a General rule. Gross income includes amounts received as alimony or separate maintenance payments. (b Alimony or separate maintenance payments defined. For purposes of this section (1 In general. The term alimony or separate maintenance payment means any payment in cash if (A instrument, such payment is received by (or on behalf of a spouse under a divorce or separation (B the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215, (C in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and (D there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property as a substitute for such payments after the death of the payee spouse. (2 Divorce or separation instrument. The term divorce or separation instrument means (A a decree of divorce or separate maintenance or a written instrument incident to such a decree, (B a written separation agreement, or (C a decree (not described in subparagraph (A requiring a spouse to make payments for the support or maintenance of the other spouse. (c Payments to support children. (1 In general. Subsection (a shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment as a sum which is payable for the support of children of the payor spouse. (2 Treatment of certain reductions related to contingencies involving child. For purposes of paragraph (1, if any amount specified in the instrument will be reduced (A on the happening of a contingency specified in the instrument relating to a child (such as attaining a specified age, marrying, dying, leaving school, or a similar contingency, or (B at a time which can clearly be associated with a contingency of a kind specified in subparagraph (A, an amount equal to the amount of such reduction will be treated as an amount fixed as payable for the support of children of the payor spouse. Drafting Family Law Documents 5 9

282 Chapter 5 Drafting General Judgments of Dissolution of Marriage (3 Special rule where payment is less than amount specified in instrument. For purposes of this subsection, if any payment is less than the amount specified in the instrument, then so much of such payment as does not exceed the sum payable for support shall be considered a payment for such support. (d Spouse. For purposes of this section, the term spouse includes a former spouse. (e Exception for joint returns. This section and section 215 shall not apply if the spouses make a joint return with each other. (f Recomputation where excess front-loading of alimony payments. (1 In general. If there are excess alimony payments (A the payor spouse shall include the amount of such excess payments in gross income for the payor spouse s taxable year beginning in the 3rd post-separation year, and (B the payee spouse shall be allowed a deduction in computing adjusted gross income for the amount of such excess payments for the payee s taxable year beginning in the 3rd post-separation year. (2 Excess alimony payments. For purposes of this subsection, the term excess alimony payments mean the sum of (A the excess payments for the 1st post-separation year, and (B the excess payments for the 2nd post-separation year. (3 Excess payments for 1st post-separation year. For purposes of this subsection, the amount of the excess payments for the 1st post-separation year is the excess (if any of (A the amount of the alimony or separate maintenance payments paid by the payor spouse during the 1st post-separation year, over (B the sum of (i the average of (I the alimony or separate maintenance payments paid by the payor spouse during the 2nd post-separation year, reduced by the excess payments for the 2nd post-separation year, and (II the alimony or separate maintenance payments paid by the payor spouse during the 3rd post-separation year, plus (ii $15,000. (4 Excess payments for 2nd post-separation year. For purposes of this subsection, the amount of the excess payments for the 2nd post-separation year is the excess (if any of (A the amount of the alimony or separate maintenance payments paid by the payor spouse during the 2nd post-separation year, over (B the sum of (i the amount of the alimony or separate maintenance payments paid by the payor spouse during the 3rd post-separation year, plus (ii $15,000. (5 Exceptions. (A Where payment ceases by reason of death or remarriage. Paragraph (1 shall not apply if Drafting Family Law Documents 5 10

283 Chapter 5 Drafting General Judgments of Dissolution of Marriage (i either spouse dies before the close of the 3rd post-separation year, or the payee spouse remarries before the close of the 3rd post-separation year, and (ii remarriage. the alimony or separate maintenance payments cease by reason of such death or (B Support payments. For purposes of this subsection, the term alimony or separate maintenance payment shall not include any payment received under a decree described in subsection (b(2(c. (C Fluctuating payments not within control of payor spouse. For purposes of this subsection, the term alimony or separate maintenance payment shall not include any payment to the extent it is made pursuant to a continuing liability (over a period of not less than 3 years to pay a fixed portion or portions of the income from a business or property or from compensation for employment or self-employment. (6 Post-separation years. For purposes of this subsection, the term 1st post-separation years means the 1st calendar year in which the payor spouse paid to the payee spouse alimony or separate maintenance payments to which this section applies. The 2nd and 3rd post-separation years shall be the 1st and 2nd succeeding calendar years, respectively. (g Cross references. (1 For deduction of alimony or separate maintenance payments, see section 215. (2 For taxable status of income of an estate or trust in the case of divorce, etc., see section 682. Credits (Aug. 16, 1954, c. 736, 68A Stat. 19; July 18, 1984, Pub.L , Div. A, Title IV, 422(a, 98 Stat. 795; Oct. 22, 1986, Pub.L , Title XVIII, 1843(a-(c(1, (d, 100 Stat. 2853, Drafting Family Law Documents 5 11

285 Chapter 5 Drafting General Judgments of Dissolution of Marriage Appendix C Suggested Judgment Language 1. Suggested Findings of Fact for Child Support Case A. Husband s monthly gross income is $8, Wife s monthly gross income from presumed minimum wage is $1, Wife will be receiving $2,000 per month for spousal support pursuant to this judgment. Based on the parenting plan incorporated into this judgment, Husband is entitled to a parenting time credit of 37%. Husband provides health insurance for the child at a cost of $180 per month. The monthly cost of Husband s health insurance is $200. There are no work-related daycare costs. Based on the above factors, Husband s presumed child support obligation under the Oregon Child Support Guidelines is $420 per month. The presumed amount of child support is set forth in the attached Exhibit 1, which is incorporated by reference. The presumed support is inappropriate and unjust for the following reasons. (1 The child has dyslexia, for which he receives tutoring at a monthly cost of $100. The child also has ADHD, which is treated with medication. (2 Because of the child s special needs, it is appropriate that he remain in his current private school, which has a cost of $500 per month. Based on the above factors, an upward departure of $720 for Husband s obligation for the support and maintenance of the parties minor child is appropriate. B. Husband is providing health insurance coverage for the child that is reasonable in cost and appropriate and available as defined in ORS , ORS , and OAR There are no recurring monthly medical expenses for the child. Accordingly, the court finds that neither party should be required to pay cash medical support in this judgment. 2. Suggested Findings of Fact and Judgment Language for Spousal Support Case Number 1 A. FINDINGS OF FACT. 1. This is a marriage of 10 years. 2. Husband is age 44 and is in good health. 3. Wife is age 42 and is in good health. 4. The parties have three minor children, Maureen, who is age eight, Leslie, who is age six, and Richard, who is age one. 5. The children are in good health and have no special needs. 6. Wife has a bachelor s of science degree in anatomy. She is also a trained dental hygienist, but her license is not current. 7. If Wife elected to do so, she could take courses to reinstate her license. It is estimated that the cost of reinstating Wife s license would be $6, Wife does not intend to reinstate her license until Richard enrolls in first grade. 9. Based on the employment evaluation jointly obtained by the parties, if Wife renewed her license, she could obtain work as a dental hygienist in the Portland Metropolitan area, with a starting salary of not less than $50,000 gross per year. 10. Husband has a high school education. However, he has extensive on-the-job experience as construction manager. Drafting Family Law Documents 5 13

286 Chapter 5 Drafting General Judgments of Dissolution of Marriage 11. Husband s annual gross income is $100,000. He also receives annual bonuses from his employer, Mother of Pearl Condo Kings, Inc. The amount of Husband s bonus has varied based on the performance of the business. Mother of Pearl Condo Kings is currently experiencing a downturn in the number of new projects it is either constructing or planning to construct. It is anticipated that Husband s bonuses will not be at their historic levels for at least the next two years. Husband has no control over the amount of bonus payments he receives. 12. The parties agree it is just and equitable for Wife to receive an award of spousal maintenance in the sum of $2,500 per month for a period of six years, so that Wife can remain home with the children until Richard s enrolled in the first grade. The parties further agree that Wife should receive a portion of Husband s gross bonus for a period of three years, as additional spousal maintenance. The court approves, ratifies, and adopts the agreement of the parties as set forth in this paragraph. B. JUDGMENT LANGUAGE. (1 MONEY AWARD FOR SPOUSAL SUPPORT. Wife shall have a money award for spousal support against Husband and Husband shall pay to Wife the sum of $2,500 per month for transitional spousal support. Support shall begin on April 1, 2013, and shall be payable on the first day of each month through and including the payment due on March 1, 2019, or until the death of either party, or until further order of the court, whichever occurs first. Interest shall accrue at the statutory rate of 9% per annum beginning on the day each spousal support payment is due, but not paid, until the payment owing is paid in full. All payments made by Husband to Wife for spousal support shall be deductible by Husband for state and federal income tax purposes and included in Wife s income for state and federal income tax purposes. (2 ADDITIONAL SPOUSAL SUPPORT FROM BONUSES. As additional spousal support, through calendar year 2015, or until the death of either party, or further order of the court, whichever occurs first, Husband shall pay to Wife an amount equal to 20% of his gross bonus from Mother of Pearl Condo Kings, Inc., pursuant to the terms of this section. Bonus means any bonus of money, stock, or incentive stock options Husband receives from his employment at Mother of Pearl Condo Kings, Inc. No later than January 15 of 2014, 2015, and 2016, Husband shall pay to Wife 20% of his gross bonus for the prior calendar year. Contemporaneously with the payment, Husband shall provide to Wife his paystub or other documentation from Mother of Pearl Condo Kings, Inc., that shows the amount of Husband s gross bonus for the prior calendar year. Interest shall accrue at the statutory rate of 9% per annum beginning on the day each spousal support payment is due, but not paid, until the payment owing is paid in full. All payments made by Husband to Wife for spousal support shall be deductible by Husband for state and federal income tax purposes and included in Wife s income for state and federal income tax purposes. 3. Suggested Findings of Fact and Judgment Language for Spousal Support Case Number 2 A. FINDINGS OF FACT. Wife is awarded spousal maintenance as set forth in paragraph 4 of this judgment based on the following factors. Drafting Family Law Documents 5 14

287 Chapter 5 Drafting General Judgments of Dissolution of Marriage 1. This is a marriage of 25 years. 2. Husband is age 55 and is in poor health. He has high blood pressure, which is being treated by medication. Husband is also morbidly obese. It is not anticipated that Husband s health will improve; rather, the parties expect Husband s health to continue to worsen. 3. Husband has a college degree. He is an equal owner and managing partner of Sky s the Limit, LLC, a mortgage brokerage company. 4. Husband had gross income of $250,000 in 2010 and Husband contends that his business is failing, and that, as a result, he earned $125,000, gross, in Wife is age 50 and is in good health. 6. Wife was a homemaker for the majority of the marriage. The parties have two minor children, Jake, who is age 19, and Sarah, who is age 20 and is attending the University of Oregon. 7. Wife is age 50. She is in good health. 8. Wife was a homemaker during the marriage. She is currently enrolled at Portland State University in a program to obtain a master s degree in teaching. It is anticipated that Wife will earn her degree by June 30, It is unknown whether Wife will obtain a full-time teaching position in the Portland metropolitan area. Accordingly, the parties agree that an award of transitional spousal support is not appropriate. 10. Husband agrees that, to the extent his gross income, as defined in Finding of Fact 13 below, increases to an amount of $150,000 per year or more in any calendar year during which he has an obligation to pay Wife spousal support, the amount of spousal support awarded to Wife shall increase in the subsequent calendar year by an amount equal to 30% of the difference between $125,000 and the amount of Husband s gross income. 11. By their signatures on this judgment, each party knowingly, intentionally, and voluntarily waives all rights he or she may have to argue that an increase in Husband s gross income to $150,000 per year or more in Husband s gross income to $100,000 a year or less, is not an unanticipated, substantial change of circumstances pursuant to ORS or any successor statute. Further, each party knowingly and voluntarily waives all rights he or she may have to argue that spousal support should not be modified pursuant to the formula set forth in Finding of Fact 10 above. The court approves the agreement of the parties. 12. To ensure financial transparency so that the parties intent regarding spousal support can be effectuated, beginning on April 15, 2014, Husband agrees to provide income documentation to Wife on an annual basis so long as Husband has a spousal support obligation, as set forth in paragraph 5 of this judgment. 13. Husband s gross income means W-2 wages, which are defined as the amount listed on Husband s W-2 under Medicare wages, distributions to Husband from Sky s the Limit, retained earnings (which could be distributed to Husband, even if Husband elects not to do so, the value of the use of the automobile, cellular telephone, and personal expenses paid on behalf of Husband by Sky s the Limit, including, but not limited to, the value of personal expenses Husband pays for by utilizing any company credit card, to the extent that Sky s the Limit pays those expenses without obtaining any reimbursement, and any debt forgiveness as to shareholder loans made to Husband. Drafting Family Law Documents 5 15

288 Chapter 5 Drafting General Judgments of Dissolution of Marriage B. JUDGMENT LANGUAGE. 1. MONEY AWARD FOR MAINTENANCE SPOUSAL SUPPORT. Subject to the provisions of this section, Wife shall have a money award for spousal support against Husband, and Husband shall pay to Wife the sum of $3,000 per month for maintenance spousal support. Support shall begin on April 1, 2013, and shall be payable on the first day of each month thereafter until the death of either party, or until further order of the court, whichever occurs first, subject to the provisions of this section. Effective May 1, 2014, and each year thereafter, so long as Husband has a spousal support obligation to Wife, if Husband s gross income for the prior calendar year is $150,000 or more, Wife s spousal support shall, without further order of the court, increase by an amount equal to 30% of the difference between $125,000 and Husband s gross income as defined by Finding of Fact for the prior year. The increased support shall continue through and including the payment due on the following April 1, after which support shall again be recalculated pursuant to the terms of this section and Findings of Fact 13 and 14 above. Interest shall accrue at the statutory rate of 9% per annum beginning on the first day after each payment is due, but not paid, until the payment owing is paid in full. All payments made by Husband to Wife for spousal support shall be deductible by Husband for state and federal income tax purposes and included in Wife s income for state and federal income tax purposes. 2. HUSBAND S OBLIGATION TO PROVIDE FINANCIAL DOCUMENTS. To implement the agreement of the parties as to spousal support, beginning April 15, 2014, and on April 15 of each year thereafter, so long as Husband has a spousal support obligation, Husband shall provide documentation of his gross income for the prior calendar year as follows: A. Sky s the Limit, LLC, federal income tax return, with all schedules and K-1s; B. Husband s state and federal income tax returns, with all schedules and attachments, including, but not limited to, W-2s and 1099s; C. Copies of Husband s bank statements for all personal bank accounts in which Husband had an interest for the prior calendar year; D. Copies of bank statements for Sky s the Limit, LLC, for the prior calendar year; E. Copies of Sky s the Limit loan log, or other document related to finalized loans, together with a key indicating which loan officer performed the loan; F. Balance sheet, income statement, and profit and loss statement for Sky s the Limit for the prior calendar year. 4. Suggested Findings of Fact and Judgment Language for Spousal Support Case Number 3 A. FINDINGS OF FACT. 1. Wife is awarded spousal maintenance as set forth in paragraph 4 of this judgment based on the following factors: (1 This is a marriage of 14 years. (2 Husband is age 42. (3 Husband is in good health. Drafting Family Law Documents 5 16

289 Chapter 5 Drafting General Judgments of Dissolution of Marriage (4 Wife is age 40. (5 Wife is in good health. (6 The parties have one child, John, who is age six. John is in excellent health and has no special needs. (7 Husband is a small business owner. His income over the last two years averages $1 million, gross, per year. (8 Wife has a bachelor s degree in psychology. She has not worked since the parties marriage. (9 Wife is being awarded substantial assets as part of the parties property settlement. The extent to which she can earn income from those assets is unknown as of the time of settlement. (10 Based on the above factors, spousal maintenance is appropriate so that Wife can enjoy a standard of living not overly disproportionate to the standard of living of the parties as established during their marriage. 2. Pursuant to the terms of paragraph 15 of this judgment, Husband owes Wife an equalizing money award in the sum of $1,250,000, of which Wife acknowledges receipt of $250,000, leaving a balance of $1,000,000. The parties agree that the interest owing on the remaining balance of the money award shall be paid in periodic payments, which shall be characterized as tax-deductible spousal maintenance support. The parties further agree that the periodic payments shall terminate when the payments are made in full or upon the death of either party. Each party agrees to report the payments as spousal support on his or her respective income tax returns. Further, each party agrees that the spousal support described in this paragraph is not modifiable except upon further agreement of the parties. Each party knowingly, intentionally, and voluntarily waives all claims he or she has that the spousal support described in this section may be modified without the parties agreement and each party is estopped from making such claims. By its signature on this judgment, the court ratifies the parties agreement as set forth in this paragraph. B. JUDGMENT LANGUAGE. 1. MONEY AWARD FOR SPOUSAL SUPPORT. A. Wife shall have a money award for spousal support against Husband, and Husband is ordered to pay to Wife the sum of $6,000 per month for maintenance spousal support. Support begins on May 1, 2013, and shall be payable on the first day of each month through the payment due on April 1, 2019, or until the death of either party, or until further order of the court, whichever first occurs. Interest accrues at the statutory rate of 9% simple per annum beginning on the day each spousal support payment is due, but not paid, until the payment owing is paid in full. B. In addition, Wife shall have a money award against Husband and Husband shall pay to Wife the amounts owing as interest on the equalizing money award set forth in paragraph 10, beginning on May 1, 2013, and on the first day of each month thereafter, in the amounts set forth in Exhibit 2, as additional spousal maintenance support, until the equalizing money award is paid in full or upon the death of either party, whichever first occurs. Support under this paragraph may not be modified except upon further written agreement of the parties. Drafting Family Law Documents 5 17

290 Chapter 5 Drafting General Judgments of Dissolution of Marriage All payments made by Husband to Wife for spousal support under this section are deductible by Husband for state and federal income tax purposes and must be included in Wife s income for state and federal income tax purposes. 5. Suggested Solutions for Sale of the Family Home Scenario 1 If the home is not sold before June 2014, and the Mortgage Forgiveness Debt Relief Act of 2007 (Pub L , 121 Stat 1803 is not renewed, Joe and Helen will be issued 1099s for debt forgiveness, based on the difference between the mortgage and the sale price. Further, because the HELOC was not used to improve the home, the parties will either need to bring money to closing, or, if they negotiate a short sale, the HELOC lender will issue 1099s for debt forgiveness. This must be dealt with in the judgment. Foreclosure may also be an option you may want to discuss with your client. Further, the judgment should set forth with specificity who will live in the home, who is responsible for paying the mortgage, property taxes, and insurance, and who is responsible for paying for routine maintenance. Either this section or another part of the judgment needs to specify who gets to claim the mortgage interest and property tax deductions. There should also be provisions to address how to deal with offers that are below the listing price, and how to deal with other disputes in a timely manner. The materials include sample language. 6. Suggested Solutions for Sale of the Family Home Scenario 2 Your judgment language needs to be precise in dealing with the following issues: F Selecting the listing agent; F Duration of listing agreement; F Setting the listing price; F Adjusting the listing price; F Mechanism for ensuring prompt acceptance of appropriate offer; F Range of price reduction that requires an acceptance of an offer; F Allocation of expenses for repairs and improvements; F Reimbursement of expenses; F Allocation of use of home; F Rules regarding routine upkeep of home; F Allocation of responsibility for payment of mortgage, property taxes, and insurance; and F Allocation of sale proceeds. Drafting Family Law Documents 5 18

291 Chapter 5 Drafting General Judgments of Dissolution of Marriage Appendix D Sample Child Support Calculation 1 Drafting Family Law Documents 5 19

295 Chapter 5 Drafting General Judgments of Dissolution of Marriage Appendix E Sample Child Support Calculation 2 Drafting Family Law Documents 5 23

299 Chapter 5 Drafting General Judgments of Dissolution of Marriage You may use this sheet if there is a parenting time order or written agreement, or if the parents have split custody (each parent has custody of one or more children. This sheet will help you convert parenting time overnights into percentages. It can also help determine overall parenting time percentage when parenting time is different for different children. If there is a parenting time order or written agreement, enter the amount of parenting time (based on a twoyear average each party spends with each child. A party can be a parent, a caretaker, or the state, if the child is in state care. Compute each party s percentage of parenting time for each child by dividing the party s overnights by 365. Round the result to two decimal places (e.g., 54.36%. If you already know each party s percentage of overnights for the child, you may simply enter the percentages. For split custody calculations with no parenting time order or written agreement, use 100% for the party who has physical custody of the child. Enter 0% in the other party s column. Do not include children attending school or adult children on this worksheet. The overall parenting time credit determined from this worksheet will be applied to all children, including any adult children or children attending school. Children s names Overnights Percentages Caretaker Parent Parent or state Parent Parent Caretaker or state Total the percentages for each party Number of children Divide each party s total parenting time percentage by the number of children. This is the party s total percentage share of parenting time. Page 1 of 1 PARENTING TIME WORKSHEET CSF C (Rev. 012/23/09 Drafting Family Law Documents 5 27

301 Chapter 5 Drafting General Judgments of Dissolution of Marriage 1 Form 5-1 Stipulated Judgment IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [HATTIE NUFF], and [PHIL LANDER], FOR THE COUNTY OF [CLACKAMAS] Petitioner, Respondent. Case No. [DR ] STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS This matter came before the court on the affidavit of Petitioner [Hattie Nuff] (Wife, the consent of respondent [Phil Lander] (Husband, and the agreement of the parties, as evidenced by their signatures on this Stipulated General Judgment of Dissolution of Marriage. The court considered the evidence Wife presented in her affidavit, the record and file in this proceeding, and the agreement of the parties to entry of this judgment. Now, therefore, THE COURT FINDS as follows: A. The parties were married on [December 23, 1995], in [Portland, Oregon]. B. No other domestic relations suit or petition for support involving these parties is pending in any other court in this or any state. C. Both parties were residents of and domiciled in the State of Oregon continuously for six months immediately preceding the filing of the Petition for Dissolution of Marriage. //// Page 1 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 29

302 Chapter 5 Drafting General Judgments of Dissolution of Marriage D. Irreconcilable differences between the parties have resulted in the irremediable breakdown of the marriage. E. Husband filed an appearance in this proceeding. The court has personal and subject matter jurisdiction. F. There are two minor children of the marriage: [Tony Lander, age 12, and Becky Lander, age 7]. Wife is not now pregnant. G. The children lived continuously in the State of Oregon with a parent for at least six months before the filing of this dissolution of marriage proceeding. The court has exclusive jurisdiction to make child custody and parenting time determinations pursuant to the Uniform Child Custody Jurisdiction And Enforcement Act, ORS et seq. H. Husband's monthly gross income, including wages, distributions, and perquisites, is approximately $[20,000]. Wife's monthly gross income from part time employment is $[1,84]5. Pursuant to paragraph 4 of this judgment, Wife will also receive $[6,000] per month in spousal support. Based on the parenting plan incorporated into this judgment, Husband is entitled to a parenting time credit of [47%]. Husband provides health insurance for the children at a cost of $[350] per month. The monthly cost of Husband's health insurance is $[366]. There are no work-related daycare costs. Based on the above factors, Husband's presumed child support obligation under the Oregon Child Support Guidelines is $[576] per month. The presumed amount of child support is set forth in the attached Exhibit 1, which is incorporated by reference. I. Husband is providing health insurance coverage for the children that is reasonable in cost and appropriate and available as defined in ORS , ORS , and OAR There are no recurring monthly medical expenses for the children. Accordingly, the court finds that neither party should be required to pay cash medical support in this judgment. Page 2 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 30

303 Chapter 5 Drafting General Judgments of Dissolution of Marriage J. The parties agree that Wife s obtaining full-time employment is anticipated, but is a change of circumstances that the court may consider modifying spousal support. Each party knowingly, intentionally, and voluntarily waives his or her right to argue in a subsequent spousal support modification proceeding that the above occurrence is not a basis for the court to modify child support, and each party is estopped from doing so. By its signature on this judgment, the court approves the agreement of the parties as set forth in this paragraph. K. Wife is awarded transitional spousal support as set forth in paragraph 4 of this judgment based on the following factors. (1 This is a marriage of [17] years. (2 Wife is age [39]. (3 Wife is in good health. (4 Wife is a licensed, registered nurse. She has worked part-time since the birth of the parties' oldest child and currently works two days per week at [Providence Health Center]. Wife earns $[26.63] per hour at her current employment. (5 Wife needs a reasonable amount of time to obtain appropriate fulltime employment. (6 It is anticipated that Wife can obtain full-time employment as a nurse within a reasonable time with a reasonable job effort. (6 The spousal support is taxable to Wife and tax-deductible to Husband. The amount of support takes into consideration the tax consequences to each party. L. Wife is awarded spousal maintenance as set forth in paragraph 4 of this judgment based on the following factors. (1 This is a marriage of [17] years. (2 Husband is age [39]. Page 3 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 31

304 Chapter 5 Drafting General Judgments of Dissolution of Marriage (3 Husband is in good health. (4 Wife is age [39]. (5 Wife is in good health. (6 Husband is a physician. He owns his own practice and works four days a week. Husband s gross income, including wages, distributions, and perquisites, is about $[240,000] per year. (7 Wife is a licensed, registered nurse. She has worked part-time since the birth of the parties' oldest child, and currently works two days per week at the Women s Clinic. Wife earns $[26.63] per hour. (8 The parties have equal parenting time with their children. (9 The spousal support is taxable to Wife and tax-deductible to Husband. The amount of support takes into consideration the tax consequences to each party. M. Wife is awarded compensatory spousal support as set forth in paragraph 4 of this judgment based on the following factors. (1 The parties disagree about the nature and extent of any substantial, prolonged contributions Wife made to Husband's earning capacity. For purposes of settlement, however, they agree that Wife should be awarded compensatory spousal support as set forth in paragraph 4. (2 The spousal support is taxable to Wife and tax-deductible to Husband. The amount of support takes into consideration the tax consequences to each party. N. Notwithstanding the provisions of ORS (3(a, the parties agree that the following circumstances are grounds to modify or terminate the compensatory spousal support award: //// Page 4 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 32

305 Chapter 5 Drafting General Judgments of Dissolution of Marriage (1 Wife's remarriage to a person who has gross income from any source of $[150,000] per year or more. (2 Husband suffers from a mental or physical incapacity that precludes him from working in his occupation at least four days per week. (3 Any other extraordinary circumstances as determined by the court. Each party knowingly, intentionally, and voluntarily waives all rights to argue that factors N(1 (3 are not grounds to modify compensatory support, and each party is estopped from doing so. Except for the factors set forth in N(1 (3, the parties agree that the compensatory support is nonmodifiable. The court approves the spousal support agreement of the parties. Nothing in this section precludes either party from seeking to modify maintenance spousal support upon a showing of a substantial, unanticipated change of circumstances. O. Pursuant to ORS , the parties elect not to initiate wage withholding otherwise required by ORS as to the child and spousal support awarded to Wife in this judgment. There are no support arrearages. No previous exemptions to income withholding were granted. P. After both parties sign this judgment, if either party dies before a judge signs this judgment, the parties agree that provisions in this judgment dividing the parties' property are enforceable as a contract as to the surviving party and the estate of the decedent. The court ratifies the parties agreement. Q. By their signatures on this judgment, each party affirms and warrants that (1 this judgment discloses all assets of each party within that party s knowledge, whether held separately or with any other person or entity; (2 he or she is unaware of any debt or liability for which the other party is or may be liable, other than the debts set forth in this judgment; (3 he or she has not unreasonably overstated nor understated the value of any asset or the extent of any liability; (4 he or she has not transferred or Page 5 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 33

306 Chapter 5 Drafting General Judgments of Dissolution of Marriage placed in the control of any other person or entity under any express or implied agreement, trust, or understanding, any asset of either party without full disclosure to the other; and (6 the parties entered into this judgment knowingly and voluntarily, recognizing that the outcome of any contested dissolution proceeding could be substantially different than the provisions set forth in this judgment. Based on the foregoing Findings of Fact, and the court being fully advised, NOW, THEREFORE, IT IS ORDERED AND ADJUDGED as follows. 1. TERMINATION DATE OF THE MARRIAGE. The marriage of the parties is dissolved and the marriage terminates on the day the court signs this judgment. 2. LEGAL CUSTODY AND PARENTING PLAN. The parties are awarded joint legal custody of their minor children. Each party s parenting time with the children is as set forth in the attached Parenting Plan, which is incorporated into this judgment as Exhibit MONEY AWARD FOR CHILD SUPPORT. Wife shall have a money award for child support against Husband, and Husband is ordered to pay to Wife the sum of $[576] per month for child support. Support begins on [March 1, 2013], and is payable on the first day of each month thereafter until the children reach the age of 18, or age 21 if they are regularly attending school as defined by applicable Oregon law, or until a child for whom support is ordered dies, becomes emancipated, marries, or until further order of the court, which ever occurs first. Interest accrues at the statutory rate of nine percent simple per annum beginning the day each payment is due, but not paid, until the payment owing is paid in full. The provisions of ORS and any modifications to that statute or any successor statute effective after the date of this judgment apply to child support owed to //// Page 6 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 34

307 Chapter 5 Drafting General Judgments of Dissolution of Marriage a child who is attending school as defined by Oregon law. A copy of ORS is attached as Exhibit 3 to this judgment and is incorporated by reference. Until further order of the court, if a child of the parties is attending school as defined by ORS , that child shall receive a prorated amount of the child support award, payable directly to the child, subject to the provisions of ORS or any successor stature. The amount of support payable to the child attending school is the product of the total amount of child support divided by the number of children to whom support is owed under this section. Neither party is ordered to pay cash medical support. 4. MONEY AWARD FOR SPOUSAL SUPPORT. Wife shall have a money award for spousal support against Husband, and Husband is ordered to pay Wife spousal support as follows: A. $[1,500] per month from [March 1, 2013], through and including the payment due on [February 1, 2014], as transitional spousal support; and B. $[2,500] per month from [March 1, 2013], through and including the payment due on [February 1, 2021], as spousal maintenance support; and C. $[3,000] per month from[ March 1, 2013], through and including the payment due on [February 1, 2019], as compensatory support. Interest accrues at the statutory rate of nine percent per simple annum beginning on the day each spousal support payment is due, but not paid, until the payment owing is paid in full. Husband's spousal support obligation continues in the amounts and durations as set forth above, at which time support will end, or until the death of either party, or further order of the court, whichever occurs first. //// //// Page 7 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 35

308 Chapter 5 Drafting General Judgments of Dissolution of Marriage All payments made by Husband to Wife for spousal support are deductible by Husband for state and federal income tax purposes and must be included in Wife's income for state and federal income tax purposes. 5. PAYMENT OF COLLEGE EXPENSES. For additional child support, each party shall pay one-half of college expenses as set forth below, in an amount no greater than the Cost of Attendance budget established by the University of Oregon at Eugene for an in-state undergraduate student, for each year in which [Becky Lander and Tony Lander] attend an accredited college, at least half-time, and maintain at least a cumulative C grade point average. The expenses each party must pay are limited to the following: A. Tuition; B. Room and board, standard double occupancy room, standard meal plan; C. Books and supplies; D. Miscellaneous personal expenses; and E. Transportation allowance, if any. Each party s obligation to pay such expenses ends when the child obtains a bachelor s degree or reaches age 23, which ever occurs first. 6. NONINITIATION OF INCOME WITHHOLDING. Husband is ordered to pay the monthly child and spousal support payments by automatic deposit into a bank account designated by Wife. Until the automatic deposit is in place, Husband must pay the monthly child and spousal support payments directly to Wife. Within 30 days after the court signs this judgment, Wife must supply sufficient deposit slips for Husband to make such deposits. Until such time as Wife provides the deposit slips to Husband, he must pay the support payments directly to Wife. //// Page 8 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 36

309 Chapter 5 Drafting General Judgments of Dissolution of Marriage HEALTH INSURANCE AND EXPENSES. Until further order of the court, as further child support, so long as Husband has an obligation to pay child support for or to the parties' children, Husband is ordered to provide satisfactory health care coverage for the children so long as it is reasonable in cost and appropriate and available as defined in ORS and , and OAR , or any successor statutes and administrative rules. The parties must use in-system or preferred health care providers under the insurance plan then in place unless such providers are unavailable, or an in-system or preferred provider advises, in writing, the use of an out-of-plan health care provider. Wife shall pay the first $250 in each calendar year for the reasonable and necessary unreimbursed health care costs for each of the parties' children. Wife must provide written documentation of the payment of the $250 for each child by first-class mail or hand-delivery, after which the parties will divide all reasonable and necessary medical, hospital, dental, orthodontia, eye, mental health, and other health care costs or expenses for each child that are uninsured or unreimbursed by such insurance, with Wife paying 31% and Husband paying 69%, until further order of the court. The party receiving an Explanation of Benefits (EOB form or other similar document showing the amount of uninsured heath care expenses owed must provide a copy of the EOB to the other party within 30 days after receipt. Each party must pay his or her share of the amount owed directly to the health care provider, no later than 30 days after the a party receives the EOB. If a party does not timely make his or her payment, the other party may obtain a supplemental judgment and money award against the nonpaying party for all amounts owing, using the procedure set forth in paragraph 26 of this judgment, which shall bear interest at the statutory rate from the date expense was incurred. //// Page 9 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 37

310 Chapter 5 Drafting General Judgments of Dissolution of Marriage If a party must make a payment at the time of health care service, that party must send the other party documentation of such health care expense and payment by firstclass mail, no later than 30 days after the date of service. Documentation means either a canceled check, a receipt, a bill stamped paid, a credit card statement showing the expense, or an equivalent document showing the health care service provided and payment for the service. The other party must reimburse the payor party his or her share within 30 days thereafter. Husband's obligation to provide health insurance for the children and to pay his proportionate share of unreimbursed health care expenses ends as to each child when the obligation to pay child support for that child ends. 8. LIFE INSURANCE. Until further order of the court, so long as Husband has an obligation to contribute toward child support, or an arrearage exists for unpaid child support, he is ordered to maintain and pay premiums on [Prudential] life insurance policy number, insuring his life in the amount of $[200,000], with Wife as the primary beneficiary for the benefit of the children's needs upon Husband's death. In addition, until further order of the court, so long as Husband has an obligation to pay spousal support or an arrearage exists for unpaid spousal support, he must maintain and pay premiums on [Prudential] life insurance policy number, insuring his life in the amount of $[300,000], with Wife as the primary beneficiary. In addition, the following requirements apply to Husband's life insurance obligation under this section. A. Husband has the right to change insurance policies so long as the amount of the death benefit is equal to or greater than the amount Wife is entitled to receive as set forth above. Husband must comply with all other provisions of this //// Page 10 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 38

311 Chapter 5 Drafting General Judgments of Dissolution of Marriage section in the event substitute insurance is obtained and shall provide Wife with information regarding the new policy within 60 days after obtaining such new insurance. B. During the term of the obligation to maintain life insurance, Husband must give Wife, upon her written request, a copy of such policy or policies or evidence that the proper life insurance is in force with the appropriate beneficiary designation in effect. C. Wife may timely provide a certified copy of this judgment to the appropriate life insurance company or companies in accordance with the provisions of ORS (6. D. Husband is required to provide instructions to such insurance company or companies to update records to comply with the terms of life insurance provisions incorporated or included in this judgment. Husband must provide Wife proof of compliance with this provision within 60 days after entry of this judgment. E. Husband must provide Wife with written notice (1 if benefits have been reduced; (2 of any action that will reduce the benefits; and (3 if the beneficiary designations have been changed. F. If Husband does not pay the premiums on the policy, Wife may pay the policy premiums and may obtain a supplemental judgment against Husband for reimbursement. G. To the extent allowed by law, a constructive trust will be imposed over the proceeds of any life insurance paid from any policy on Husband s life if he fails to maintain life insurance in the amount and with the beneficiary designation set forth in this section. If the life insurance benefits paid on Husband s death are less than the amount required in this section, there is a claim against his estate for the difference between the specified amount and the death benefit paid. //// Page 11 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 39

312 Chapter 5 Drafting General Judgments of Dissolution of Marriage PROPERTY AND ASSETS AWARDED TO WIFE. Wife is awarded following personal property, free all claims by Husband, subject to any indebtedness, liens, taxes, encumbrances, and liabilities of any kind against such property, which Wife must pay, indemnify, and hold Husband harmless therefrom. A. Wife's [Wells Bank of America] checking account ending on numbers [8888]. B. Wife's [Morgan Stanley] Roth IRA ending on numbers [8782], subject to the provisions of paragraph 15 below. C. Wife's [Old Navy] rollover IRA ending on numbers [2222], subject to the provisions of paragraph 15 below. D. Wife's [Providence Health Clinic] 401(k plan, subject to the provisions of paragraph 15 below. E. [2010 Chevrolet Tahoe, VIN 1GNEK ]. 10. PROPERTY AND ASSETS AWARDED TO HUSBAND. Husband is awarded the following personal property, free of all claims by Wife, subject to any indebtedness, liens, taxes, encumbrances, and liabilities of any kind against such property, which Husband must pay, indemnify, and hold Wife harmless therefrom. A. Husband's [Bank of America] checking account ending on numbers [2226]. B. All assets, liabilities, income, equipment, goodwill, and every other tangible and intangible asset owned by [Phil Lander, M.D., P.C.]. C. Husband's [2008 Nissan Altima, VIN 5N1AN ]. D. Husband's [CitiBank] IRA ending on numbers [8888], subject to the provisions of paragraph 15 below. //// Page 12 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 40

313 Chapter 5 Drafting General Judgments of Dissolution of Marriage E. Husband's [Phil Lander M.D., P.C.] 401(k plan, subject to the provisions of paragraph 15 below. 11. DISPOSITION OF [SMITH BARNEY] ACCOUNT. The parties have an interest in a [Smith Barney] investment account ending on numbers [9999]. The account holds stocks from various companies. Each party is awarded one-half of the shares in the account. In equally dividing the account, the tax basis of all securities must be allocated in as equal a manner as possible. For example, if there are 200 shares of Microsoft with an average tax basis of $50 per share, each party's separate portion of those shares should also, to the extent possible, have an average tax basis of $50 per share. That process must be repeated for each security divided between the parties to effectuate a fair and equitable distribution of the tax bases of such securities. If the same company's securities have two or more tax bases, the tax bases must be averaged to implement the terms of this section. If there is an odd number of a particular security that cannot be divided, Husband is awarded the odd share, and he must pay the difference in value between the securities received by Wife and Husband in cash. 12. AWARD OF PERSONAL PROPERTY. The parties own personal property, furnishings, and furniture, which is located at the family residence located at [8887 Progress Way, Portland, Oregon, 97214]. The parties shall divide the personal property equitably and by agreement of the parties. If the parties cannot agree on an item or items to be divided, they will submit their dispute to binding arbitration. The arbitrator will be selected by agreement of the parties. If the parties cannot agree, each party must select one arbitrator. The two arbitrators selected by the parties shall confer and select an arbitrator to resolve the personal property issues. The rules of the arbitration will be set by the arbitrator. The parties shall equally divide the cost of the arbitration. Page 13 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 41

314 Chapter 5 Drafting General Judgments of Dissolution of Marriage SALE OF FAMILY RESIDENCE. Husband and Wife are awarded as equal tenants in common and without the right of survivorship the real property (the property located at [8887 Progress Way, Portland, Oregon, 97214], and legally described as follows: [Lot 12, Parcel 9, Progress Estates, County of Multnomah, State of Oregon]. The parties shall list the property for sale within 10 days after the court signs this judgment. Each party must sign the listing agreement. Wife will select the first listing agent. If the property does not sell within the initial listing period, Husband will select the next listing agent. Thereafter, the parties will alternate listing agents until the property is sold. The initial listing price will be determined by agreement of the parties, or, if they cannot agree, by the listing agent, through binding arbitration as set forth in this section. The initial and all subsequent listing agreements must be for a period of 180 days. The parties shall accept any bona fide offer to purchase if the amount is within five percent of the listing price or greater. The parties are only obligated to sell the property for cash and may not, unless by mutual agreement or order of the court, be required to accept a land sale contract, second mortgage, or some other noncash purchase offer. The parties must cooperate and use good-faith efforts in effecting the provisions of this section, such as adjustments to the initial listing price and other terms of the listing agreement as recommend by the listing agent or by agreement of the parties. If the parties disagree about any adjustments to the listing price, the adjustment or adjustments to the listing price will be determined by through binding arbitration as set forth in this section. The parties must make reasonable and necessary repairs or improvements to the property as requested by the listing agent, or to bring it into compliance with any applicable federal, state, or local government regulations or codes. The parties shall Page 14 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 42

315 Chapter 5 Drafting General Judgments of Dissolution of Marriage equally divide the cost of any necessary repairs or improvements to bring it into compliance with any applicable federal, state, or local government regulations or codes and shall equally divide the cost of any reasonable and necessary repairs or improvements the listing agent requests. The parties shall equally divide the costs arising from any repair or improvement to the property in excess of $200, if incurred with the written consent of both parties or ordered in binding arbitration as set forth in this section. If either party advances such costs, that party shall be fully reimbursed out of escrow. So long as she lives in the family residence, Wife will have its exclusive use and possession and shall be solely liable for all costs arising from its use and possession, including utilities, insurance, the monthly mortgage payments, and any normal and customary repair or maintenance with a cost of $200 or less. Any outstanding real property taxes shall be paid from the sale proceeds. Wife shall maintain the property in good condition at all times for purposes of showing the property. Each party is restrained from encumbering the property in any way without the written agreement of the other party or order of the court. The proceeds from the sale of the property shall be distributed in the following order of priority: A. Payoff of the mortgage and line of credit secured by the property; B. Payment of all costs of sale, including, but not limited to, title reports, closing costs, real estate sales commissions, and property taxes due but unpaid; C. Reimbursement to a party for repairs or improvements with a cost per repair or improvement in excess of $200, paid by him or her in conformance with this section; a party seeking reimbursement shall provide documentation to the other 26 Page 15 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 43

316 Chapter 5 Drafting General Judgments of Dissolution of Marriage party of the agreement to make the repair or improvement, the expense for which reimbursement is sought, and proof of the payment of that expense; and D. After dividing the remaining balance equally, payment to Wife from Husband s share of the equalizing money award as set forth in paragraph 16. Each party is responsible for reporting 50% of the net gain resulting from or relating to the sale of the property. Each party must report and pay all taxes, interest, and penalties, if any, arising from or relating to each party's assumption of 50% of the total gain and shall indemnify and hold harmless the other party for his or her respective share of any tax liability. Each party must report, pay, indemnify, and hold harmless the other party as to any tax liability on his or her portion of the proceeds of the sale of the residence and property interests. All disputes the parties cannot resolve that arise under this section shall be submitted to binding arbitration with [Lance Liberal], or, if [Mr. Liberal] is not available, by an arbitrator agreed upon by the parties, or ordered by the court. The parties shall equally divide the cost of the arbitration. The arbitrator s decision is final. By their signatures on this judgment, each party knowingly, intentionally, and voluntarily waives and releases all rights to appeal to any court from the arbitrator s decision. Husband and Wife have the right to mutually agree in writing to vary any term of the provisions of this section relating to the mechanics of the sale. 14. DISPOSITION OF HUSBAND S FREQUENT FLYER MILES. Husband has [200,000] frequent flyer miles with [Alaska Airlines]. Husband shall reserve [100,000] of the [Alaska Airline] miles for Wife s use. Wife shall notify Husband in writing of the desired travel dates for which the miles are to be used. Husband must obtain a certificate or similar document in Wife's name based on her desired travel date. If a particular date is not available, Wife will select an alternate date. Husband must make his best efforts to accommodate Wife's specified travel date. Husband must Page 16 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 44

317 Chapter 5 Drafting General Judgments of Dissolution of Marriage promptly notify Wife of any change in the [Alaska Airlines] mileage program that affects Wife's interest as set forth in this paragraph. 15. RETIREMENT ACCOUNTS. A. Intent of the Parties. The parties intend that their retirement accounts will be divided pursuant to the terms of this section. The parties' retirement accounts shall be divided between the parties as of [December 31, 2012] (the Assignment Date. B. Identification of Husband's Retirement Accounts/Retirement Plans. (1 Husband is a participant in the [Phil Lander M.D., P.C.] 401(k Plan. (2 Husband has a beneficial interest in his [CitiBank] IRA ending on numbers [8888]. C. Identification of Wife's Individual Retirement Accounts/Retirement Plans. (1 Wife is a participant in the [Providence Health Clinic] 401(k Plan. (2 Wife owns a beneficial interest in: a. [Morgan Stanley] Roth IRA ending on numbers [8782]; b. [Old Navy] rollover IRA ending on numbers [2222]. D. Division Formula: The Retirement Accounts and Retirement Plans. The Retirement Accounts and the Retirement Plan shall be divided using the following formula with [December 31, 2013], values: (1 Husband's Roth IRA of $[9,699.14] less Wife's Roth IRA of $[9,498.72] has a difference of $[200.42]. //// //// Page 17 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 45

318 Chapter 5 Drafting General Judgments of Dissolution of Marriage (2 The difference of $[200.42] is then multiplied by 52% in order to provide a greater value because this account has post-tax dollars. The result is Husband's adjusted difference of $[304.64]. (3 Then take Husband's [Phil Lander M.D., P.C.] 401(k Plan ($[364,644.26], less Wife's [Providence Health Systems] 401(k Plan ($[92,684.89], which leaves a difference of $[271,959.37], and add the amount from (2 above of $[304.64], for a total of $[272,264.01]. Divide by 2 for a total of $[136,132.00]. (4 After completing the formula above, Wife's final award is $[136,132.00], to be assigned to Wife from Husband's [Phil Lander M.D., P.C.] 401(k Plan as of [December 31, 2012], together with earnings, gains, and losses on that balance until distributed to Wife. E. Additional Award to Wife. In addition to the award to Wife of a portion of Husband's [Phil Lander M.D., P.C.] 401(k Plan in D above, Wife is awarded all retirement accounts and retirement benefits held in her name or held for her benefit. F. Award to Husband. Husband is awarded all retirement accounts and benefits of Husband held by Husband, or for his benefit, that were not awarded to Wife in D above. G. Preservation of Benefit Awards. Husband shall not take any action to reduce the value of the retirement benefits assigned to Wife in this section. To the extent of the Wife's award under paragraph D from Husband's [Phil Lander M.D., P.C.] 401(k Plan, Husband shall name Wife as his beneficiary under Husband's 401(k Plan until Wife's award is perfected by the entry of a qualified domestic relations order (QDRO in the form of a supplemental judgment as provided in this section. In the event a party dies before the administrator of Husband's 401(k Plan accepts the supplemental judgment submitted to such administrator as a Page 18 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 46

319 Chapter 5 Drafting General Judgments of Dissolution of Marriage QDRO, and the administrator refuses to accept the supplemental judgment after such death as a QDRO, and if the plan administrator distributes the benefits assigned to Wife to a beneficiary other than Wife, then Wife shall then have a claim against Husband's estate for the value of the benefits awarded to Wife but not received by Wife, plus interest thereon at a rate of 9% per annum from the valuation date used until paid, less any income taxes paid by Husband's estate or a third party on the value of such retirement benefits. H. Preparation of Supplemental Judgment; Retention of Jurisdiction. The cost of preparation, attorney's review, QDRO review, plan review, administration, and qualification of any supplemental judgment or other documents necessary to accomplish the division of retirement benefits provided in this section will be shared equally by the parties. The supplemental judgment containing the QDRO shall be prepared by [Reed Lotta] on behalf of Husband. The court retains jurisdiction for the presentation of such further evidence and to resolve such disputes that may relate to the retirement benefits and division of retirement benefits pursuant to this paragraph and to enter any supplemental judgments and amended supplemental judgments necessary for the assignment, transfer, and distribution of retirement benefits from Husband to Wife. Furthermore, the court retains jurisdiction to the extent necessary to ensure that the supplemental judgment implements the division of benefits as set forth in this judgment, and that such supplemental judgment qualifies and continues to qualify as a QDRO under 26 USC Section 414(p(1, and any regulations that have been issued there under or as amended in the future. I. Cooperation of Parties. Husband and Wife shall cooperate in signing all forms, letters, and other documents required to effectuate the prompt distribution of benefits to Wife, including, //// Page 19 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 47

320 Chapter 5 Drafting General Judgments of Dissolution of Marriage but not limited to, waiver of any waiting period after the plan determines that the supplemental judgment is a QDRO before any distribution is made to Wife. J. Restrictions on Husband's 401(k. Pending segregation of Wife's award from Husband's 401(k Plan, Husband is restrained from taking any loans or taking any distributions without further order of this court. However, Husband may continue to make reasonable investment decisions for his 401(k Plan without any restriction. 16. EQUALIZING MONEY AWARD. For an equalizing money award for property settlement, Wife shall have a money award against Husband and Husband is ordered to Wife the sum of $[50,000], cash, which shall be payable no later than 60 days after entry of this judgment. Interest shall accrue at the statutory rate of 9% per annum on the balance of $[50,000], beginning 60 days after entry of this judgment. 17. DEBTS. A. Husband shall assume, pay, indemnify, and hold Wife harmless from all debts and liabilities in Husband's separate name. B. Wife shall assume, pay, indemnify, and hold Husband harmless from all debts and liabilities in her separate name. C. Each party warrants to the other that there are no outstanding joint liabilities other than the mortgage on the real property awarded to Wife in this judgment, for which Wife is solely responsible, and shall pay, indemnify, and hold Husband harmless therefrom. 18. TAX ISSUES. Each party is responsible for one-half of all liabilities associated with or attendant to all joint tax returns, including, but not limited to, all taxes, interest, and penalties associated with any local, state, and federal income tax return the parties filed jointly, Page 20 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 48

321 Chapter 5 Drafting General Judgments of Dissolution of Marriage and all related accountant and attorney fees and costs, including appeal. Each party must pay, indemnify, and hold the other harmless as to his or her liability under this section. The parties shall equally share any tax refunds associated with or arising from any individual federal, state, and local income tax returns filed during the marriage, whether filed jointly or separately. The parties shall equally share any tax refunds associated with or arising from any federal, state, and local income tax returns filed during the marriage by Husband's business, [Phil Lander M.D., P.C.]. The parties shall file joint state and federal tax returns for tax year [2012]. The parties shall equally divide the cost of preparing the tax returns and will equally divide all tax refunds associated with these returns, including any Oregon "kicker" refund. The parties are equally responsible for any tax liabilities, including penalties and interest, unless the penalties and interest are solely the result of one party's failure to timely cooperate with the filing of the tax returns. In that event, the court retains jurisdiction to allocate any penalties and interest. Husband awarded the mortgage interest deduction and property tax deduction for the family residence through [December 31, 2012], after which Wife is awarded those deductions. Wife is awarded the dependency exemptions for the parties' minor children for state and federal income tax purposes, including any child care credit, dependency exemption, and earned income credit. Wife is entitled to file as head of household. 19. REVOCATION OF BENEFICIARY DESIGNATIONS. After the transfer to Wife of her interest in Husband s 401(k plan is complete pursuant to paragraph 15 of this judgment, to the fullest extent allowed by law, this judgment serves as revocation of a party as "beneficiary" and "surviving spouse" on all retirement accounts of any nature whatsoever in the name of the other party, and any Page 21 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 49

322 Chapter 5 Drafting General Judgments of Dissolution of Marriage designation in any will, trust, and living will of one party that benefits the other party that is now in effect, even if no formal change of beneficiary is made by the party owning the relevant asset. 20. NONUSE OF OTHER'S CREDIT. Each party must immediately return to the other all credit and debit cards issued in the other party's name. Each party is restrained from incurring any debt or obligation on the credit of the other or in the parties joint names. Each party shall indemnify, defend, and hold the other harmless from any debt or obligation so charged or otherwise incurred. 21. LEGAL REPRESENTATION. Wife acknowledges that [Rilely Upum] represented Husband in this dissolution of marriage proceeding and this judgment. She acknowledges that [Mr. Upum] did not provide her with any advice regarding this judgment. Husband acknowledges that [Curtis Edge] represented Wife in this dissolution of marriage proceeding and this judgment. He acknowledges that [Mr. Edge] did not provide him with any advice regarding this judgment. 22. ATTORNEY FEES AND COSTS. Each party shall pay his or her attorney fees and costs incurred in this dissolution of marriage proceeding. 23. TRANSFER OF ASSETS. Each party must promptly sign all deeds, assignments, contracts, and other documents that may be necessary or desirable to complete the transfer of all assets and property and to complete the terms and provisions of this judgment. If either party fails to execute such documents within 30 days after the entry of this judgment, or within 30 days after a written request to do so, whichever first occurs, pursuant to ORCP 78, this judgment is equivalent thereto. Page 22 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 50

323 Chapter 5 Drafting General Judgments of Dissolution of Marriage RETURN OF RECORDS. Within 30 days after the court signs this judgment, each party must return all documents and records in his or her possession or control relating to all assets awarded to the other party in this judgment. Further, each party must provide documents and information the other party requires that are necessary to the preparation or defense of any tax filings, no later than 30 days after receiving a written request for such documents and information. Except as set forth in this section and any protective orders entered in the abovecaptioned proceeding, neither party has an obligation to return to the other party documents produced during the pendency of the dissolution of marriage proceeding. 25. INDEMNIFICATION. When judgment provides that one party will assume and pay an obligation, that party must indemnify and hold the other party harmless from being responsible for paying such obligation, and from all reasonable attorney fees and costs incurred by the other party as the result of such party's default or failure to pay the obligation. 26. ENFORCEMENT OF THIS JUDGMENT. Each party is ordered to comply with all of the provisions of this judgment, including, but not limited to, payment of any debt or obligation he or she has to pay as set forth in this judgment, including any support award, transferring of titles and property, and effectuating the division of retirement and other financial accounts. If a party fails to comply with this judgment, in any action to enforce any term or terms of this judgment, the prevailing party is entitled to a supplemental judgment for his or her reasonable attorney fees and costs, including, but not limited to, fees of experts and paralegal fees, and attorney fees and costs on appeal, and any other legal remedy, as determined by the court, or by the arbitrator when arbitration is required in this judgment. Page 23 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 51

324 Chapter 5 Drafting General Judgments of Dissolution of Marriage The term any action includes, but is not limited to, a demand to comply with a term or terms of this judgment, any garnishment or other collection proceeding, enforcement of a judgment lien, arbitration, any civil proceeding filed in circuit court, and any appeal therefrom. This supplemental judgment may be entered by filing with the court an appropriate motion and supporting affidavit or declaration with notice to the other party, setting forth the amount of the attorney fees and costs. The documents must be served on the other party in the manner provided by ORCP 7. The prevailing party is defined as follows: if the action results in the party against whom the action is taken being required to pay any money or to take any affirmative action required by the judgment, such as signing a deed, title, or transferring personal property, the person bringing the action is the prevailing party. If the party against whom the action was taken is not required to pay any money or to take any affirmative action required by the judgment, he or she is the prevailing party. In addition, each party must immediately comply with all of the provisions of this judgment. Until a judge signs this judgment, each provision of this judgment is enforceable as a contract. When the court approves and signs this judgment, all contractual provisions merge with this judgment. 27. WAIVER OF STRICT PERFORMANCE. The failure of either party to insist on strict performance of any provision of this judgment is not a waiver of any right to insist on strict performance of such provision or of any other provision of this judgment at any time. Any waiver by either party as to any breach of any provision is not a waiver of any succeeding breach of that provision or any other provision. //// //// Page 24 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 52

325 Chapter 5 Drafting General Judgments of Dissolution of Marriage MUTUAL RELEASE. Each party knowingly, voluntarily, and intentionally waives all claims and rights he or she has, may now have, or may hereafter have against the other or his or her estate as to all claims and rights arising from the parties' marriage except for (1 any claims either party may have as to the enforcement of the terms of this judgment; (2 any claims either party may have against the other pursuant to ORS or any successor statute for an inadvertent or intentional failure to disclose significant assets belonging to either or both of the parties on or before the date on which the parties signed this judgment; and (3 any claims one party may have based on the tortious conduct of the other party. 29. CONTINUING JURISDICTION OF THE COURT. The court in the above-entitled proceeding retains jurisdiction to enforce all of the provisions of this judgment. 30. INTERPRETATION OF THIS JUDGMENT. The rule of construction that a written agreement is construed against the party preparing or drafting such agreement are specifically not applicable to interpretation of this judgment or any documents executed and delivered under the terms of this judgment. 31. HEADINGS. The headings of particular paragraphs are inserted only for convenience and are not part of this judgment or a limitation of the scope of the particular paragraph to which the paragraph heading refers. 32. SEVERABILITY. If the court concludes that any provision of this judgment is invalid or unenforceable, that provision is severed from the remainder of this judgment so that the remainder of the judgment is valid and enforceable. All remaining provisions of this Page 25 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 53

326 Chapter 5 Drafting General Judgments of Dissolution of Marriage judgment continue in full force. If the court concludes that any provision is invalid in its scope, such provision is valid to the extent permitted by law. 33. RELEVANT DATA. The information required by Oregon law is as follows: Wife Husband Residence and Mailing Address : [[8887 Progress Way] Portland, Oregon, 97214] Telephone No. : Segregated by UTCR Social Security No. : Segregated by UTCR Driver's License No. : Segregated by UTCR Age : [39] Date of Birth : Segregated by UTCR Maiden Name : Segregated by UTCR Former Legal Names : Segregated by UTCR Wife's Employer : Segregated by UTCR Employer's address : Segregated by UTCR Employer's telephone no. : Segregated by UTCR Residence and [219 S. 12 Ave.] Mailing Address : [Portland, OR 97214] Telephone No. : Segregated by UTCR Social Security No. : Segregated by UTCR Driver's License No. : Segregated by UTCR Age : [39] Date of Birth : Segregated by UTCR Husband's Employer : Segregated by UTCR Employer's address : Segregated by UTCR Employer's telephone no. : Segregated by UTCR MONEY AWARD FOR CHILD SUPPORT. Judgment Creditor : [Hattie Nuff] Judgment Creditor's Address : [8887 Progress Way Portland, Oregon, 97214] Judgment Creditor's Attorney : [Curtis Edge] Address of Judgment [808 SW Third Ave. Creditor's Attorney : Portland, OR 97204] Telephone : [ ] Judgment Debtor : [Phil Lander] Judgment Debtor's Address : [219 S. 12 Ave. Portland, OR 97214] Debtor's Date of Birth : Segregated by UTCR Page 26 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 54

327 Chapter 5 Drafting General Judgments of Dissolution of Marriage (Year of birth : [1973] Debtor's Social Security No. : Segregated by UTCR (last four numbers : [1234] Debtor's Driver's License No. : Segregated by UTCR (Issuing state and last four numbers : Oregon [1234] Judgment Debtor's Attorney : [Rilely Upum] Number of Children : [Two] Names of Children of the Parties : [Tony and Becky Lander] Children s Birthdates : Segregated by UTCR Judgment Amount : $[576] (Child Support Wife shall have a child support award against Husband and Husband is ordered to pay to Wife the sum of $[576] per month for child support. Support shall begin on [March 1, 2013], and shall be payable on the first day of each month thereafter until the children reach the age of 18, or age 21 if they are regularly attending school as defined by applicable Oregon law, or until a child for whom support is ordered dies, becomes emancipated, marries, or until further order of the court, whichever occurs first. Prejudgment Interest : None Postjudgment Interest : Nine percent per annum simple interest for each payment that is not paid when due from the date the payment is due. Arrearage : None Attorney Fees Awarded : None Cash Medical Support : None Costs Awarded : None 35. MONEY AWARD FOR SPOUSAL SUPPORT. Judgment Creditor : [Hattie Nuff] Judgment Creditor's Address : [8887 Progress Way Portland, Oregon, 97214] Judgment Creditor's Attorney : [Curtis Edge] Address of Judgment [808 SW Third Ave.] Creditor's Attorney : [Portland, OR 97204] Telephone : [ ] Page 27 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 55

328 Chapter 5 Drafting General Judgments of Dissolution of Marriage Judgment Debtor : [Phil Lander] Judgment Debtor's Address : [219 S. 12 Ave. Portland, OR 97214] Debtor's Date of Birth : Segregated by UTCR (Year of birth : [1973] Debtor's Social Security No. : Segregated by UTCR (last four numbers : [1234] Debtor's Driver's License No. : Segregated by UTCR (Issuing state and last four numbers : Oregon [1234] Judgment Debtor's Attorney : [Rilely Upum] Judgment Amount : Varies (Spousal Support Wife shall have a spousal support award against Husband and Husband is ordered pay to Wife spousal support as follows: A. $[1,500] per month from March 1, 2013 through and including the paymen[t due on [February 1, 2014], as transitional spousal support; and B. $[2,500] per month from [March 1, 2013], through and including the payment due on [February 1, 2021], as spousal maintenance support; and C. $[3,000] per month from [March 1, 2013], through and including the payment due on [February 1, 2019], as compensatory support; at which time support ends, or upon the death of either party, or further order of the court, whichever occurs first. Prejudgment Interest : None Post judgment Interest : Nine percent per annum simple interest for each payment that is not paid when due from the date the payment is due. Arrearage : None Attorney Fees Awarded : None Costs Awarded : None 36. EQUALIZING MONEY AWARD. Judgment Creditor : [Hattie Nuff] Judgment Creditor's Address : [8887 Progress Way Portland, Oregon, 97214] Judgment Creditor's Attorney : [Curtis Edge] Address of Judgment [808 SW Third Ave.] Creditor's Attorney : [Portland, OR 97204] Telephone : [ ] Judgment Debtor : [Phil Lander] Page 28 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 56

329 Chapter 5 Drafting General Judgments of Dissolution of Marriage Judgment Debtor's Address : [219 S. 12 Ave. Portland, OR 97214] Debtor's Date of Birth : Segregated by UTCR (Year of birth : [1973] Debtor's Social Security No. : Segregated by UTCR (last four numbers : [1234] Debtor's Driver's License No. : Segregated by UTCR (Issuing state and last four numbers : [Oregon 1234] Judgment Debtor's Attorney : [Rilely Upum] Judgment Amount Prejudgment Interest : None Interest : $[50,000] (Equalizing Money Award Nine percent per annum simple interest on the sum of $[50,000] from the date of entry of this judgment until paid in full. Arrearage : None Attorney Fees Awarded : None Costs Awarded : None DATED on [March, 2013]. Circuit Court Judge Page 29 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 57

330 Chapter 5 Drafting General Judgments of Dissolution of Marriage IT IS SO AGREED [Hattie Nuff], Petitioner [Phil Lander], Respondent Date Date STATE OF OREGON County of [Multnomah] [Hattie Nuff] personally appeared before me and acknowledged the foregoing to be her voluntary act on [March, 2013]. Notary Public for Oregon STATE OF OREGON County of [Multnomah] [Phil Lander] personally appeared before me and acknowledged the foregoing to be his voluntary act on [March, 2013] Notary Public for Oregon Page 30 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 58

331 Chapter 5 Drafting General Judgments of Dissolution of Marriage Submitted by: [The Law Firm Of Curtis Edge, LLC Curtis Edge, OSB No ] Attorney for Petitioner Approved as to form: Dated [Rilely Upum, OSB No ] Attorney for Respondent Page 31 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 59

332 Chapter 5 Drafting General Judgments of Dissolution of Marriage STATUTORY NOTICES NOTICE OF INCOME WITHHOLDING (ORS This support order is enforceable by income withholding under Oregon law. Withholding shall occur immediately, whenever there are arrears at least equal to the support payment for one month, whenever the obligated party requests such withholding, or whenever the obligee requests withholding for good cause. The district attorney or, as appropriate, the Division of Child Support of the Department of Justice, will assist in securing such withholding. Exceptions may apply in some circumstances. NOTICE REGARDING CHILD SUPPORT AND PARENTING TIME (ORS The terms of child support and parenting time (visitation are designed for the child's benefit and not the parent's benefit. You must pay support even if you are not receiving visitation. You must comply with visitation orders even if you are not receiving child support. Violation of child support orders and visitation orders is punishable by fine, imprisonment, or other penalties. Publicly funded help is available to establish, enforce and modify child support orders. Paternity establishment services are also available. Contact your local district attorney, domestic relations court clerk, or the Department of Justice at for information. Publicly funded help may be available to establish, enforce, and modify visitation orders. Forms are available to enforce visitation orders. Contact the domestic relations court clerk or civil court clerk for information. INFORMATION TO BE PROVIDED TO THE DEPARTMENT OF JUSTICE (ORS (8(a,(b(A The parties must inform the court and the Department of Justice in writing of any change in either party's residence, mailing or contact address, Social Security number, telephone number, drivers license number, and any change in the name, address and telephone number and of either party's employer within 10 days after such change. NOTICE OF PERIODIC REVIEW (ORS (8(b(B Either party may request that the Department of Justice review the amount of child support ordered after three years or at any time upon a substantial change of circumstances. //// //// Page 32 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 60

333 Chapter 5 Drafting General Judgments of Dissolution of Marriage NOTICE REQUIRED REGARDING A CHILD'S INCOME, MARRIAGE, AND MILITARY SERVICE (ORS The custodial parent must inform the parent paying child support if a minor child of the parties receives income from gainful employment, marries, or enters the military. If the custodial parent fails to provide such notice, the court may order the custodial parent to make restitution of money to the parent paying child support. NOTICE REQUIRED BEFORE PARENT MOVES (ORS (1 While the children of the parties are minors, neither party may move to a residence more than sixty miles further distant from the other party without giving the other party reasonable written notice of the change of residence and providing a copy of such notice to the court. NOTICE REQUIRED REGARDING EMERGENCY CIRCUMSTANCES (ORS Both parties have a continuing responsibility to provide addresses and contact telephone numbers to the other parent and to immediately notify the other parent of any emergency circumstances or substantial changes in the health of the child Page 33 - STIPULATED GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 61

335 Chapter 5 Drafting General Judgments of Dissolution of Marriage 1 Form 5-2 Notice of Intent to Take DefauLT IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [HATTIE NUFF], and [PHIL LANDER], FOR THE COUNTY OF [CLACKAMAS] Petitioner, Respondent. Case No. [DR ] NOTICE OF INTENT TO OBTAIN ORDER AND JUDGMENT OF DEFAULT Respondent was served with a true copy of the Summons and Petition for Dissolution of Marriage within the County of [Clackamas], Oregon, on [January 1, 2013]. Respondent has not filed an answer or otherwise responded. Respondent has not indicated that [he] intends to file an answer or otherwise respond. Petitioner gives notice that [he] intends to seek an order and judgment of default in the above-captioned case. DATED on [February, 2013]. [THE LAW FIRM OF PETER BUNCH, LLC] [Curtis Edge], OSB No. [000000] Attorney for Petitioner Trial Attorney: [Curtis Edge] Page 1 - NOTICE OF INTENT TO OBTAIN ORDER AND JUDGMENT OF DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 63

336 Chapter 5 Drafting General Judgments of Dissolution of Marriage CERTIFICATE OF SERVICE I certify that I served a copy of the foregoing NOTICE OF INTENT TO OBTAIN ORDER AND JUDGMENT OF DEFAULT on the respondent on [February 1, 2013], by regular mail, placed in a sealed envelope, addressed to the following at the address set forth below, and deposited in the U.S. Post Office in Portland, Oregon with postage prepaid [Phil Lander] [219 S 12 Ave. Portland, OR 97214] [Curtis Edge], OSB No. [000000] Attorney for Petitioner Page 2 - NOTICE OF INTENT TO OBTAIN ORDER AND JUDGMENT OF DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 64

337 Chapter 5 Drafting General Judgments of Dissolution of Marriage Form 5-3 Prima Facie Affidavit in Support of a DefauLT Judgment IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [HATTIE NUFF], and [PHIL LANDER], FOR THE COUNTY OF [CLACKAMAS] Petitioner, Respondent. STATE OF OREGON County of [Multnomah] proceeding. I, [Hattie Nuff], upon affirmation, state as follows: Case No. [DR ] PETITIONER S PRIMA FACIE AFFIDAV IT 1. I am the petitioner in the above-captioned dissolution of marriage 2. Respondent and I were married on [December 23, 1995], in [Portland, Oregon], and since that time have been husband and wife. 3. Irreconcilable differences between Respondent and me have caused the irremediable breakdown of our marriage. 4. There is no domestic relations suit or petition for support involving this marriage pending in any other court in this or any other state. 5. Respondent and I were residents of and domiciled in the State of Oregon for more than six continuous months before the commencement of this suit for dissolution of marriage. Page 1 - PETITIONER S PRIMA FACIE AFFIDAV IT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 65

338 Chapter 5 Drafting General Judgments of Dissolution of Marriage Respondent was served with the summons and petition within the County of [Clackamas] and State of Oregon on January 1, [He] was not at the time of acceptance of service and is not now in the military service, an unrepresented minor, or an incapacitated party. 7. Respondent was also served with a Notice of Intent to Take Default on [February 1, 2013]. [He] did not file an appearance in this proceeding or give notice of an intent to file an appearance or otherwise respond. The court signed an order of default on [February 19, 2013]. 8. I am age [39]. Respondent is age [39]. 9. My gross monthly income is about $[3,500]. Respondent's gross monthly income is about $[10,000]. 10. Two children were born of this marriage: [Edward Lander, age 12, and Kathy Lander, age 10]. 11. I am not pregnant. 12. Oregon is the home state of our minor children. There is no other litigation concerning the custody of the children in this or any other state. There is no other person or persons other than Respondent and me who now have or have had physical custody or visitation rights as to the children. 13. Our minor children have resided with me at my address, separately submitted under UTCR 2.130(2, for the six months immediately before my signing of this affidavit. 14. The factual allegations in the Petition for Dissolution of Marriage are true. 15. I have completed the mandatory parenting class. 16. It is in the best interest of our children for this matter to be concluded as promptly as possible. I do not believe that Respondent has or will take the class. I am //// Page 2 - PETITIONER S PRIMA FACIE AFFIDAV IT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 66

339 Chapter 5 Drafting General Judgments of Dissolution of Marriage asking that the court enter the Judgment notwithstanding his failure to take the parenting class. DATED on [February, 2013] [Hattie Nuff], Petitioner Signed and affirmed before me on [February, 2013]. Notary Public for Oregon Page 3 - PETITIONER S PRIMA FACIE AFFIDAV IT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 67

341 Chapter 5 Drafting General Judgments of Dissolution of Marriage 1 Form 5-4 DefauLT Judgment IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [CLACKAMAS] In the Matter of the Marriage of: [HATTIE NUFF], Petitioner, and [PHIL LANDER], Respondent. Case No. [DR ] GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT This matter came before the court on the motion and affidavit of Petitioner [Hattie Nuff] (Wife. The court considered the evidence Wife presented in her affidavit and the record and file in this proceeding. Now, therefore, THE COURT FINDS as follows: A. The parties were married on [December 23, 1995], in [Portland, Oregon]. B. No other domestic relations suit or petition for support involving these parties is pending in any other court in this or any state. C. Both parties were residents of and domiciled in the State of Oregon continuously for six months immediately preceding the filing of the Petition for Dissolution of Marriage. D. Irreconcilable differences between the parties have resulted in the irremediable breakdown of the marriage. E. Respondent [Phil Lander] (Husband was served on [January 1, 2013]. The court has personal and subject matter jurisdiction. Page 1 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 69

342 Chapter 5 Drafting General Judgments of Dissolution of Marriage F. Husband did not file a response or otherwise appear in any manner in this proceeding and did not ever provide a written or oral statement that he intended to file a response. Wife served a Notice of Intent to Take Default on Husband on [February 1, 2013]. Husband did not respond. The court signed an Order of Default on [February 19, 2013]. G. There are two minor children of the marriage: [Edward Lander, age 12, and Kathy Lander, age 10]. Wife is not now pregnant. H. The children lived continuously in the State of Oregon with a parent for at least six months before the filing of this dissolution of marriage proceeding. The court has exclusive jurisdiction to make child custody and parenting time determinations pursuant to the Uniform Child Custody Jurisdiction And Enforcement Act, ORS et seq. I. Husband's monthly gross income is $[10,000]. Wife's monthly gross income from employment is $[3,500] per month. She is also receiving spousal support of $[1,750] under this judgment. Husband is not entitled to a parenting time credit. Husband provides health insurance for the children at a cost of $[200] per month. There is no cost for Husband's health insurance for himself. Wife provides work-related day care for the children at a cost of $[600] per month. Based on the above factors, Husband's presumed child support obligation under the Oregon Child Support Guidelines is $[1,476] per month. The presumed amount of child support is set forth in the attached Exhibit 1, which is incorporated by reference. J. Husband is providing health insurance coverage for the children that is reasonable in cost and appropriate and available as defined in ORS , ORS , and OAR There are no recurring monthly medical expenses for the children. Accordingly, the court finds that neither party should be required to pay cash medical support in this judgment. Page 2 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 70

343 Chapter 5 Drafting General Judgments of Dissolution of Marriage K. Wife is awarded spousal maintenance as set forth in paragraph 4 of this judgment based on the following factors: (1 This is a marriage of [17] years in which Husband's earning capacity substantially exceeds Wife's earning capacity. (2 Husband is age [39]. (3 Wife is age [39] and is good health. (4 The parties had a good standard of living during the marriage, which included vacations, luxury automobiles, and investing in multiple business ventures. (5 The support will be tax deductable to Husband and taxable to Wife. (6 Based on the disparity between the parties incomes and earning capacities, spousal maintenance is appropriate so that Wife can enjoy a standard of living not overly disproportionate to the standard of living of the parties as established during their marriage. L. Wife is awarded compensatory spousal support as set forth in paragraph 4 of this judgment based on the following factors: A. Wife made significant contributions to Husband s earning capacity as follows. (1 Wife supported Husband s efforts during the marriage to establish several of his businesses. (2 Wife s assumption of virtually all homemaker responsibilities, in addition to active involvement in helping Husband work through personal and business issues, allowed Husband to focus on nurturing his business ventures. (3 Because of Husband s actions, the marital estate has not yet benefited from Wife s prolonged and significant contributions to Husband s earning capacity. Page 3 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 71

344 Chapter 5 Drafting General Judgments of Dissolution of Marriage 1 2 (4 This is a marriage of [17] years. (5 Husband has a substantially higher earning capacity than 3 does Wife. 4 (6 The support will be tax deductable to Husband and taxable to Wife. M. Husband did not provide any discovery during the dissolution of marriage process. Based on the foregoing Findings of Fact, and the court being fully advised, NOW, THEREFORE, IT IS ORDERED AND ADJUDGED as follows: 1. TERMINATION DATE OF THE MARRIAGE. The marriage of the parties is dissolved and the marriage terminates on the day the court signs this judgment. 2. LEGAL CUSTODY GENERAL PARENTING PLAN. Wife is awarded sole legal custody of the parties' minor children, subject to Husband s right to parenting time as set forth in the attached parenting plan, which is incorporated into this judgment as Exhibit MONEY AWARD FOR CHILD SUPPORT. Wife shall have a money award for child support against Husband and Husband is ordered to pay to Wife the sum of $[1,476] per month for child support. Support begins on [March 1, 2013], and is payable on the first day of each month thereafter until the children reach the age of 18, or age 21 if they are regularly attending school as defined by applicable Oregon law, or until a child for whom support is ordered dies, becomes emancipated, or marries, or until further order of the court, whichever occurs first. Interest accrues at the statutory rate of nine percent simple per annum beginning the day each payment is due, but not paid, until the payment owing is paid in full. //// Page 4 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 72

345 Chapter 5 Drafting General Judgments of Dissolution of Marriage To the fullest extent allowed by law, interest on child support payments is deemed as further child support and is not taxable to Wife. The provisions of ORS and any modifications to that statute or any successor statute effective after the date of this judgment apply to child support owed to a child who is attending school as defined by Oregon law. A copy of ORS is attached as Exhibit 3 to this judgment and is incorporated by reference. 4. MONEY AWARD FOR SPOUSAL SUPPORT. Wife shall have a money award for spousal support against Husband and Husband is ordered to pay Wife spousal support as follows: A. $[750] per month from [March 1, 2013], and indefinitely thereafter on the first date of each month as spousal maintenance; and B. $[1,000] per month from [March 1, 2013], through and including the payment due on [May 1, 2021], as compensatory support. Interest accrues at the statutory rate of nine percent per simple annum beginning on the day each spousal support payment is due, but not paid, until the payment owing is paid in full. Husband's spousal support obligation continues in the amount and duration as forth above, at which time support will end, or until the death of either party, or further order of the court, whichever occurs first. All payments made by Husband to Wife for spousal support are deductible by Husband for state and federal income tax purposes and must be included in Wife's income for state and federal income tax purposes. 5. WAGE WITHHOLDING ORDER. Wife elects to have the child and spousal support payments paid through wage withholding. Accordingly, all support ordered in this judgment shall be paid by wage withholding pursuant to ORS Chapter 25 and is subject to the collection accounting, Page 5 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 73

346 Chapter 5 Drafting General Judgments of Dissolution of Marriage distribution, and enforcement services provided by the Department of Justice (DOJ PO Box 14506, Salem, Oregon ( or This income withholding order must reflect the DOJ as payee. The support is payable directly to Wife directly to Wife until Husband receives notice of income withholding. 6. HEALTH INSURANCE AND EXPENSES. Until further order of the court, as further child support, so long as Husband has an obligation to pay child support for or to the parties' children, Husband is ordered to provide satisfactory health care coverage for the children so long as it is reasonable in cost and appropriate and available as defined in ORS and , and OAR , or any successor statutes and administrative rules. Wife shall pay the first $[250] in each calendar year for the reasonable and necessary unreimbursed health care costs for each of the parties' children. Wife must provide written documentation to Husband of the payment of the $[250] for each child by first class mail or hand delivery, after which the parties will equally divide all reasonable and necessary medical, hospital, dental, orthodontia, eye, mental health, and other health care costs or expenses for each child that are uninsured or unreimbursed by such insurance. The party receiving an Explanation of Benefits (EOB form showing the amount of uninsured heath care expenses owed must provide a copy of the EOB to the other party within 30 days after receipt. Each party must pay his or her share of the amount owed directly to the health care provider, no later than 30 days after the a party receives the EOB. If a party does not timely make his or her payment, the other party may obtain a supplemental judgment and money award against the nonpaying party for all amounts owing, which shall bear interest at the statutory rate from the from the date expense was incurred. //// Page 6 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 74

347 Chapter 5 Drafting General Judgments of Dissolution of Marriage If a party must make a payment at the time of health care service, that party must send the other party documentation of such health care expense and payment by first class mail, no later than 30 days after the date of service. Documentation means either a canceled check, a receipt, a bill stamped paid, a credit card statement showing the expense, or an equivalent document showing the health care service provided and payment for the service. The other party must reimburse the payor party his or her share within 30 days thereafter. 7. LIFE INSURANCE. Until further order of the court, so long as Husband has an obligation to contribute towards child support, or an arrearage exists for unpaid child support, he is ordered to maintain and pay premiums on life insurance insuring his life in the amount of at least $[250,000] with Wife as the primary beneficiary for the benefit of the children's needs upon Husband's death. Husband must obtain the required insurance no later than 60 days after the court signs this judgment. The court retains jurisdiction to enter a supplemental judgment amending this section with respect to the policy name, number, and amount of life insurance. Husband may not obtain any loans against such insurance or otherwise pledge, encumber, or take any action that would cause Wife to receive less than $[250,000] upon his death. In addition, until further order of the court, so long as Husband has an obligation to pay spousal support or an arrearage exists for unpaid spousal support, he must maintain and pay premiums on life insurance insuring his life in the amount of $[250,000] with Wife as the primary beneficiary. Husband must obtain the required insurance no later than 60 days after the court signs this judgment. The court retains jurisdiction to enter a supplemental judgment Page 7 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 75

348 Chapter 5 Drafting General Judgments of Dissolution of Marriage amending this section with respect to the policy name, number, and amount of life insurance. Husband must not obtain any loans against such insurance or otherwise pledge, encumber, or take any action that would cause Wife to receive less than $[250,000] upon his death. In addition, the following requirements apply to Husband's life insurance obligation under this section. A. Husband has the right to change insurance policies so long as the amount of the death benefit is equal to or greater than the amount Wife is entitled to receive as set forth above. Husband must comply with all other provisions of this section in the event substitute insurance is obtained and shall provide Wife with information regarding the new policy within 60 days after obtaining such new insurance. B. During the term of the obligation to maintain life insurance, Husband must give Wife, upon her written request, a copy of such policy or policies or evidence that the proper life insurance is in force with the appropriate beneficiary designation in effect. C. After Husband obtains the required policies, he must immediately provide copies to Wife. Thereafter, Wife must timely provide a certified copy of this judgment to the appropriate life insurance company or companies in accordance with the provisions of ORS (6. D. Husband must instruct such insurance company or companies to update records to comply with the life insurance provisions incorporated or included in this judgment. Husband must provide Wife proof of compliance with this provision within 60 days after entry of this judgment. E. Husband must instruct the insurance company or companies from which he has insurance as required in this section to provide Wife with written notice (1 Page 8 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 76

349 Chapter 5 Drafting General Judgments of Dissolution of Marriage if any premiums have not been paid; (2 of any action that will reduce the benefits; and (3 if the beneficiary designations have been changed. F. If Husband does not pay the premiums on the policy, Wife may pay the policy premiums and may obtain a supplemental judgment for reimbursement. G. To the extent allowed by law, a constructive trust will be imposed over the proceeds of any life insurance paid from any policy on Husband s life if he fails to maintain life insurance in the amount and with the beneficiary designation set forth in this section. If the life insurance benefits paid on Husband s death are less than the amount required in this section, there is a claim against his estate for the difference between the specified amount and the death benefit paid. If Husband cohabits with another person in a relationship akin to marriage or remarries, he must provide his partner or spouse with a copy of this judgment, and must notify Wife in writing, sent by registered mail, return receipt requested, that he has complied with the provisions of this section. H. Except as otherwise specifically provided in this judgment, each party expressly releases the other from all claims and demands of insurance on the life of the other. To the fullest extent allowed by law, this judgment serves as revocation of a party as "beneficiary" and "surviving spouse" on all life insurance policies on the life of the other party, even if the party owning the relevant asset makes no formal change of beneficiary. The only exceptions are those specifically provided in this judgment. 8. PROPERTY AND ASSETS AWARDED TO WIFE. Wife is awarded following personal property, free all claims by Husband, subject to any indebtedness, liens, taxes, encumbrances, and liabilities of any kind against such property, which Wife must pay, indemnify, and hold Husband harmless therefrom: A. Wife's [Edward Jones] IRA ending on numbers [2001]; /// Page 9 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 77

350 Chapter 5 Drafting General Judgments of Dissolution of Marriage 1 B. Wife's [Bank of America] checking account ending on numbers 2 [6001]; 3 C. Wife's [Bank of America] savings account ending on numbers 4 [4501]; D. [2000 BMW 740i, VIN BBAGG888YDN77301]; E. Furniture, furnishings, and personal property in Wife's possession. 9. PROPERTY AND ASSETS AWARDED TO HUSBAND. Husband is awarded the following personal property, free of all claims by Wife, subject to any indebtedness, liens, taxes, encumbrances, and liabilities of any kind against such property, which Husband must pay, indemnify, and hold Wife harmless therefrom: A. Husband's [Wells Fargo] checking account ending on numbers [0033]; B. Husband's [Wells Fargo] savings account ending on numbers [5883]; C. [1998 BMW M5, VIN ZZSDHD9337NBL05052]; E. Furniture, furnishings, and personal property in Husband's possession. 10. DISPOSITION OF FAMILY RESIDENCE. Wife is awarded the family home located at [8887 Progress Way, Portland, Oregon, 97214], and legally described as follows: [Lot 12, Parcel 9, Progress Estates, County of Multnomah, State of Oregon]. The property is currently listed for a short sale. The property shall remain continuously listed for sale until sold, unless Wife can obtain a loan modification that would allow her to remain in the property. If Wife cannot obtain a loan modification, the parties shall equally divide the cost of any necessary repairs or improvements to bring it Page 10 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 78

351 Chapter 5 Drafting General Judgments of Dissolution of Marriage into compliance with any applicable federal, state, or local government regulations or codes, and shall equally divide the cost of any reasonable and necessary repairs or improvements the listing agent request. Effective [March 1, 2013], Wife shall have the exclusive use and possession of the property and shall be solely liable for all costs arising from its use and possession. Any outstanding real property taxes shall be paid from the sale proceeds. If there are insufficient proceeds to pay the taxes, the parties shall each be responsible for paying one half of the outstanding property taxes. The proceeds from the sale of the property shall be distributed in the following order of priority: A. Payoff of the mortgage and home equity loan secured by the property; B. Payment of all costs of sale, including, but not limited to, title reports, closing costs, real estate sales commissions, and property taxes due but unpaid; C. Reimbursement to Wife for repairs or improvements with a cost per repair or improvement paid by him or her in conformance with this section. D. Any funds remaining are awarded to Wife. 11. DEBTS. A. Husband shall assume, pay, indemnify, and hold Wife harmless from the [Wells Fargo] personal line of credit ending in numbers [8888], and all debts and liabilities in Husband's separate name. B. Wife shall assume, pay, indemnify, and hold Husband harmless from all debts and liabilities in her separate name. /// /// Page 11 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 79

352 Chapter 5 Drafting General Judgments of Dissolution of Marriage TAX ISSUES. Each party is responsible for one-half of all liabilities associated with or attendant to all joint tax returns, including, but not limited to, all taxes, interest, and penalties associated with any local, state, and federal income tax return the parties filed jointly, and all related accountant and attorney fees and costs, including appeal. Each party must pay, indemnify, and hold the other harmless as to his or her liability under this section. The parties shall equally share any tax refunds associated with or arising from any joint federal, state, and local income tax returns filed during the marriage. Effective [January 1, 2013], Wife is awarded the mortgage interest deduction and property tax deduction for the family residence. Wife is awarded the dependency exemptions for the parties' minor children, for state and federal income tax purposes, including any childcare credit, dependency exemption, and earned income credit. Wife is entitled to file as head of household. 13. REVOCATION OF BENEFICIARY DESIGNATIONS. To the fullest extent allowed by law, this judgment shall serve as revocation of a party as "beneficiary" and "surviving spouse" on all Individual Retirement Accounts, pensions, 401(k plans, profit sharing plans, ESOP, and other retirement accounts in the name of the other party, and any designation in any will, trust, and living will that benefits the other party that is now in effect, even if no formal change of beneficiary is made. 14. ATTORNEY FEES AND COSTS. Husband shall pay Wife s reasonable attorney fees and costs incurred in this dissolution of marriage proceeding, pursuant to the procedures set forth in ORCP 68. /// /// Page 12 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 80

353 Chapter 5 Drafting General Judgments of Dissolution of Marriage TRANSFER OF ASSETS. Each party must promptly sign all deeds, assignments, contracts, and other documents that may be necessary or desirable to complete the transfer of all assets and property and to complete the terms and provisions of this judgment. If either party fails to execute such documents within 30 days after the entry of this judgment, or within 30 days after a written request to do so, whichever first occurs, pursuant to ORCP 78, this judgment is equivalent thereto. 16. RELEVANT DATA. The information required by Oregon law is as follows: Wife Husband Residence and [8887 Progress Way] Mailing Address : [Portland, Oregon, 97214] Telephone No. : Segregated by UTCR Social Security No. : Segregated by UTCR Driver's License No. : Segregated by UTCR Age : [39] Date of Birth : Segregated by UTCR Maiden Name : Segregated by UTCR Former Legal Names : Segregated by UTCR Wife's Employer : Segregated by UTCR Employer's address : Segregated by UTCR Employer's telephone no. : Segregated by UTCR Residence and [219 S. 12th Ave.] Mailing Address : [Portland, OR 97214] Telephone No. : Segregated by UTCR Social Security No. : Segregated by UTCR Driver's License No. : Segregated by UTCR Age : [39] Date of Birth : Segregated by UTCR Husband's Employer : Segregated by UTCR Employer's address : Segregated by UTCR Employer's telephone no. : Segregated by UTCR MONEY AWARD FOR CHILD SUPPORT. 25 Judgment Creditor : [Hattie Nuff] 26 Judgment Creditor's Address : [8887 Progress Way Portland, Oregon 97214] Page 13 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 81

354 Chapter 5 Drafting General Judgments of Dissolution of Marriage Judgment Creditor's Attorney : [Curtis Edge] Address of Judgment [808 SW Third Ave.] Creditor's Attorney : [Portland, OR 97204] Telephone : [ ] Judgment Debtor : [Phil Lander] Judgment Debtor's Address : [219 S. 12th Ave. Portland, OR 97214] Debtor's Date of Birth : Segregated by UTCR (Year of birth : [1973] Debtor's Social Security No. : Segregated by UTCR (last four numbers : [1234] Debtor's Driver's License No. : Segregated by UTCR (Issuing state and last four numbers : [Oregon 1234] Judgment Debtor's Attorney : N/A Number of Children : [Two] Names of Children of the Parties : [Tony and Becky Lander] Children s Birthdates : Segregated by UTCR Judgment Amount : $[1,476] (Child Support Wife shall have a child support award against Husband and Husband is ordered to pay to Wife the sum of $[1,476] per month for child support. Support shall begin on [March 1, 2013], and shall be payable on the first day of each month thereafter until the children reach the age of 18, or age 21 if they are regularly attending school as defined by applicable Oregon law, or until a child for whom support is ordered dies, becomes emancipated, marries, or until further order of the court, which ever occurs first. Prejudgment Interest : None Post judgment Interest : Nine percent per annum simple interest for each payment that is not paid when due from the date the payment is due. Arrearage : None Attorney Fees Awarded : Per ORCP 68 Costs Awarded : Per ORCP 68 Page 14 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 82

355 Chapter 5 Drafting General Judgments of Dissolution of Marriage MONEY AWARD FOR SPOUSAL SUPPORT. Judgment Creditor : [Hattie Nuff] Judgment Creditor's Address : [8887 Progress Way Portland, Oregon, 97214] Judgment Creditor's Attorney : [Curtis Edge] Address of Judgment [808 SW Third Ave.] Creditor's Attorney : [Portland, OR 97204] Telephone : [ ] Judgment Debtor : [Phil Lander] Judgment Debtor's Address : [219 S. 12 Ave. Portland, OR 97214] Debtor's Date of Birth : Segregated by UTCR (Year of birth : [1973] Debtor's Social Security No. : Segregated by UTCR (last four numbers : [1234] Debtor's Driver's License No. : Segregated by UTCR (Issuing state and last four numbers : [Oregon 1234] Judgment Debtor's Attorney : N/A Judgment Amount : Varies (Spousal Support Wife shall have a spousal support award against Husband and Husband is ordered pay to Wife spousal support as follows: A. $[750] per month from [March 1, 2013], and indefinitely thereafter on the first date of each month as spousal maintenance; and B. $[1,000] per month from [March 1, 2013], through and including the payment due on [May 1, 2021], as compensatory support. Prejudgment Interest : None Post judgment Interest : Nine percent per annum simple interest for each payment that is not paid when due from the date the payment is due. Arrearage : None Attorney Fees Awarded : Per ORCP 68 Costs Awarded : Per ORCP /// Page 15 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 83

356 Chapter 5 Drafting General Judgments of Dissolution of Marriage DATED on [February, 2013]. Circuit Court Judge Submitted by: [The Law Firm Of Curtis Edge, LLC] [Curtis Edge], OSB No. [000000] Attorney for Petitioner Page 16 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 84

357 Chapter 5 Drafting General Judgments of Dissolution of Marriage STATUTORY NOTICES NOTICE OF INCOME WITHHOLDING (ORS This support order is enforceable by income withholding under Oregon law. Withholding shall occur immediately, whenever there are arrears at least equal to the support payment for one month, whenever the obligated party requests such withholding, or whenever the obligee requests withholding for good cause. The district attorney or, as appropriate, the Division of Child Support of the Department of Justice, will assist in securing such withholding. Exceptions may apply in some circumstances. NOTICE REGARDING CHILD SUPPORT AND PARENTING TIME (ORS The terms of child support and parenting time (visitation are designed for the child's benefit and not the parent's benefit. You must pay support even if you are not receiving visitation. You must comply with visitation orders even if you are not receiving child support. Violation of child support orders and visitation orders is punishable by fine, imprisonment, or other penalties. Publicly funded help is available to establish, enforce and modify child support orders. Paternity establishment services are also available. Contact your local district attorney, domestic relations court clerk, or the Department of Justice at for information. Publicly funded help may be available to establish, enforce, and modify visitation orders. Forms are available to enforce visitation orders. Contact the domestic relations court clerk or civil court clerk for information. INFORMATION TO BE PROVIDED TO THE DEPARTMENT OF JUSTICE (ORS (8(a,(b(A The parties must inform the court and the Department of Justice in writing of any change in either party's residence, mailing or contact address, Social Security number, telephone number, drivers license number, and any change in the name, address and telephone number and of either party's employer within 10 days after such change. NOTICE OF PERIODIC REVIEW (ORS (8(b(B Either party may request that the Department of Justice review the amount of child support ordered after three years or at any time upon a substantial change of circumstances. //// //// Page 17 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 85

358 Chapter 5 Drafting General Judgments of Dissolution of Marriage NOTICE REQUIRED REGARDING A CHILD'S INCOME, MARRIAGE, AND MILITARY SERVICE (ORS The custodial parent must inform the parent paying child support if a minor child of the parties receives income from gainful employment, marries, or enters the military. If the custodial parent fails to provide such notice, the court may order the custodial parent to make restitution of money to the parent paying child support. NOTICE REQUIRED BEFORE PARENT MOVES (ORS (1 While the children of the parties are minors, neither party may move to a residence more than sixty miles further distant from the other party without giving the other party reasonable written notice of the change of residence and providing a copy of such notice to the court. NOTICE REQUIRED REGARDING EMERGENCY CIRCUMSTANCES (ORS Both parties have a continuing responsibility to provide addresses and contact telephone numbers to the other parent and to immediately notify the other parent of any emergency circumstances or substantial changes in the health of the child Page 18 - GENERAL JUDGMENT OF DISSOLUTION OF MARRIAGE AND MONEY AWARDS BY DEFAULT THE LAW FIRM OF CURTIS EDGE, LLC 808 SW Third Avenue Portland, Oregon Telephone: Facsimile: [email protected] Drafting Family Law Documents 5 86

359 Chapter 5 Drafting General Judgments of Dissolution of Marriage Form 5-5 Parenting Plan PARENTING PLAN This Parenting Plan applies Petitioner [Phil Lander] (Father and Respondent [Hattie Nuff] (Mother. The parents have two children, [Tony Lander, age 12, and Becky Lander, age 7] (the Children. 1. CUSTODY. The parents agree that joint legal custody and shared physical custody of their minor children, with each parent having approximately equal parenting time with the Children pursuant to this Agreement, is appropriate. The parents intend to each have an active role in providing an appropriate moral, social, economic, and educational environment for the Children. Father and Mother will make their best efforts to cooperate in making their future plans consistent with the best interests of the Children and in amicably resolving disputes as they may arise. Each parent will cooperate with the other to maintain frequent and continuing contact between the Children and the other parent. 2. RELIGIOUS TRAINING. Both parents will have input as to the Children s religious training. Each parent may elect to have the Children participate in church or a similar religious activity during his or her parenting time. 3. EDUCATION. The parents are required to confer regarding all issues involving the Children s daycare and education. In addition, the parents must confer and agree before changing the Children s present daycare, school placement, or school district. //// 1 PARENTING PLAN Drafting Family Law Documents 5 87

360 Chapter 5 Drafting General Judgments of Dissolution of Marriage 4. MEDICAL, DENTAL, MENTAL HEALTH, AND VISION CARE. The parents must confer as to the Children s health care. Both parents shall cooperate in ensuring that the Children receive their routine medical care, including, but not limited to, reasonable routine medical and dental checkups, counseling, and other health care services. The parents must share the Children s medical and prescription records. Each parent shall cooperate in providing the Children with any health care treatment they require, including the dispensing of prescription medicine to the Children while they are in the care of each respective parent. 5. PARENTING PLAN AND RESIDENTIAL SCHEDULE. The parents are encouraged to agree on the implementation of their shared physical custody arrangement and on a residential schedule for the Children as is appropriate, taking into account their regular school, athletic, religious, and recreational activities. Father will have parenting time with the Children as the parents agree. If and only if the parents are unable to agree on parenting time issues, then the following default parenting time schedule applies. A. Weekly Parenting Time. The parents shall have parenting time with the Children as follows: Mother has weekly parenting time every Monday beginning after school, or, if school is not in session, at 9:00 a.m., and ending the following Wednesday when school resumes, or, if school is not in session, at 9:00 a.m. on Wednesday. Father has weekly parenting time every Wednesday beginning after school, or, if school is not in session, at 9:00 a.m., until the following Friday when school resumes, or, if school is not in session, at 9:00 a.m. on 2 PARENTING PLAN Drafting Family Law Documents 5 88

361 Chapter 5 Drafting General Judgments of Dissolution of Marriage Friday. The parents shall alternate weekends between themselves, with Mother having parenting time from Friday through Monday during Week One, and Father having parenting time with the Children from Friday through Monday during Week Two. Each parent's weekend parenting time shall begin after school on Friday, or, if school is not in session, at 9:00 a.m. on Friday. Mother s parenting time shall end on Monday when Father s parenting time resumes as set forth in this section. Until further order of the court or agreement by the parent, Father s weekend parenting time ends at 6:00 p.m. on Sunday, provided that, if the Monday following Father s weekend is a legal or school holiday, Father s parenting time ends on Monday at 9:00 am. B. Summer Vacation Parenting Time. Each parent has the right to have parenting time with the Children for up to seven uninterrupted overnights during the summer of each year in which the other parent's parenting time need not be honored. Summer vacation parenting time may be appended to regular weekend parenting time. Father has priority in selecting summer vacation parenting time in evennumbered years. Mother has priority in selecting summer vacation parenting time in oddnumbered years. The parent having first choice of summer vacation parenting time must notify the other parent in writing on or before April 15 of each year of the dates he or she has selected for summer vacation parenting time with the Children. Within 14 days thereafter, the other parent must provide written notice of the dates selected for his or her summer vacation parenting time. 3 PARENTING PLAN Drafting Family Law Documents 5 89

362 Chapter 5 Drafting General Judgments of Dissolution of Marriage Once designated, changes in the summer vacation parenting time schedule are not allowed except by agreement of both parents. Failure of either parent to make a timely designation of summer parenting time will not result in forfeiture of parenting time rights, but gives the other parent's scheduled time priority if a conflict exists over the summer vacation parenting time. In planning vacations with the Children, each parent must take into consideration the Children s interests in participating in camps and activities, and each parent will make his or her best efforts to be flexible so that that the Children may participate in those activities. Each parent is restrained and enjoined from enrolling or scheduling the Children in any such camp or activity without first making certain that the other parent is not planning a vacation with the Children at that time. Summer vacation parenting time has priority over all other parenting time in this parenting plan. C. Holiday Parenting Time. (1 Easter. Father has parenting time on Easter in odd-numbered years and Mother has parenting time in even-numbered years, beginning when school adjourns on Friday and ending the following Monday when school resumes. (2 Thanksgiving. Father has parenting time in odd-numbered years and Mother has parenting time in even-numbered years. Thanksgiving parenting time begins when school adjourns on the Wednesday before Thanksgiving and ends the following Monday when school resumes. 4 PARENTING PLAN Drafting Family Law Documents 5 90

363 Chapter 5 Drafting General Judgments of Dissolution of Marriage (3 Winter Holiday. In even-numbered years, Father has parenting time beginning when school adjourns for the winter holiday and ending at 2:00 p.m. on Christmas Day, and Mother has winter holiday parenting time from 2:00 p.m. on Christmas Day until the Monday when school resumes after the winter holiday. In odd-numbered years, Mother has winter holiday parenting time beginning when school adjourns for the winter holiday and ending at 2:00 p.m. on Christmas Day, and Father has winter holiday parenting time from 2:00 p.m. on Christmas Day until the Monday when school resumes after the winter holiday. (4 Mother's Day. Mother has parenting time with the Children every Mother s Day. Parenting time begins on Mother's Day at 9:00 a.m. and ends the following Monday when school resumes. (5 Mother s Birthday. Mother has parenting time with the Children on her birthday. If Mother s birthday is not on Saturday or Sunday, her parenting time begins at 9:00 a.m. and ends at 8:00 p.m. If Mother s birthday is on a Saturday or Sunday, her parenting time begins at 6:00 p.m. on the Friday before Mother s birthday and ends the following Monday when school resumes. (6 Father's Day. Father has parenting time with the Children every Father s Day. Parenting time begins on Father's Day at 9:00 a.m. and ends the following Monday when school resumes. 5 PARENTING PLAN Drafting Family Law Documents 5 91

364 Chapter 5 Drafting General Judgments of Dissolution of Marriage (7 Father s Birthday. Father has parenting time with the Children on his birthday. If Father s birthday does not fall on Saturday or Sunday, his parenting time begins at 9:00 a.m. and ends at 8:00 p.m. If Father s birthday is on a Saturday or Sunday, parenting time begins at 6:00 p.m. on the Friday before his birthday and ends the following Monday when school resumes. (8 Children's Birthdays. The parents are encouraged to jointly celebrate each of the Children's birthday celebrations, and the parent who has parenting time on a child's birthday is encouraged to invite the other parent for a visit during the child's birthday. D. Priority of Parenting Time. Summer vacation parenting time has priority over all other parenting time in this schedule. Holiday parenting time has priority over a parent s regular weekly and weekend parenting time. 6. OTHER RULES AND PROCEDURES FOR PARENTING TIME. A. Passports. Either parent may obtain a passport for any of the Children, provided that they may travel out of the country only if each parent approves of the trip itinerary and dates of the trip, which approval shall not be unreasonably withheld. B. Consideration of Children s Activities. When the Children become teenagers, each parent must take into consideration their employment and age appropriate activities in adhering to this parenting time schedule. 6 PARENTING PLAN Drafting Family Law Documents 5 92

365 Chapter 5 Drafting General Judgments of Dissolution of Marriage C. Transportation. Each parent will ensure that pickup and delivery of the Children to and from all parenting time is prompt so that both parents may make plans accordingly. In no event shall the pick up or delivery be more than fifteen minutes after the designated starting and ending times for the parenting time. When transportation does not occur at school, the parent whose parenting time is ending, or his or her designee, is responsible for transporting the Children. For example, at the beginning of Mother's parenting time, Father is responsible for taking the Children to Mother's residence or such other location as the parents agree. At the conclusion of Mother's parenting time Mother is responsible for taking the Children to Father's residence or such other location as the parents agree. The parent who is providing transportation shall remain in his or vehicle during exchanges, except when it is necessary to help a child from the car, or to assist the child with the transfer of his or her belongings. In that event, the parent shall remain within five feet of the vehicle. D. Planning. (1 Each parent will feed the Children and have them ready on time for the other parent's parenting time with sufficient clothing and any necessary sporting and recreational equipment packed and ready for parenting time. (2 A parent must timely return any clothing (cleaned and ready to wear, as well as sporting and recreational equipment supplied by the other parent for the Children's parenting time. 7 PARENTING PLAN Drafting Family Law Documents 5 93

366 Chapter 5 Drafting General Judgments of Dissolution of Marriage (3 Each parent shall notify the other at least 24 hours in advance if he or she is unable to exercise his or her parenting time with the Children. (4 Any changes in the pickup and drop-off schedule shall be made in advance, and, whenever possible, shall be made via or text. E. Illness of a Child. (1 A child's illness is not grounds to cancel parenting time unless the illness is of a substantial nature and a physician or other health care provider recommends that parenting time not occur. The parent whose parenting time is cancelled on account of illness of a child is entitled to promptly receive from the other parent written documentation of such recommendation. If a child is ill as defined in this paragraph and is unable to be with the parent who is scheduled to have parenting time, makeup parenting time shall be allowed. All makeup parenting time shall be exercised within 30 days of the missed parenting time. Each parent must cooperate in scheduling the makeup parenting time. (2 If either parent fails to exercise his or her parenting time because of illness or any other reason, there is no makeup parenting time, unless Father and Mother otherwise agree. F. Personal Plans. (1 To the extent practicable, the parents shall exercise parenting time so as to avoid disrupting the Children's regular school, athletic, religious, and recreational activities. //// //// 8 PARENTING PLAN Drafting Family Law Documents 5 94

367 Chapter 5 Drafting General Judgments of Dissolution of Marriage (2 Except as otherwise provided in this parenting plan, personal plans of Mother, Father, or the Children's school activities, religious activities, or other considerations are not reasons for failing to follow this residential schedule. (3 Both parents shall be sensitive to the Children's schedules and flexible enough to ensure their participation in reasonable ongoing activities. G. Contact Information. Each parent must provide addresses and contact telephone numbers to the other parent. In the event either parent moves or changes his or her telephone number, that parent shall notify the other parent in writing of the new address and telephone number, as the case may be, within 48 hours of such change. Each parent must immediately notify the other parent of any emergencies or substantial changes in the health of the Children. H. Travel Information. Each parent is required to provide the other parent an itinerary of any trip and contact information, including telephone numbers, at least 14 days before traveling with the Children more than 300 miles from that parent s residence. An "itinerary" means the destination of the travel, the name and address of the facility where the parent and Children will be staying, and written information regarding any commercial travel, such as airline and flight numbers. In the event the travel is to a location such as a national park or campground, the "name and address" requirement is satisfied by providing the name of the park or campground. //// //// 9 PARENTING PLAN Drafting Family Law Documents 5 95

368 Chapter 5 Drafting General Judgments of Dissolution of Marriage 7. OTHER COMMUNICATION WITH THE CHILDREN. Each parent has the right to correspond with the Children by regular mail, , and text messaging, and to telephone them with reasonable frequency during reasonable hours without interference or monitoring by the other parent or anyone else in any way. In the event of a disagreement between the parents, "reasonable frequency" means a parent-initiated telephone call not more than one time per day. 8. COMMUNICATION BETWEEN PARENTS. The parents shall communicate directly with each other as to all issues regarding the Children and this Parenting Plan and all post-divorce issues. Except in the case of an emergency, or the written agreement of the parents, communications shall be via text or . Each parent is restrained from involving the Children in the above-described communications in any way whatsoever. In addition, each parent has a continuing responsibility to immediately notify the other parent of a Children's serious illness or injury. 9. AFFECTION AND RESPECT. Each parent is ordered to maintain free access and unhampered contact between the Children and the other parent and to foster affection and respect between the Children and the other parent. Each parent is restrained and enjoined from doing or saying anything that would estrange the Children from the other parent, that would injure the opinion of the Children as to the other parent, or that would impair the natural development of the Children's love and respect for each parent. Further, each parent is restrained and enjoined from making any comments about the other parent in the Children's presence that in any other way diminishes the love, respect, and affection that the Children has for either parent. 10 PARENTING PLAN Drafting Family Law Documents 5 96

369 Chapter 5 Drafting General Judgments of Dissolution of Marriage 10. OTHER RIGHTS OF EACH PARENT. To the extent allowed by law, each parent shall have the following additional rights: A. To inspect and receive school records and to consult with school staff concerning the Children's welfare and education; B. To inspect and receive governmental agency and law enforcement records concerning the Children; C. To consult with any person who may provide care or treatment for the Children and to inspect and receive the Children's medical, dental, and psychological records; D. To authorize emergency medical, dental, psychological, psychiatric, or other health care for the Children if the other is, for practical purposes, unavailable; E. To apply to be the Children's conservator, guardian ad litem, or both; and F. To be notified in case of a Children's serious illness. 11. NOTICE OF MOVE. Each parent is restrained and enjoined from moving more than 60 miles from his or her residence without first giving the other parent and the court at least 60 days' written notice before the move. "Notice" includes the fact that a parent is moving, and the location and to which the parent is moving. If the exact address is unknown, the location must set forth the city and general area to which the parent is moving. 12. PARENT UNAVAILABLE. The parents agree that if either one of them is unable to care for the Children during extended periods when the Children is scheduled to be with that parent, he or she 11 PARENTING PLAN Drafting Family Law Documents 5 97

370 Chapter 5 Drafting General Judgments of Dissolution of Marriage must first contact the other parent in order to provide that parent the first opportunity to care for the Children. An extended period is defined as eight hours or longer. 13. MEDIATION. It is in the Children's best interests for the parents to make every effort to cooperatively resolve any disagreement they may have concerning the Children. Accordingly, if the parents cannot resolve a disagreement that involves parenting time or any other substantial issue involving the Children, the parents are ordered to present the disagreement for mediation to a mutually agreed-upon counselor, lawyer, or other professional person skilled in resolving the problems of Children and their families. If the parents cannot agree on a mediator, each shall select one mediator. The sole function of the mediators selected by the parents is to select a third mediator to address the dispute. There shall be no less than one mediation session. The parents will equally divide all costs of the mediation. If the disagreement is not resolved in mediation, then either parent may file the appropriate motion in court to resolve the disagreement. Nothing in this section precludes either parent from seeking an order regarding temporary emergency custody or parenting time, an order or judgment of contempt regarding custody and parenting time issues, or an order for expedited parenting time enforcement. 12 PARENTING PLAN Drafting Family Law Documents 5 98

373 Chapter 6 After the Dust Settles: Post-Judgment Ruth E. Pekelder Pekelder Family Law Portland, Oregon Contents I. Wrapping Up II. Modification III. Enforcement IV. Cautionary Reminders Forms 6-1. Closing Letter Notice of Appeal Letter to Division of Child Support Irrevocable Release and Authorization of Information; Instruction Supplemental Judgment (Life Insurance Letter to Life Insurance Company Letter to DRO Preparer Bargain and Sale Deed Order Directing Employer to Withhold Wages Letter to Employer Statement for Attorney Fees and Cost Bill for Petitioner Supplemental Judgment for Attorney Fees Notice of Withdrawal of Attorney Motion to Modify Judgment Re Custody, Parenting Time, Child Support, Spousal Support (Ex Parte Declaration in Support of Motion to Modify Judgment Re Custody, Parenting Time, Child Support, Spousal Support (Ex Parte Order to Show Cause Re Modification Motion for Post Judgment Status Quo Order Petitioner s Declaration in Support of Motion for Post Judgment Status Quo Order Order to Show Cause Re Post Judgment Status Quo Order Motion for Post Judgment Temporary Custody Order (Immediate Danger Declaration in Support of Motion for Post Judgment Temporary Custody Order Order for Post-Judgment Temporary Custody Motion for Order to Show Cause Re Expedited Parenting Time Enforcement (Ex Parte Declaration in Support of Motion for Order to Show Cause Re Expedited Parenting Time Enforcement (Ex Parte Order to Show Cause Re Expedited Parenting Time Enforcement (Ex Parte Motion for Order to Show Cause Re Contempt (Remedial Sanction Declaration in Support of Motion for Order to Show Cause Re Contempt (Remedial Sanction Order to Show Cause Re Contempt (Remedial Sanction

374 Chapter 6 After the Dust Settles: Post-Judgment Drafting Family Law Documents 6 ii

375 Chapter 6 After the Dust Settles: Post-Judgment I. Wrapping Up The best way to organize your thoughts and next steps once the judgment is signed is to prepare a thoughtful, complete, attentive closing letter. Using a form letter to start is important because it brings to mind the mopping-up details that you may still be responsible for completing. Reviewing it carefully, with your judgment in hand, helps you make a list of tasks either you or your client still needs to accomplish. The closing letter, like all correspondence to your client, should be in your own voice. Revise this sample to suit your personality and fit the professional relationship you have with your client, but be sure to cover the relevant substantive pieces. As relieved as you may be to have the judgment signed, do not delay preparing and sending your closing letter (Form 6-1. The following issues have time-sensitive deadlines that you will compromise if you wait too long. 1. notice of Appeal (Form 6-2. If you settled the case, then you do not have to worry about filing a notice of appeal. If you took the case to trial, you have a limited time frame in which to file an appeal. Any time you go to trial, you should discuss the possibility of appeal with your client even before you know the result. If you are not going to be handling the appeal yourself, set up an appointment with your client and an attorney who does appeals as quickly as possible. Be sure that attorney knows that he or she is responsible for filing the notice of appeal if the client decides to appeal. 2. Continuation of Health Insurance. It is important for your client to know that he or she has a limited time period in which to apply for continued health coverage through his or her spouse s employer s insurance plan. Ideally, you and your client will have already explored this option and taken appropriate steps to secure coverage, but if you have not, the closing letter will convey this information and let the client know about important deadlines. 3. ORCP 68 Attorney Fee Award. Like the notice of appeal, you are probably not going to be submitting a request for attorney fees unless the case was tried rather than settled. However, if you are going to request fees and costs, ORCP 68 gives you only 14 days from the date of the entry of the judgment to submit your petition (Form Remember to file your original petition, and send a courtesy copy to the judge who heard your case. Sending the petition to the judge does not ensure it will be filed in a timely manner. Send your proposed supplemental judgment for fees (Form 6-12 to the judge at the same time so if the adverse party or attorney does not file a timely objection to your request, the judge will have everything he or she needs to make the award. You should resolve these other important issues promptly. 1. Child Support Letters to Division of Child Support (Form 6-3. If your client will be paying child support or receiving child support through the Division of Child Support, send a copy of the judgment and a letter of instruction to the division as soon as possible. If your client is paying support, the sooner the account is set up, the less opportunity there is for lost or uncounted payments. If your client is receiving support, you want the division s processes and protections in place quickly. 2. Life Insurance. It is your responsibility to be sure the life insurance company is notified of a former spouse s duty to maintain life insurance and the terms of that requirement. The most efficient way to secure the necessary notices is to have the party responsible for having life insurance in place purchase it before the judgment is signed and grant an irrevocable release to the other party (Form 6-4. If a party has an obligation to obtain life insurance, but it was not yet in place when the court signed the Judgment, you need to stay vigilant to be sure your client or the adverse party obtains the appropriate coverage. As soon as it is set, prepare and submit a supplemental judgment (life insurance (Form 6-5 so you have an enforceable order. Follow up in either case by sending a letter to the life insurance company outlining the responsibilities and limitations on the policy (Form 6-6. Drafting Family Law Documents 6 1

376 Chapter 6 After the Dust Settles: Post-Judgment 3. Domestic Relations Orders. Preparation and submission of domestic relations orders may not have quite the urgency that an appeal or COBRA coverage may have, but delays in accomplishing the transfer of retirement assets can cause problems. If the DROs have not already been prepared, move quickly to retain the professional who will be drafting the documents while you still have everyone s attention (Form Deeds. If your client has been awarded real property, have the former spouse sign a bargain and sale deed (Form 6-8 that transfers all interest to the spouse receiving the asset. Even if the parties are going to continue holding the real property jointly pending a sale, you may need a deed to describe whether the property will be held with a right of survivorship or without a right of survivorship until the sale is completed. 5. wage Withholding Order. If your client s former spouse is not reliable about paying support in a timely manner, your client will be expecting you to get a wage withholding order in place immediately. Ideally your wage withholding order (Form 6-9 was signed at the same time as the judgment, and all you need to do is send it to the employer with an instructional cover letter (Form Not until all these tasks are completed are you in a position to submit your notice of withdrawal (Form Do not forget to do so, as you leave your client exposed to not being adequately advised of further proceedings if you stay on as attorney of record but do not keep in contact with your client. II. Modification I have provided you with an all-purpose motion (Form 6-14, declaration (Form 6-15, and order to show cause for modification (Form 6-16 that cover a range of possible modifications. You should review the forms carefully and tailor them to your client s individual needs. Notice that you may need additional information depending on the focus of the modification. If you are addressing custody or parenting time, you must include UCCJEA information in your pleadings. If you are seeking to modify or terminate child support or spousal support, you must also submit a completed uniform support declaration. Similarly your client s declaration should follow the flow of your motion and give factual support to each element. Remember to include provisions of the judgment that may be tangentially related to the primary issue. For example, if you are seeking a change of custody, you should also ask to modify the right to claim a child as a dependent, or change a life insurance provision, or shift the responsibility to pay uninsured medical expenses. When drafting a motion for modification, be sure to read every word of the underlying judgment and address all clauses that have an impact on your primary issues. In addition to the generic modification, you may also be faced with more unusual fact patterns that need special treatment. Assume, for example, that under the terms of the judgment of dissolution RinTinTin was awarded primary physical custody of the puppies, and Lassie had a set parenting schedule. Assume, too, that in the years after the judgment of dissolution, the puppies began spending more and more time with Lassie, eventually attending school in her neighborhood and seeing RinTinTin on weekends. If RinTinTin then asserted under the terms of the judgment his right to have the puppies primarily with him and threatened to take them out of the school in Lassie s neighborhood, Lassie would want to file a motion for a post-judgment status quo order (Form This motion, supported by a declaration (Form 6-18 and pursuant to an order to show cause (Form 6-19, would assert Lassie s right to keep the puppies on their current schedule and routine until she is able to file and have heard a motion to modify (Forms 6-14, 6-15, and The court is interested in maintaining stability in the family, even if the parents have not been attentive to keeping their orders up to date. Note that Lassie is required to file a motion to modify if her status quo order is granted. She may not rely on the temporary order for a long-term solution. Drafting Family Law Documents 6 2

377 Chapter 6 After the Dust Settles: Post-Judgment While a post-judgment status quo order can be granted after a hearing, the court allows an emergency ex parte order changing custody and parenting time if to do so is necessary to protect children who are in immediate danger. Like the status quo order, the post-judgment temporary custody order is temporary. It is granted only if the parent filing the motion demonstrates that the children are in immediate danger. Assume RinTinTin was awarded custody in the judgment but is arrested and jailed for domestic violence against his new girlfriend, Buffy, committed in the presence of the children. Lassie would file a motion for post-judgment temporary custody (immediate danger (Form 6-20 supported by a declaration in support of motion for post-judgment temporary custody order (Form 6-21 and a proposed order for post-judgment temporary custody (Form All three of these pleadings can be presented to the court at ex parte, provided Lassie has made reasonable efforts to tell RinTinTin where, when, and why she will be appearing in court to obtain an order giving her custody, giving him an opportunity to be at court at the same time to argue his case. In addition, Lassie must be personally present at ex parte, even if her attorney is filing the motion, so the judge has an opportunity to question her, and RinTinTin if he is present, before ruling on the temporary custody order. Lassie must also file a motion to modify custody and have a hearing set in the regular course to decide that issue. If RinTinTin does not appear at ex parte and the temporary change of custody is granted, RinTinTin still has an opportunity to contest the order, request a hearing, and demonstrate that the puppies were not in immediate danger at the time Lassie got the order. III. Enforcement Because issues surrounding enforcement of parenting time are so pervasive, yet often relatively minor, the legislature has taken special steps to provide a mechanism that provides quick, efficient, simple access to the courts for parents to be heard. Although designed to be appropriate for a parent to file without an attorney, many clients still want to be represented. The motion for order to show cause re expedited parenting time enforcement (Form 6-23 tracks the statutory form. Similarly, the declaration in support of motion for order to show cause re expedited parenting time enforcement (Form 6-24 and order to show cause re expedited parenting time enforcement (Form 6-25 are designed to accomplish the same result. As with all other forms provided here, your responsibility is to tailor the template to frame your client s specific needs and issues without including unnecessary pleadings or options. If the adverse party is not in compliance with the terms of the judgment, it is always appropriate to try to bring him or her into compliance by first sending a letter to the attorney if the party is still represented or to the individual party if the other attorney has withdrawn. If a letter calling attention to the problem is sufficient to resolve it, then you have saved your client the cost of filing a motion. Even if sending a letter does not result in the desired compliance, you have established for your client a foundation for an award of attorney fees that will be compelling if your client is ultimately successful in proving contempt. Your motion for order to show cause re contempt (remedial (Form 6-26 may ask for compliance with any provisions of the judgment that are not being obeyed except it cannot be used to enforce money awards. You must utilize other statutory provisions such as garnishments and wage withholdings to obtain funds to which you are entitled but have not been paid. Like all other motions, the motion is supported by a declaration (Form 6-27, and the hearing is set by way of the order to show cause re contempt (remedial sanction (Form IV. Cautionary Reminders 1. Do not rely on any form without personally reviewing it and tailoring it to your client s specific needs. 2. All post-judgment orders must be personally served on the other party. If the adverse party s attorney has not withdrawn as attorney of record, service on the attorney may be sufficient; to be sure, you should personally serve the party. Drafting Family Law Documents 6 3

378 Chapter 6 After the Dust Settles: Post-Judgment 3. Each county has its own supplemental local rules concerning setting hearings. Tailor your order to show cause to fit with the county s requirements regarding notice and setting the hearing. 4. Your client s declaration should include enough information to alert the other party and the court as to the substance of your client s claim, but it need not be exhaustive in its scope. 5. If you make a mistake miss a deadline, fail to follow through to obtain a DRO, or otherwise lose track of a case or client call the PLF. PLF staff members are compassionate, smart, and dedicated to keeping us sane and our clients safe. Drafting Family Law Documents 6 4

379 Chapter 6 After the Dust Settles: Post-Judgment Form 6-1 Closing Letter February 28, 2013 [Lassie] [1966 Leashlaw Lane Dog River, OR 97999] Re: [Lassie & RinTinTin] Case No. [ ] My File No. [K9] Dear [Lassie]: Enclosed is a conformed copy of your [Judgment of Dissolution of Marriage] [Judgment of Legal Separation] ( Judgment. The Judgment was signed by Judge on, 2013], and your divorce became effective on that date. [You are now legally separated.] You should keep the Judgment with your other important documents, as you may need to refer to it at some time in the future. Please remember that the Judgment is a court order. You and [RinTinTin] are required to comply with all of its terms. [Option If Legal Separation] As we have discussed, the legal separation can be converted to a Dissolution of Marriage (divorce any time in the next two years. You will need to file a motion, or, if you and [RinTinTin] agree, you may be able to file a stipulated order. If more than two years go by without converting the separation to a dissolution, your rights and responsibilities could be affected, so I recommend you take this action before. You and [RinTinTin] are not divorced, so neither one of you may marry someone else until you are divorced. 1. APPEAL OR SET ASIDE. [Option 1] The Judgment is subject to appeal, by you or [RinTinTin], for a period of thirty days from the date of its entry on [date]. If neither of you files a notice of appeal within that time, then no appeal is possible. Unless I hear from you to the contrary, it is my understanding that you have decided not to appeal. Drafting Family Law Documents 6 5

380 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 2 [Option 2] Since you and [RinTinTin] agreed upon the terms of the Judgment, it cannot be appealed. A dissolution [separation] judgment can be set aside by the court under certain extreme circumstances; fraud, for example. I am not aware of any circumstances that would provide a basis for setting aside your Judgment. However, if you have any questions or concerns about this process, please do not hesitate to call me. 2. CHILD SUPPORT. [Option 1 Client receives support] You have been awarded child support in the amount of $. Remember that any monthly child support payment that is not paid on time accrues nine percent simple interest. You must take action to collect unpaid child support within 35 years from the date of the Judgment. [Option A Payment through DOJ] The Judgment requires [RinTinTin] to pay child support through the Department of Justice (DOJ. There will be some additional paperwork provided to you by DOJ. You should complete it as quickly as possible to ensure that your case is opened in a timely manner. You may also access the forms yourself and submit your request online at It may take a month or two for DOJ to actually get the collection account established. All correspondence you send to DOJ should be by Certified Mail/Return Receipt Requested so that you have proof of notices you have provided. Please remember to advise DOJ of any change in address within 10 days. Failure to keep DOJ advised of your current address will cause delays in receiving your support payments. If you request, the district attorney s office will review the child support amount periodically to determine whether it should be modified under the Oregon Child Support Guidelines. The amount of child support may be reviewed as a matter of course every three years or any time there is a substantial change in circumstances, usually a significant increase or decrease in a party s income or a change in the child s expenses. In the alternative, you may contact me or another attorney to determine if a modification is appropriate. Drafting Family Law Documents 6 6

381 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 3 [Option B Payment directly] You agreed that [RinTinTin] may pay child support to you directly. If he becomes delinquent, you may request a wage withholding order through the district attorney s office or by contacting an attorney. You should consider having the child support amount reviewed periodically. The amount of child support may be renewed as a matter of course every three years or at any time there is a substantial change in circumstances, usually a significant increase or decrease in a party s income or a change in the child s expenses. [Option 2 Client pays support] support. You have been ordered to make monthly payments of child [Option A Payment directly] You are to make your payments directly to [RinTinTin]. Keep careful track of all payments, whether by check or bank transfer, so if there is ever a dispute you can provide proof of payments. Never pay support in cash unless you also receive a signed receipt from [RinTinTin]. [Option B Payment through DOJ] You are to make your payments to the Department of Justice (DOJ, who will keep track of your payments and send them on to [RinTinTin]. DOJ will set up a permanent account on your behalf to collect and distribute support. DOJ will assign you a specific DOJ number. That number is important and should always be written on any check or correspondence you send to DOJ. Use the Circuit Court case number until the DOJ number is assigned. DOJ is not infallible in its record keeping, so keep a copy of any payment you send, and periodically request a copy of its records so any discrepancies are addressed quickly. them to: Make your checks payable to the Department of Justice, and mail Department of Justice Division of Child Support P.O. Box Salem, OR Let DOJ know of any change in your home or business address within ten days after the change. [Option 3 Payment by wage withholding] Your support obligation will be paid by wage withholding from your employer. This is not a Drafting Family Law Documents 6 7

382 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 4 garnishment and does not imply that you are not responsible enough to make the payments yourself. It is simply the way that Oregon law requires child support payments to be made in most cases. The law also prohibits your employer from taking any type of action against you because of the wage assignment. Let me know if you have any problem with your employer in this regard. Until the wage assignment is activated, you should mail all your support payments directly to DOJ [or to [RinTinTin]]. 3. PARENTAL RIGHTS AND RESPONSIBILITIES. [Option 1 Client has legal custody] As the custodial parent, remember to notify [RinTinTin] when a minor child receives income from gainful employment, is married, or enters the military service. If your child plans to continue [his/her] education beyond the age of 18, be sure to notify [RinTinTin] in writing of your child s intentions during [his/her] senior year in high school. A child s transition to college may be an appropriate time to review the child support obligation. [Option 2 Client does not have legal custody] [RinTinTin] is obligated to keep you informed if a child becomes employed, marries, or enters the military service if you do not receive that information directly from your child. You should also be given notice if a child plans to attend college. A child s transition to college may be an appropriate time to review the child support obligation. You and [RinTinTin] each have the right: To inspect and receive school records and to consult with school staff concerning your child s welfare and education, to the same extent as the other parent; To inspect and receive governmental agency and law enforcement records concerning your child, to the same extent as the other parent; To consult with any person who may provide care or treatment for your child and to inspect and receive your child s medical, dental, and psychological records, to the same extent as the other parent; Drafting Family Law Documents 6 8

383 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 5 To authorize emergency medical, dental, psychological, psychiatric, or other health care for your child if the other parent is, for practical purposes, unavailable; and both. To apply to be your child s guardian ad litem, conservator, or Each of you has a continuing responsibility to: other parent; and Provide addresses and contact telephone numbers to the Notify the other parent of any emergency circumstances or substantial changes in a child s health. Remember to notify [RinTinTin] in writing 60 days in advance if you plan to move more than 60 miles further from [him], and provide a copy of your notice to the [Dog River] County Circuit Court. [Adjust to be consistent with judgment terms] 4. PARENTING PLAN ENFORCEMENT. Oregon law provides for rapid legal responses to either parent s violation of a parenting plan. If a violation occurs, you may obtain forms at the courthouse to assist you in enforcing your rights and preserving the terms of the parenting plan for the child. If you wish, I can also assist you. 5. SPOUSAL SUPPORT. [Option 1 Client receiving support] Remember to report the spousal support you receive as income on your tax returns. Depending on the amount you receive, you may need to make estimated quarterly tax payments. Consult with an accountant to determine if you should be making such payments and, if so, in what amount. If you do not already have an accountant, you may contact me for a referral. Spousal support can be modified if there is a substantial change in circumstances. If you think a modification may be appropriate, please contact an attorney to discuss your options. Each monthly spousal support payment that is not paid is a judgment, which accrues simple interest at the rate of nine per cent per annum. If Drafting Family Law Documents 6 9

384 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 6 [RinTinTin] should fall behind on payments, credit the payments you do receive to the oldest of obligations still outstanding. You may seek to collect any unpaid spousal support for up to 25 years from the Judgment date of entry. If any support is still owing to you as the 25-year time frame approaches, please contact me or another attorney to take steps to collect your judgment. [Option 2 Client paying support] Keep copies of all records of payments of spousal support so you can prove your payments if there is ever a dispute. Never pay spousal support in cash or pay an expense in lieu of spousal support unless [RinTinTin] signs a receipt. When you have completed your spousal support payments, you should ask [RinTinTin] to sign a Full Satisfaction for you to file with the court. This document proves you have satisfied the debt you owe. I can help you with this when the time comes, if you wish. Remember to deduct your spousal support payments on your income tax returns. You may want to adjust the amounts withheld from your pay to allow for this deductibility. Consult with an accountant if you have questions in this regard. If you do not already have an accountant, you may contact me for a referral. Spousal support can be modified if there is a substantial change in circumstances. If you think a modification may be appropriate, please contact an attorney to discuss your options. 6. LIFE INSURANCE. [Option 1 Client the beneficiary] The Judgment states that [RinTinTin] is to pay and maintain life insurance to protect your support in the event [he] dies. I am sending a letter to the insurance company confirming this obligation. Every year you should check with the insurance company to be sure the proper insurance is still in place. [Option 2 Client to maintain] The Judgment states that you are to pay and maintain life insurance for so long as you have a support obligation. Please provide [RinTinTin] with a true copy of your policy, showing the appropriate coverage and beneficiaries named. This policy may not be reduced by loans or by any other means until your support obligation has been fulfilled. Drafting Family Law Documents 6 10

385 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 7 [Amend if both parties are to maintain] 7. PROPERTY JUDGMENT. [Option 1 Client owes equalizing award] You owe [RinTinTin] an equalizing award of $, payable as stated in the Judgment. This debt will show on your credit report until it is paid. For that reason, it is important that [RinTinTin] signs a document called a Satisfaction when you have paid the money award in full so that the public records reflect that payment. An unsatisfied money award is or may become a lien against any land you own. [Option 2 Client owed equalizing award] You have a money award against [RinTinTin] in the sum of $. This debt is a lien against any real property [he] owns in this county. The lien will expire at the end of ten years from the date of the judgment, unless it is renewed by a new court order. Well before those ten years have passed, if you have not yet been paid in full, please contact me or another attorney in order to have the judgment lien renewed, so that it can remain enforceable for an additional ten years. When [RinTinTin] pays you, [he] may ask you to sign a Satisfaction. If you have any questions about whether the Satisfaction is correct, please contact an attorney. 8. PAYMENT OF DEBTS. [RinTinTin] has been ordered to pay certain debts that are still in joint names. If [he/she] fails to pay as ordered, your mutual creditors may seek to collect from you, and they are within their rights to do so. Your recourse then is against [RinTinTin] as described in the Judgment. If [RinTinTin] files for bankruptcy, contact an attorney immediately in order to preserve your rights. 9. DOMESTIC RELATIONS ORDERS. [Option 1 Client to receive] You were awarded a portion of [RinTinTin] s retirement assets. A Domestic Relations Order (DRO needs to be prepared to transfer a portion of [RinTinTin] s retirement into your name. I will retain on your behalf to prepare the DRO. Please feel free to contact directly if you have any questions regarding the DRO. After the DRO is prepared, it must be approved by the plan administrator and then sent to the court for signature. Finally, a certified copy will be sent to the plan administrator. It is important that you keep the pension plan advised of any changes in your address, so it can locate you at any time to provide notice of any change in the plan or to let you know that a claim for benefits has been made. Your failure to keep the pension company advised of your address could jeopardize your right to receive pension benefits. Drafting Family Law Documents 6 11

386 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 8 [Option 2 Adverse party to receive] [RinTinTin] was awarded a portion of your retirement benefit. A Domestic Relations Order (DRO needs to be prepared to transfer [his] share of the retirement into [his] name. I will retain on your behalf to prepare the DRO. Please feel free to contact directly if you have any questions regarding the DRO. After the DRO is prepared, it must be approved by the plan administrator and then sent to the court for signature. Finally, a certified copy will be sent to the plan administrator. It is important that you keep the pension plan advised of any changes in your address. 10. COBRA. You may wish to continue to carry medical insurance coverage from the company that provides [RinTinTin] s group insurance. If you do, you must promptly apply for what is called portability coverage, continuation coverage, or COBRA coverage. The rules vary in how long that you have to apply, but your deadline may be as short as 30 days from the date your Judgment was signed by the court, so please act promptly! I suggest that you make application to both [RinTinTin] s medical insurance company and [his] Health Benefit Administrator. You will receive no notice of this deadline, and, if you miss it, you will lose your right to obtain this type of medical insurance coverage. New coverage may well be more expensive or exclude any pre-existing conditions that you have. I will not handle this for you unless you specifically ask me to do so. 11. MODIFICATION. The division of property in the Judgment is not modifiable. However, it may be possible for you or [RinTinTin] to modify other terms of the Judgment in the future. In order to modify support or custody provisions, the court must be satisfied that a substantial change of circumstances has occurred since the original Judgment or the latest order. Parenting time can be modified without showing a substantial change of circumstances, provided that the award of custody remains undisturbed and that the best interests of the child require the modification. 12. HOUSEKEEPING MATTERS. A. Please remember to check with all insurance carriers and your employer to ensure that the beneficiary designation on each of your insurance policies, retirements, and work benefits reflect the person you actually want as the beneficiary. The dissolution alone will not automatically strike a former spouse s name from these benefits. Drafting Family Law Documents 6 12

387 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 9 B. You will need to execute a new will. I encourage you to make an appointment with an attorney who practices estate planning. I can give you a referral if you do not have an attorney for estate planning. C. The Internal Revenue Code requires every taxpayer to notify the IRS if there is a change [in address, a change in marital status, or if the taxpayer has resumed her maiden name] [in address or marital status]. File IRS Form 8822 as soon as possible. D. Social Security makes a variety of benefits available to retired workers and their families, even ex-spouses. You should contact the Social Security Administration directly to learn what your rights are. There are also benefits available should [RinTinTin] die. Check with the Social Security Administration about those should it ever occur. [Delete if not married 10 years and no children.] E. If you plan to remarry or live with someone, please consult me or another attorney of your choice concerning a prenuptial agreement or cohabitation agreement. Such an agreement can be tailored to your specific needs and expectations. In addition, if you should remarry and have an existing will, please consult an attorney concerning the will, since a remarriage can revoke an existing will. F. I have a number of documents that were supplied to me during the course of this proceeding, including such materials as income tax returns, bank statements, appraisals, and other financial documents. I will be glad to return these to you by having them ready for you to pick up at our office. Please notify my legal assistant, [April], whether or not you want the documents. If [April] or I do not hear from you by, we will assume you do not want the materials returned, and we will dispose of them appropriately. G. I will file a Notice with the court withdrawing as your attorney of record [once the DRO is completed] [once we have secured proof of life insurance]. This procedure is followed for your protection. If I continue to be listed with the court as your attorney of record, [RinTinTin] might, sometime in the future, try to serve papers on me, which would delay notice to you. It is better practice to require that you be personally served with papers, after which you can contact me again for help. Please be assured that I wish to continue as your attorney. My withdrawal now is a procedural step for your benefit in the future. H. Enclosed is a generic checklist that lists several important tasks that should be completed after a [dissolution/separation]. Not all of them apply to your situation. I will assume that you will handle the relevant items on the checklist Drafting Family Law Documents 6 13

388 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 10 yourself. If you need assistance with any of the items on the checklist, please do not hesitate to call me. If you want to let others know about your experience with me and/or the firm, you can post an anonymous public review on AVVO and/or Portland City Search. If you have any trouble navigating the websites, please call [April] and [she] can assist you. [Personal Note]. Very truly yours, [REP:rcsm] Enclosures [Ruth E. Pekelder] Drafting Family Law Documents 6 14

389 Chapter 6 After the Dust Settles: Post-Judgment [Lassie] [February 28, 2013] Page 11 POST DISSOLUTION CHECKLIST 1. Sign or obtain deeds from former spouse transferring real property in accordance with the judgment of dissolution. Record deeds in the appropriate county. 2. Sign off titles to vehicles (automobiles, trailers, boats, etc. and obtain sole titles, as appropriate. 3. Confirm insurance coverage on vehicles; delete coverage from vehicles awarded to former spouse. 4. Transfer ownership of stocks and bonds. 5. Change beneficiary designation on life insurance policies; obtain and furnish proof of policies if required by judgment of dissolution. 6. Change beneficiary designation on health insurance policies as required by judgment of dissolution; furnish schedule of coverage, I.D. card, and claim forms and/or conversion documents, if appropriate. Check with former spouse s employer to verify coverage continuation. 7. Surrender or destroy charge cards, close accounts, change billing address, advise creditors of nonliability for former spouse s future debts, furnish statements for accounts to be paid by former spouse, obtain statements for accounts you are to pay. 8. Obtain release from loans former spouse is required to pay, if possible; furnish payment book to or obtain payment book from former spouse, advise creditor who will assume liability for repayment. 9. Transfer ownership of savings accounts, certificates of deposit, treasury bills, and money market accounts in accordance with judgment of dissolution. 10. Close joint checking account and obtain separate account. 11. File joint tax return, if appropriate; clarify tax liability for exchanges of property pursuant to judgment of dissolution. 12. Deliver or obtain household furnishings, personal effects, etc. 13. Change name on Social Security card, credit cards, insurance policies, utilities, etc., if appropriate. 14. Execute a new will. Drafting Family Law Documents 6 15

390 Chapter 6 After the Dust Settles: Post-Judgment Drafting Family Law Documents 6 16

391 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-2 Notice of Appeal IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Plaintiff-Appellant, and [RINTINTIN], Defendant-Respondent. Case No. [ ] NOTICE OF APPEAL Plaintiff/Defendant gives notice of appeal from the judgment entered in this case on [date of judgment], signed by Judge, in the County Circuit Court. 2. The parties to this appeal are: Appellant(s Respondent(s 3. The name, bar number, address, telephone number, and 20 address of the attorney(s for each party represented by an attorney is: Name & Bar Number Address address Name & Bar Numbe r Address address Representing Telephone Number Representing Telephone Number PAGE 1 - NOTICE OF APPEAL PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 17

392 Chapter 6 After the Dust Settles: Post-Judgment Name & Bar Number Address address Name & Bar Number Address address Representing Telephone Number Representing Telephone Number Appellant designated the record in its entirety. Thus, in addition to the trial court file, appellant designates all exhibits, and the record of oral proceedings. [or] In addition to the trial court file, appellant designates only the following parts of the record: exhibits; the records of the following oral proceedings: ; other:. 5. [Only if less than the entire record is designated in paragraph 4] Appellant intends to rely on the following points:. 6. This appeal is timely and otherwise properly before the Court of Appeals because. 7. Attached to this notice of appeal is a copy of the judgment being appealed. Also attached are copies of any other materials pertinent to deterring appellate jurisdiction. DATED this day of [February, 2013] [Ruth E. Pekelder], OSB #[840799] Attorney for Petitioner PAGE 2 - NOTICE OF APPEAL PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 18

393 Chapter 6 After the Dust Settles: Post-Judgment CERTIFICATE OF SERVICE I certify that I served the foregoing NOTICEOF APPEAL on: [Lionel Hutz 111 Evergreen Terrace, Suite 900 Springfield, OR 97000] Attorney for Respondent by the following indicated method or methods: by mailing a full, true, and correct copy thereof in a sealed, first-class postage-prepaid envelope, addressed to the individual(s listed above, and deposited with the United States Postal Service at [Portland], Oregon, on the date set forth below by hand delivering a full, true, and correct copy thereof to the individual(s listed above, on the date set forth below. by sending via overnight courier a full, true, and correct copy thereof in a sealed, postage-prepaid envelope, addressed to the individual(s listed above, on the date set forth below. by faxing a full, true, and correct copy thereof to the individual(s at the fax number(s shown above, on the date set forth below. by ing a full, true, and correct copy thereof to the individual(s at the address(s shown above, on the date set forth below. DATED this day of February, [PEKELDER FAMILY LAW, P.C.] [Ruth E. Pekelder], OSB #[840799] Attorney for Petitioner PAGE 3 - NOTICE OF APPEAL PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 19

394 Chapter 6 After the Dust Settles: Post-Judgment CERTIFICATE OF FILING I certify that on [date], I filed the original of this notice of appeal with the Appellate Court Administrator at this address: Appellate Court Administrator Appellate Court Records Section 1163 State Street Salem, OR by the following indicated method or methods: by mailing a full, true, and correct copy thereof in a sealed, first-class postage-prepaid envelope, addressed to the individual(s listed above, and deposited with the United States Postal Service at [Portland], Oregon, on the date set forth below. by hand delivering a full, true, and correct copy thereof to the individual(s listed above, on the date set forth below. by sending via overnight courier a full, true, and correct copy thereof in a sealed, postage-prepaid envelope, addressed to the individual(s listed above, on the date set forth below. by faxing a full, true, and correct copy thereof to the individual(s at the fax number(s shown above, on the date set forth below. by ing a full, true, and correct copy thereof to the individual(s at the address(s shown above, on the date set forth below. DATED this day of February, [PEKELDER FAMILY LAW, P.C.] [Ruth E. Pekelder], OSB #[840799] Attorney for Petitioner PAGE 4 - NOTICE OF APPEAL PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 20

395 Chapter 6 After the Dust Settles: Post-Judgment Form 6-3 Letter to Division of Child Support February 28, 2013 Department of Justice Division of Child Support PO Box Salem, OR Re: [Lassie & RinTinTin] Case No. [ ] Our File No. [K9] Dear Sir or Madam: Enclosed is a copy of the General Judgment of Dissolution of Marriage (Judgment in the above entitled matter. Please establish an active account to receive money and to provide accounting, distribution, and enforcement of child support and spousal support pursuant to the provisions of the Judgment. Thank you. Very truly yours, [REP:rcsm] Enclosure cc: [Lassie] [Lionel Hutz] [Ruth E. Pekelder] Drafting Family Law Documents 6 21

397 Chapter 6 After the Dust Settles: Post-Judgment Form 6-4 Irrevocable Release and Authorization of Information; Instruction IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], TO: INSURED: POLICY #: Life Insurance Company Address Telephone: Fax: [RinTinTin] DOB: SSN: [FLX-98000] FOR THE COUNTY OF [DOG RIVER] I, [RinTinTin], have executed this Release and Authorization of Information; Instruction ( Release to allow my former spouse, [Lassie] to confirm that the life insurance I am required to provide under the General Judgment of Dissolution of Marriage ( Judgment entered by [Dog River] County Circuit Court, State of Oregon meets the requirement of the Judgment. By this Release, I am authorizing you to provide the following information regarding this policy to [Lassie], or her attorney at [Pekelder Family Law, 819 SE Morrison, Ste 245, Portland, OR 97214, telephone number ( ], upon their request: and [RINTINTIN], Petitioner, Respondent. Case No. [ ] IRREVOCABLE RELEASE AND AUTHORIZATION OF INFORMATION; INSTRUCTION PAGE 1 - IRREVOCABLE RELEASE AND AUTHORIZATION OF INFORMATION; INSTRUCTION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 23

398 Chapter 6 After the Dust Settles: Post-Judgment The named beneficiaries on this life insurance policy; 2. The death benefits of the policy; 3. Any loans against the policy; and 4. Any further evidence that the proper life insurance policy is in force and effect as required under the Judgment. following information: life insurance policy; I further instruct you to notify [Lassie], even if [she] does not request it, the 1. Thirty days written notice prior to the cancellation of the policy; 2. Notice if I obtain a loan against, pledge, or otherwise encumber the 3. If I change the beneficiaries without [Lassie] s prior written consent; 4. If I reduce the death benefit of the policy. This Release shall remain in effect until [date]. [Lassie] s address and phone number are as follows: [Lassie] [1966 Leashlaw Lane Dog River, OR ( ] A copy of this Release is as effective as the original. DATED this day of, 2013]. [RinTinTin], Respondent SUBSCRIBED AND SWORN to before me this day of, 2013]. NOTARY PUBLIC FOR OREGON PAGE 2 - IRREVOCABLE RELEASE AND AUTHORIZATION OF INFORMATION; INSTRUCTION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 24

399 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-5 Supplemental Judgment (Life Insurance IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] SUPPLEMENTAL JUDGMENT (LIFE INSURANCE This matter came before the court based on the stipulation of the parties as evidenced by their respective attorneys signatures below. Specific information regarding Respondent s life insurance was not included in the General Judgment of Dissolution of Marriage (Judgment entered [date]. Respondent has now purchased a life insurance policy in compliance with the terms of the Judgment. Therefore, it is ORDERED: 1. Respondent shall maintain in force the following policy of insurance on his life and with the beneficiaries named as required by the Judgment as follows: Name of Company: Policy Number: Other Info: DATED this day of, 2013] CIRCUIT COURT JUDGE PAGE 1 - SUPPLEMENTAL JUDGMENT (LIFE INSURANCE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 25

400 Chapter 6 After the Dust Settles: Post-Judgment 1 APPROVED AS TO FORM: [Lionel Hutz], OSB #[140411] Attorney for Respondent PREPARED AND SUBMITTED BY: [PEKELDER FAMILY LAW, PC] [Ruth E. Pekelder], OSB #[840799] Attorney for Petitioner PAGE 2 - SUPPLEMENTAL JUDGMENT (LIFE INSURANCE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 26

401 Chapter 6 After the Dust Settles: Post-Judgment Form 6-6 Letter to Life Insurance Company February 28, 2013 CERTIFIED MAIL RETURN RECEIPT REQUESTED [Life Insurance Company Address Address] Re: [Lassie & RinTinTin] Case No. [ ] Our File No. [K9] Dear Sir or Madam: This office represents [Lassie] in a domestic relations matter. Enclosed is a court-certified copy of the Stipulated General Judgment of Dissolution of Marriage entered in [Dog River] County. The judgment requires [RinTinTin] to maintain life insurance in the amount of $, naming [Lassie] as primary beneficiary. Pursuant to ORS (6, [Lassie] requests you notify [her] if [RinTinTin] takes any action that will change the beneficiary or reduce the benefits, takes a loan against the policy, or when premium payments have not been made. You must honor this request or suffer legal penalties and possible damages for failure to do so. Until further notice, any notices you are required to give [Lassie] should be sent to the following address: [Lassie] [1966 Leashlaw Lane Dog River, OR 97999] [Enclosed is a Release signed by [RinTinTin] allowing and instructing you to provide the requested information to [Lassie]]. Thank you. Very truly yours, [REP:rcsm] Enclosure cc: [Lassie] [Lionel Hutz] [Ruth E. Pekelder] Drafting Family Law Documents 6 27

403 Chapter 6 After the Dust Settles: Post-Judgment Form 6-7 Letter to DRO Preparer February 28, 2013 [Dan Ricks Kennedy, Watts, Arellano & Ricks 1211 SW 5 th Ave, Ste 2850 Portland, OR 97204] Re: [Lassie & RinTinTin] Case No. [ ] My File No. [K9] Dear [Dan]: Thank you for discussing this matter with me recently. Please prepare a Qualified Domestic Relations Order transferring a portion of [RinTinTin] s [Screen Actors Guild] retirement to [Lassie], as stated in the General Judgment of Dissolution of Marriage. Enclosed is a copy of the Stipulated General Judgment of Dissolution and the parties Confidential Information Forms. Also enclosed is [RinTinTin] s [Screen Actors Guild] retirement statement. Please let me know if you need any additional information. I understand the cost of preparing the DRO is $. Enclosed is my client s check for $, one-half of that amount. [Lionel Hutz] represents [RinTinTin], and by copy of this letter to [him] I request that [he] send you the other half of your retainer. Thank you again for your assistance in this matter. Very truly yours, [REP:rcsm] Enclosures cc: [Lassie] [Lionel Hutz] [Ruth E. Pekelder] Drafting Family Law Documents 6 29

405 Chapter 6 After the Dust Settles: Post-Judgment Grantor: Form 6-8 Bargain and Sale Deed Grantee: After recording, return to: Until requested otherwise, send all tax statements to: BARGAIN AND SALE DEED Individual Grantor [Name], Grantor, grants, bargains, sells and conveys unto [Name], Grantee, and to Grantee s heirs, successors, and assigns, Grantor s interest in the real property located at [Address], and situated in [County] County, State of Oregon, and described as follows, to wit: [INSERT LEGAL DESCRIPTION OR] AS DESCRIBED ON EXHIBIT 1 ATTACHED AND INCORPORATED. The true and actual consideration for this transfer is pursuant to the General Judgment of Dissolution of Marriage entered in [County] County Circuit Court, Case No. and signed by the court on [Date]. IN WITNESS WHEREOF, the grantor has executed this instrument on, 2013]. [Name], Grantor BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON S RIGHTS, IF ANY, UNDER ORS , 195,301 and to AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS OR TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS , AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS , AND TO AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS STATE OF OREGON County of ss., 2013]. Personally appeared the above-named and acknowledged the foregoing instrument to be [his/her] voluntary act and deed. Before me: NOTARY PUBLIC FOR OREGON Drafting Family Law Documents 6 31

407 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-9 Order Directing Employer to Withhold Wages IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES TO: [Filmsstarringdogs, LLC] THIS ORDER SUBJECTS YOU TO CERTAIN OBLIGATIONS AS AN EMPLOYER. PLEASE READ THE ORDER AND ATTACHED INFORMATION CAREFULLY. Pursuant to ORS , IT IS ORDERED that you, as an employer of the Respondent [RinTinTin] (Employee, are to withhold support obligation each and every month from the disposable earnings due or to become due the Employee in accordance with the instructions set forth below This Order applies to: EMPLOYEE/OBLIGOR: [RinTinTin] Social Security Number: Protected under UTCR Date of Birth: Protected under UTCR CSS or DHR No. (If any: Current Monthly Support/Child: PAGE 1 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 33

408 Chapter 6 After the Dust Settles: Post-Judgment Current Monthly Support/Spousal: Past-Due Amount: Past-Due Interest: 1. Amount to Be Withheld. [Option 1] As current support and past due support are owed, you shall withhold 120% of the current monthly support amount. You shall continue to withhold this amount until the past-due amount shown above is paid in full. Once the past-due amount has been paid in full, you shall withhold only the current support amount. [Optio 2] Each and every month $. 2. Commencement. Employer shall begin the withholding no later than five days after the first day following receipt of this Order. 3. Payment. Employer shall transmit the monies directly to Petitioner within seven days after the pay day to: 15 OBLIGEE: [Lassie] ADDRESS: [1966 Leashlaw Lane Dog River, OR 97999] 4. Explanation for Not Withholding. If for any reason you do not withhold support in any month, you must explain the reason to the person or entity to whom you are obligated to send payment. The explanation must be sent on the day you would normally send a payment. 5. Employer Liability. You must not ask a prospective employee about the existence of a support obligation. You may also not discharge, discipline, or refuse to hire because of the entry or existence of a withholding order. 6. Continuing Order. This order shall be a continuing order and shall remain in full force and effect and be binding upon Employer until further order of the PAGE 2 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 34

409 Chapter 6 After the Dust Settles: Post-Judgment court and shall have priority over any notice of garnishment subsequently served on the Employer. Dated this day of February, CIRCUIT COURT JUDGE Submitted by: [PEKELDER FAMILY LAW, P.C.] [Ruth E. Pekelder], OSB #[840799] [[email protected]] Attorney for Petitioner NOTICE Oregon law requires that child support on ALL new orders be collected by income withholding. This withholding order does not necessarily reflect any wrongdoing or failure by the employee to pay a support obligation, This withholding order is ongoing and continues in effect until further notice is provided by the Department of Human Resources or the court. As in income withholder, you may be subject to additional requirements under ORS Chapter 25. Important additional information is attached to this order. Consult with an attorney if you have any questions about your legal obligations as an income withholder. You may be held liable for all amounts not withheld, damages and/or civil penalties if you fail to withhold under the terms of this order, or if you in any manner discriminate against the employee because of this order PAGE 3 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 35

410 Chapter 6 After the Dust Settles: Post-Judgment Priority of withholding. Except as provided in ORS , withholding under ORS has priority over any other legal process under Oregon law against the same income Withholding more than amount authorized by law. Notwithstanding ORS and , the court upon motion of a party holding the support rights, the Division of Child Support or the district attorney, and after a hearing, may order the withholding of more than the amount otherwise authorized by law. In no case may an order require payment of an amount that exceeds the limits imposed by the Consumer Credit Protection Act (15 U.S.C. 1673(b When withholding begins; payment to Department of Justice or obligee. (1 The withholder shall start withholding not later than the first pay period occurring five days after the date of the order to withhold. However, if on the date the employer receives the order the employer has already calculated the payroll for that pay period and has prepared the paycheck or submitted a deposit for that payroll, the employer shall start withholding no later than the second pay period occurring after the date of the order to withhold. (2 Within seven business days after the date the obligor receives income, the withholder shall pay amounts withheld to the Department of Justice or to the obligee by deposit into theobligee s bank account, whichever is specified in the order to withhold. The withholder shall include, with the payment, the obligor s name and case number and the date upon which the income was withheld. (3 When payments are made to the Department of Justice, the withholder may combine amounts withheld from different obligors incomes in a single payment as long as such payment is accompanied by a list that separately identifies which portion of the payment is attributable to each obligor, the obligor s name and case number, if any. (4 As used in this section, business day means a day on which the Department of Justice is open for regular business Standard amount to be withheld; processing fee; rules. (1 The withholder shall withhold from the obligor s disposable monthly income, other than workers compensation under ORS chapter 656 or unemployment compensation under ORS chapter 657, the amount stated in the order to withhold. The entity issuing the order to withhold shall compute this amount subject to the following: (a If withholding is for current support only, the amount to be withheld is the amount specified as current support in the support order. (b If withholding is for current support and there is an arrearage, the amount to be withheld is 120 percent of the amount specified as current support in the support order. (c If withholding is only for arrearage, the amount to be withheld is one of the following: (A The amount of the last ordered monthly support. (B If there is no last ordered monthly support amount, the monthly support amount used to calculate the arrearage amount specified in the order or judgment for arrearage. (C If there is no last ordered monthly support amount and if there was no monthly support amount, an amount calculated under the formula established under ORS For purposes of this subparagraph, this calculation shall be based on the obligor s current monthly gross income or, if the obligor s current monthly gross income is not known, the Oregon hourly minimum PAGE 4 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 36

411 Chapter 6 After the Dust Settles: Post-Judgment wage converted to a monthly amount based upon a 40-hour workweek, zero income for the obligee, and one joint child, regardless of how many children the parties may actually have. No rebuttals to this calculation may be allowed. (d Notwithstanding the amount determined to be withheld under paragraph (c of this subsection, the obligor must retain disposable monthly income of at least 160 times the applicable federal minimum hourly wage prescribed by section 6 (a(1 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 or any future minimum hourly wages prescribed in that section, if the order to withhold is issued for: (A Disability benefits payments from the United States Social Security Administration; (B Black lung benefits payments from the United States Department of Labor; or (C Disability benefits payments from the United States Department of Veterans Affairs. (2 The amount to be withheld from unemployment compensation under ORS chapter 657 is calculated as follows: (a If withholding is for a current support order, regardless of the existence of arrearage, the amount to be withheld is the lesser of: (A Twenty-five percent of the benefits paid; or (B The current monthly support obligation. The entity issuing the order to withhold may convert the monthly support obligation amount to a percentage to be withheld from each benefits payment. (b If withholding is for arrearage only, the amount to be withheld is the lesser of: (A Fifteen percent of the benefits paid; or (B The amount of the last ordered monthly support obligation. The entity issuing the order to withhold may convert the last ordered monthly support obligation amount to a percentage to be withheld from each benefits payment. (c The withholder may not charge or collect a processing fee when withholding from unemployment compensation. (3 The amount to be withheld from workers compensation under ORS chapter 656 is set forth in ORS (4 Notwithstanding any other provision of this section, when withholding is from a lump sum payment or benefit, including but not limited to retroactive workers compensation benefits, lump sum retirement plan disbursements or withdrawals, insurance payments or settlements, severance pay, bonus payments or any other similar payments or benefits that are not periodic recurring income, the amount subject to withholding for payment of a support obligation may not exceed one-half of the amount of the lump sum payment or benefit. (5(a Notwithstanding any other provision of this section, when the withholding is only for arrearage, the administrator shall set a lesser amount to be withheld if the obligor demonstrates the withholding is prejudicial to the obligor s ability to provide for a child the obligor has a duty to support or the obligor s ability to provide for the obligor s basic needs. The factors to be considered by the administrator in determining whether the obligor can provide for the obligor s basic needs include but are not limited to: (A The health expenses of the obligor; (B A verified disability affecting the obligor s ability to work; 26 PAGE 5 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 37

412 Chapter 6 After the Dust Settles: Post-Judgment (C Whether the obligor s income remaining after withholding would be less than the selfsupport reserve established by rule of the Department of Justice under paragraph (c of this subsection; (D The available resources of the obligor; and (E The number and basic needs of other persons in the obligor s household. (b The administrator shall establish a procedure to give advance and periodic notice to the obligor of the provisions of paragraph (a of this subsection and of the means to reduce the amount stated in the order to withhold. (c The Department of Justice shall adopt rules to implement this subsection. (6 Except as provided in subsection (2 of this section, the withholder may deduct from the obligor s disposable income a monthly processing fee not to exceed $5. The processing fee is in addition to the amount calculated to be withheld for support, unless the amount to be withheld for support is the maximum allowed under subsection (8 of this section, in which case the fee is deducted from the amount withheld as support. (7 If there are multiple withholding orders against the same obligor, the amount to be withheld is the sum of each support order calculated independently. (8 No withholding as calculated under this section, including the processing fee permitted in subsection (6 of this section, shall exceed 50 percent of the obligor s net disposable income. The limit established in this subsection applies whenever withholding is implemented under this section, whether by a single order or by multiple orders against the same obligor. (9 When the obligor s income is not sufficient for the withholder to fully comply with each withholding order, the withholder shall withhold the maximum amount allowed under this section. If all withholding orders for a particular obligor are payable to or through the department, the withholder shall pay to the department the income withheld and the department shall determine priorities for allocating income withheld to multiple child support cases relative to that obligor. If one or more of the withholding orders for a particular obligor require payment other than to or through the department, the withholder shall use the following to determine priorities for withholding and allocating income withheld to multiple child support cases: (a If the amount withheld from the obligor s income is sufficient to pay the current support due to each case but is not enough to fully comply with the withholding order for each case where past due support is owed, the withholder shall: (A Pay to each case the amount of support due for the current month; and (B Pay the remainder of the amount withheld in equal amounts to each case where past due support is owed. However, no case shall receive more than the total amount of current support and past due support owed to that case at the time the payment is made. (b If the amount withheld is not sufficient to pay the current support due to each case, each case shall be paid a proportionate share of the amount withheld. The withholder shall determine this for each case by dividing the monthly amount ordered as current support for that case by the combined monthly amount ordered as current support for all cases relative to the same obligor, and multiplying this percentage by the total amount withheld. (10 An order to withhold income is not subject to the limitations of ORS (11 A withholder shall withhold funds as directed in the order to withhold, except that when a withholder receives an income-withholding order issued by another state, the withholder shall PAGE 6 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 38

413 Chapter 6 After the Dust Settles: Post-Judgment apply the income-withholding law of the state of the obligor s principal place of employment in determining: (a The withholder s fee for processing an income-withholding order; (b The maximum amount permitted to be withheld from the obligor s income; (c The time periods within which the withholder must implement the income-withholding order and forward the child support payment; (d The priorities for withholding and allocating income withheld for multiple child support obligees; and (e Any withholding terms or conditions not specified in the order Amount to be withheld when obligor paid more frequently than monthly. When an obligor is required to pay support by income withholding and is paid more often than monthly, the withholder shall withhold up to the full amount specified in the order to withhold, based on the obligor s pay period as specified in the order to withhold. The amount withheld may not exceed the maximum amount allowed under ORS ( Procedure if withholder does not withhold support. If for any reason a withholder does not withhold support in any month, the withholder shall explain the reason for not withholding. The withholder shall send the explanation for not withholding to the person or entity to whom the withholder sends payments and shall send the explanation on the date that the withholder would normally send a payment. If the withholder does not send a payment because the obligor is no longer employed by the withholder, the withholder may include in the explanation the name and address of the obligor s new employer, if known. A withholder is not liable to the obligor for disclosure of this information Liability of withholder; action against withholder; penalty; attorney fees; unlawful employment practice. (1 A person who is served with an order to withhold is not subject to civil liability to an individual or agency for conduct or actions in compliance with the order if: (a The order is served on the person in the manner provided by ORS (1; (b The order is regular on its face; and (c The order complies with ORS (2. (2 A person who is served with an order to withhold is liable to the obligee for: (a All amounts that the person fails to withhold or pay as required by the order; (b Any damages suffered by the obligee by reason of the failure of the person to withhold or pay as required by the order; and (c Any damages suffered by the obligee by reason of the failure of the person to pay withheld amounts within the time specified by ORS (3 A person who is served with an order to withhold is liable to the obligor for: (a All amounts withheld in excess of the amount required by the terms of the order; (b Any damages suffered by the obligor by reason of withholding that is in excess of the amount required by the terms of the order; (c Any damages suffered by the obligor by reason of the failure of the person to pay withheld amounts within the time specified by ORS ; and PAGE 7 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 39

414 Chapter 6 After the Dust Settles: Post-Judgment (d Any other damages suffered by the obligor by reason of the failure of the person to withhold or pay as required by the order. (4 An obligee or obligor may bring an action to recover amounts under this section, or the Division of Child Support or a district attorney may bring an action on behalf of the obligee or obligor to recover amounts under this section. (5 If the plaintiff in an action under this section establishes that the conduct of the defendant was willful or grossly negligent, the court shall: (a Enter judgment against the defendant for a penalty, payable to the court, not to exceed $250 for each time the defendant failed to withhold or pay the amount required by the terms of the order to withhold, withheld an amount exceeding the amount required by the terms of the order, or failed to pay withheld amounts within the time specified by ORS ; and (b Enter judgment against the defendant, payable to the plaintiff, for reasonable attorney fees incurred by the plaintiff. (6(a An employer commits an unlawful employment practice if the employer discharges an employee, refuses to hire an individual or in any other manner discriminates, retaliates or takes disciplinary action against an obligor because of the entry or service of an order to withhold under ORS and or because of the obligations or additional obligations that the order imposes upon the employer. An obligor may bring an action under ORS 659A.885 or may file a complaint with the Commissioner of the Bureau of Labor and Industries in the manner provided by ORS 659A.820. These remedies are in addition to any other remedy available in law or equity. (b Paragraph (a of this subsection does not apply to actions taken by an employer pursuant to any condition of employment required by law. (7 Nothing in ORS to precludes an action for contempt for disobedience of a judicial order to withhold PAGE 8 - ORDER DIRECTING EMPLOYER TO WITHHOLD WAGES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 40

415 Chapter 6 After the Dust Settles: Post-Judgment Form 6-10 Letter to Employer February 28, 2013 [Filmsstarringdogs, LLC 157 Snoopy Drive Shaniko, OR 99999] Re: [Lassie & RinTinTin] Case No. [ ] Our File No. [K9] Your Employee/Judgment Debtor: [RinTinTin] Dear Sir or Madam: Pursuant to an Order of the Circuit Court of the State of Oregon for [Dog River] County, a court-certified copy of which is enclosed, you are directed to withhold each month from the disposable income due the above-named judgment debtor the amounts set forth in the Order and to pay the monies directly to [Lassie], the Obligee: [Lassie] [1966 Leashlaw Lane Dog River, OR 97999] NOTE: Disposable income is defined as follows: Disposable income means that part of the income of an individual which remains after the deduction from the income of any amounts required to be withheld by law, except laws enforcing spousal or child support, and any amounts withheld to pay medical and dental insurance premiums. ORS (5 The withholding required by the court order is a continuing obligation. The notice and withholding required by the court order remain in effect and binding until further notice from the court. ORS An employer who is required to withhold from a debtor s disposable income is required to do so at each pay period in an amount determined by ORS , a copy of which is attached to the Order. Drafting Family Law Documents 6 41

416 [Filmsstarringdogs, LLC] February 28, 2013 Page 2 Chapter 6 After the Dust Settles: Post-Judgment Except for medical support notices filed under ORS , payment of support under income withholding has priority over any other legal process in Oregon law against the same income. Upon motion of a party holding support rights, the court may order the withholding of more than the amount otherwise authorized by law. In no case may an order require payment of an amount that exceeds the limit imposed by the Consumer Credit Protection Act. ORS Withholding shall start not later than five days after the first payday following receipt of the order to withhold. Within seven business days after the date the debtor receives income, the employer shall pay amounts to the obligee listed above. The employer shall include with the payment the debtor s name and case number and the date upon which the income was withheld. When a debtor is required to pay support by income withholding and is paid more often than monthly, the employer shall withhold up to the full amount specified in the court order to withhold, based on the debtor s pay period as specified in the order to withhold. The amount withheld may not exceed the maximum amount allowed under ORS (8. If, for any reason, an employer does not withhold support in any month, the employer shall explain the reason for not withholding. The employer shall send the explanation for not withholding to the person and entity to whom the withholder sends payments and shall send the explanation on the date that the withholder would normally send a payment. If the employer does not send a payment because the debtor is no longer employed by the employer, the employer may include in the explanation the name and address of the obligor s new employer, if known. An employer is not liable to the obligor for disclosure of this information. ORS If you have any questions, please contact this office. Very truly yours, [REP:rcsm] Enclosure cc: [Lassie] [Lionel Hutz] [Ruth E. Pekelder] Drafting Family Law Documents 6 42

417 Chapter 6 After the Dust Settles: Post-Judgment Form 6-11 Statement for attorney Fees and Cost Bill for Petitioner IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] STATEMENT FOR ATTORNEY FEES AND COST BILL FOR PETITIONER The undersigned attorney represents to the Court, under penalties of perjury, the following facts offered in support of an award of reasonable and necessary attorney fees are true: 1. Petitioner is entitled to recover attorney fees pursuant to the following facts, statute, or rule: [ORS ]. 2. The number of hours and services rendered in this matter for each attorney, clerk, and legal assistant and the hourly rates for each are set forth in detail in Exhibit "1" attached. Exhibit "1" is summarized as follows: NAME POSITION HOURLY RATE NO. OF HOURS FEES Attorney $ $ Legal Asst. $ $ $ Total Costs $ TOTAL: $ PAGE 1 - STATEMENT FOR ATTORNEY FEES AND COST BILL FOR PETITIONER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 43

418 Chapter 6 After the Dust Settles: Post-Judgment Petitioner is entitled to the recovery of $ for costs as authorized by. As explained in Exhibit, such costs are billed directly to the client and are not overhead expenses already reflected in the hourly rate or fee. 4. The court should consider the factors checked below in determining whether to award attorney fees, and if so, a reasonable amount of attorney fees and costs as explained more fully in Paragraph 5 below: a. The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith, or illegal; b. The objective reasonableness of the claims and defenses asserted by the parties; c. The extent to which an award of an attorney fee in this case would deter others from asserting good faith claims or defenses in similar cases; d. The extent to which an award of an attorney fee in this case would deter others from asserting meritless claims or defenses; e. The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings; f. The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute; g. The amount that the court has awarded as a prevailing party fee under ORS ; and h. Such other factors as the court may consider appropriate under the circumstances of the case. 5. The relevant facts are as follows: a. PAGE 2 - STATEMENT FOR ATTORNEY FEES AND COST BILL FOR PETITIONER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 44

419 Chapter 6 After the Dust Settles: Post-Judgment b. 6. Based on the above, Petitioner is entitled to an award of reasonable and necessary attorney fees in the sum of $. 7. Pursuant to ORS and ORCP 68C(4(e, Petitioner requests that the court make findings regarding the facts and legal criteria supporting its decision on attorney fees. I declare that the above statement is true to the best of my knowledge and belief and that I understand it is made for use as evidence in court and is subject to penalty for perjury. Dated this day of February, [Ruth E. Pekelder], OSB #[840799] [[email protected]] Attorney for Petitioner PAGE 3 - STATEMENT FOR ATTORNEY FEES AND COST BILL FOR PETITIONER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 45

421 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-12 Supplemental Judgment for attorney Fees IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] SUPPLEMENTAL JUDGMENT FOR ATTORNEY FEES This matter came before the court on Petitioner s Statement for Attorney Fees, Costs and Disbursements Pursuant to ORCP 68. Petitioner, [Lassie], is represented by [Ruth E. Pekelder and Pekelder Family Law]. Respondent, [RinTinTin], is represented by [Lionel Hutz]. Based on review of Petitioner s Statement for Attorney Fees, Costs, and Disbursements Pursuant to ORCP 68, and the record and file, the court now makes the following: FINDINGS OF FACT 1. Petitioner filed [her] Statement for Attorney Fees in a timely manner. 2. The hourly rate for Petitioner s legal counsel was reasonable. 3. The time spent on Petitioner s case was reasonable. 4. The additional reasons set forth in Petitioner s Statement for Attorney Fees support an award of attorney fees and costs. NOW, THEREFORE, IT IS ORDERED, Respondent shall pay to Petitioner and Petitioner shall have an award PAGE 1 - SUPPLEMENTAL JUDGMENT FOR ATTORNEY FEES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 47

422 Chapter 6 After the Dust Settles: Post-Judgment against Respondent in the amount of $ for her reasonable attorney fees, representing $ for attorney fees and $ for costs. These attorney fee and cost awards shall accrue interest at the rate of 9% per annum from the date this money award is entered of record. * * * * * * * MONEY AWARD PURSUANT TO ORCP 70(A 1. Judgment Creditor: [Lassie] Address: [1966 Leashlaw Lane Dog River, OR 97999] 2. Judgment Creditor's Attorney and Address & Telephone Number: [Ruth E. Pekelder, Pekelder Family Law, P.C. 819 SE Morrison Ste 245 Portland, OR ( ] 3. Judgment Debtor: [RinTinTin] A. Address: B. Date of Birth: [September 10, 1918] C. Social Security No: Filed Under UTCR2.100 D. Driver's License No: Unknown 4. Judgment Debtor's Attorney: [Lionel Hutz 111 Evergreen Terrace Ste 900 Springfield, OR 97000] 5. Any person or public body known by the Judgment Creditor to be entitled to any portion of the Money Award: None 6. Judgment Amount: A. Attorney Fee Award: (1 Amount: $ (2 Due and payable: Immediately (3 Other: B. Pre-Award Interest: None PAGE 2 - SUPPLEMENTAL JUDGMENT FOR ATTORNEY FEES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 48

423 Chapter 6 After the Dust Settles: Post-Judgment Submitted by: 7. Post-Award Interest: 9% per annum simple on the unpaid principal portion from and after the date of entry of the award. 8. Accrued Arrearages: None DATED this day of, 2013]. [Ruth E. Pekelder], OSB #[840799] [PEKELDER FAMILY LAW, P.C.] [[email protected]] Attorney for Petitioner CIRCUIT COURT JUDGE PAGE 3 - SUPPLEMENTAL JUDGMENT FOR ATTORNEY FEES PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 49

425 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-13 Notice of Withdrawal of attorney IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] NOTICE OF WITHDRAWAL OF ATTORNEY [Ruth E. Pekelder and the law firm of Pekelder Family Law, P.C.], attorney for Petitioner, gives notice to this court of [her] withdrawal as attorney of record for Petitioner, [Lassie], [1966 Leashlaw Lane, Dog River, OR 97999], in the above-entitled matter. are completed. The above entitled matter has been concluded, and all required services Dated this day of February, [PEKELDER FAMILY LAW, P.C.] [Ruth E. Pekelder], OSB #[840799] Attorney for Petitioner POINTS AND AUTHORITIES ORS and.390 UTCR ORPC 1.16 PAGE 1 - NOTICE OF WITHDRAWAL OF ATTORNEY PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 51

426 Chapter 6 After the Dust Settles: Post-Judgment on: CERTIFICATE OF SERVICE I certify that I served the foregoing NOTICE OF WITHDRAWAL OF ATTORNEY [Lionel Hutz], OSB #[140411] [111 Evergreen terrace, Suite 900 Springfield, OR 97000] Attorney for Respondent, and [Lassie] [1966 Leashlaw Lane Dog River, OR 97999] Petitioner by mailing a full, true, and correct copy thereof in a sealed, first-class postage-prepaid envelope, addressed to the individual(s listed above, and deposited with the United States Postal Service at [Portland], Oregon, on the date set forth below. Dated this day of February, [PEKELDER FAMILY LAW, P.C.] [Ruth E. Pekelder], OSB #[840799] [[email protected]] Attorney for Petitioner PAGE 2 - NOTICE OF WITHDRAWAL OF ATTORNEY PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 52

427 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-14 Motion to Modify Judgment Re Custody, Parenting Time, Child Support, Spousal Support (Ex Parte IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], and [RINTINTIN], FOR THE COUNTY OF [DOG RIVER] COMES NOW Petitioner, and moves the court for an order: 1. Modifying the General Judgment of Dissolution of Marriage ( Judgment previously entered in this action in the following ways: A. Awarding custody of the minor child to Petitioner. B. Ordering a parenting plan in accordance with the best interests of the child and the safety of the parties. C. Modifying Petitioner s obligation to pay spousal support to Respondent to such terms as are just and equitable under all of the relevant circumstances. Respondent. Petitioner, Respondent. D. Terminating Petitioner s obligation to pay spousal support to E. Modifying Petitioner s obligation to pay child support to Respondent to such terms as are in accordance with the child support guidelines Case No. [ ] MOTION TO MODIFY JUDGMENT RE: CUSTODY, PARENTING TIME, CHILD SUPPORT, SPOUSAL SUPPORT (EX PARTE F. Terminating Petitioner s obligation to pay child support. PAGE 1 - MOTION TO MODIFY JUDGMENT RE: CUSTODY, PARENTING TIME, CHILD SUPPORT, SPOUSAL SUPPORT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 53

428 Chapter 6 After the Dust Settles: Post-Judgment Assessing against Respondent a reasonable attorney fee and costs for the benefit of Petitioner pursuant to ORS (8. 3. Requiring Respondent to appear at a time and place certain, then and there to show cause, if any exists, why the above relief should not be granted. Dated this day of February, [PEKELDER FAMILY LAW, P.C.] [Ruth E. Pekelder], OSB #[840799] [[email protected]] Attorney for Petitioner STATEMENT OF POINTS AND AUTHORITIES ORS Declaration of Petitioner Petitioner s Uniform Support Declaration NOTE: If Motion is to modify child support, it must include: 1. PENDING CHILD SUPPORT PROCEEDINGS (include any child support matter being heard by either a court or agency as part of a dissolution, separation, annulment, paternity, juvenile court, support, or modification case: There is no pending child support proceeding in this or any other state involving the parties children. There is a pending child support proceeding in Oregon or in another state that involves the parties children as follows: Name/County of Court or Agency where pending: Agency Case Number: Court Case Number: 2. EXISTING CHILD SUPPORT ORDERS OR JUDGMENTS (include any order/judgment whether made by an agency or a court in this or any other state, and whether or not currently effective: There are no other child support orders/judgments in this or any other state involving the parties children. There is/are other child support orders/judgments involving the parties children, as follows: PAGE 2 - MOTION TO MODIFY JUDGMENT RE: CUSTODY, PARENTING TIME, CHILD SUPPORT, SPOUSAL SUPPORT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 54

429 Chapter 6 After the Dust Settles: Post-Judgment ORDER/JUDGMENT #1 (Attach a copy of the signed order Name/County of Court or Agency Where Issued: Case Number: Date of Order: ORDER/JUDGMENT #2 (Attach a copy of the signed order Name/County of Court or Agency Where Issued: Case Number: Date of Order: If Motion is to modify custody and parenting time, must include: 1. The addresses where the children have lived and the persons the children have lived with for the past six months are: 2. The courts of the state of Oregon have exclusive jurisdiction to make child custody determinations in this matter under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act PAGE 3 - MOTION TO MODIFY JUDGMENT RE: CUSTODY, PARENTING TIME, CHILD SUPPORT, SPOUSAL SUPPORT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 55

431 Chapter 6 After the Dust Settles: Post-Judgment Form 6-15 Declaration in Support of Motion to Modify Judgment Re Custody, Parenting Time, Child Support, Spousal Support (Ex Parte IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] DECLARATION IN SUPPORT OF MOTION TO MODIFY JUDGMENT RE; CUSTODY, PARENTING TIME, CHILD SUPPORT (EX PARTE I, [Lassie], make the following declaration: 1. I am the Petitioner in the above-referenced matter. 2. Since the time the General Judgment of Dissolution of Marriage was entered there has been a substantial change in circumstances in that: A. [Facts that support motion to modify] B. [Facts that support motion to modify] C. [Facts that support motion to modify] 3. I declare that the above statement is true to the best of my knowledge and belief and that I understand it is made for use as evidence in court and is subject to penalty for perjury. DATED this day of [February, 2013] [Lassie], Petitioner PAGE 1 - DECLARATION IN SUPPORT OF MOTION TO MODIFY JUDGMENT RE; CUSTODY, PARENTING TIME, CHILD SUPPORT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 57

433 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-16 Order to Show Cause Re Modification IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] ORDER TO SHOW CAUSE RE: MODIFICATION 12 TO: [RinTinTin], Respondent You are ordered to appear before this court at [a.m./p.m.] on the day of, 2013] at the [Dog River] County Courthouse, [145 N.E. Rawhide Avenue, Dog River, Oregon, 97999], to show cause why the court should not enter the following order(s: 1. Modifying the General Judgment of Dissolution of Marriage ( Judgment previously entered in this action in the following ways: A. Awarding legal custody of the minor children to Petitioner. B. Ordering a parenting plan in accordance with the best interests of the children and the safety of the parties. C. Modifying Petitioner s obligation to pay spousal support to Respondent to such terms as are just and equitable under all of the relevant circumstances. D. Terminating Petitioner s obligation to pay spousal support to Respondent. PAGE 1 - ORDER TO SHOW CAUSE RE: MODIFICATION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 59

434 Chapter 6 After the Dust Settles: Post-Judgment E. Modifying Petitioner s obligation to pay child support to Respondent to such terms as are in accordance with the child support guidelines. F. Terminating Petitioner s obligation to pay child support. 2. Assessing against Respondent a reasonable attorney fee and costs for the benefit of Petitioner pursuant to ORS (8. Notice Within 30 days after you are served with this order, you must file a written response with the court in accordance with ORS (13. If you fail to do so, the moving party will apply to the court for the relief described in this order, and such relief may be granted without notice to you and without a hearing. At least seven days before the scheduled hearing, you must serve and file a Uniform Support Declaration on the moving party, in accordance with UTCR 8.050(3. If you have any questions, you should see an attorney immediately. if you need help finding an attorney, you may call the Oregon State Bar's Lawyer Referral Service at ( or toll free at ( Dated this day of February, Submitted by: [Ruth E. Pekelder], OSB #[840799] [PEKELDER FAMILY LAW, P.C.] [[email protected]] Attorney for Petitioner CIRCUIT COURT JUDGE PAGE 2 - ORDER TO SHOW CAUSE RE: MODIFICATION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 60

435 Chapter 6 After the Dust Settles: Post-Judgment Form 6-17 Motion for Post Judgment Status Quo Order IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] MOTION FOR POST-JUDGMENT TEMPORARY STATUS QUO ORDER Pursuant to ORS , Petitioner, [Lassie], by and through her attorney, [Ruth E. Pekelder of Pekelder Family Law, P.C.], moves the court for a temporary status quo order restraining and enjoining the parties from: a changing the children s usual place of residence, b interfering with the present placement and daily schedule of the children, c hiding or secreting the children from the other parent, d interfering with the other parent s usual contact and parenting time with the children, e leaving the state with the children without the written permission of the other parent or permission of the court; or f in any manner disturbing the current schedule and daily routine of the children until the motion for modification has been granted or denied. /// /// PAGE 1 - MOTION FOR POST-JUDGMENT TEMPORARY STATUS QUO ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 61

436 Chapter 6 After the Dust Settles: Post-Judgment ORS Declaration of Petitioner POINTS AND AUTHORITIES Dated this day of February, PEKELDER FAMILY LAW, P.C [Ruth E. Pekelder], OSB #[840799] [[email protected]] Attorney for Petitioner PAGE 2 - MOTION FOR POST-JUDGMENT TEMPORARY STATUS QUO ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 62

437 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-18 Petitioner s Declaration in Support of Motion for Post Judgment Status Quo Order IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], and [RINTINTIN], FOR THE COUNTY OF [DOG RIVER] Petitioner, Respondent. I, [Lassie], make the follow declaration: 1. I am the Petitioner in the above referenced matter. 2. Respondent and I were divorced pursuant to a General Judgment of Dissolution of Marriage (Judgment on. 3. Under the terms of the Judgment, Respondent was awarded custody of the children and I had parenting time. 4. Since [date] [at least three months], the children have been living primarily with me and attending school in my neighborhood. 5. [Other facts] 6. The addresses where the children have lived and the persons the children have lived with for the past six months are:. 7. The courts of the state of Oregon have exclusive jurisdiction to make child custody determinations in this matter under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act. Case No. [ ] PETITIONER S DECLARATION IN SUPPORT OF MOTION FOR POST- JUDGMENT TEMPORARY STATUS QUO ORDER PAGE 1 - PETITIONER S DECLARATION IN SUPPORT OF MOTION FOR POST-JUDGMENT TEMPORARY STATUS QUO ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 63

438 Chapter 6 After the Dust Settles: Post-Judgment I am simultaneously filing a motion to modify custody and parenting time, pursuant to ORS I declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in a court and is subject to penalty for perjury [Lassie], Petitioner PAGE 2 - PETITIONER S DECLARATION IN SUPPORT OF MOTION FOR POST-JUDGMENT TEMPORARY STATUS QUO ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 64

439 Chapter 6 After the Dust Settles: Post-Judgment Form 6-19 Order to Show Cause Re Post Judgment Status Quo Order IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] ORDER TO SHOW CAUSE RE: POST- JUDGMENT TEMPORARY STATUS QUO ORDER PURSUANT TO ORS TO: [RinTinTin], Respondent Based on Petitioner s motion and supporting declaration, IT IS ORDERED that you appear before this court on, 20[13], at [a.m./p.m.], at the [Dog River] County Courthouse, [145 NE Rawhide Avenue], to show cause why the court should not enter a Temporary Protective Order of Restraint pending further order of the court. NOTICE: You have been served with Petitioner s request for a status quo order. Pursuant to ORS (C a hearing has been scheduled 21 days from the time of service. The issue at the hearing is limited to a determination of the status quo at the time the motion for the order was filed. A temporary status quo order restrains and enjoins each parent from: a changing the child s usual place of residence, b interfering with the present placement and daily schedule of the child, c hiding or secreting the child from the other parent, d interfering with the other parent s usual contact and parenting time with the child, e leaving the state with the child without the written permission of the other parent or permission of /// /// PAGE 1 - ORDER TO SHOW CAUSE RE: POST-JUDGMENT TEMPORARY STATUS QUO ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 65

440 Chapter 6 After the Dust Settles: Post-Judgment the court; or f in any manner disturbing the current schedule and daily routine of the child until the motion for modification has been granted or denied. DATED this day of, 2013] CIRCUIT COURT JUDGE Submitted by: [Ruth E. Pekelder], OSB #[840799] [[email protected]] [PEKELDER FAMILY LAW, P.C. 819 SE Morrison, Suite 245 Portland, OR 97214] PAGE 2 - ORDER TO SHOW CAUSE RE: POST-JUDGMENT TEMPORARY STATUS QUO ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 66

441 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-20 Motion for Post Judgment Temporary Custody Order (Immediate Danger IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], and [RINTINTIN], FOR THE COUNTY OF [DOG RIVER] Pursuant to ORS Petitioner, by and through her attorney [Ruth E. Pekelder of Pekelder Family Law], moves the court for an order granting Petitioner legal and physical custody of the following children: [name] [year of birth] until further order of the court. Petitioner, Respondent. Points and Authorities ORS Declaration of Petitioner Dated this day of [February, 2013] Case No. [ ] MOTION FOR POST-JUDGMENT TEMPORARY CUSTODY ORDER (IMMEDIATE DANGER [Ruth E. Pekelder], OSB #[840799] Attorney for Petitioner PAGE 1 - MOTION FOR POST-JUDGMENT TEMPORARY CUSTODY ORDER (IMMEDIATE DANGER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 67

443 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-21 Declaration in Support of Motion for Post Judgment Temporary Custody Order IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], and [RINTINTIN], FOR THE COUNTY OF [DOG RIVER] Petitioner, Respondent. I, [Lassie], make the following declaration: 1. I am the Petitioner in this matter. 2. Respondent and I were divorced pursuant to a General Judgment of Dissolution of Marriage (Judgment on. 3. Under the terms of the Judgment, Respondent was awarded custody of the children and I was awarded parenting time. 4. The addresses where our children have lived and the persons our children have lived with for the past six months are:. 5. The courts of the state of Oregon have exclusive jurisdiction to make child custody determinations in this matter under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act. 6. Our child [Name] is in immediate danger in the following ways: A. [Describe] B. [Describe] C. [Describe] Case No. [ ] PETITONER S DECLARATION IN SUPPORT OF MOTION FOR POST- JUDGMENT TEMPORARY CUSTODY ORDER PAGE 1 - PETITONER S DECLARATION IN SUPPORT OF MOTION FOR POST- JUDGMENT TEMPORARY CUSTODY ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 69

444 Chapter 6 After the Dust Settles: Post-Judgment I made a good faith effort to confer with Respondent regarding the purpose and time of this court appearance by [describe]. 8. The court can contact me by phone at the following number during the day:. My contact address is. 9. I have filed a motion to modify custody and parenting time. 10. I declare that the above statement is true to the best of my knowledge and belief and that I understand it is made for use as evidence in a court and is subject to penalty for perjury. Dated this day of [February, 2013] [Lassie], Petitioner PAGE 2 - PETITONER S DECLARATION IN SUPPORT OF MOTION FOR POST- JUDGMENT TEMPORARY CUSTODY ORDER PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 70

445 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-22 Order for Post-Judgment Temporary Custody IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] ORDER FOR POST-JUDGMENT TEMPORARY CUSTODY (EX PARTE Pursuant to ORS , the declaration of petitioner, and [testimony of the parties], the court makes the following: FINDINGS 1. The parties were divorced by a General Judgment of Dissolution of Marriage (Judgment on. The Judgment awarded custody and set a parenting time schedule. 2. The court finds by clear and convincing evidence that the child[ren] [is/are] in immediate danger. 3. Petitioner made a good faith effort to confer with Respondent regarding the purpose and time of this court appearance. 4. Petitioner has filed a motion to modify custody and parenting time. Therefore it is ORDERED: Until further order of the court, 1. [Insert new custody and parenting time provisions] 2. [Insert new custody and parenting time provisions] PAGE 1 - ORDER FOR POST-JUDGMENT TEMPORARY CUSTODY (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 71

446 Chapter 6 After the Dust Settles: Post-Judgment [Insert new custody and parenting time provisions] NOTICE TO RESPONDENT Notice: You may request a hearing on this order as long as it remains in effect by filing with the court a hearing request in the form described in ORS (3. In the request you must tell the court and the other party that you object to the order on the ground that the child was not in immediate danger at the time the order was issued. In the request you must also inform the court of your telephone number or contact number and your current residence, mailing, or contact address. The form is available through the Oregon Judicial Department s website, and may also be available through your local circuit court. DATED this day of, 20[13] CIRCUIT COURT JUDGE PAGE 2 - ORDER FOR POST-JUDGMENT TEMPORARY CUSTODY (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 72

447 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-23 Motion for Order to Show Cause Re Expedited Parenting Time Enforcement (Ex Parte IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], and [RINTINTIN], FOR THE COUNTY OF [DOG RIVER] Pursuant to ORS , Petitioner, [Lassie], requests that the court issue an Order to Show Cause requiring Respondent, [RinTinTin], to appear and show cause why the court should not enter the following orders: 1. Enforcing Petitioner s parenting time, as established in the [Order] signed [date] by [Judge s Name] in any method determined reasonable by the court. A copy of the [Order] is attached as Exhibit 1 and incorporated Petitioner, Respondent. 2. Awarding attorney fees and costs to Petitioner pursuant to ORS Dated this day of February, [Ruth E. Pekelder], OSB #[840799] [[email protected]] Attorney for Petitioner STATEMENT OF POINTS AND AUTHORITIES ORS Declaration of Petitioner Case No. [ ] MOTION FOR ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE PAGE 1 - MOTION FOR ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 73

449 Chapter 6 After the Dust Settles: Post-Judgment Form 6-24 Declaration in Support of Motion for Order to Show Cause Re Expedited Parenting Time Enforcement (Ex Parte IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] DECLARATION IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE I, [Lassie], make the following declaration: 1. I am the Petitioner in the above-referenced matter. 2. Respondent and I were divorced on [date] by a General Judgment of Dissolution of Marriage. I was awarded parenting time with our children. 3. Respondent has interfered with parenting time in the following ways: A. [Describe]. B. [Describe]. C. [Describe]. 4. I am asking the court to take the following action to secure my contact with my children: A. [Modify the parenting plan]. B. [Require Respondent to post bond]. C. [Order Respondent to attend classes]. D. [Award me my attorney fees and costs]. PAGE 1 - DECLARATION IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 75

450 Chapter 6 After the Dust Settles: Post-Judgment 1 E. [Terminate, modify, or suspend my spousal support 2 obligation] F. [Terminate, modify, or suspend my child support obligation]. G. [Order a hearing]. H. [Waive mediation]. 5. I declare that the above statement is true to the best of my knowledge and belief and that I understand it is made for use as evidence in court and is subject to penalty for perjury. DATED this day of [February, 2013] [Lassie], Petitioner PAGE 2 - DECLARATION IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 76

451 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-25 Order to Show Cause Re Expedited Parenting Time Enforcement (Ex Parte IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], FOR THE COUNTY OF [DOG RIVER] TO: [RinTinTin], Respondent: IT IS ORDERED that you appear before this court on, 2013], at [a.m./p.m.], to show cause why the court should not enter the following orders: and [RINTINTIN], 1. Enforcing Petitioner s parenting time, as established in the [Order] signed [Date] by [Judge s Name] in any method determined reasonable by the court Petitioner, Respondent. 2. Awarding attorney fees and costs to Petitioner pursuant to ORS NOTICE When pleaded and shown in a separate legal action, violation of court orders, including visitation and parenting time orders, may also result in a finding of contempt, which can lead to fines, imprisonment, or other penalties, including Case No. [ ] ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE compulsory community service. In addition to any other remedy the court may impose to enforce the provisions of a judgment relating to the parenting plan, the court may: A. Modify the provisions relating to the parenting plan by: PAGE 1 - ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 77

452 Chapter 6 After the Dust Settles: Post-Judgment (1 Specifying a detailed parenting time schedule; (2 Imposing additional terms and conditions on the existing parenting time schedule; or (3 Ordering additional parenting time, in the best interests of the child to compensate for wrongful deprivation of parenting time; B. Order the party who is violating the parenting plan provisions to post bond or security; C. Order either or both parents to attend counseling or educational sessions that focus on the impact of violations of the parenting plan on children. D. Award the prevailing party his/her expenses incurred in enforcing the parenting plan, including, but not limited to, attorney fees, filing costs, and court costs. E. Terminate, suspend, or modify spousal support. F. Terminate, suspend, or modify child support if the court finds that parenting time has been denied or interfered with without good cause, and other requirements of ORS are met. G. Schedule a hearing for modification of custody. H. Waive the mediation requirement. Dated this day of February, Submitted by: [Ruth E.Pekelder], OSB #[840799] [PEKELDER FAMILY LAW, P.C.] [[email protected]] Attorney for Petitioner CIRCUIT COURT JUDGE PAGE 2 - ORDER TO SHOW CAUSE RE EXPEDITED PARENTING TIME ENFORCEMENT (EX PARTE PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 78

453 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-26 Motion for Order to Show Cause Re Contempt (Remedial Sanction IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], and [RINTINTIN], FOR THE COUNTY OF [DOG RIVER] Petitioner, Respondent. Pursuant to ORS , Petitioner, [Lassie], requests that the court issue an Order to Show Cause requiring Respondent, [RinTinTin], to appear and show cause why the court should not grant relief for noncompliance with the [Judgment] entered [date]. [Lassie] seeks remedial sanctions only. 1. Respondent, [RinTinTin], is in contempt of court for failing to: described in Petitioner s Declaration]; described in Petitioner s Declaration]. A. [Comply with Paragraph of the Judgment as B. [Comply with Paragraph of the Judgment as 2. It has been within Respondent s power to obey the Judgment. 3. Not more than two years has passed since Respondent last violated the Judgment in these regards. 4. Petitioner seeks remedial sanctions as follows: Case No. [ ] MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT (REMEDIAL SANCTION A. Imposing remedial sanctions for the purpose of coercing Respondent s future compliance and to remedy his past failure to comply with the PAGE 1 - MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT (REMEDIAL SANCTION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 79

454 Chapter 6 After the Dust Settles: Post-Judgment judgment order and to compensate for injury and costs resulting from Respondent s past conduct; B. That the Respondent pay a daily fine in an amount up to $500 or 1% of Respondent s gross annual income, whichever is greater, for each day [he] is not in compliance with the provisions of the [Judgment]. THIS IS A REMEDIAL SANCTION. C. That the Respondent pay all costs, attorney fees, and disbursements incurred in bringing this motion and any future motion for noncompliance for contempt. THIS IS A REMEDIAL SANCTION. D. No sanction of confinement is sought. POINTS AND AUTHORITIES ORS Declaration of Petitioner DATED this day of [February, 2013] NOTICE [Ruth E. Pekelder], OSB #[840799] Attorney for Petitioner You must personally appear in the above-entitled court and case at the date and time specified in the Order. If you fail to appear in court at such date and time, you may be arrested and held in custody for the purpose of being brought before the court to answer the contempt charges which have been made against you PAGE 2 - MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT (REMEDIAL SANCTION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 80

455 Chapter 6 After the Dust Settles: Post-Judgment 1 Form 6-27 Declaration in Support of Motion for Order to Show Cause Re Contempt (Remedial Sanction IN THE CIRCUIT COURT OF THE STATE OF OREGON In the Matter of the Marriage of: [LASSIE], order]. and [RINTINTIN], FOR THE COUNTY OF [DOG RIVER] Petitioner, Respondent. I, [Lassie], make the following declaration: 1. I am the Petitioner in the above-referenced matter. 2. [Describe ways in which Respondent is not in compliance with 3. I declare that the above statement is true to the best of my knowledge and belief and that I understand it is made for use as evidence in court and is subject to penalty for perjury. DATED this day of [February, 2013] Case No. [ ] DECLARATION IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT (REMEDIAL SANCTION [Lassie], Petitioner PAGE 1 - DECLARATION IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT (REMEDIAL SANCTION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 81

457 Chapter 6 After the Dust Settles: Post-Judgment Form 6-28 Order to Show Cause Re Contempt (Remedial Sanction IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [DOG RIVER] In the Matter of the Marriage of: [LASSIE], Petitioner, and [RINTINTIN], Respondent. Case No. [ ] ORDER TO SHOW CAUSE AND APPEAR RE: CONTEMPT (REMEDIAL SANCTION TO: [RinTinTin], Respondent. Pursuant to ORS , and based upon Petitioner s motion and supporting declaration, and good cause appearing, IT IS ORDERED that you appear before this court at [a.m./p.m.] on the day of, 2013], in [Room 777] of the [Dog River] County Courthouse, [145 N.E. Rawhide Avenue, Dog River, Oregon 97999], to show cause why the court should not find you in contempt for failing to abide by the [Judgment dated ]; and why you should not be sanctioned in the following respects: 1. By requiring you to pay a fine in an amount not to exceed $500 per day or 1% of your gross income for each day you are not in compliance with the provisions of the [Name Of Court Order]. THIS IS A REMEDIAL SANCTION. 2. By requiring you to pay Petitioner s attorney s fees and costs incurred as a result of this contempt proceeding. THIS IS A REMEDIAL SANCTION. /// PAGE 1 - ORDER TO SHOW CAUSE AND APPEAR RE: CONTEMPT (REMEDIAL SANCTION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 83

458 Chapter 6 After the Dust Settles: Post-Judgment 1 3. Any other sanction deemed appropriate by the court; and remedial 2 in nature. 3 DATED this day of, 2013] Presented by: [PEKELDER FAMILY LAW, P.C.] CIRCUIT COURT JUDGE [Ruth E. Pekelder], OSB #[840799] [[email protected]] Attorney for Petitioner NOTICE YOU MUST PERSONALLY APPEAR IN THE ABOVE-ENTITLED COURT AND CASE AT THE DATE AND TIME SPECIFIED IN THE ORDER. IF YOU FAIL TO APPEAR IN COURT AT SUCH DATE AND TIME, YOU MAY BE ARRESTED AND HELD IN CUSTODY FOR THE PURPOSE OF BEING BROUGHT BEFORE THE COURT TO ANSWER THE CONTEMPT CHARGES THAT HAVE BEEN MADE AGAINST YOU PAGE 2 - ORDER TO SHOW CAUSE AND APPEAR RE: CONTEMPT (REMEDIAL SANCTION PEKELDER FAMILY LAW, PC 819 SE Morrison, Suite 245 Portland, Oregon p f Drafting Family Law Documents 6 84