Part of Real World Divorce: web edition | Kindle edition
To learn about the law and customs of Oregon we interviewed Susan Williams, who has 31 years of experience in the state and is a member of the American Academy of Matrimonial Lawyers. She has been a "Super Lawyer" since 2007 and has an office in Portland.
Williams represents a 50/50 mixture of male and female clients and goes to trial "about twice a year." She notes that there are a lot of pretrial hearings that dispose of many important issues in divorce cases, such as a temporary parenting plan and spousal support, and those are much more frequent. "It varies by county as to whether this is whether these are evidentiary. The trend toward non-evidentiary or 'affidavit-only.'" Williams explained that temporary motions are not appealable but that an attorney who was aggrieved by a decision from a non-evidentiary hearing (where the decision was made based on affidavits and attorney representations) could quickly get an evidentiary hearing where a judge might reverse his or her previous ruling. She noted that this was similar to an established process in Oregon whereby "restraining orders are issued ex parte with the opportunity for an immediate hearing."
How long does it take from the time the "petitioner" files a case against a "respondent" until the case is tried? "It is supposed to be nine months," says Williams, "but a case where everything is at issue and there are custody evaluations or business appraisals could easily extend out to about a year. Judges get cranky if it goes longer than that."
Oregon provides that child support be paid through age 21 if a child is attending school at least part-time. However, the child support checks are paid to the plaintiff parent only until the child turns 18. After that they are paid to the child directly, wherever the child happens to be. Williams notes that child support is typically not sufficient to pay college room, board, and tuition. Oregon courts do not have the jurisdiction to order a parent to pay for college but she says that typically the wealthier parent will voluntarily pay. "What you run into with high income people is that they don't want to pay the other parent," says Williams. "They just want to pay for the kid. High income people will take care of their kids and are willing to pay. But they want to write the check to the school directly."
Oregon publishes child support guidelines that go up to $30,000 per month in combined parental income ($360,000 per year). There is a rebuttable presumption that the top of the guidelines is the correct amount of child support even where the person being sued has a higher income. "A court will rebut that presumption upward," says Williams. "Basketball players will pay several thousand more per month than guidelines after one-night encounter. $5,000/month or $7,500/month would not be unusual." The top of the guidelines, with a $30,000 per month defendant who can add the child to his or her health insurance at no charge, is $1,987 per month or $23,844 per year. A plaintiff could collect, in addition, the cost of "work-related day care."
Collecting child support is much less profitable in Oregon than in many Eastern states. For example, the $250,000 per year defendant that would yield $40,000 per year in child support in Massachusetts would yield only $19,452 per year in Oregon. After subtracting the USDA-estimated real costs of the child in both states, the Massachusetts profit is three times the Oregon profit.
Child support in Oregon depends heavily on the number of nights that a child is with each parent and, as an "income shares" state, the incomes of both parents must be considered. The state operates a Web-based calculator at justice.oregon.gov that enables citizens to figure the likely child support that a court would order, assuming that combined parental income is under $360,000 per year.
A "walk-away" prenuptial agreement in which neither party can profit from the marriage, e.g., one in which alimony is waived, is valid, according to Williams, "unless the person with the lower income would be on public assistance."
Williams says that appealing the typical things about a divorce that might upset a litigant, such as a custody or child support decision, was never easy and "it is now much harder to convince an appellate court to overturn a trial court." As in other states, the trial court has tremendous discretion and decisions that would make a parent unhappy, such as losing custody, are non-appealable questions of fact not appealable rulings on law.
The average hourly wage in Oregon is $21.75 per hour. A person who goes to college at the University of Oregon will spend approximately $83,760 over four years to earn a bachelor's degree. Census 2014 data shown that median income for a 22-36-year-old college-educated woman working full time is $30,000 ($21,844 after taxes). The corresponding man earns $43,700 ($31,034 after taxes). Oregon collects 10.3 percent of state residents' income to run state and local government (compare to a national average of 9.9; source: Tax Foundation). Personal income tax rates in Oregon can be as high as 9.9 percent.
The average annual cost of child care is $11,079 for an infant and $8,542 for a four-year-old. The total cost of child care from age 0 through 12 is about $56,493 in commercial settings or $38,841 in a family care setting.
The male college graduate will have an after-tax spending power of $443,818 after 17 years of working (17 years of income minus taxes and the cost of college). After adjusting for USDA-estimated child-related costs, he would enjoy a higher personal spending power by collecting child support when that support is $2,404 per month or more. This is an above-the-guidelines chart number that would require suing a defendant with at least $360,000 in annual income and then benefitting from judicial discretion. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,524 per month, the guideline payment corresponding to earnings of $222,612 per year.
The female college graduate will have an after-tax spending power of $287,588 over the same time period. She would be better off collecting child support when that exceeds $1,784 per month. She gets this when suing a father earning $298,212 or more per year. If she is suing two fathers, however, she comes out ahead compared to the college/work case when each father pays $1,214 per month. She can get this by suing men who earn at least $145,212 per year.
Taking care of your own child pays better in Oregon than taking care of someone else's. The state pays foster parents $7,847 per year, more than Professor Comanor's calculation of action child-related spending by American parents, but slightly less than the USDA estimate (see the Methodology chapter).
Among Oregonians surveyed by the U.S. Census Bureau in March 2014, 85 percent of those collecting child support were women (compare to 97 percent in Massachusetts or 94 percent in California).
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
How often does Williams see cases like this where the mother out-earns the father? "It was uncommon 10 years ago, but now it is up to 20 percent of my cases with upper-middle-class people."
What happens to this child? "The mother will get sole legal custody," predicts Williams. So she could have the child tattooed or donate the child's kidney without getting permission from the father? "In theory, yes," says Williams, "though if she did the father might try to argue that he should be given sole custody. Joint legal custody can be ordered in Oregon only with the agreement of both parents. If one party does not want joint custody the court must award sole legal custody." [Authors' note: This makes Oregon similar to Illinois but very different from most other states, where joint legal custody is presumed.]
What about the child's schedule? "It would be a graduated schedule starting with overnights at 18 months," says Williams. "He could see the child every other day or every two or three days. It is case-dependent." How about when the child enters school? "If he is a good dad who lives in the area, he might have every Thursday overnight and every other Thursday to Sunday afternoon." Why not let the dad drop off the kid at school, thus sparing the parents from more post-divorce contact? "There could be a Monday morning school dropoff, but only if parents are very cooperative. The thinking is that with younger kids they need to get back to the custodial parent's home and get ready for school," says Williams. What would the summers and holidays look like? "By the time the child is five years old, he or she could go away with the father for a one-week summer vacation. For an older child the minimum would be two one-week vacations in the summer. School holidays would be split."
Will he pay child support to her given that he has no income? "The compute would impute minimum wage to him," says Williams, "and it would be understood that the child support was modifiable as his income increased."
We ran some child support calculations on the state's Web site and, after imputing minimum wage income to the father, came up with the following:
The mother thus has a $60,240 financial incentive over the 20 years of remaining child support payability to exclude the father altogether from the child's life, e.g., by alleging that he is molesting or harming the child or simply by making it difficult for him to spend time with the child. Comparing the 75/25 versus the 50/50 time share, the mother has a $172,080 incentive to block equal parenting. The father has a $343,920 incentive to try to be designated the primary parent (75/25 versus 25/75).
What would a case like this cost in legal fees, assuming that it went all the way through trial? Williams, who charges $325 per hour, says "It is not unusual for fees to be $60,000 per side. Custody cases are the most expensive and difficult to settle. Money cases are typically cheaper." Given that the father has no income, how can he pay for his legal defense? "He would have to ask for 'suit money'," says Williams. "The attorneys would make arrangements for each lawyer to be paid a certain amount from a joint account at the beginning of the case. At the end of case either party has the right to ask for reimbursement of fees." Would either side get that? "It depends on if someone has made case more expensive. If you go to trial and win then if the other side took an unreasonable position the judge will order that your fees be paid."
Can the father get alimony? "He can get only a couple of months of transitional alimony to move out of the house and get set up," says Williams. "If you represent the wife you would give him a one-time lump sum of cash, rather than call it alimony and open that door [to continued alimony demands]."
How about a property division? "Oregon uses an equitable and just standard, not community property like Washington [State] or California. Judges are free to do what they think is fair. However, after two years of marriage they will be restored to where they were except that he will get to keep his equipment because it gives him work to do and that might be beneficial to the child," says Williams.
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
"One parent gets sole legal custody," says Williams, "while 50/50 physical custody is very likely." How does the court decide which of these litigants to select for sole legal custody? "It will come down to which parent is more likely to facilitate kids' relationship with the other parent. The parent who is willing to be more flexible may prevail on custody."
In the 50/50 time share situation there would be no child support paid due to the equal income. If one parent were able to convince the court to place the children with him or her for 75 percent time, the other parent would pay $773 per month ($9276 per year). If a parent could contrive to exclude the other parent almost entirely, taking care of the children close to 100 percent of the time, the child support would go up to $1041 per month ($12,492 per year).
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
"Mom has the advantage of having been primary and the kids are young," says Williams, predicting a custody victory for the mother. What if the doctor says that he can adjust his hours and be available to take care of the children on a 50/50 basis? "Even if he says that he will cut back that isn't likely," Williams notes. "Men get scared that they are going to lose their kids and come up with a fantasy that they will scale down their careers. If he a busy guy and working a lot the court will encourage him to spend more time with the kids, not with a nanny and not with a girlfriend. There will be some flexibility and effort to accommodate his work schedule. There is just no way he will get 50/50 because judge will not believe that he is going to devote less time to work and more to child care."
[Authors' note: Williams generally characterized Oregon as gender-neutral. However, she did not think that the female doctor in Scenario 1 would be scrutinized due to her use of a nanny whereas she thought that the male doctor here in Scenario 3 would not get credit for being a parent unless he did it solo.]
Could the parenting time trend toward 50/50 as the children get older? "Any really good parent can work up to 50/50 with older kids as long as he stays in the game and is involved. If he shows that he is just a visiting, fun, or vacation parent," responded Williams. Her best guess as to when a balanced schedule might be attained by this doctor? "Maybe when the children are in middle school, age 11 or 13. A lot of middle school kids don't like 50/50, though, because they don't like to go back and forth."
What are the cash implications of the parenting schedule?
In other words, the mother has a $236,208 financial incentive to block shared parenting (going from 75/25 to 50/50). That's $162 per additional night that the children would spend with her through the youngest turning age 18.
What about alimony? "There are no guidelines for alimony," says Williams. "It is case by case and depends on her income and earning capacity, the standard of living they've enjoyed in marriage, etc. For a woman with no income, 25 percent of the ex-husband's gross income is a rule of thumb. There is no case law supporting this, however. It is just what lawyers use as a starting point." Are there any conventions for the length of alimony? "The rule of thumb is about 20 years of marriage before permanent alimony is awarded. But if a couple gets married when she is 45 and then divorced when she is 55 and she gave up her career, she could get permanent alimony." Does "permanent" mean until the death of the payor? "Indefinite support has no termination date," explains Williams, "but as a practical matter but if a guy has a good-faith retirement at age 65 and can convince the court that he did not retire simply to pay less alimony then he is entitled to a modification, which could be a termination or a reduction." How about in this scenario, after 10 years of marriage? "She will probably get five years of alimony, half the length of the marriage," says Williams, "and it may be reduced after the 2-year-old enters school, at which point the court will expect her to get into the work force."
What would the property division look like? "The property will be divided 50/50. If she wants and can afford the house she will keep it and he will get other assets of equal value."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Williams predicts a slam-dunk custody victor for the mother "because the baby is young and she's home. A woman does not win custody just because she is breastfeeding. But it is one of the factors. More significant is the child's age and mom is home." How about the medical doctor who has been at work during the marriage? "He has to prove himself with this child," says Williams, forecasting frequent but short visitation until the child is older.
Can the plaintiff get alimony? "Only for about two months transitional from the court," says Williams. (In other words, the temporary spousal support and continued use of the house during the litigation will be more valuable to the plaintiff here than will the ultimate alimony award.) How about the division of the $2 million in premarital savings that she seeks? Williams says that "The judge will not directly divided the $2 million. She will get something, though. A judge would give her a headstart with some cash to start her new life. Maybe $50,000 and if he doesn't have other savings it would come from the $2 million in premarital savings."
The mother's child support payments will be figured including any actual investment income received on the $2 million in premarital savings. What if the return is low, though? Can she get a judge to impute additional income to the savings and thus increase the child support revenue? "I have seen people imputing income to an asset. But in this case it would make her look greedy and is unlikely to succeed," said Williams, predicting that the mother would be limiting to collecting child support on any actual dividends or interest.
With a straight $275,000 in income, the guideline child support calculations are the following:
Adding in, for example, a 3 percent dividend yield on the $2 million in savings, the numbers go up to $1,906, $1,658, and $953 with a 20-year maximum of $457,440.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"This is a regular part of my business," says Williams. "She gets automatic custody and he gets automatic parenting time if he wants it. It will be the same child support as if they had been married." (i.e., using the numbers from the above scenario but without dividends, the mother can get up to $20,460 per year or $368,280 over 18 years with an additional $61,380 paid directly to the child).
Can she wait a few years and then file a lawsuit for child support going back to the date of the child's birth? "She can only get child support from when she establishes paternity," says Williams.
What if the woman marries a high-income husband, will her child support payments be reduced? "No," says Williams. "The new husband's income would not be included in the guideline calculation. The court uses only the incomes of the parents. The only time I've ever seen a marriage have an effect was when the new husband's income enabled the mother to quit her high-income job. She went to court asking for an increase in child support based on the fact that she was no longer working, but failed because her husband's income was then imputed to her."
"We call it 'relocation' and it is much easier if you are a primary parent than a 50/50 parent," says Williams. "Oregon uses the 'best interest of the child' standard. It used to be easy for custodial parents to move if they had a good reason such as remarriage or a great job. However, the closer you get to 50/50 custody the more likely it is that the other parent will be able to block the move. Courts over the years have swung toward not allowing relocation. When I first started practicing judges almost invariably allowed the move, but that's the case anymore." What's her best guess as to the outcome in a typical relocation case these days? "Mom has a fairly good chance if dad is taking care of kid only every other weekend. She would have to go in with a plan where she made it very easy for dad to visit with the child, e.g., offering to pay for plane fare. Summer times would be extended where dad might have more than half of the summer. She would have to sweeten the pot. This is to make court feel confident that the custodial parent will facilitate contact with the non-custodial parent. Some parents give up child support when asking to move."
What if a mother and child move into Oregon from New York and she has a typical New York custody schedule with an 83/17 time split plus $75,000 per year in child support, then the father also moves to Oregon? "Under UIFSA [Uniform Interstate Family Support Act] the Oregon court would take over jurisdiction and could modify custody, parenting time, and child support in accordance with Oregon law," says Williams but notes that "Moving to Oregon will not enable a parent who had a child support order through age 18 in another state get an order that child support be paid through age 21 under our laws, for example."
The basic Oregon calculator assigns different cash values to multiple children with the same parent because there is a field to enter the "number of non-joint children" and a non-zero entry results in a lower child support guideline. A defendant at the top of the guidelines would pay up to $1987 per month for the first child whose parent sued. The second plaintiff would get $1932 per month. The third plaintiff would get $1904 per month.
Oregon provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent will yield $3217 per month in child support ($38,604 per year) compared to three children with three different co-parents where the revenue is a tax-free $5,961 per month ($71,532 per year). This works out to a $691,488 difference over 21 years.
Oregon provides superior financial security for child support and alimony plaintiffs than for married people. While a spouse may suffer a financial loss in the event of a partner's death, a successful plaintiff in Oregon can get a judge to order that the defendant, in addition to paying child support and alimony, also pay for life insurance so that the plaintiff does not suffer as a result of his or her death. "As a practical matter," Williams notes, "guys over 65 are not usually required to buy life insurance because the premiums are so high."
Williams says that she expects to see some codification or at least guidelines for alimony. "Alimony is probably the most contentious issue in Oregon. It is psychologically troubling for people. It is hard for lawyers to advise people on what they're going to get, which causes litigation. Judges don't like alimony because it is modifiable and people keep coming back." Getting a check in the mail every month isn't so terrible, is it? "There is a lot of stress on recipients," Williams notes, "because they know that their lifestyle is being scrutinized. Do they have a boyfriend, a new car? Should they buy a more expensive house and take on a bigger mortgage when alimony can go away at any time?"
Williams also noted that "The gay marriage thing has really shaken everything up. We have had civil unions. We have had gay domestic partnerships under common law. A federal judge has thrown out our constitutional amendment [from 2004] banning gay marriage. That area of law has become so specialized that I refer clients to specialists who only handle same-sex cases." What's the bottom line for attorneys? "There will be a huge increase in business and divorces."
Williams sees a shift in the way that divorces are handled. "The traditional setup from which I've benefitted where each parent gets a lawyer is becoming less popular. Only very wealthy people can afford to do that. There are so many cases where people can't afford attorneys that judges are trying to set up alternative dispute resolution environments. For example, Multnomah County has a special session where judges do 'pro se quasi-trials'. Two people come in by themselves and talk to the judge and she tells them what to expect and maybe types up an agreement. This clears a lot of pro se cases out of the regular system." [Note that this is similar to the Danish system in which a divorcing couple first goes to an administrator to try to work out an agreement before a case can proceed to court.]
Given that mental health professionals working as custody evaluators are making the decisions that matter most to a lot of parents, i.e., whether there will be shared parenting, who will get legal custody, etc., are the rich people actually getting much value from their lawyers? "There is some benefit from the advice of an experienced lawyer. It is true that the evaluator is deciding the case because it is unlikely the judge is going to mess with whatever the evaluator recommends. However, an attorney can tell a client what to expect and what the evaluator will be looking at. On financial issues, it is invaluable to have a very experienced local lawyer who knows the judges and the lawyers who might be on the other side."
Oregon is unusual in its regular granting of sole legal custody to one parent; most states presume shared legal custody even when a child primarily lives with one parent. However, as lawyers in those other states have said that the "shared legal custody" is an "on paper" sham, this may not have much practical effect.
Oregon's child support guidelines put a limit on the profitability of children. Based on our interview with Williams this seems to promote more cooperation between parents than in states that offer unlimited child support revenue. "High-income parents want their children to have the best of everything," says Williams, "so they work together to find a way to pay for things that the court can't order, such as private school." As noted above, Williams says that parents are more likely to enter into these voluntary agreements when they are writing checks to a school, for example, rather than to their ex-spouse.