The CARES Act & Divorced or Separated Parents

“Perhaps due to the speed with which the law was passed, the Act is silent on how it will distribute the rebate money to parents who are divorced or separated.”

On March 27, 2020, Congress passed the CARES Act, a sweeping piece of legislation aimed at providing relief to individuals, families, and businesses adversely affected by the Coronavirus pandemic. The Act will have different repercussions for individuals in different circumstances, but the provision with perhaps the broadest impact is the recovery rebate. More commonly referred to as a stimulus payment, the recovery rebate is a one-time payment to US citizens and residents. For most the recovery rebate is good news, but for unmarried, divorced, or separated parents sharing custody of their children, the rebate may usher in unwelcome complications.

Individuals who make less than $75,000 will receive $1,200 plus $500 for each child that qualifies for the Child Tax Credit. However, many parents who share equal parenting time with their children alternate which parent claims the Child Tax Credit from year to year. Perhaps due to the speed with which the law was passed, the Act is silent on how it will distribute the rebate money to parents who are divorced or separated.

The recovery rebates are based on taxpayers’ 2019 tax return (or 2018 for those who have yet to file their 2019 return). The most likely result is that the parent who claimed the children in 2019 will receive the additional money for their qualifying children. This payment is a fully refundable tax credit, meaning it can be received by taxpayers regardless of what tax is owed. The rebates are technically a prepayment by the IRS of a 2020 tax credit; whichever parent claims the children in 2020 will have the rebate factored into their 2020 taxes. For parents who claim their children in alternate years, the tax rebate poses a unique problem that the IRS has yet to address. The parent who claimed their child in 2019 will probably receive the rebate if they have not already. However, the parent who will claim the child 2020 is also likely to receive the rebate after filing, if they did not receive it previously. What is unclear is whether the IRS will require the return of any overpayment, if not both parents may benefit from the stimulus.

The IRS may address this issue in future guidance, but we recommend that amicable co-parents be proactive in discussing how they will use the rebate money so that it can best benefit the child. A frank conversation about how to use the money may prevent disagreements in the future. While we encourage parents to reach out to their attorney with questions related to the rebate, it is likely that the cost of litigation to resolve this issue will far exceed the amount of the rebate.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

A Pandemic Economy: Modifying Spousal or Child Support Awards

Oregon’s unemployment rate has risen to a historic high of almost 15{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} in the wake of the COVID-19 pandemic, leaving many in a state of uncertainty about how they will make ends meet. For those who are party to a child or spousal support award, a change in employment may be grounds for modifying the terms of their support award. When there has been a significant, unanticipated change in economic circumstances, the court will consider a petition to modify a child or spousal support award. You would be hard pressed to find anyone who anticipated the COVID-19 pandemic. If you have lost your job or are otherwise significantly impacted by the pandemic, you may consider requesting a child or spousal support modification.

Courts determine the child support awards using a formula based on the income of both parents as well as other factors. Because courts deviate from this formula only in extraordinary circumstances, parents who wish to modify their child support obligations should run the numbers to see if their change in income will result in a change to their child support award. The Oregon Department of Justice provides a useful calculator to help parents determine child support awards.

The guidelines for spousal support are less formulaic than those for child support. Courts will modify spousal support after a change in economic circumstances, if the modification supports the original purpose of the award. Some parties’ judgments do not specify the original purpose of the award. In those cases, the court will assume the award was based on an attempt to distribute the incomes of the parties fairly. The court may then modify the award if either party has a substantial change in income. However, if both parties have a substantial decrease in income, then the court will be less likely to modify the award because the relative position of both parties has stayed the same.

For both child and spousal support modifications the court has the authority to modify the award retroactively, but only to the date of a party’s modification request. This means if you were laid off in March or April and you do not file to modify until July, the earliest date the modification will be effective is July. Filing a motion as soon as you learn about a significant change in income is important because a retroactive award allows you to receive money for the time that motion is in court.

The first step to modifying child or spousal support is to file motion with the court and give notice to a co-parent or ex-spouse. Many courts in Oregon are currently closed or operating on limited hours due to the pandemic. If you are planning to file with your county court, you may wish to check the status of your court on the Oregon State Courts website. We encourage anyone interested in making a request for support award modification to consult an experienced family law attorney.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Multnomah County Presiding Judge Issues Child Custody and Parenting Time Orders During COVID 19 Pandemic

Last week we wrote about the State Family Law Advisory Committee (SFLAC) recommendations for custody and parenting time issues that may arise during this COVID 19 pandemic. Since that post, those recommendations have been adopted in a Court Order as of March 27, 2020 issued by Presiding Judge Stephen Bushong and Presiding Family Law Judge Susan Svetkey of the Multnomah County Circuit Court (here is a link to that order). This Order applies to any person who has a court-ordered parenting plan in a Multnomah County Circuit Court case that is still in effect. The Order sets forth parenting time guidelines for parents to follow during this COVID 19 pandemic regarding Summer vacation and other holidays, denial of parenting time, parenting time in public places, supervised parenting time, impact of Governor Brown’s Executive Order regarding travel, safety-related issues, transparency and make up parenting time. We encourage you to review this Order as it may provide useful information and answer some questions you may be having depending on your circumstances.  If you have a current parenting time order from a different county in Oregon, this Order does not apply to you but it may provide you with some guidelines to follow if your court order from a different county does not address these issues. We encourage you to seek legal counsel for any questions you may have about your particular court order. We hope you and your family is staying healthy and safe during this stressful time.

Chris Costantino is committed to helping clients navigate the complex and emotionally challenging territory of family law in their personal lives and family businesses. Her trademark philosophy — love your children, protect your assets, and preserve your legacy — guides her law practice.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Family Law Experts Issue Recommendations for Co-Parenting During Pandemic

Lots of families are struggling with how to best protect and parent children as the world responds to the COVID-19 pandemic. However, divorced parents may have additional concerns, such as “Is it safe to allow my children to travel to their other parent’s house for parenting time?,” “How can supervised parenting time continue if it was usually held at a restaurant?,” and “When is spring break, anyway?”

While each family may decide to approach these issues differently, the Oregon Statewide Family Law Advisory Committee (“SFLAC”) has issued recommendations for families who cannot reach their own agreements. Some common issues are addressed, such as:

  1. Definition of Spring Break, Summer Break/Vacation or Holidays: While the schools are closed, parenting time shall continue as if the children are still attending school in accordance with the school calendar of the relevant district. ‘Spring break,’ ‘summer break/vacation’ or other designated holidays, means the regularly calendared breaks/vacations or holidays in the school district where the children are attending school (or would attend school if they were school aged). The closure of the school for public health purposes will not be considered an extension of any break/vacation/holiday period or weekend.
  2. Parenting Time in Public Places: Governor Brown has forbidden all nonessential gatherings, regardless of size. If the parenting plan states that parenting time will occur in a public place, parenting time should continue at locations that are permitted under the health and safety guidelines for the state, such as a large park or nature hike. Public places where people routinely touch common contact surfaces (such as parks and play equipment) should be avoided. However, activities where parents and children can maintain social distancing and avoid such surfaces are encouraged. If that is not possible, then the parenting time should be conducted virtually via videoconferencing or by telephone.
  3. Governor’s Executive Orders regarding Travel: The Governor has issued executive orders that restrict travel except for essential activities, which generally include caring for minors, dependents and/or family members. Therefore, unless otherwise directed by the Governor or other executive order, the parties should continue to follow the parenting plan as written while such orders are in effect.
  4. Transparency: Unless the parties are restrained from communicating, parents are encouraged to communicate about precautions they are taking to slow the spread of COVID-19. A parent is not permitted to deny parenting time based upon the other parent’s unwillingness to discuss their precautionary measures taken, or belief that the other parent’s precautions are insufficient.

The full list can be found here: http://courts.oregon.gov/programs/family/sflac/SFLAC{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6}20Documents/SFLACGuidelineForParentsDuringCOVID19Pandemic.pdf. SFLAC is a panel of judges, trial court administrators, mediators and evaluators, attorneys, family court service providers, and representatives from various state agencies who advise the State Court Administrator on family law issues in the courts.

National groups The Association of Family Conciliation Courts (AFCC) and the American Academy of Matrimonial Lawyers (AAML) provided a joint statement last week with additional guidelines for co-parents. These can be found here: https://www.thecenterforfamilylaw.com/afcc-aaml. The consensus among professionals is that while parents should be mindful of protecting their children from infection and transmission of the disease, it is also important to continue following the parenting plan or other court orders unless doing so becomes impossible.

If you have additional questions about how to appropriately co-parent in this stressful and uncertain time we recommend that you reach out to a family law attorney.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Changing Your Name and Gender in Oregon

City Hall - Portland Pride - Gender Choice

Oregon is on the move to become a more transgender and non-binary friendly state.

In 2016, an Oregon judge allowed Jamie Shupe, a person who identified as non-binary, to change their identity to a neutral third gender. The judge’s decision to allow a non-binary gender is widely believed to be the first of its kind in the United States.

After this decision, Oregon gained momentum in creating a more streamlined process for those wishing to change their name and gender. Changing one’s name and gender previously was a complicated process. It often differed from county to county, and could not always be accomplished alone.

However, starting in 2017, the State of Oregon Judicial Department began providing statewide forms for both adults and minors who want to change their name and/or gender. The petition allows the applicant to decide whether they want to identify as male, female, or non-binary. The forms provide instructions for filling out a petition, as well as the cost and where it can be filed. Those forms can be found here: http://www.courts.oregon.gov/programs/family/forms/Pages/name-sex-change.aspx

No court order is necessary to change a gender indicator.

Additionally, as of July, 2017, the Oregon DMV also allows residents to change their gender marker to male, female, or a non-binary designation: “X.” To change a marker, an applicant will need to go to the DMV, and turn in a completed application with the desired indicator marked. They also are required to pay the renewal or replacement fee for their identification card. No court order is necessary to change a gender indicator. Please note that in order to change a name on a driver’s license or ID card, an applicant will need proof of a legal name change. One method of proof is to have a court order showing the legal name change. Forms and information can be found here: http://www.oregon.gov/ODOT/DMV/Pages/DriverID/chg_gender_designation.aspx

For those born in Oregon, there is also an administrative option for updating Oregon birth records to reflect accurate gender identity. This new option became available in January, 2018. It allows a one-time gender and name change without having to go through the courts. An applicant may request to be listed as male, female, or non-binary. An applicant will need to submit a notarized document, as well as a fee. For more information see: http://www.oregon.gov/OHA/PH/BIRTHDEATHCERTIFICATES/Pages/rules.aspx

With these changes, Oregon remains on the forefront of transgender issues. If you would like help in changing your name and/ or gender, contact a family law attorney.

Emily Clark is a litigator at Samuels Yoelin Kantor, with her practice centered around family law. Her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations, probate, and business transactions.

The Truly “Modern Family”

In February of this year news broke that Sofia Vergara, one of the stars of the hit show “Modern Family,” was being sued in California state court by her ex-fiancé, Nick Loeb. Mr. Loeb brought his suit in an attempt to void a contract governing what would happen to a very important shared asset—their frozen embryos.

When they created the embryos, the parties agreed that the embryos could not be used unless both parties consented. Unsurprisingly, now that the couple has split, Ms. Vergara does not consent to Mr. Loeb’s use of the embryos. But, Mr. Loeb argues he should be allowed to bring the embryos to life using a surrogate, rather than let them stay in frozen storage indefinitely.

California does not yet have binding case law on this issue, so it will be interesting to see what the court decides. However, in Oregon, it is unlikely that Mr. Loeb would be successful. In 2008 the Oregon Court of Appeals held that in a divorce between two parties, distribution of their frozen embryos would be governed by a contract the parties signed when they created the embryo. The court allowed the wife to destroy the embryos, per the contract provisions, despite the husband’s moral objection to their destruction.

Cases such as this are good examples of the confusion created when courts are required to step in to resolve messy domestic disputes. Even in situations where there is a contract between the parties, emotions and morals are so inextricably intertwined with the contract, that it is hard for parties to come to an amicable resolution. But, as courts around the country continue to resolve these case such as this, it will give parties a clearer understanding of how these contracts will be interpreted in the future.

For more information on this case, see this NY Times article, and MSNBC.

Undue Influence – Tripped Up in Court

Recently a Missouri jury resolved a deceased real estate magnate’s estate by finding his socialite widow had used undue influence to gain control of his company. The “high-stakes drama” had a cast of characters, that included politically connected attorneys and allegations of a manipulative second wife that unduly influenced her ailing husband to change control of the ownership interest in his company just a few months before he died.  Although the wife claimed that the decedent’s children had not been attentive to their father in the years before his death, the particularly damning evidence was from the decedent’s long-time lawyer, who kept notes about his client’s deterioration and the wife’s “relentless yelling and screaming” over estate amendments.

The case emphasizes the incredible value of long-term relationships with good counsel.  I’m proud to work with attorneys that have represented some clients for decades, looking out for their interests all that time. It is an honor and a responsibility that we take seriously.

Divorcing Your Pet

More of my clients are asking me about what happens to the family pet in a divorce.  It’s a very direct (and perhaps callous for some) answer to an emotional question.  Pets are personal property or in Ye Olde English Law speak: chattel.  The family pet is divided much in the same way as the family car or couch.  The “property” is valued and then awarded to one spouse, and the other spouse is given the cash equivalent or other property for her half share of the pet’s “value.”  How is one to value a pet?  King Solomon had ideas but we all agree that does not work for kids or, similarly, for pets.  I have yet to put on such evidence in an Oregon Court but I suppose that day may come.  Every pet I have “divorced” was dealt with in settlement negotiations rather than in open Court by a judge because the parties wanted control in the decision.

Parties can agree that one has sole ownership of the pet while allowing the other party a contractual right to visitation, or the parties can agree to joint ownership of the pet with some kind of mutual visitation plan.  Visitation plans for a cat, dog, rabbit, [you fill in the blank], can be very complicated.  What if the cat gets loose on the night she is to go to your ex?  Are you in contempt of a court order if you can’t deliver the cat on the court-ordered date and time?  This all sounds a bit unreal and silly, but a visitation schedule is a court order which must be followed like any other court order.  A good reason to consider whether to have visitation rights of the pet in the first place.

Parties enter mutual agreements in divorce cases every day which are enforced by the Court.  There are certain legal requirements that must be present in such agreements in order for a Court to uphold it like any other legal contract.  There is no legal opinion under Oregon law at present that deals directly with this pet issue.  So there is a significant risk if one of you challenges the validity of the agreement, that a judge may not uphold your agreement.  However, a mutual agreement is the best solution under current law.  Otherwise, a judge is likely to award the pet to one of you and will likely not grant visitation to the other; much in the same way you can’t both share the couch anymore.

Samuels Yoelin Kantor Seminar Series

COMPLIMENTARY SEMINAR SERIES

Samuels Yoelin Kantor LLP’s seminar series helps keep our clients and colleagues informed on recent developments and industry best practices. The seminars typically take place in our beautiful, state-of-the-art conference room on the 38th floor of the US Bancorp Tower. Seminars are complimentary. Participants qualify for (1) Continuing Professional Education (CPE) credit. To register, please use the links below or call us at 503-226-2966. Seating is limited, so be sure to contact us soon!


The Romanance of Prenuptial & Domestic Partnership Agreements

Wednesday, February 13, 2013
7:30 – 9:00 A.M.
at Samuels Yoelin Kantor LLP offices
Light refreshments will be served


Presented by Christine R. Costantino 

Valentine’s Day is just around the corner — and chances are some of your clients will be commemorating the romantic holiday with an engagement ring or other symbol of commitment.

That said, it’s the perfect time to gain a deeper understanding of both prenuptial and domestic partnership agreements. Samuels Yoelin Kantor partner and family law attorney Chris Costantino will lead an informative discussion of how these agreements apply to same sex couples as well as to opposite sex couples from the Family Law perspective. She’ll also cover the legal aspects, timing issues (it’s called “pre” for a reason!), and how reliable or enforceable these agreements are in the courts. Chris will also provide a brief summary of the history of domestic partnership law in Oregon and what applies today.

To register for this seminar, contact events@samuelslaw.com or call us at 503-226-2966.

Upcoming Seminars:
     March 7 – Planning for Tax Law Changes for 2013 and Beyond
     March 21 – Litigating Guardianships and Conservatorships