Unfortunately, many family law cases involve various forms of domestic abuse; such violence may necessitate seeking out an order of protection in order to keep you and your children physically safe. The courts have no tolerance for domestic violence and can provide a streamlined process for victims to easily pursue the level of protection that they need. The terms of a Family Abuse Prevention Act (FAPA) Protection Order can vary to meet the necessary safety needs of your specific situation. The law allows you to obtain protection from domestic violence without having to first file for a divorce or legal separation. A restraining order is a court order that tells the other person (the “respondent”) to leave you and your children alone; it can tell the respondent to move from your home and deal with a temporary custody and parenting time arrangement of your children. It can also require the respondent to stay away from your home, school, place of employment, children’s day care provider, and other provisions that you think will help keep your family safe. Depending on the situation, the order may also prevent the respondent from possessing firearms.
These types of orders can only deal with custody and parenting time issues temporarily; to get “permanent” custody and parenting time orders put in place, you need to file a family law case (such as a divorce or a custody case.)
Domestic violence may take many forms beyond physical abuse that would allow someone to get a protective order; emotional, mental, and financial abuse within a marriage can have a significant impact on how your divorce progresses, as well as the type of support you might need.
Our attorneys are well-versed in the subtleties of domestic violence and are well-equipped to help you navigate the process.
DUII arrests are common but despite their frequency, being charged with a DUII can be a frightening experience for many people. Most individuals charged with a DUII have never seen the inside of a police station or a jail before and have limited experience with the criminal justice system aside from what they have seen on television.
You have the constitutional right to represent yourself in the face of criminal prosecution but keep in mind, Oregon DUII defense is a complex area of law with many far-reaching implications. Your driving privileges can be suspended for months, years, or a lifetime. You can be required to install an ignition interlock device to operate a motor vehicle and face a sentence that includes jail time and supervision by the court or a probation officer. Working with a DUII Attorney who has experience and knowledge of the process will allow you to navigate and understand this complex issue as easily as possible. If you cannot afford to hire your own lawyer, you should apply for court appointed counsel to represent you as it is imperative to have knowledgeable representation in this process.
In the eyes of the law, unmarried parents have the same rights and responsibilities as married parents. Legal paternity can be established by the agreement of the biological parents when a child is born or any time following the birth. If there is a dispute concerning who is the father of a child, paternity can be established through DNA testing. Either parent can file motions with the court to seek mediation if there is a disagreement about custody of the child, the parenting schedule, child support, or other child-related issues.
Paternity means legally establishing that a person who was not married to the mother of a child at the time of that child’s birth is the legal father of that child. Once paternity is established, the father gains all rights related to custody, visitation, and obligations related to the support of the child. In addition, the child gains the right to inherit from the father and receive governmental benefits based on his earnings.
In Washington there are several ways to establish paternity. If a child is born during marriage, the husband of the child’s mother is presumed to be the father. If a child is born to unwed parents but the parents later marry (or an unmarried father agrees to paternity) both parents can sign a notarized “Voluntary Acknowledgement of Paternity” form and file it with the state. In these instances, the father’s name is added to the birth certificate. Washington also honors a voluntary acknowledgment made in another state. When there is no agreement on paternity, a petition to establish parentage must be filed with the courts. The responding party does not respond to the petition within the allotted time, the court may enter a default order.
Custodial issues between parents often spark many challenges. For unmarried couples, the issues involved can often seem even more complicated but it is important to know that mothers and fathers, whether you are the noncustodial or custodial parent, do have rights. The best way to learn about your rights is to speak with one of the experienced attorneys at McKean Smith.
Parents involved in a family law proceeding are mandated to determine custody and parenting time for their children, either by independent agreement or by allowing the court to decide on their behalf. Public policy both ensures that minor children retain frequent and continuing contact with each parent and encourages parents to continue to act as a team, sharing in the rights and responsibilities of raising their children after the legal proceeding. Courts take these policies into account when deciding on custody and parenting time issues. Custody determination and parenting time are two distinctly different issues; Custody focuses on who will have final decision-making authority for major decisions while parenting time deals with when the child will be in the care of each parent.
There are two types of custody: joint and sole. The term joint custody refers to an arrangement where the parents share the decision-making power in regards to their child, regardless of the amount of actual time the child spends or lives with each parent. Joint custody does not mean that the child spends an equal amount of time in the custody of each parent or negate either parent’s duty to support the child. Meanwhile, sole legal custody means that the custodial parent has the final decision-making authority for the child. These major decisions may include things such as the child’s religious upbringing, education, health care, and/or where the child’s primary residence is. However, even with sole legal custody the custodial parent may consult with the other parent when making important decisions.
A court’s primary basis of consideration in awarding custody is always serving the best interests of the child. In this regard, there are a variety of factors that the court considers, including who has so far been the child’s primary caretaker and the ability of each parent to continue fostering their child’s relationship with the other parent. Until an order of the court is issued, both parents have the same rights to be with and make decisions in regards to their minor children.
The best interests of the child also play a pivotal role in how a court decides to allocate parenting time; Each ‘best interest’ inquiry is specific to the dynamics of each family as well as the age and developmental needs of the child.
Until there is an order of the court, both parents have the same rights to be with and make decisions on behalf of and in regards to their minor children.
When determining child custody and parenting time, the court may also decide upon issues concerning child support, health insurance for minor children, and division of other child-related expenses.
Once a custody and parenting time order has been issued by the court, either parent may decide to motion to modify those provisions at a later date.
Custody may later be modified if it can be shown that there has been a significant change of circumstances since the prior order and that the requested modification is being made in the best interests of the child. Similarly, a court can elect to modify a previously enacted parenting or child support plan if there has been a substantial change in circumstances and it is in the child’s best interest to do so.
Child custody is a complex sect of litigation that requires careful consideration of the many factors a court will use in reaching a decision. We know there is nothing more important to a parent than the time they get to spend with their child; McKean Smith has the depth of knowledge, experience, and understanding to successfully represent both you and your child’s best interests in a custody proceeding.
When you and your partner have decided that divorce is the best option for your marriage, you need to make many important decisions. In addition to the actual process of divorcing your spouse, you need to consider division of assets and the future income you both will need for a comfortable lifestyle.
Depending on where you are seeking to divorce, it is important to consult a family law attorney who can help you understand the differences between the statutes of these two states. When it comes to divorce, Oregon and Washington are both “no-fault divorce” states, meaning the spouses can end their marriage simply because it isn’t working out the way they’d planned. The court can grant a divorce if either party claims that “irreconcilable differences” exist, which caused the marriage to break down.
Oregon is an “equitable distribution” state, meaning that in a divorce, the court will allocate, but not necessarily evenly allocate, property between the two spouses in an equitable and fair manner. This can lead to complexities based on the unique set of circumstances of each case. Washington uses community property principles to divide property and debts in the divorce process. Additionally, in both states, there are residence requirements that must be met and other factors that may affect how documents are prepared and presented to the court.
If you and your spouse cannot agree and one of you will challenge the divorce issues in court, a judge will have to decide about the issues. Temporary orders may be issued concerning custody, parenting time, support, and costs before your divorce trial. A custody decision may be made prior to a decision on any other issue.
Every case is different. Depending on your circumstances, a divorce may include the resolution of these issues: custody, parenting time (visitation), child support, spousal support (alimony), and the division of all property (property division) of any kind in with either party has an interest.
Child Custody: Although “custody” is the word people think of primarily when talking about issues concerning children, Washington does not use this terminology. Generally speaking, “joint decision making” is the standard term for parents who are divorcing in Washington—determining who will make non-emergency medical, educational, religious, and other decisions for the children. The residential schedule or parenting plan is the document which outlines where the child will be living when and with which parent. These terms are different in Oregon, so it is important to discuss their significance with a lawyer licensed in the state where you live. Although divorce and child custody issues can be stressful and difficult for parents, it is important to maintain focus on what is in the best interests of the children and generally that includes contact and a continued, meaningful relationship with both parents.
Child Support: Along with determining an appropriate residential schedule/parenting plan for the children, the court will determine child support. Child support in Washington and Oregon are based upon Child Support Guidelines. Each uses a different formula to determine the proper amount of child support paid.
Alimony /Spousal Support: Depending on the circumstances of each party, one spouse may be ordered to alimony or spousal support in order to provide for their former husband or wife. Spousal support or alimony payments are generally ordered when the separated spouse needs to pursue education or training programs to maintain their standard of living or when there is a disparity in earning capacity between the spouses. Both Oregon and Washington have spousal support statutes.
Property Distribution: Most often married couples accumulate important belongings and possessions, and debts, which must be divided when a marriage ends. Washington’s community property principles presume that all property and debt acquired during the marriage should be equally divided between the parties. Although there are exceptions to this premise, and circumstances can alter this presumption, the court will generally do its best to equally divide the property and debts between the parties. Oregon’s “equitable distribution” approach means that the court will allocate, but not necessarily evenly divide, property and debt between the two spouses in an equitable and fair manner.
Collaborative Law / Alternative Dispute Resolution: Collaboration is not for all cases, but the attorneys at McKean Smith are qualified to act as collaborative attorneys for those clients who want to explore it as an option. In addition to collaboration, there are other methods of alternative dispute resolution that might be right for your case.
Bankruptcy Solutions Offer Relief for Specific Financial Problems
Bankruptcy relief is ideal for financial conditions that are often out of our client’s control, such as a natural disaster, loss of a job, divorce, or unexpected medical expenses. The decision to file for bankruptcy relief is one that requires informed consideration. The potential level of stress that collection calls and the threat of impending financial disaster one has while navigating these financial problems can often cause procrastination and further financial harm. Our attorneys understand your position and can provide you with the legal options and financial solutions your unique situation requires. The bankruptcy process is a transparent legal process that can help provide specific outcomes; We at McKean Smith find great fulfillment in assisting our clients with reaching their goals by providing them an opportunity to move forward and start anew.
Benefits of Filing for Bankruptcy in Washington
However, bankruptcy is not a solution to every financial problem. If you determine that bankruptcy is a possible solution for your financial condition, the attorneys at McKean Smith are ready and eager to assist you. We can advise you on such things as whether or not you qualify for Chapter 7 liquidation relief or whether a Chapter 13 repayment plan is available to you.
Benefits of filing for bankruptcy relief include:
– Stop creditors from seizing bank accounts or wages
– Stop creditors from foreclosing on your home
– Stop receiving collection calls
– Keep your Utilities from being shut off
The bankruptcy lawyers at McKean Smith offer free initial consultations and can help you put an immediate stop to collection calls. If you are being threatened with foreclosure, we can help you temporarily stop the foreclosure process while we evaluate the existing solutions to your financial and legal situation. We will also discuss whether or not you may qualify for the relief of Chapter 7 or a Chapter 13 bankruptcy.
Collin McKean can help you navigate your options and find solutions.
Probate is a legal process whereby the court oversees the distribution of assets left by a deceased person. Assets are anything a person owns with value (such as real and personal property and cash.)
Probate is not always necessary; if the deceased person owned assets with a spouse, the surviving co-owner will often inherit that property automatically. If a person dies and leaves behind very few assets, these items can usually be distributed among the rightful beneficiaries without court involvement.
In some cases, probate is needed for purposes of title clearing, debt collection, or to settle disputes between various individuals who believe they are entitled to the deceased’s assets. It can also be utilized to resolve any will validity disputes.
If the deceased person had a will, the will is “proved” before being delivered to the court. A personal representative is selected (someone to handle the affairs of the deceased). If the will does not explicitly name a representative, or there is not a will in place at all, the court will select a personal representative (typically the spouse, adult child, or a close relative.) If the previously stated are not willing or not able to accept the responsibility, the court may choose a bank or trust company to step in as representative.
Any debts are paid out from the trust and notices are sent to any creditors (through a publication in a local newspaper and by the personal representative.) Creditors then have 4 months to bring any claim against the estate for fulfillment; All creditors must be repaid before any remaining assets can be distributed among the beneficiaries.
Heirs are listed, assets are identified and catalogued, and filed with the court by the personal representative. Dependent upon how many variables are involved, this step can be quite straightforward or quite difficult and time consuming.
The personal representative also pays any taxes that are due, prepares state and/or federal tax returns and any inheritance, gift, and estate tax returns.
Washington allows for an abbreviated procedure when handling small estates that would otherwise often require a full probate. If an estate fits in this category, the cost and time for distributing the estate assets could be greatly reduced. The procedure for determining whether or not you are eligible for this procedure involves filing a document called an “affidavit of claiming successor.” This abbreviated procedure can be used if the estate’s personal property is valued below $75,000 and real property is valued below $200,000, for a total aggregate estate value of no more than $275,000. (These rates are accurate as of April 2018 but may have been altered by the state legislature. Please consult an attorney or advisor to ensure that they are still accurate.) Real property includes land and any buildings or structures placed on land (such as houses, commercial buildings and agricultural buildings.) Personal property includes all other property (such as cars, boats, clothing, stocks, bonds and personal items.)
Under Oregon law, a personal representative is entitled to a fixed percentage of the value of the total estate; additional costs may be approved by the court for the personal representative and a lawyer if the estate is particularly complicated. Other costs can include court filing fees, legal notices published in the local newspaper, and any other necessary expenses such as retaining lawyers, who generally charge an hourly rate for their services.
The process(es) of probate can require a substantial amount of paperwork that needs to be filed by their required deadlines in a timely manner. A probate lawyer can help you understand the complex issues which can arise from a probate matter (such as tax legalities and other issues) and achieve the goals you have for yourself and your family. Collin McKean, an experienced estate law and probate attorney, can also assist you with the necessary preparation for filing the appropriate legal documents and appearing in court.
(Information compiled from Legal Editor: Don Johnson, April 2018: Oregon State Bar)
McKean Smith has experienced attorneys who will tirelessly advocate for you and your rights. If you find yourself in trouble with the law, we can help you navigate your options.
McKean Smith has experienced criminal law attorneys who will inform you of your options and help you find solutions.
Alternative Dispute Resolution (ADR) takes various forms: Mediation, Arbitration, Collaborative practice. Each of these methods is designed to keep your matter out of the courtroom and in the hands of the parties to the case. Resolving your matter outside of the courtroom allows for more creative, more flexible outcomes. The idea behind methods of ADR is to provide an alternative to filing a lawsuit and going to court, which is the traditional method for resolving legal disputes. ADR alternatives were primarily designed to provide for a streamlined and cost-conscious option to deal with a legal issue. The appropriate method to resolve any given dispute can only be chosen after a careful assessment of the facts and circumstances of the case, including the interests of the parties, the nature of the dispute, and any statutory or policy restrictions governing the use of a particular dispute resolution process.
WHAT IS MEDIATION?
Mediation is simple; it is designed to help all participants and can be especially helpful for people who believe their differences are so great that they will never be able to agree. It’s also for those who agree on some issues, but need help coming to resolution on that “last matter” that continues to hold up the process. Mediators do not render decisions like a judge or arbitrator.
Both participants meet with a neutral mediator and work together to reach the best possible agreement of their dispute in a respectful and amicable way. The best agreement is one that meets the most important interests of all participants.
Mediation is a voluntary process that requires an agreement by both parties to participate. However, in some court cases, mediation is mandatory prior to proceeding through traditional litigation.
WHAT IS ARBITRATION?
Arbitration is a more formal process than mediation. In general, the arbitration process involves many of the same components as a courtroom trial. For example, evidence is presented, arguments are made, witnesses are called and questioned by the parties, and so forth. However, many of these facets are simplified or limited so as to make the process quicker than the typical courtroom trial. The process is governed by rules of arbitration which control the presentation of evidence and information to a neutral arbitrator. Following the required hearings, the arbitrator will usually deliver a ruling to the parties within a specific period of time. Depending on the type of arbitration, this ruling may be final, or there may be options to appeal.
The difference between arbitrators and judges is important. When someone files a case in court, neither they nor the defending party get any input into who the judge will be. Judges are typically assigned randomly to a case. However, with an arbitration, the parties often have some input into who will end up being their arbitrator.
Depending on the nature of the dispute, arbitration can be a voluntary process where both parties agree to submit their dispute to arbitration, or it can be mandatory as an adjunct to the traditional litigation process. Many courts have mandatory arbitration for claims below a certain value.
WHAT IS COLLABORATIVE PRACTICE?
Collaborative practice, also known as collaborative law, is a legal process primarily used in the family law context. It is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation. The process allows parties to have a fair settlement. The voluntary process is initiated when the couple signs a contract (a “participation agreement”) binding each other to the process and disqualifying their respective lawyer’s right to represent either one in any future family-related litigation.
The Collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. As the traditional method of drawing up pre-marital contracts is oppositional, many couples prefer to begin their married life with documents drawn up consensually and mutually.
The Collaborative dispute resolution process presents the opportunity for cost efficiencies as the matter is a slightly less formal process than formal litigation processes. Also, in the Collaborative process, parties often assign by agreement important tasks to specialist professionals without duplication, so that cost savings may be realized. These cost efficiencies, in addition to other potential benefits, have led parties in other contexts to explore the use of Collaborative law to resolve other types of disputes. All parties considering the Collaborative dispute resolution processes should be aware that the Collaborative process does not guarantee a resolution and should such process fail to produce a resolution, the formal litigation process may be necessary to achieve a resolution to the dispute regardless of their best intentions
The appropriate method to resolve any given dispute can only be chosen after a careful assessment of the facts and circumstances of the case, including the interests of the parties, the nature of the dispute, and any statutory or policy restrictions governing the use of a particular dispute resolution process. The lawyers at McKean Smith have the depth of experience to guide you through this assessment process and successfully represent your interests through whichever ADR process is best suited to your dispute.
There are various aspects of employment that may require you to seek legal advice.
At McKean Smith, our experienced attorneys have represented both employers and employees and have a deep understanding of employment law. Our attorneys will help you navigate whatever issues may arise, whether you are an employer who needs help drafting an employment agreement or an employee who has recently experienced an issue of wrongful termination. We can assist you in the following areas and more:
We provide representation, advice, and counsel for many issues of business law including:
Business formation is often the first major step for entrepreneurs wishing to establish a new company; your business structure can be used to acquire financing, obtain experienced executives, and secure various other pillars that are necessary to hold up a company. We provide formation advising for corporations, LLCs, and partnerships. A solid business structure will provide your organization with the best possible chance of success; we advise clients on the various types of legal entities and help them evaluate which options will work best for their unique situation. We can also advise them on what steps they will need to take in order to be successful and minimize potential conflict in the future. Usually one of the first major steps for anybody wishing to establish a new company is to develop a clearly articulated and well thought out operating agreement.
There are very few aspects of building a company that are more important than effectively defining the rights and responsibilities of the company owners; thus drafting an effective Shareholder Agreement for a corporation (or Operating Agreement for a partnership/LLC) is essential to providing our clients with a valuable balances of control and flexibility over their company’s operations because they are critical for any potential business dispute or dissolution that may occur down the road. Our primary goal is to prevent business litigation in the future by helping our clients to anticipate any potential problems that may arise today. We work closely with our clients to create a document that effectively addresses the company’s unique circumstances and accounts for both expected and unexpected future developments.
We can represent both buyers and sellers in the purchase or sale of businesses; this includes the purchase of assets, shares of stock, or acquiring the business as a whole. Buying or selling a business is a momentous decision that requires the skilled guidance of an experienced business lawyer. We provide counsel through all phases of an acquisition including but not limited to purchase negotiations, purchase agreements, and due diligence. We work closely with CPAs in business valuation, drafting acquisition, or sale agreements with the goal of preventing potential problems and business disputes from arising in the future. We can also provide assistance with structuring your business succession plans.
Preparing for the succession of a business is a critical aspect of business formation as how assets are distributed and conveyed can have significant tax consequences or other implications for subsequent generations. For a business that is owned by multiple individuals (such as several members of a family) business succession involves careful planning to ease the transition whenever there is a change of ownership. This typically happens when a majority owner or manager dies, retires, or becomes disabled. We help draft agreements for the company and its owners (as well as personal estate planning documents) to accomplish our clients’ objectives and minimize any tax or financial burdens.
Business professionals (as well as family members) enter into business ventures on a regular basis; at the businesses’ creation, it is typical for partners to enter into shareholder or partnership agreements. At inception, the parties involved usually only have one goal in mind: ensuring steady growth for their business. However, as time passes and challenges begin to surface, one of the biggest threats to the stability of a business can be disagreements within management and/or among shareholders. We represent clients who have been financially wronged or damaged by the acts of other parties in a business; regardless of the type of business, many of our clients are able to settle their disputes without going to court. When cases do need to be litigated, we are ready to provide you with a depth of judicial knowledge and superior litigation services. Don’t let an internal dispute among partners or shareholders wrongfully deprive you of your investments in the company that you have worked so hard to build.
Business in today’s economy depends heavily on contracts; they are absolutely critical in the modern corporate world because contracts clarify the parties’ obligations and expectations. When a breach of contract occurs in a complex commercial transaction, it requires an experienced business attorney to interpret the contractual obligations of the parties involved. This is essential to build a foundation for a breach of contract case and help resolve the dispute in a timely and effective manner. We will work to resolve the disputes of the involved parties and prevent a costly, drawn out litigation process. In the event that an agreed resolution cannot be reached, we are ready to litigate your case in court.
Business owners, officers, directors, majority shareholders, and others have a responsibility to perform certain duties and to maintain their integrity in the doing of those activities. When they do not, they may be liable for breach of fiduciary duty. Breach of fiduciary duty claims are quite common in business litigation and it is a broad concept that may arise in the context of shareholder disputes, partnership disputes, or even fraud. We represent clients who have been wronged and financially damaged by the acts of other parties in a business.
We advise and represent clients in the drafting and litigation of non-compete agreements; the court interprets these agreements very strictly so they must be drafted carefully in order to be enforceable. Frequently, these agreements are governed by statute and the case law surrounding the interpretation of these agreements and their subsequent requirements. We assist in drafting enforceable non-compete agreements and challenging overbearing or unenforceable agreements.
Our dedicated attorneys and staff serve a wide range of business clients in transactional and commercial litigation services; we are flexible and responsive to our clients’ individual needs.
Sonia Montalbano, Collin McKean, and Joel Murray are highly experienced attorneys who are here to help, whether you are a business owner with growth issues or in need of guidance navigating the legal issues that can arise in business ownership.
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