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.

• DUII and Driving Related Arrests
• Felonies
• Juvenile Delinquency
• Misdemeanors
• Domestic Violence

Troy Nixon and Gabriel Watson are some of McKean Smith’s experienced criminal law attorneys who will inform you of your options and help you find solutions.

Property Division Guide

When you and your partner have decided that divorce is the best option for your marriage, you need to make many important decisions. One such decision is the division of assets and the future income you both will need for a comfortable lifestyle.

Oregon is an “equitable distribution” state, meaning that in a divorce, the court will allocate property between the two spouses in an equitable and fair manner. Equitable can, but does not necessarily, mean evenly. 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.

 

High Asset Divorce Cases

There is no question that cases with large assets bring complexities and challenges of a different sort. Our divorce attorneys have extensive experience representing individuals who are medical, legal, and tax professionals; executives; business owners; and/or those who have acquired wealth from their family. High-asset divorce cases often include multiple bank accounts, stock portfolios, businesses, and real properties, both in the couple’s home jurisdiction or elsewhere. Determining accurate values for the entire asset portfolio requires great experience and skill.

Understanding the true value and scope of your property in divorce is paramount to achieving a fair division of assets between you and your spouse. The value of certain assets may be simple to determine, while other assets require value appraisals or input from certified accountants or other experts. The attorneys at McKean Smith take the necessary steps to establish the value of your property to properly prepare for negotiations in mediation or for presentation to the court.

Probate is a legal process whereby a 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, for instance.

Probate is not always necessary. If the deceased person owned assets with a spouse, the surviving co-owner often will then own that property automatically. If a person dies leaving very few assets, these items can be distributed among the rightful beneficiaries without court involvement.

In some cases, probate is needed for purposes of title clearing, debt collection, disputes between people who claim they are entitled to the deceased’s assets or for resolve of any will validity disputes.

If the deceased person had a will, the will is “proved” and delivered to the court. A personal representative is selected (someone who handles the affairs of the deceased). If the will does not name a representative, or there is not a will in place, the court will select a personal representative. (usually the spouse, adult child, or another close relative.) If the previously stated are not willing or not able to accept responsibility, the court may choose a bank or trust company.

Any debts are paid from the trust and notices are sent to any creditors through a publication in a local newspaper, and by the personal representative. Creditors have 4 months to bring any claim against the estate for fulfillment. Creditors must be repaid before any remaining assets can be distributed to the beneficiaries.

Heirs are listed, assets are identified and catalogued, and filed with the court by the personal representative. Dependent upon many variables, this step can be quite straightforward — or more difficult and time consuming.

The personal representative prepares state and/or federal tax returns and any inheritance, gift and estate tax returns and pays any taxes due.

Small Estates
Oregon allows an abbreviated procedure for handling small estates that would otherwise require a full probate. If an estate fits in this category, the cost and time for distributing the estate assets may be greatly reduced. The 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 at no more than $75,000 and real property is valued at no more than $200,000, for a total aggregate estate value of no more than $275,000. (These rates are accurate as of April 2018, but can be changed by the state legislature. Please see an attorney or advisor to ensure that they are still accurate.) Real property includes land and 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. Extra costs may be approved by the court for the personal representative and a lawyer if the estate is complicated. Other costs include court filing fees, legal notices published in the local newspaper and any other necessary expenses. Lawyers 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 within required deadlines and in a timely matter. To achieve the goals you have for yourself and your family, a probate lawyer can help you understand the complex issues which can arise from a probate matter, including tax legalities and other issues. An experienced probate attorney, such as Collin McKean and Troy Nixon can also assist you in the preparation and filing of the legal documents, and can prepare you should you need to appear in court.

(Information compiled from Legal Editor: Don Johnson, April 2018: Oregon State Bar)

Paternity Guide

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 at any time after the birth. If there is a dispute concerning who is the father of a child, parentage can be established by DNA testing. Either parent can file motions with the court to seek resolution if there is a disagreement about custody of the child, the parenting schedule, child support or other child-related issues.

Paternity means establishing legally that a person who was not married to the mother of a child at the child’s birth is the legal father of that child. Once paternity is established, the father gains rights related to custody and visitation and obligations related to the support of the child, and the child gains the right to inherit from the father and receive governmental benefits based on his earnings.

In Oregon there are several ways paternity is established. If a child is born during marriage, the husband 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 Acknowledgment of Paternity” form to be filed with the state. In these instances, the father’s name is then added to the birth certificate. Oregon honors a voluntary acknowledgment made in another state. When there is no agreement on paternity the father may establish paternity through the Oregon Child Support Program by filling out an Application for Child Support Services and sending these to the address stated on the form. The mother may begin to establish paternity by filing a petition to establish paternity. The alleged father must respond within 30 days of being served with the petition, or he will be automatically declared the father.

Custodial issues between parents can often spark many challenges. For unmarried couples, the issues involved can seem even more complicated. It is important to know that mothers and fathers, whether you are the noncustodial or custodial parent, have rights. The best way to learn about your rights is to speak with one of the experienced attorneys at McKean Smith.

Legal Separation Guide

A legal separation is a court order that can provide for custody of your children, parenting time, child support, and the distribution of property.

You might want a legal separation if your religious beliefs prohibit divorce or if you or your spouse have not lived in Oregon long enough to file for divorce. A legal separation costs about the same as a divorce. Filing for legal separation does not prevent a divorce from being filed, but a separation may also be converted to a divorce within a certain period.

The main difference between a legal separation and a divorce is that you are still married after a legal separation. Therefore, you may still have certain rights that you would lose upon divorce, such as the right to inherit property from your spouse.

Juvenile Law Guide

Juvenile law is a complex area fraught with the heightened emotions and competing concerns regarding a child’s welfare. Dependency cases often arise when a state agency has concerns regarding the care a minor child is receiving from parents or other caregivers. As a result, the agency may question whether the Juvenile Court should have legal jurisdiction over that child.

If concerns are raised that a child has been neglected or abused, or a child’s parents are unable to provide proper care because of alcohol, drug, or severe mental health issues, the state may get involved. In such situations it is essential for a parent to seek legal representation immediately. If the Juvenile Court system is concerned that abuse or neglect has occurred, there is a risk that the child may be removed from the home and placed under protective custody.

Juvenile dependency cases can be complex; and are often intertwined with other family law or criminal cases. Dependency cases often start with state officials investigating the child’s situation and assessing whether the child is at risk. The child’s living situation may be thoroughly investigated, and the parents or caretakers interviewed to determine the validity of any allegations. Depending on the circumstances, the child’s mental and physical health may be evaluated, the child may be placed in protective custody, and the caretaker or parents may face criminal investigation.

The highly experienced attorneys at McKean Smith represent minors, parents, or guardians in juvenile court dependency proceedings. We can help navigate the complex juvenile justice system.

There are many aspects of employment that can require legal advice.

At McKean Smith, our experienced attorneys have a deep understanding of employment law, having represented both employers and employees. Our attorneys will help you navigate the issues that may arise whether you are an employer needing help drafting an employment agreement or an employee who has run into an issue of wrongful termination. We can assist you in the following areas including, but not limited to:

• Employment Agreements
• Termination of Employment
• Wage and Hour Law
• Equal Pay Law
• Discrimination and Harassment
• Family and Medical Leave Law

Sonia Montalbano, Stephan Warner and our employment law attorneys have the knowledge and experience needed to help you achieve your goals.

Oregon DUII
DUII arrests are common and despite their frequency, being charged with a DUII is a frightening experience. Most people charged with DUII have never seen the inside of a police station or a jail and have limited experience with the criminal justice system aside from what they have seen on television.

First Step, the Implied Consent Suspension.

• A. Most likely, your driving privileges were suspended anywhere from 90 days to 3 years for failing a breath test or refusing a breath, blood, or urine test. Requesting an appeal hearing of your implied consent license suspension is the most pressing matter. Your suspension will typically begin on the 30th day following your arrest.
• B. To challenge the suspension, the DMV Hearings Case Management Unit must receive your request for a hearing no later than 5:00 p.m. on the 10th day following your arrest.
• C. It is important to understand that filing an appeal of the implied consent suspension does not mean that the suspension will be overturned. It means that you have an opportunity to challenge the suspension.
• D. Suspensions are most often overturned because police officers fail to appear at the hearing, police officers fail to turn in paperwork to the DMV, and the police officer’s paperwork is incomplete and/or inaccurate.
• E. If you do not hire an attorney to contest your suspension, you should request and attend the hearing yourself. Only a small percentage of persons facing an implied consent suspension request a hearing.

Second Step, the Criminal Charges.

• A. You likely received a citation/ticket or a release agreement ordering you to appear in court for the crime of driving under the influence of intoxicants and possibly some additional crimes or violations including but not limited to reckless driving, refusal to take a breath test, careless driving, etc.
• B. ORS 813.010 is Oregon’s DUII statute. A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
  • i. Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person;
  • ii. Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or
  • iii. Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.
• C. You must attend the court appearance listed on your citation/ticket or release agreement or a bench warrant will be issued for your arrest. In some Oregon counties, if you hire an attorney before your initial court appearance you might be able to be absent from the hearing.
• D. After your initial court appearance, it is imperative that you have the opportunity to review the State’s evidence or discovery. Discovery includes but is not limited to police reports, audio or video recordings, pictures, and/or lab reports. These items are the State’s case against you. You need to be able to review and analyze the strength of the State’s case as well as possible defenses and/or malfeasances by the investigating and arresting officer or officers before you decide what to do next.

Third Step Talk to a DUII Attorney.
You have a 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 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 you can face a sentence that includes jail and supervision by the court or a probation officer. Working with a DUII Attorney’s command and knowledge of the process will allow you to navigate and understand the process. If you cannot afford to hire your own lawyer, you should apply for court appointed counsel to represent you. It is imperative to have representation in this process.

Domestic Violence Guide

Unfortunately, many family law cases involve domestic in various forms. Such violence may necessitate seeking an order of protection to keep you and your children physically safe. The courts have no tolerance for domestic violence and provide streamlined processes for victims to easily pursue the protection that they need. Terms of a Family Abuse Prevention Act (FAPA) Protection Order can vary to meet the necessary safety needs. The law allows you to obtain protection from domestic violence without having to file for a divorce or legal separation first. 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 can deal with temporary custody and parenting time of your children. It can also require the respondent to stay away from your home, school, place of employment, or your children’s day care provider, and other provisions that you think will help you stay safe. 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, you need to a 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 impact how your divorce progresses, as well as the type of support you might need.

Our attorneys are well-versed in domestic violence and are equipped to help you navigate throughout the process.

Divorce Guide

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 is a “no-fault divorce” state, 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.

For property, Oregon is an “equitable distribution” state, meaning that in a divorce, the court will allocate property between the two spouses in an equitable and fair manner. Although equitable often means equal, that is not always the case. This can lead to complexities based on the unique set of circumstances of each case.

If you and your spouse have children, a divorce will also address the custody and parenting time schedule your family will follow moving forward. Divorce can also provide spousal and child support, depending on the financial circumstances.

If you and your spouse cannot agree, 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 and the final order will restore all the issues in your case.

Depending on your circumstances, a divorce may include the resolution of these issues: custody, parenting time, child support, spousal support, and the division of all property of the parties.

Every case is different. Our experienced family law attorneys can help you navigate your unique matter and assist you in achieving your goals.

Alternative Dispute Resolution Guide
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. Resolving your matter outside of the courtroom allows for more creative, more flexible solutions that better meet the needs of your unique family. 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 such as those involving custody and parenting time, 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 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.

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 that enables 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 process is voluntary and 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.
Collaborative practice presents the opportunity for cost efficiencies as it is a slightly less formal process than formal litigation. Also, in collaborative practice, parties often assign important tasks to specialist professionals without duplication, so that cost savings may be realized.

The appropriate method to resolve any given dispute can only be chosen after a careful assessment of the facts and circumstances of the case. 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.

Parents involved in a family law proceeding are required to determine custody and parenting time for their children, either by agreement or by asking the court to decide. Public policy assures minor children frequent and continuing contact with each parent and encourages parents to share in the rights and responsibilities of rearing their children after a legal proceeding. Courts take these policies into account when they are deciding custody and parenting time issues. There is a distinct difference between a custody determination and parenting time. 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 custody and sole custody. The term joint custody refers to the parents sharing the decision-making about a child regardless of the amount of actual time the child spends with, or lives with, one parent or the other. Joint custody does not mean that a child lives with each parent 50 percent of the time. Joint custody also does not eliminate a parent’s duty to support a child. Sole legal custody means that the custodial parent has final decision-making authority for the child. These major decisions may include the child’s religious and educational training, health care and where the child’s primary residence is. Even with sole legal custody, however, a custodial parent must consult with the other parent.

A court’s primary consideration in awarding custody is the best interests of the child. There are a number of factors that a court considers, including who has been the primary caretaker and the ability of the parent to foster the child’s relationship with the other parent. Until there is an order of the court, both parents have the same rights to be with and make decisions for their minor children.

In deciding parenting time, a court also evaluates what is in the best interests of the child. That best interests inquiring 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 for their minor children.

When determining child custody and parenting time, the court may also decide issues concerning child support, health insurance for the minor children, and how to split other expenses for the children.

Once a custody and parenting time order has been made by the court, either parent may move to modify those provisions at a later date.

Custody may be modified later if it is shown that there has been a substantial change of circumstances since the prior order and that the requested modification would eb in the best interests of the child. Similarly, a court can modify a parenting plan if it is in the child’s best interest to do so. And a court can modify child support if there has been a substantial change in circumstances.

Child custody litigation is complex and requires careful consideration of all the factors used by a court, and there is nothing more important to a parent than the time they get to spend with their child. McKean Smith has the depth of practice experience and knowledge to successfully represent your interests in a child custody proceeding.

We provide representation, advice and counsel for many business law issues, including:

Business Formation:
Business formation is often the first major step for entrepreneurs establishing new companies, since your business structure can be used to secure financing, executives and other major pillars holding up a company. We provide formation advice for corporations, LLCs and partnerships. A solid business structure provides your organization with the best possible chance of success. We advise clients on the various types of legal entities and evaluate which options will work best for your situation. We also advise them on what steps they need to take to be successful and to minimize potential conflict in the future. Usually, one of the first major steps is to develop a solid, well thought out operating agreement.

Shareholder, Partnership and Operating Agreements:
Few aspects of building a company are more important than effectively defining the rights and duties of the company owners. Drafting an effective Shareholder Agreement for a corporation, or Operating Agreement for a partnership or LLC is essential to providing our clients with valuable control and flexibility over the operation of their company. They are critical for any potential business dispute or dissolution that may occur down the road. Our goal is to prevent business litigation in the future by helping our clients to anticipate problems today. We work closely with our clients to create a document that effectively addresses the company’s unique circumstances, accounting for both expected and unexpected future developments.

Buying and Selling Businesses:
We represent buyers and sellers in the purchase or sale of businesses. This includes the purchase of assets or shares of stock through acquiring the business as a whole. Buying or selling a business is a momentous decision that requires the skilled guidance of a business lawyer. We provide guidance through all phases of an acquisition, including purchase negotiations, purchase agreements, and due diligence. We work closely with CPAs in business valuation and drafting acquisition or sale agreements with the goal of preventing problems and business disputes in the future. We can also provide assistance with your business succession plans.

Business Succession:
Preparing for the succession of a business is critical, and how assets are distributed and conveyed can have significant tax consequences and other implications for subsequent generations. For a business that is owned by a few individuals, such as members of a family, business succession involves careful planning to ease the transition anytime there is a change of ownership. Typically, this happens when a senior or 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 Litigation Issues

Shareholder and Partnership Disputes:
Business professionals as well as family members enter into business ventures on a regular basis. At the businesses’ creation, partners typically enter into shareholder or partnership agreements. At inception, the parties involved only have one goal in mind: working hard to ensure growth for their business. However, as time passes, and challenges begin to surface, one of the biggest threats to the stability of a business is disagreements within management and/or among shareholders. We represent clients who have been wronged and financially 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, but when cases need to be litigated, we are ready to provide superior litigation services. Don’t let an internal dispute among partners or shareholders wrongfully deprive you of your investments in the company you’ve worked so hard to build.

Breach of Contract:
Business in today’s economy depends heavily on contracts. They are absolutely critical in the modern corporate world. Contracts clarify the parties’ obligations and expectations. When a breach of contract occurs in a complex commercial transaction, it takes an experienced business attorney to interpret the contractual obligations of the parties. This is essential to build a foundation for a breach of contract case and help resolve the dispute timely and effectively. We work to resolve the disputes of the parties and prevent a costly, drawn out litigation. In the event an agreed resolution cannot be reached, we are ready to litigate your case at trial.

Breach of Fiduciary Duty:
Business owners, officers, directors, majority shareholders and others have a responsibility to perform certain duties and to maintain their honesty in those activities. When they do not, they may be liable for breach of fiduciary duty. Breach of fiduciary duty claims are common in business litigation. Breach of fiduciary duty 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.

Non-Compete Agreements:
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. Most often these agreements are governed by statute and the case law surrounding the interpretation of these agreements and their 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. Our Firm is flexible and responsive to our clients’ individual needs. Sonia Montalbano ,Collin McKean, Troy Nixon, Gabriel Watson, and Stephan Warner are experienced attorneys who are here to help whether you are a business owner with growth issues or need guidance navigating the legal issues that can arise in business ownership.

 

Business Law Resources for small businesses and startups:

Start Up Resources

Bankruptcy Solutions Offer Appropriate Relief for Specific Financial Problems

Bankruptcy relief is appropriate for financial conditions that are often out of our client’s control, i.e. natural disaster, job loss, divorce, or medical expenses. Nevertheless, the decision to file for bankruptcy relief requires informed consideration. The level of stress that collection calls and the threat of financial disaster have while one is navigating these financial problems can cause procrastination and further financial harm. Our attorneys understand your situation and understand the legal options available to provide the financial solution your situation requires. The bankruptcy process helps to provide for known outcomes through a transparent legal process. We at McKean Smith find our greatest reward in assisting clients with reaching their goal of beginning afresh with the opportunity to succeed moving forward.

Benefits of Filing for Bankruptcy in Oregon
Bankruptcy is not a solution to every financial problem, however, if you determine that bankruptcy is a solution for your financial condition, the attorneys at McKean Smith are ready to assist you today. You will be advised on whether you qualify for Chapter 7 liquidation relief, or whether a Chapter 13 repayment plan is available to you.

Some benefits of filing for bankruptcy relief include:
– Stop creditors from garnishing bank accounts or wages
– Stop creditors foreclosing on your home
– Stop creditors from calling you
– Avoid the shut-off of your utilities

The bankruptcy lawyers at McKean Smith offer free initial consultations and can help put an immediate stop to collection calls from debt collectors. If you are being threatened with foreclosure, we can help put a stop to the foreclosure process while you evaluate the solution to your financial and legal situation. We will discuss whether you may qualify for the relief of a Chapter 7 or a Chapter 13 bankruptcy.

Collin McKean and Troy Nixon can help you navigate your options and can help you find solutions.

Domestic Violence Guide

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.

Washington DUII

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.

 

STEP 1 – The Implied Consent Suspension.

• A. Most likely, your driving privileges were suspended for anywhere from 90 days to 3 years for failing a breathalyzer test or refusing to submit to a breath, blood, or urine test. Requesting an appeal hearing of your implied consent license suspension is the most pressing matter; your suspension typically begins on the 30th day following your arrest.
• B. In order to challenge the suspension, the DMV Hearings Case Management Unit must receive your request for a hearing by no later than 5:00 p.m. on the 10th day following your arrest.
• C. It is important to understand that filing an appeal of the implied consent suspension does not necessarily mean that the suspension will be overturned; it only means that you have an opportunity to challenge the suspension.
• D. Suspensions are most often overturned because of a failure on behalf of the police officers; failure to appear at the hearing, failure to turn in the correct paperwork to the DMV, or the police officer’s paperwork being incomplete and/or inaccurate.
• E. If you do not hire an attorney to contest your suspension, you can request and attend the hearing yourself. Only a small percentage of people who are facing an implied consent suspension request a hearing.

 

STEP 2 – The Criminal Charges.

• A. You most likely received a citation/ticket or a release agreement ordering you to appear in court for the crime of driving under the influence of intoxicants and possibly some additional crimes or violations that may include (but are not limited to) reckless driving, refusal to submit to a breathalyzer test, etc.
• B. ORS 813.010 is Oregon’s DUII statute. A person has committed the offense of driving while under the influence of intoxicants if they drive a vehicle while the person:
  • i. Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person;
  • ii. Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or
  • iii. Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.
• C. You must either attend the court appearance listed on your citation/ticket/release agreement or a bench warrant will be issued for your arrest; in some Washington counties, if you hire an attorney before your initial court appearance you might be allowed to be absent from the hearing.
• D. After your initial court appearance, it is imperative that you have the opportunity to review the State’s evidence or discovery against you. Discovery can include but is not limited to police reports, audio and video recordings, pictures, and additional lab reports. These items are the State’s case against you; you need to be able to review and analyze the strength of the State’s case as well as possible defenses and/or malfeasances by the investigating and arresting officer (or officers) before you decide what to do next.

 

STEP 3 – Talk to a DUII Attorney.

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.

Property Division Guide
If you and your partner feel that divorce is the best option for your marriage, you will need to make many important decisions. How to divide your assets and future income in order to support a comfortable lifestyle after divorce are typical of the decisions that need to be made in the process.

Washington is an “community property” state meaning that in a divorce, the court will aim to allocate property acquired during the marriage equitably. Equitable can, but does not necessarily, mean evenly; This can lead to many complexities based on each case’s unique set of factors and circumstances. Meanwhile, Washington uses community property principles to divide property and debts in the divorce process.

 

High Asset Divorce Cases
There is no question that high asset cases bring a unique set of complexities and challenges. Our divorce attorneys have extensive experience representing a variety of legal, medical, and tax professionals; In addition to executives, business owners, and/or those who have acquired wealth from their family. High-asset divorce cases can often include dividing up multiple bank accounts, stock portfolios, businesses, and real properties (in the couple’s home jurisdiction or elsewhere). Therefore, determining an accurate value for the entire asset portfolio requires a great deal of experience and skill.

Understanding the true value and scope of your assets is paramount to achieving a fair division of assets between you and your spouse in a divorce. The value of certain assets will be simple to determine, while others may require value appraisals or input from certified experts to assign. The attorneys at McKean Smith will take the necessary steps to correctly establish the value of your property and properly prepare you for negotiations in mediation or presentations to the court.

Paternity Guide

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.

Legal Separation Guide

A legal separation is a court order that can provide you with an agreement that outlines custody of your children, parenting time, child support, and the distribution of property.
You might seek a legal separation if your religious beliefs prohibit divorce or if you or your spouse have not lived in Washington long enough to file for divorce; Although different semantically, legal separation costs about the same as a divorce. Filing for legal separation does not necessarily preclude a separate divorce case from being filed later, a separation may also be converted into a divorce within a certain period.

The main difference between a legal separation and a divorce is that you are still married after a legal separation; therefore, you may still retain certain rights that you would have lost through divorce, such as the right to inherit property from your spouse.

Juvenile Law Guide

Juvenile law is an extremely complex area fraught with the heightened emotions and competing concerns that can come from being responsible for a child’s welfare; dependency cases often arise when a state agency has concerns regarding the care a minor child is receiving from their parents or other primary caregivers. As a result, the agency may question whether or not the Juvenile Court should have legal jurisdiction over that child.

If concerns are raised that a child has been neglected, abused, or a child’s parents are unable to provide proper care because of substance abuse or severe mental health issues, the state may get involved. In such situations it is essential for the parents of that child to seek legal representation immediately. If the Juvenile Court system is concerned that abuse or neglect has occurred, there is a significant risk that the child may be removed from the home and placed under protective custody.
Juvenile dependency cases can be extremely complex and are often intertwined with other family law or criminal cases. Dependency cases often start with state officials investigating the child’s situation and assessing whether or not the child is at risk; the child’s living situation may be thoroughly investigated, and the parents or caretakers interviewed to determine the validity of any concerns or allegations. Depending on the circumstances, the mental and physical health of the child may be evaluated, the child may be placed into protective custody, and the caretaker or parents may face criminal investigation.

The highly experienced attorneys at McKean Smith are ready and able to represent minors, parents, or guardians in juvenile court dependency proceedings and help you navigate the complex juvenile justice system.

What you need to know about Domestic Violence and Restraining Orders

Alternative Dispute Resolution Guide

Alternative Dispute Resolution (ADR) can take various forms such as Mediation, Arbitration, or Collaborative practice. Each of these different methods is designed to keep your private matters out of the courtroom; Resolving your case outside of the courtroom allows for more creative and flexible solutions that better meet the unique needs of your family. The idea behind utilizing ADR methods is to provide an alternative to traditional methods of solving a legal dispute, which typically includes filing a lawsuit and going to court. ADR alternatives were designed to be a streamlined and cost-conscious option to deal with legal issues. The most appropriate method to resolving any given dispute can only be chosen after a careful assessment of the details and circumstances of the case; this includes the interests of each party, the nature of the dispute itself, and any statutory or policy restrictions governing the use of a particular resolution process.

 

WHAT IS MEDIATION?

Defining mediation is simple; it is a conflict resolution method designed to help all participants involved and can be especially beneficial for people who believe their differences are so vast that they will never be able to reach an agreement. It’s also a great option for those who agree on some issues but need help coming to a resolution on that “last matter” that continues to delay the process. Mediators do not render decisions like a judge or arbitrator;

Both participants will meet with a neutral mediator and all work together to reach the best possible agreement to their dispute in a way that is both respectful and amicable. The best mediation agreement is one that meets the most important interests of all participants. Mediation is a voluntary process, meaning that it requires an agreement by both parties to proceed. However, in some court cases (such as those involving issues surrounding custody and parenting time) mediation is mandatory prior to proceeding through traditional litigation channels.

 

WHAT IS ARBITRATION?

Arbitration is a more formal process than mediation. Generally, the arbitration process involves many of the same components as a courtroom trial; 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 to make the process quicker than it would be if done as part of a traditional courtroom trial. The process is governed by the rules of arbitration which control the presentation of evidence and information to a neutral arbitrator. Within a specific period of time following the required hearings, the arbitrator will deliver a ruling to the involved parties and, depending on the type of arbitration, this ruling may be final or have options to appeal.

The distinction between arbitrators and judges is an important one; 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 to a case randomly. With arbitration however, the parties often have some input into who their arbitrator ends up being.
Depending on the nature of the dispute, arbitration can be a voluntary process (where both parties agree to submit their dispute to arbitration) or a mandatory adjunct to the traditional litigation process.

 

WHAT IS COLLABORATIVE PRACTICE?

Collaborative practice, also referred to as collaborative law, is a legal process that is primarily used in the family law context; it enables couples who have decided to separate or divorce to work with their lawyers and, on occasion, other family professionals to avoid the uncertain outcome of court litigation and to achieve a settlement that best meets the specific needs of both parties and their children. This is a voluntary process that is initiated when the couple signs a contract (or “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; Thereby allowing both parties to receive a fair settlement.

The Collaborative process can be used to facilitate a broad range of family issues, including parental disputes and the drawing up of pre and post-marital contracts. Although the traditional method of drawing up pre-marital contracts is often considered oppositional, many couples actually prefer to begin their married life with clearly articulated documents drawn up consensually and mutually.

Collaborative practice is a slightly less formal process than formal litigation and therefore, presents the opportunity for cost efficiencies. In collaborative practice, the involved parties will often assign important tasks to specialists or professionals without duplication so that cost savings may be realized.
The most appropriate method to resolving any given dispute can only be chosen after a careful assessment of the facts and circumstances of thcase. The lawyers at McKean Smith have a rich depth of experience in guiding clients just like you through this assessment process and will successfully represent your interests through whichever ADR process is best suited to your dispute.

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.

Divorce Guide

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.

 

Custody/ Support/ Property/ Resolution

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.

What you need to know about the Annulment Process

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.

Gabriel Watson is an experienced Real Estate attorney who can help you 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.

 

Small Estates

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.

• DUII and Driving Related Arrests
• Felonies
• Juvenile Delinquency
• Misdemeanors
• Domestic Violence

McKean Smith has experienced criminal law attorneys who will inform you of your options and help you find solutions.