FAQ

"Why do I need an attorney?" and other important questions.

Nothing in this site should be construed as legal information, legal advice or legal representation. Divorce laws vary from state to state. Our answers reflect the laws applied in most states. We make no warranties to the accuracy of information contained herein. We assume no responsibility for any information, advice or services provided by any site that is linked from this site.

Why do I need an attorney?

It is a sound practice to consult with a lawyer about major life events or changes, including divorce. A qualified attorney will protect your rights, as well as the welfare of your children.

Obtaining legal counsel ensures that someone who is knowledgeable about family law and legal processes handles your case until it is resolved. Pursuing legal matters without counsel significantly lowers your chances of receiving a good or fair settlement.

What is a retainer and why is one needed?

A retainer is a fee paid in advance to a lawyer to secure her services. It acts as a down payment, ensuring that the lawyer's fees will be paid and that the client will be represented.

Before a client can retain counsel, a retainer is required. Yates Family Law, PC's clients are billed by the hour - our attorney and paralegal rates vary. We are happy to quote you these rates over the phone.

What happens in an initial consultation? Does it cost?

An initial consultation provides the opportunity for you to describe your situation to the attorney and for them to ask you questions about your case. It also gives both parties the occasion to see if they feel that there is a good fit to the relationship. The initial consultation will take approximately one hour, though the time may vary depending on the circumstances of your case. The attorney will need your undivided attention, so we recommend small children be left with a care provider. At Yates Family Law, PCwe believe that confidentiality is of primary importance. All client matters are held in strict confidence.

It is customary for family law attorneys to charge for initial consultations. Attorneys at Yates Family Law charge an hourly rate for initial consultations.

What are the legal grounds for obtaining a divorce?

The grounds for divorce depend on the state, and may be based on no-fault or fault. Most states, including Oregon, are "no-fault" divorce states, while some states also have fault-based grounds. A no-fault divorce is one in which neither the husband nor the wife officially blames the other for the breakdown of the marriage. Common bases for no-fault divorce are "irreconcilable differences," "irretrievable breakdown" or "incompatibility." Another common basis for no-fault divorce is that the parties have lived separately for a certain period of time (varies from state to state) with the intent that the separation be permanent. The list of grounds for a fault-based divorce may include: adultery, physical cruelty, mental cruelty, attempted murder, desertion, habitual drunkenness, use of addictive drugs, insanity, impotency, and infection of one's spouse with venereal disease. See table with Grounds for Divorce
Source: Atkinson, Jeff, The American Bar Association Guide to Family Law, 1996.

Who determines how assets are divided in a divorce?

Generally, spouses are free to divide their property as they see fit in what is called a "marital settlement agreement," which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of acrimony, a substantial majority are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination. Laws vary from state to state.

In dividing marital or community property, the laws vary from state to state. Some states are community property states. Some states, such as California, believe that marital property should be divided equally unless a premarital agreement specifies otherwise. Most states (including Oregon) however, apply the concept of "equitable distribution," which means the court divides the marital property as it thinks fair. That division may be 50-50 or something else. Some of the factors considered include: the amount of non-marital property each spouse has; each spouse's earning power; services as a homemaker; waste and dissipation; fault; duration of the marriage; and age and health of the parties. See table with Property Division.
Source: Atkinson, Jeff, The American Bar Association Guide to Family Law, 1996

How do courts determine who gets custody of children in a divorce?

If the parents cannot agree on custody of their child, the courts decide custody based on "the best interests of the child." Determining the child's best interests involves many factors, no one of which is the most important factor.
Source: Atkinson, Jeff, The American Bar Association Guide to Family Law, 1996.

What is joint custody?

Joint custody has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts. Joint legal custody refers to both parents sharing or participating in the major decisions affecting the child, which can include school, health care and religious training. Other considerations under these types of custody agreements can include: extracurricular activities, summer camp, age for dating or getting a job, and methods of discipline.

Joint physical custody refers to the time spent with each parent. The amount of time is flexible, and can range from a moderate period of time for one parent, such as every other weekend, to a child dividing the time equally between the two parents' homes. In situations where the time spent with both parents will be divided equally, it helps if the parents live close to one another. See table with State Laws Regarding Joint Custody.
Source: Atkinson, Jeff, The American Bar Association Guide to Family Law, 1996.

How is child support determined in a divorce or paternity case?

All 50 states have adopted child support guidelines. Some states use tables that indicate a support amount for different ranges of income, similar to tax tables. Although some states base support on the payer's income, many states use an income shares model, which is based on the income of both parents. Usually, the parent without the child the majority of the time will pay support, but if both parents share time with the child equally, the parent with the greater income usually pays support. The support may be reduced based upon the amount of time the payer spends with the child. Some states also cap support at a certain income level. If a parent is intentionally not working or is working at less than he or she is capable of earning, the court can "impute income," which means setting support based upon what the parent is capable of earning rather than actual earnings. States vary on what expenses are included in child support. For example, some states include medical expenses and day care, while other states add those costs on top of the child support. See table with Child Support Guidelines.
Source: Linda Elrod & Robert Spector, A Review of the Year in Family Law: Children's Issues Take Spotlight, 29 Family Law Quarterly 741, 772 (Winter 1996).

What happens if a parent does not pay court-ordered child support?

In 1994, 5.4 million women with children were due child support (far below the number eligible for such orders). However, of the 5.4 million, only slightly more than half received the full amount, while a quarter received partial payment and a quarter received nothing at all. Various enforcement mechanisms exist against these so-called "dead-beat parents," including automatic withholding of the obligor's income. The court has the power to hold a party in contempt for violating a court order. The contemnor must be allowed an opportunity to "purge" the contempt, meaning to comply with the order. If the contemnor does not purge the contempt and has the ability to pay, the court has the power of incarceration, although usually for a limited amount of time, such as six months per contempt citation. In addition, many states have criminal penalties for failing to pay child support. Recently, Congress has enacted many new enforcement mechanisms, creating greater collaboration between federal and state governments. These include suspension of driver's licenses and professional licenses, seizure of tax refunds, seizure of bank accounts and investment accounts, and even publishing the name and picture of the "dead-beat parent" on posters and in newspapers. The law also improves interstate enforcement by bolstering federal services to locate parents across state lines and by requiring all states to have common paternity procedures in interstate cases.
Source: Children's Defense Fund, The State of America's Children: Yearbook 1997 16 (1997).