Monday, June 29, 2015

Mark Johnson Roberts Interviewed by KOIN 6 news regarding US Supreme Court Decision on Same-Sex Marriage

On Friday June 26th, following the Supreme Court decision to legalize same-sex marriage nationwide, Family Law attorney Mark Johnson Roberts, was interviewed by Portland’s KOIN 6 News team. The story featured live coverage on the same-sex marriage lunchtime rally in Terry Schrunk Plaza, following the ruling. During the interview, Mark shared his perspective in terms of ‘what’s next’ for our country: “It gives us assurance the law won’t change underneath us which we really didn’t know for sure. If you’re married in one state and you go across state lines and you’re not married. With today’s rulings those days are over.” Click HERE to view the full broadcast.

Supreme Court Legalizes Same-Sex Marriage Nationwide by Mark Johnson Roberts

Our leading family law attorney on same-sex marriage issues, Mark Johnson Roberts, addresses today’s opinion and what it means for the future of our country:

“Today, in the much-anticipated decision in the consolidated cases of Obergefell v. Hodges, the United States Supreme Court held that marriage is a fundamental right under our national constitution—a fundamental right that cannot be denied to same-sex couples without running afoul of the constitution’s equality guarantees.

“Speaking for the Court, Associate Justice Anthony Kennedy observed that “the constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” One of those rights, the Court held, is marriage. The Court has recognized marriage as a fundamental liberty at least since the 1967 decision in Loving v. Virginia, in which a unanimous Court ruled that the right of marriage could not constitutionally be denied to interracial couples.

“Following the Loving precedent today, the Court observed that American family life has expanded over the last 50 years or more to include many same-sex couples and their children. The continued exclusion of same-sex couples from marriage in those circumstances created two classes of families in our country and demeaned those couples and their families. The Court’s decision today recognizes marriage in America for what it is—an ever-changing institution that provides comfort and support to the family, the basic foundational unit of our society.

Some will complain that the Court’s decision has foreclosed further debate on this issue, but truthfully, there is no further debate to be had. The national conversation about same-sex marriage, which began as long ago as the Court’s contrary 1972 decision in Baker v. Nelson, has ended as it must always have ended, with the recognition that American families are as diverse and wide-ranging as the American people themselves. On this great day, which, coincidentally, corresponds with the 46th anniversary of the modern gay-rights movement in 1969, Americans have a great deal to be proud and thankful for.”

Tuesday, June 23, 2015

Top 10 Things To Consider When Getting Married in 2015


Top 10 Things To Consider When Getting Married in 2015



Should We Talk to an Attorney Before Getting Married?

There’s no question that 2014 transformed the practice of marriage in the Great Northwest and delivering great news for Oregon and Washington’s LGBT couples. With wedding season right around the corner—whether you’re in a same-sex or heterosexual relationship—couples are confronted with the legal considerations about whether, when, and how to marry. Making a commitment like this requires careful planning as marriage creates a long-term, complex legal relationship. Here are a few things to think about before “tying the knot” this year:


1. What happens when our relationship ends?


One of life’s truisms is that everything is temporary. You may not want to think about it when anticipating marital bliss, but even the strongest marriage will end with death or divorce.  Knowing that, what steps can you take to see that your wishes are carried out when such a crisis occurs?  A lawyer can help a couple contemplating marriage develop answers to this and other questions. 

2. What kind of a problem solver is my partner?


This is not really a legal question, but it is so important to your legal affairs that it must be considered.  Life seems incredibly happy when we are in love, but real life presents never-ending challenges and problems to overcome.  How does your partner react to life’s everyday troubles?  A person who responds with anger or frustration at minor inconveniences may not be the partner you want to have when a child gets in trouble at school.  If your marriage were to end in divorce, would your partner still want the best outcome for you? 

3. Do I need a premarital agreement?


Two of the key characteristics of state-sanctioned marriage are that the state prescribes a standard estate plan for married couples and it sets out the procedures and rules for getting divorced.  These general state-prescribed rules apply unless a couple agrees in writing that they want different rules by establishing their own estate plan or premarital agreement.  Couples who live together before marriage and have a domestic partnership need to investigate and understand what would happen under the state’s prescribed processes if their relationship ends and compare it to what would likely happen if they marry.   Married couples need to consider what might happen if they get divorced and determine what rules they want to apply. Premarital agreements can help define who gets what if a death or divorce occurs.  The process of exploring whether or not to enter into a premarital agreement can also serve as a tool for creating clarity in a couple’s financial dealings before they get married. 

4. What are we doing with property each of us owns separately?


In some circumstances, property owned by a person before marriage can be awarded back to that same person upon divorce, without a corresponding award to the other party.  Couples contemplating marriage should consider carefully what they want to happen with such property and make sure that documents of title are exchanged if needed to carry out the parties’ wishes.  A premarital agreement can address this as well.

5. How will my public benefits be affected by our marriage?


“Means-tested” public benefit programs, such as Medicaid and Supplemental Security Income (SSI), generally look to both spouses’ resources to determine eligibility.  This means that marriage may place some public benefits in jeopardy.  Careful planning before walking down the aisle is crucial to prevent disqualification or a disruption in benefits.

6. Will we have children?  How?


Whether to have children is a key decision most couples make.  It’s best to talk the issue out thoroughly before tying the knot.  LGBT couples, in particular, may need to consider some kind of assisted reproduction, since adoption options can be limited.  In vitro fertilization and surrogacy may be available, although both are expensive and filled with legal uncertainty.  Donor insemination is cheaper, but carries its own set of legal difficulties.  Consultation with a lawyer skilled in the field of assisted reproductive technology (ART) can be helpful in understanding these issues.  Under no circumstances should you perform your own insemination without talking to a lawyer first. 

7. Will one of us provide most or all of the other partner’s financial support?


Many couples rely on one partner primarily to keep the home and raise the children, and the other to primarily provide financial support.  These arrangements affect financial support obligations and child custody questions in ways that you may not fully understand or appreciate.  It makes sense to talk to a lawyer before putting these financial aspects of your relationship into action.   When you get divorced is not the time to realize that the financial arrangements you willingly entered into with your spouse may result in paying alimony for the rest of your life. 

8. How will we handle debt?


A certain amount of debt (primarily home mortgages, car payments, and student loans) is common and acceptable in most families. The buildup of unsecured credit card debt, however, can place an unreasonable financial and emotional strain on even the strongest relationship.  Be sure you understand your partner’s spending and savings patterns and ensure that they are compatible with your own.  Also, understand that by marrying, you may become liable for your partner’s basic financial support, whether or not you agree with their spending habits. 

9. What if I get an inheritance?


Unlike some states, Oregon has a specific process by which an inheritance or a gift can be kept separate from the marital estate and largely or completely kept intact by the spouse who receives it.  Consulting with a lawyer will help you understand how to be in the best position to try to keep your inheritance free of the divorce process.

10. How will marriage affect my estate plan?


In most circumstances, the act of marriage automatically revokes the married couple’s existing wills.  All couples contemplating marriage should consider reviewing and updating their estate plans with a qualified attorney.

Written by John Christianson, Of Counsel (Estate Planning) and Mark Johnson Roberts, Of Counsel (Family Law)

Tuesday, June 16, 2015

Dos and Don’ts – How to Talk to your Children About Divorce

Children and Divorce


How to Talk to Your Children About Divorce?


As family law attorneys, we often have clients who have questions about how and when to talk to their kids about the divorce.  Whether a child is a toddler, in high school or an adult out of the home, a child of parents going through a divorce will likely have many questions.  Below is a list of 5 things we tell our clients to think about when talking to their kids about their divorce:


Present a united front


Ideally both parents will be on the same page about when and how to tell the child.  This kind of news should come from both parents at the same time so the child can ask questions and feel supported by both parents.  If you and your soon-to-be ex-spouse are not in a good enough place to talk with your children together, at least discuss how the both of you are going to approach the conversation and the timing of when this discussion should occur.


Remind them divorce is not their fault


Children will often blame themselves as the reason their parents are separating.  It’s very important to explain to your child that he or she had absolutely nothing to do with the divorce and there’s nothing he or she could do (or could have done) to prevent the divorce from happening.  Remind the child that both parents love him or her and will continue to love and support the child as parents, even if the two of you aren’t married anymore.


Do not involve them in the divorce process


The divorce process can be a long and difficult process for both parents, but you should not involve your child in any way.  If you and your soon-to-be ex-spouse are disagreeing about child custody or parenting plan issues, the last thing you want to do is involve your child.  Do not talk about what you’re disputing or your frustrations with your child.  This means taking your divorce attorney calls in private, not talking about court or judges in front of your child, storing pleadings or paperwork in a safe and secure place and not sharing any details about the actual process or decisions getting made with your child.  All you need to tell your child is that you and your spouse are handling things and the child does not have to worry about “what will happen” because things will get resolved.


Do not vent to them about your emotional or financial stresses


When you’re going through a divorce you’re going to be dealing with a lot of emotional and financial stresses.  Lean on your own family and friends or mental health professionals to help you through this – not your children.  Chances are there will be times when you’re upset with your soon-to-be ex-spouse and might not have very nice things to say about him or her.  The last person you should be sharing your irritations with is your child.  Remember, your ex-spouse is always going to be your child’s mother or father and your child may resent you as he or she grows older if you talk disparagingly about a parent who they love and identify with.


Involve a professional


Even if your child is happy and healthy, a divorce can be a very stressful and challenging time for any child.  Your child may not feel comfortable sharing with you everything he or she is feeling or going through.  Enrolling your child with a child psychologist or counselor is a great way to allow your child to get the support they need.  Even if your child only meets with a professional once or twice, it’s important to give your child the opportunity to have a safe place to share their fears, worries, anger, or sadness with.  You may also learn some valuable tools and information from your child’s psychologist or counselor that will help you better support your child through the divorce process and afterward.
 
The stress of a divorce can be reduced by choosing a highly experienced divorce attorney to help guide you through the process. If you are looking for an attorney with extensive divorce experience, contact us today. Call our Portland office at (503)227-1515 or our Vancouver office at (360)823-0410 to request a consultation today.

Tuesday, May 26, 2015

Update Your Estate Plan Before Summer Travel Season

Headed for spring or summer travel? Update your estate plan before you go.


With spring right around the corner, many of us are looking forward to a much needed vacation.  In preparing for a vacation there are usually many plans to make, flights to schedule, hotel rooms to book, etc.  Important estate planning questions usually pop up around this time as well, such as “if something happens to me on this trip, will my family be taken care of?” 
 
If you have not considered whether your estate plan is up to date, or have been putting off contacting your attorney to have it updated, your upcoming trip can be a great motivator to finally get it taken care of.  Ensuring your estate plan is up to date will help give you peace of mind on your travels, knowing that if something happened to you, your affairs are in order.   A few common issues to review are included below to help you consider whether your estate plan will perform the way you intend:

Life Changes.  As we all know, the only constant in life is change.  Your estate plan needs to be reviewed and updated to account for these changes.  Changes in your family (such as through a birth, death, marriage, or divorce) or changes in your finances commonly require a review of your estate plan.   Also, consider whether the people you have named to handle the various jobs upon your incapacity or death are still the best choices.  The people you named five or ten years ago to handle a probate, serve as Trustee, or make medical and financial decisions for you may not be the best choice today. 
           
Beneficiaries.   Does your Will or Revocable Trust leave your assets to the individuals you intend?  Are there better ways to leave assets to those individuals, such as leaving assets in trust for their benefit?  It is important to consider where your assets will go upon your death and how they will get there.   Additionally, check to make sure the beneficiary designations on your life insurance policies and retirement accounts are up to date.
 
Illness or Incapacity.  Illness and injury always seem to strike at the least opportune time.  If something happened to you while on vacation which prevented you from handling your medical or financial decisions, having the appropriate documents in place can make all the difference in the world.  Having up to date “Advance Directive for Health Care” and “Durable Power of Attorney” documents is critical to ensure you are taken care of.  If both of these documents are up to date, you will have a trusted person in place to handle your affairs if you could not handle them on your own.
 
Minor Children.  If you have minor children, one of the biggest travel concerns is who would raise them if the unthinkable were to happen and you passed away.  It is a big responsibility to name someone to raise and care for your child.  It is especially important to name someone who is not only willing and able to take on this responsibility right now but can continue to provide a stable environment for years to come.  Make sure your Will is up to date and names a Guardian you are comfortable with.
 
Organization.  With all the technical decisions involved in creating and updating your estate plan, sometimes the practical considerations get overlooked.  Specifically, if someone needed to use your estate planning documents, could they find them?  Before you leave on your trip it is important to organize your estate planning and financial documents so that if something did happen to you, a trusted advisor could easily locate the documents to handle your affairs.  Given that so much of our lives are online these days, you should consider making a list of your online accounts and passwords and leaving it in a secure but accessible location along with your estate planning documents.
 
If you need help updating your estate plan to ensure your affairs are in order, the estate planning attorneys at Gevurtz Menashe can help.  Please contact us to set up an appointment.

Thursday, May 14, 2015

Estate Planning For Second Marriages – 5 Things to Consider


Everyone believes in second chances. Second chances can bring a lot of joy, especially in the context of getting remarried. In fact, blended families now outnumber traditional families, according to the U.S. Census Bureau. This is not just because of rising divorce rates – our longer life spans mean that many more people are outliving their spouses and remarrying. However, second marriages bring with them unique challenges, and the need to have comprehensive estate planning becomes increasingly important. It is likely that in your first marriage, you and your spouse generally had the same goals when it came to your estate planning: taking care of the surviving spouse during their lifetime and then leaving whatever assets remain to your children. Now, not only do you have to take into consideration the needs of your new spouse, you also have to consider the needs of your children from your previous marriage and possibly the needs of children from your second marriage.
  1. Wills. In Oregon, when a person becomes married, his or her existing will is automatically revoked. So, even if you updated your estate planning documents after your divorce, a remarriage may require you to take a second look at your existing estate plan.
     
  2. Beneficiary Designations. Certain assets let you name a beneficiary and are not controlled by a will or trust. These assets include life insurance policies, employer retirement plans, IRAs, annuities, and certain investment and bank accounts. You most likely named your spouse as beneficiary when you were married. Given the fact that you have remarried and may have additional children, updating your beneficiary designations is critical: beneficiary designations will override a will or trust if the documentation isn’t consistent. What does this mean? It means your ex-spouse will receive the assets if he or she is still named as the beneficiary!
     
  3. Qualified Terminable Interest Property (QTIP) Trust. A QTIP Trust is a type of trust that can provide for your new spouse until his or her death or remarriage, with the remainder of the assets passing to the beneficiaries of the trust – usually your children (though you can name anyone). The surviving spouse is entitled to the income produced by the trust during their lifetime, but the surviving spouse does not have full ownership of the trust assets and cannot sell them or give them away. In addition, these are special IRS-favored trusts that have special estate tax implications. The benefit of a QTIP trust for a second marriage is that it provides for flexibility in treating beneficiaries, can save assets for children of a previous marriage, and can generate tax savings and deferrals of estate tax in taxable estates.
     
  4. Irrevocable Life Insurance Trust (ILIT) . An ILIT is an irrevocable trust that is both the owner and beneficiary of one or more life insurance contracts. An ILIT could be a way to prevent conflict in your blended family because it would provide for an immediate death benefit to whomever you designate as beneficiaries (most likely your children from your first marriage), instead of forcing children to wait for your spouse to die before having access to assets (as is the case with a QTIP trust). Then, the remainder of your assets would be available to your spouse and perhaps children from your second marriage. As an added bonus, because the insurance proceeds are not part of your estate for estate tax purposes, an ILIT is a useful tool to avoid state and federal estate taxes.
     
  5. Power of Attorney and Health Care Directive. Now that you are remarried, you want to make sure that you have designated the proper person to make financial and health care decisions for you in the event you become incapacitated. In many cases this will be your new spouse. In Oregon, divorce does not automatically revoke a power of attorney, so failure to update your estate planning documents could cause your ex-spouse to serve as your agent.
Most people think that their situation is “too simple” to necessitate any estate planning. In the case of second marriages, this thinking could not be further from the truth. Estate planning in second marriages presents many challenges and requires the assistance of well-qualified estate planning attorneys to ensure your goals are achieved. Gevurtz Menashe’s estate planning attorneys are well-versed in assisting clients in this area. If you would like to learn more about the necessity of estate planning for second marriages, any one of our estate planning attorneys would be happy to assist you.
Call us at 503-227-1515 or request a consultation online.

Thursday, May 7, 2015

Actress Sofia Vergara Battles Over Frozen Embryos

By William J. Howe III

This week, 42-year-old actress and star of the hit TV sitcom "Modern Family," Sofia Vergara spoke out for the first time after her former fiancĂ©, Nick Loeb, said he should be allowed to use her frozen embryos to have children, even without her consent. According to CNN, Their relationship ended over a year ago, but Loeb has gone public in his law suit over the embryos. Loeb is suing for custody of the embryos, writing in a New York Times op-ed, “in my view, keeping them frozen forever is tantamount to killing them.” Loeb also admits the couple signed a consent form before getting started with IVF, stating nothing could be done with the embryos unless they both agreed. However, the form did not specify what would happen if the two were to separate, a separate consent required by California law.


Dahl vs. Angle


For Gevurtz Menashe, after arguing the Dahl vs. Angle case in 2008, both at the trial and appellate level(s), this story has been an interesting one to follow. This case still remains the only frozen embryos case to appear before the Oregon Court of Appeals—and as far as we know—the only one litigated in Oregon.  However, cases similar to these are certain to follow. With more same sex couples marrying and wishing to rear children, the declining male fertility rate, and the increasing number of women waiting longer to have children, the population of those who are likely to seek fertility assistance is growing.  The law has been slow to adapt to these rapid social changes—and the advancements in medical technology. 
 
Gevurtz Menashe is a family and estate planning law firm based in Portland, Oregon and Vancouver, Washington.  For more information, call us at 503-227-1515 or request a consultation online.


Embryo Law – Is an Embryo a Living Creature?


With over 600,000 frozen embryos in the country (according to the U.S. Dept. of Health and Human Services), it’s inevitable these IVF issues will continue to grow as a common dispute among couples, in every state. Although this specific case is receiving national attention due to the celebrity involved, it still raises several fundamental legal questions exploring areas such as “when does life begin?” and “what is conception?”—and further, in the eyes of the court, “is an embryo considered a living creature or is it property?”
 
For what it is worth, I predict that Mr. Loeb has virtually no chance of persuading the court to allow him to bring to life the frozen embryos carrying Ms. Vergara’s genetic material.  The cases from the U.S. and around the world are unanimous in ruling, under the circumstances of this case, that a child will not be brought into this world without both parent’s consent.



For Oregon couples considering any in vitro fertilization procedure, we recommend you seek legal advice from a lawyer experienced in this area. The lawyer will generally advise each party to sign a strong and clear contract provision, or premarital agreement indicating what should happen to any genetic materials should the couple’s relationship end.
 


About Bill Howe



Bill Howe is our leading authority of relationship agreements and has worked with several cases involving the agreements and litigation of genetic material, including the Dahl vs. Angle case in 2008, on frozen embryos. Bill’s family law practice includes a special emphasis on relationship agreements, premarital agreements, complex property and children’s issues and appeals—and for decades—he has been a leader in crafting the very legislation and procedures that govern family law in Oregon. 



If you would like to learn more about the legal impact of in vitro fertilization, or how you and your partner can better plan for the future, we would be happy to assist you.