Tools Lawyers Use to Shorten Family Law Trials by Blaine Clooten There are a variety of tools family law practitioners may use to narrow issues at trial. The procedures used will vary based on client need. Therefore, I’ll use a common fact pattern to describe the process. I sit down to consult with Freddy Smith, a father of four who is married to Cindy Smith. He is ready for a fight, wants a divorce and doesn’t want to pay child support. “Cindy is going to blow any money I give her. She’s terrible with money.” Smith moved out of the family home seven days ago, and he sees his kids for a couple of hours every day after work. After listening for about ten minutes, there is a break in Smith’s story. I pull out a sheet of blank paper and draw a line down the middle. On one side I write “children” and on the other side I write “property.” Then I explain, “We’re going to talk about both. Where do you want to start?” My method isn’t secret sauce. I suspect most attorneys consult in a similar way. This case will present a variety of complex property issues including a qualified domestic relations order for division of Smith’s retirement account, selling the family home, splitting proceeds of sale after paying off outstanding creditors and dealing with auto leases in both parties’ names among other things. But guess where Smith starts? About the only thing on his mind is child support. In Eastern Oregon, where I practiced until recently, a larger percentage of our cases went to trial than in the tri-county area, where we see more mediation. Regardless of the finish line, I still start in the same way. From the moment I first meet with a client, I’m preparing for trial. Once I understand the facts, I can start to prepare strategies to narrow the issues at trial. Here’s a crash course in child support: there’s only a couple of ways to avoid paying — either be dead, or in prison. Otherwise, expect to rely on the child support calculator to arrive at a figure, found at https://justice.oregon.gov/guidelines/. The key components to this final figure are income and the number of overnights each parent receives with the children. Unless Smith wants to take the kids 50% of the time or more, he’s going to be forking over some child support money.1 In short, to meet Smith’s goal to pay as little child support as possible, I need to increase Smith’s parenting time or reduce his income. Let’s assume the parents are not going to stipulate to a parenting time plan, which of course would be the easiest route. For this fact pattern, let’s also assume no abuse between the parents and/or children. From a child support obligation reduction perspective, let’s start with parenting time and increasing Smith’s overnights with the children. Keep in mind, the judge is going to base their decision on the best interests of the child, and if Smith has not shown he can handle having equal time with the children, the court is unlikely to order it. See ORS 107.102. There is a misconception about how often the court awards equal parenting time and it is best to set expectations about a realistic parenting time plan early to encourage resolution. During the consultation, I don’t precisely know Smith’s means or cash reserves, but I may recommend a custody evaluation. While custody evaluations are a double-edged sword (think the evaluation doesn’t go in your client’s favor) they almost always narrow the trial issues. If the parties don’t stipulate to the evaluator’s findings, the judge is likely going to give great weight to the evaluator’s testimony, potentially eliminating large swathes of testimony from collateral witnesses regarding custody and parenting time. If a custody evaluation is not in the cards for Smith, I’ll start to consider temporary motions. Assuming Smith doesn’t feel like he’s seeing the kids enough right now, I’ll likely file a BLAINE CLOOTEN is a trial attorney specializing in personal injury, business litigation, family law and estate planning. Clooten is an attorney at Brownstein Rask LLP and receives mail at 1 SW Columbia Street STE 900 Portland, OR 97204. Clooten can be reached at 503-412-6720 or bclooten@brownsteinrask.com. 18 Trial Lawyer | Summer 2024
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