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  • Blog or Newsletter Disclaimer: The information and material contained in this document does not constitute legal advice and are provided for informational purposes only.

Garrett Hemann Robertson P.C. sponsors the Make-A-Wish Foundation’s 2014 “Walk for Wishes.”

On April 26, 2014 at Salem’s Riverfront Park, Garrett Hemann Robertson P.C.’s shareholder and Make-A-Wish® Oregon’s Ambassador Board member, Luke Reese, will be joining family, friends and colleagues for the foundation’s annual Walk for Wishes.  This year’s walk will highlight one of the many children who benefit from the Make-A-Wish®.  Ten-year-old Portland resident, Destiny, has a rare and incurable metabolic disorder known as NKH, which affects her brain functions.  Even smiling is difficult.  Last October, Destiny was connected with a woman from Michigan named Cassie through a website that matches runners with those who cannot run.  Since then, Destiny and Cassie have developed a special bond, and Cassie has committed to dedicating at least one 5k run a month to Destiny.  It’s a commitment that has changed both of their lives.  Destiny’s one true wish was to meet her hero, Cassie, and participate in a 5k together.  On April 26th, Destiny’s wish will come true when she and Cassie lead the Walk for Wishes.

In addition to sponsoring the Walk for Wishes, GHR is encouraging employees to share Luke’s passion of making wishes come true for children with life-threatening medical conditions by sponsoring a “Jeans for Wishes” week April 21-25, 2014.  Employees who donate $20 to the Make-A-Wish will be allowed to dress casual throughout the work week.

We invite you to join hundreds of local Make-A-Wish supporters for the 2014 Walk for Wishes.  If you would like to participate, follow this link to the registration page:  http://walkforwishes.kintera.org/2014.

Patient Protection and Affordable Care: Will it Help or Hurt?

As of this writing, a government shutdown is imminent as the Senate and House face off over whether to fund the Patient Protection and Affordable Care Act (“Obamacare”).  It is hard to know what Obamacare will look like in the coming months and years, but it’s still worth checking out the Federal government’s website here.  Just by answering a few questions you’ll learn whether you stand to benefit from the legislative changes.  And if you’re an Oregon resident, you can find more information here.

–Sean

Legislative School Law Update 2013

school law attorneys by Kelly D. Noor and Rebekah R. Jacobson, Attorneys

The 2013 Oregon Legislature passed many bills impacting school districts, ESDs and charter schools on topics ranging from student tracking devices to lockdown drills to flag procurement. We summarized the major legislation, as well as the technical bills, impacting schools and provided action items to pinpoint the immediate impact on your district. Highlights include significant changes to districts’ interdistrict transfer and expulsion procedures, as well as changes to how employers must handle bereavement leaves. Follow the link to access the full document: 2013 Legislative Changes

Luke and Kelsey Reese Join the Make-A-Wish Foundation of Oregon’s Ambassador Board

Garrett Hemann Robertson P.C. is pleased to announce that the Make-A-Wish Foundation® of Oregon has selected Luke and Kelsey Reese for appointment to their Ambassador Board.   The Ambassador Board serves as a conduit to new relationships for growing Make-A-Wish Oregon’s presence in Oregon and Southwest Washington.   Luke joined the firm as a law clerk and became a shareholder in 2012.  He focuses his practice on employment law.  Kelsey is an elementary school teacher in the Salem area.  Luke and Kelsey look forward to honoring the Make-A-Wish Foundation by dedicating their passion, experience, time and talents to make wishes come true for children with life-threatening medical conditions.

 

Premarital Agreements (Part 2): Anything Worth Doing is Worth Doing Right.

In Part 1, we discussed what premarital agreements are any why they are important. Next, we will address how to effectively draft and execute an enforceable agreement.

What can a premarital agreement do for me? A properly drafted premarital agreement is a small, initial investment that can produce long-term results by easing the fear of the unknown and saving the couple time, money, and stress in the event of a separation or divorce. The ultimate goal in premarital agreement drafting is to create a document that will allow you to enforce the terms of the arrangement and ensure that both parties get what they bargained for.

Why does it matter how I draft my premarital agreement?
Divorces are messy and painful. What might have seemed perfectly reasonable at the time the parties entered into a premarital agreement may seem completely unreasonable at the time of divorce. One party will try to avoid the agreement, often claiming that it is “unconscionable.” The elements of unconscionability are:

  1. The other party did not provide a fair and reasonable disclosure of their property or financial obligations;
  2. The objecting party did not voluntarily and expressly waive, in writing, any right to a fair and reasonable disclosure beyond what was actually provided; and
  3. The objecting party did not know (or could not reasonably know) the property or financial obligations of the other party.

How do I execute an effective premarital agreement?
There are three keys to avoiding claims of unconscionability and ensuring that your premarital agreement is enforceable:

1. Disclose Everything
Both parties to a premarital agreement have a “fiduciary duty” to each other, which means they should be unfailingly honest and forthright in disclosing what assets and liabilities they have at the time of marriage. A “meaningful disclosure” gives each party the knowledge of the value, amount, and character of the other party’s property and liabilities so that they are fully aware of the nature and extent of the property affected. Be sure to provide a list of all of the assets and liabilities you are bringing into the marriage. Consider offering your spouse-to-be the opportunity to review bank statements, have properties appraised, and see bank statements, mortgages, and other evidence of your debt. Providing everything avoids claims that there was not meaningful disclosure. This person is going to be your spouse. Be honest.

2. Get the Agreement Done Voluntarily and Well in Advance
You must provide enough advance notice that will allow your spouse to have a reasonable opportunity to review and become aware of the purpose of the agreement. In one case, the Court of Appeals determined a party did not voluntarily enter into the agreement when the other party provided the agreement only one day prior to the parties flying out-of-state for their wedding. Do not hesitate to provide a draft of the premarital agreement well in advance of asking your spouse-to-be to sign it. Six months is not too far before the wedding to set as a target date for getting the agreement signed.

3. Have Separate Attorneys
Because the interests of each party to a premarital agreement are adverse, one attorney should not represent both parties. Each party should have separate counsel available to review the other party’s property and liabilities and to negotiate the terms of the agreement. A meaningful bargaining process between two represented parties creates an inference of a legitimate premarital agreement process where both parties had reasonable opportunity to review and become aware of the purpose of the agreement. There is less possibility that the provisions of an agreement will be found unconscionable or involuntarily entered into if the parties are represented by separate counsel. Consider paying for your spouse’s attorney if necessary.

What will a premarital agreement do to my relationship?
Many couples hesitate at the idea of a prenuptial agreement because they expect it to bring tension into their relationship and destroy the “happily ever after” feeling of being engaged. However, if done correctly, a prenuptial agreement can serve an important role of stimulating conversations about how the couple wishes to define and safeguard their marriage. This can help build a strong a lasting relationship based on mutual understanding of financial expectations and aspirations.

 

Pulling Away From The Fiscal Cliff

ESTATE TAX IMPLICATIONS OF THE AMERICAN TAXPAYER RELIEF ACT OF 2012

by Theresa M. Wade

In last minute negotiations, Congress passed the American Taxpayer Relief Act of 2012 (also known as the “2012 Tax Relief Act,” or the “Act” in this article). Although the Act affected all tax structures, from income tax to gift tax to corporate tax to estate tax, this article addresses only the Act’s estate tax and gift tax implications.

In 2012, the federal estate tax exemption was $5,120,000. Any individual dying in 2012 with an estate of less than $5,120,000 had no federal estate tax liability. The Act made permanent that $5,000,000 estate tax exemption for estates of decedents dying in 2013 forward, and it also indexed the amount for inflation. Unfortunately, the Act also increased the tax rate for estates in excess of $5,000,000 to 40% from the previous rate of 35% for each dollar in excess of $5,000,000. The State of Oregon continues to tax those estates in excess of $1,000,000, at 10% for each dollar in excess of the $1,000,000 threshold. The distinction between the Oregon and Federal tax rates is worth keeping in mind when it comes to estate planning.

The gift tax exemption remains at the current $5,000,000 limit for 2013 and the foreseeable future. As with estates, the tax rate on gifts in excess of $5,000,000 is increased from the current 35% to a 40% tax rate. These changes are in effect for estates and gifts beginning January 1, 2013. As in prior years, the State of Oregon does not tax gifts, so lifetime gifts would have no impact on Oregon tax structures.

With the enactment of these changes in the Internal Revenue Code and Treasury Regulations, estate plans that contemplated the use of tax planning with credit shelter trusts and marital trusts, as well as lifetime gifting plans, should be relatively unaffected.

If you have questions or would like to explore these options in your own estate plan, please contact Theresa M. Wade.

Premarital Agreements (Part 1)

Worth a look? Anyone who has been through a divorce, or knows someone who has, understands that it can be a drawn-out, expensive and painful process.  Typical divorce clients have entangled their finances in ways that make separation and division difficult, especially when two soon-to-be-former spouses find themselves at odds with each other emotionally. As a result, the parties often have trouble finding common ground in order to settle and move on with their post-divorce lives. One often-overlooked tool to make this process less painful is the premarital, or prenuptial agreement.

What are they? Premarital agreements are contracts between prospective spouses who are planning on getting married. Although the premarital agreement is a kind of contract, no consideration is required—that is, neither party has to “pay” anything to the other in order to make the agreement binding.

What topics can a premarital agreement address? Premarital Agreements are commonly used to address division of assets and spousal support in the event of a divorce. Oregon’s premarital statutes are broadly written to allow the parties to agree on just about anything, as long as the subject of that agreement does not violate either public policy (such as an agreement addressing payment of future child support) or a law that imposes a criminal penalty such as an agreement to steal a car.

For example, premarital agreements can be used to address:

  • What to do with one spouse’s retirement account that the spouse brought into the marriage;
  • How to deal with a spouse’s rental property;
  • How to ensure that the parties can acquire jointly-owned property such as a marital residence when they are married;
  • Whether, and to what extent, divorce should trigger mechanisms to support one of the spouses, either by providing or limiting spousal support, or by assigning an interest in income-producing assets to generate income for a spouse;
  • How the surviving spouse should divide a deceased spouse’s assets;
  • Whether to assign life insurance proceeds to the surviving spouse, the deceased spouse’s children, or to a previous spouse to ensure payment of a pre-existing obligation; and
  • Any other matter, including personal rights and obligations, provided the agreement does not violate public policy or a statute imposing a criminal penalty.

When do they become effective? Premarital agreements become effective upon marriage.

Can premarital agreements be modified or revoked after marriage? Yes. If both spouses agree to modify or revoke their premarital agreement after they are married, they have to do so in writing, and both parties have to sign. No additional consideration is needed to modify or revoke the agreement.

Who else could benefit from a premarital agreement? Often, the parents of a spouse can benefit from a premarital agreement that ensures any inheritance left for one spouse will actually go to the intended beneficiary and not be the subject of a contested divorce case. Similarly, a spouse can use a premarital agreement to provide, for example, that assets brought by that spouse into the marriage, or some agreed-upon portion of assets held by both spouses within the marriage, can be used to pay for college expenses of a spouse’s child of another marriage. If you have questions about whether a premarital agreement might be worth considering for yourself, an employee, or a family member, we would be happy to schedule an appointment to discuss your specific needs and identify some options for addressing them.

Next time Part II will discuss: Anything worth doing is worth doing right.

 

Dentinger Named Managing Officer

GHR has named Tammy M. Dentinger as its managing officer. She was elected to the three-year term as managing officer by the firm’s 17 shareholders. Ms. Dentinger joined the firm in 1994, became a shareholder in 1999, and has served as the head of the Divorce and Family Law practice section for the firm since 2004. She has been recognized for her skill in divorce matters with the award of a fellowship in the American Academy of Matrimonial Lawyers.

Armstrong Receives Pro Bono Lawyer of the Year Award


The Marion County Bar Association has awarded Sean E. Armstrong the Pro Bono Lawyer of the Year. He received the award for his many hours of service to individuals in the area of Family Law. Nominated attorneys are submitted to Marion Polk Legal Aid Services, who then determines the award recipient. Mr. Armstrong, a shareholder in the firm, is an established Divorce and Family Law attorney.

GHR Announces Five New Shareholders

The firm is pleased to announce that five of its attorneys have been named Shareholders in the firm. They are Spencer C. Rockwell,
Ryan P. Hunt, Eric W. Jamieson, Kelly D. Noor, and Lucas W. Reese.

Spencer provides civil litigation services for a broad range of private and public clients with an emphasis on malpractice defense of medical, legal, and other licensed professionals.

Ryan’s practice is focused on construction defect litigation, real property litigation, business litigation, and land use law.

Eric practices business and corporate law, tax law, and handles real estate transactions and development.

Kelly is an experienced school law practitioner, representing school districts, education service districts, and other public entities.

Luke consults with employers assisting them in avoiding disputes in the areas of employment law and human resources law.

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Anti-Racism Statement

Garrett Hemann Robertson P.C. was founded on the belief that beyond the basic expectation of providing legal services at the highest level of the profession, we have a responsibility to live up to our core values of inclusion, equality, and respect for people of all backgrounds. As lawyers, we fully support all efforts to address inequities and create positive changes in our society.

While the words we express here are important, we should not lose sight of how our individual actions, each and every day, can contribute to lifting up members of our community when they are most in need. We commit to individually and collectively take action in support of our values and welcome your feedback and ideas so that we can move forward, together, to build a more inclusive community.