Navigating Divorce: Legal Insight with Lissa Kaufman

Break-up, separation, and divorce can lead to the never-ending What Ifs about finances, ownership, custody, and wondering … What would a lawyer have to say about this? So, I reached out to Lissa Kaufman, a seasoned lawyer with a specialty in family law for insight.

At the start of Lissa’s legal career, she advocated for migrant farmworkers in employment and housing cases, worked with low income clients in both criminal and juvenile cases, and managed Portland State University’s office for StudentLegal Services (and won the Judge Mercedes Deiz Award for some of her work with diverse PSU students seeking to become lawyers.)

In December 2014, Lissa opened her law practice and over the past ten years, Lissa’s practice has evolved to concentrate on family law – including divorce and legal matters adjacent to family law (like Department of Human Services investigations and protection orders.) When sharing the development of her legal practice, Lissa explains, the breadth and complexity of family law made it important for me to devote my time developing expertise in that area. It is difficult to “dabble” in family law, because it is complex and there is a lot to master.  

Throughout her work, Lissa has observed ways relationships have influenced people (and their decisions) – and how, as she points out, the law and legal system are not designed to address the emotional aspects of relationships and their demise, which can be very frustrating for some people encountering the legal system in the context of divorce.

So, of course, I asked Lissa questions about the legal system in the context of divorce. Read on … 

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How did you come to the decision to represent people going through divorce?  

Gradually,  as I developed expertise in this area, I realized that despite the challenges of practicing family law, there are many rewards.  I find it gratifying to:

• •  Shepherd litigants through what is often the most difficult time in their lives.  I enjoy helping people reach the other side so they can start their next chapters.   I hope that by making the legal process less opaque, it is easier for my clients to move through this very challenging  period.

• • Learning about people, their families and their vocations and avocations.  I have learned so much about people and their fascinating lives.  I like a good story and hearing about family systems, my clients’ careers and lifestyle choices is never boring. 

People and their families are just so interesting!

When providing therapy for people in relationships some common challenges come up in our sessions: various addictions, responsibilities connected with custody, financial stress, and infidelity. So… From your perspective, what are common reasons for divorce and within court proceedings?  

Every relationship is different and the reasons people decide to get divorced or separated are as varied as the relationships and individuals in them.  

How do matters of infidelity, finances, and addiction arise as reasons for divorce and within court proceedings?  

These are very common themes and aspects of work in family law.  Oregon is a no fault divorce state meaning that parties to a divorce can behave pretty poorly during the marriage or relationship without their behavior or choices impacting most aspects of the divorce.   This can be very hard to accept for some litigants because there is a hope that the courts will recognize and give some weight to infidelity, overspending etc…  The Courts will often exclude evidence of betrayals or other questionable choices by the parties. Some exceptions are as follows:

• • When there is a “waste” of marital assets this can impact the division of assets and liabilities in a divorce.  This is not just about overspending or bad investments.  This is spending or dissipation of assets or resources (or incurring debt) in bad faith or for a non-marital purpose like an extramarital relationship, gambling, or some other reason that is considered outside of the marital purpose.  In Oregon, the Courts have specifically noted that it is not particularly relevant that one party is a spender and another is a saver.  For spending to qualify as waste, it needs to be far more insidious. 

• •  When the behavior of one or both parties directly impacts the minor child or children it can be relevant to custody and parenting time issues.  Obvious examples are when children’s well-being are negatively impacted by a party’s addiction or substance abuse or if a party exposes a child or children to an unsafe adult. Lifestyle choices that do not affect the children are not relevant.

You provide examples of the court finding insidious spending as non-marital spending as gambling and extramarital relationships. Any legal advice for people who have made those mistakes within their relationships and are looking at divorce?

While I cannot provide legal advice, litigants I have worked with have addressed these issues by taking responsibility for the spending or borrowing, quantifying it, and offering to compensate the other party for their share of the “waste” in the divorce.   Of course every individual should get legal advice about their particular situation before taking any action or making any representation to the other party.

How is the prenuptial agreement used as a deciding factor for the court when making decisions?

This is a complex question.  I will answer another one!  Premarital agreements can be powerful tools to “pre-decide” issues in the instance of a divorce or death.  I find these agreements particularly helpful when parties are older or when one or both parties have separate children.  Premarital agreements can also be helpful when parties come into the marriage with separate property or debt or when one or both parties anticipate a large inheritance or gift.   There are lots of good reasons to seek legal advice before marriage about whether a prenuptial agreement is a good idea.  It is important to talk to a lawyer well before the wedding or marriage date instead of waiting until the last minute as last minute prenuptial agreements could be deemed unenforceable.  

What should people consider when going through separation and/or divorce?

1. The process of separation and divorce is likely the most intense and intricate interaction with the legal system most people will ever face.  I often tell my clients that it is the “open heart surgery” of legal problems for most individuals – it is a big deal!  Parties to a divorce or separation should make space in their lives for this disruption and get support they need to make good decisions.  It is not a good idea to take on too much during a divorce and it may be appropriate to take a break from some non essential activities – at least for a short time.  For example, if a party to a contentious  divorce is on the PTA, it could be a good time to take a leave of absence.  If possible, parties in a divorce should avoid taking on extra responsibilities at work etc….
2. Related to #1,  slow down.  I know the inclination to get through a divorce quickly because it is painful and cumbersome.  This is completely understandable, but it is critical that litigants in a divorce carefully consider options and make thoughtful decisions.   It is not uncommon in my practice for guilt, shame and despair to play a role in decision-making.  I encourage clients to be analytical in their approach and avoid the urge to settle scores.  I encourage thoughtful post divorce planning, including a good financial plan and a solid plan for co-parenting if there are children involved.  The process of divorce is a marathon and not a sprint unless there are very few assets involved and no conflicts or disagreements about the issues. 
3. Practice acceptance and get support.  Inevitably, divorce and separation yield big changes.  Parties may go from seeing their children daily to seeing them much less frequently.  Parties may need to sell homes, cars, and oftentimes downsize or change their lifestyles (at least temporarily).  A “zen” approach to this reality will help parties get through this trying time.  Mental health support is critical.  Lawyers are very expensive therapists and parties are encouraged to seek individual therapy and coaching to evaluate choices and obtain assistance in making decisions.
4. Avoid court if at all possible.  Sometimes if there is an unreasonable opposing party or attorney or if the parties just cannot agree, court intervention cannot be  avoided.  However, nobody wins if a judge decides what happens to a family in a divorce.  Parties lose all agency, court appearances cost  exorbitant sums of money and there is a risk of permanent damage to long term  relationships.  
5. Mediation is often  a good option and there are different models to explore. However, all mediators are not created equal.  I recommend vetting mediators with a family law lawyer before signing on and getting advice from a lawyer during the mediation process.  Unfortunately, an unskilled mediator may leave litigants in positions that are unsound or not sustainable.  The devil is in the details and a lack of detail in a final agreement can lead to serious problems down the road.

And for those about to get married …   What is important for them to remember?

I am not sure I have much to say here.  Relationships change over time so it is important to recognize that reality.  Make sure that you are on the same page regarding finances and child rearing.  Ensure transparency in all financial interactions and transactions and talk about money, budgets and expectations for the future.