Going through a divorce is difficult, both emotionally and financially. However, often one of the greatest stressors is simply not knowing what to expect from the process. Our firm strives to provide you with information throughout the entire divorce process, with the goal of educating you about the next steps, your options, and the future. Below you will find a collection of some of the more common questions that clients ask us. Please be advised that these are generic answers and may vary dramatically based upon your personal circumstances. No information below should be relied upon as formal legal advice. These answers should not be used in place of a personal consultation with a qualified attorney.
What are the grounds for a court granting a divorce in Oregon? Do I have to prove that my spouse did something wrong?
Oregon has adopted the concept of “no-fault” divorce. It is not necessary to prove cruelty, adultery, abandonment or any other fault on the part of your spouse for the court to grant a divorce. A simple statement that you and your spouse have developed “irreconcilable differences” is all that is required. “Irreconcilable differences” is the legal phrase used to say that you and your spouse cannot work out your differences. Either party can request a divorce without the other’s permission or agreement. You cannot stop the divorce from happening if your spouse wants one.
How does a legal separation differ from a divorce?
A Legal Separation is a court process that looks very similar to a divorce, in that the court will enter a judgment dividing assets and debts, awarding custody, establishing a parenting plan, and determining child and spousal support amounts. Some clients prefer a Legal Separation to a divorce for personal reasons, such as religion or the need for continued healthcare. Legally separated parties cannot remarry until they are divorced. A legal separation judgment can be converted into a divorce by either party within two years.
Does it matter whether I leave the family home during my divorce?
Many clients ask if they can or should leave the family home when a divorce is pending. When minor children are involved, we generally tell clients to stay in the home until a formal parenting plan has been established. Even when children are not involved, there may still be strategic reasons to stay in the home while the divorce is pending.
Will obtaining a restraining order against my spouse help me in my divorce?
A restraining order (“Family Abuse Protection Act or FAPA”) should never be used simply to gain a strategic advantage in a divorce or custody case. Restraining orders are meant to protect victims of past or potential domestic violence, where a threat of imminent harm exists. If domestic violence has occurred, the court will consider that fact when assessing custody, even if a restraining order was not filed, or even if law enforcement never intervened.
How long do I need to have lived in Oregon before filing for a divorce in the state?
If you were married in Oregon and either party is a resident of Oregon, then you can file for divorce anytime. If you were not married in Oregon, then at least one party must have lived in Oregon for six months at the time the divorce was filed. In a suit for legal separation, you can also file anytime. See ORS 107.075.
What is the procedure for starting a divorce through the courts?
Every Oregon divorce begins with one party filing a Petition for Dissolution in the county where they or the children live. The initial documents are filed with the court and include the basic information of who the parties are, whether they have children, and what they are asking the court to do (establish custody, award support, divide assets, etc.). Copies of the documents are then served on the other party, who then has 30 days to file a Response to the petition. Depending on the county, the court may then require the parties to mediate their dispute before setting a trial date. All counties require parents to attend a county-specific parent education course before their divorce is finalized.
Does it make a difference who files for divorce first?
Although there is no legal difference related to who files first, there may be strategic reasons associated with the timing of filing for divorce. Procedurally, the person who files first becomes the “Petitioner” and will present their case first at trial; the person who files second becomes the “Respondent” and will present their case after the Petitioner.
What is the statutory restraining order?
At the time a divorce Petition is filed, Oregon law prohibits the parties from: transferring or disposing of any assets without the permission of the other party; canceling insurance policies; changing beneficiaries on insurance policies; or making extraordinary expenditures without providing written notice and an accounting. This is referred to as a “statutory restraining order against the dissipation of assets.” Violations of this order may result in contempt sanctions, such as fines.
How does the process of serving divorce papers work?
A divorce begins with the Petitioner serves the Respondent with a copy of the Petition. Proper service generally involves one of the following: (1) personal service by a third party who is at least 18 years old, such as a sheriff or private process server; or (2) the Respondent accepts the documents without formal in-person service, but signs a Acceptance of Service form acknowledging receipt.
Is there a waiting period before a divorce is granted in Oregon?
No. Once you file for divorce, there is no required waiting period before finalizing your case. Uncontested divorce judgments can be submitted simultaneously with the Petition. Procedurally, once you submit your divorce judgment to the court, it may take several weeks to be processed, signed, and entered into the court record.
Is there any way to get help from the court while the divorce is pending?
While a divorce is pending, the court has authority to order one party to pay temporary support or to maintain payment of certain household bills. The court may also award one party exclusive use of a vehicle or residence, identify which parent will have temporary legal decision-making for the children, and establish a temporary parenting plan. Parties may reach these temporary agreements without a hearing, or the court may resolve the dispute on their behalf.
Is it OK to date while my divorce is pending?
Dating during divorce will not legally affect the division of property or the granting of the divorce. However, there are recommended guidelines for parents in terms of introducing new partners to the children, based on psychological research. Most experts recommend parents wait a year before introducing a new person to the children.
What are the factors for child custody in Oregon?
Oregon law directs that the court consider the following factors when deciding which parent will make legal decisions for the children (sole custody):
- the emotional ties between the child and other family members;
- the interest of the parent in the child and the parent’s attitude toward the child;
- the desirability of continuing an existing relationship;
- the abuse of one parent by another;
- the preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
In practical terms, this means that often the parent who has accepted primary responsibility for caregiving duties will be awarded legal decision-making for the child, so long as that person will also encourage on-going contact between the children and the other parent.
What is joint custody and how can I get it?
Joint custody means both parents are making joint decisions related to a child’s non-emergency medical care, education, and religious training. Joint custody cannot be ordered by the court; it can only be established by the agreement of the parties. If one party does not believe joint custody will be successful, they may ask the court to award sole legal custody to one parent. The court must then make a determination of which parent is best suited to be the custodial parent.
What does the term parenting time mean? Is it the same as visitation?
The court will usually approve any parenting plan (visitation schedule) agreed to by you and your spouse. An example schedule is for each parent to have the children on alternate weekends and specific times during summer vacation and holidays. In Oregon, the term “visitation” has been replaced by the term “parenting time” in recognition of the fact that both parents retain rights by virtue of being a parent. The courts encourage liberal time-sharing except in extraordinary circumstances. The state provides examples of typical parenting plans which can be used by those families that do not want to create their own.
I have heard that Oregon requires a parenting class during a divorce. What is this about?
Each county requires that both you and your spouse to complete a parenting class early in the divorce process. The cost and length of the class vary by county. The typical class lasts four hours and covers topics including ways that parents can help their children adjust to divorce and how to make shared parenting time better for the children. The court will not allow your divorce to become final until both parents have completed the class and filed the appropriate certificates with the court.
Do I have to go to mediation for a divorce proceeding?
Each county has different requirements for mediation. Mediation is a procedure in which both parents speak with a neutral third-party to facilitate reaching an agreement. All counties require parents to attempt mediation to address child-related issues (custody, parenting time) and provide a free service through the court system for that purpose. Some counties (such as Multnomah County) also requires parties to mediate their financial disputes as well.
How is child support calculated in Oregon?
The court uses a calculator developed by the Oregon Department of Justice to determine the appropriate amount of child support. The main factors considered are: each party’s gross monthly income, the annual overnights each parent has the children, health care costs for the parties and children, childcare costs for the children, whether either parent has a non-joint child, and any spousal support paid. The amount generated by the calculator is the “presumptively correct” amount. There are options to rebut that amount, in some circumstances, such as when a parent has to travel to exercise their parenting time, or a child has extraordinary needs.
How is spousal support determined during an Oregon divorce? Is it required?
Oregon does not have a spousal support calculator or a predetermined way to set spousal support. Instead, the court looks at a list of factors to determine whether support is appropriate, and if so, how much support is appropriate and for what duration the support should continue. The three types of spousal support are: transitional (meant to be short-term and designed to help a party return to the workforce or get additional education and training), compensatory (meant to compensate a party who contributed to the other’s earning capacity), and maintenance (meant to maintain a relatively comparable standing of living). The court considers factors such as the age and health of the parties, the length of the marriage, the parties’ respective work histories and earning capacities, their caregiving and child support responsibilities, and any other factor the court thinks is important. In some communities, there are “rules of thumb” about support amount and duration, however these cannot be relied on in court.
How do Oregon judges handle property division during a divorce?
The court is ordered to divide property in a “just and equitable” manner. This does not necessarily mean an equal division, but rather one that is fair under the circumstances. Any asset or debt acquired during the marriage is subject to a “presumption of equal contribution.” This means the court assumes that all assets were acquired due to the joint efforts of the parties, even if one party was a wage earner and the other was a homeowner. Because of this presumption, most often we see marital assets being equally divided. Premarital assets or those that were inherited and kept separate are not subject to this presumption, although the court still has the authority to divide those assets if that would the equitable solution.
Does the court divide retirement benefits during a divorce?
Retirement accounts, pension plans, deferred compensation, profit-sharing, IRAs, vested and restricted stock, and other investment accounts are all “assets” subject to division by the court. In the case of a pension or retirement plan, the parties’ General Judgment must include specific language explaining how the retirement plan is to be divided and what the valuation date will be. After the divorce, an additional document is submitted called a Qualified Domestic Relations Order (or QDRO), which actually instructs the Plan Administrator how to divide the account. Specially trained lawyers draft these QDROs to comply with the specific Plan rules.
What is an “uncontested” divorce? How do I obtain one?
An “uncontested” divorce is one in which both parties have reached an agreement on all issues – custody, parenting time, child and spousal support, and the division of assets and liabilities. When parties are aligned on all matters, they can file the court paperwork together.
There are many benefits to an uncontested divorce. First, the agreement underlying the uncontested divorce is a known quantity; you know what the outcome is going to be. In contrast, a degree of uncertainty is always present if you take a case to trial and let a judge decide the issues. Second, uncontested divorces are cheaper than contested divorces because there are no issues to be argued about between attorneys. Finally, people who craft the terms of their own uncontested divorce tend to be more likely to adhere to the terms. Although there is always a bit of give and take in reaching an agreement, the parties know that they had a direct role in reaching an outcome instead of having a judge dictate the outcome.
What are court costs for a divorce in the state of Oregon?
A filing fee is required when you file a Petition. Court fees change periodically, but currently the cost is $301 for each party in a contested divorce. Other out of pocket costs (non-attorney fees) include court reporter fees for depositions, appraisals, investigators, computer research, etc.