An approachable tour of the anatomy of an Oregon Divorce
By Jill Brittle
The purpose of this guide is to provide you with a foundation of knowledge about Oregon family law and the options for proceeding with your case. It is also intended to provide a basic framework for the processes we follow in Oregon. It is not meant to provide every answer, nor is it meant to cover every possible avenue or outcome.
In addition, the law routinely changes through appellate case law and legislative updates.
We strongly encourage you to consult with a competent family law lawyer to address the specifics of your case prior to making any decisions or taking any legal action. Receipt or use of this book does not create an attorney-client relationship with any of the attorneys at Jill Brittle Family Law Group.
Chapter 1: Getting Started With a Lawyer
Divorce and family law issues touch the most important piece of our lives – our families. Family law issues can be emotional, confusing, and frustrating. Clients should choose a lawyer who will help them through the process, not add to the stress or length of the process. So how do you choose the lawyer who is right for you?
(1) Choose a Lawyer Focused on You.
Your lawyer should understand that your family law matter is the most important issue in your life. Keeping the focus on you and your case is vital. This includes:
- Informing you about the process: What can you expect from your case?
- Getting the facts: A thorough initial consultation generally takes at least 60-90 minutes to discuss the facts of your case. Once you are a client, you should expect your lawyer to follow up as the case develops.
- Delving deeper into the facts of your case by asking questions they know are important to building a case, even though you may not realize they are important.
- Discussing your finances and options to maximize your representation based upon your budget. Your lawyer should work with you to keep your bill at a manageable level.
- Keeping you informed throughout your case, including providing timely responses to email and telephone calls, and forwarding copies of correspondence received from the other side.
(2) Choose a Lawyer Who Will Thoroughly Investigate Your Case.
Your lawyer must know all of the relevant information about your case. A thorough investigation will include the following:
- Gathering all of your financial records and those of the opposing party.
- Keeping in regular contact with you throughout your divorce or family law matter to stay informed about developments in your case.
- Obtaining evidence for trial as necessary, including photos, videos, bank records, testimony, statements through depositions, school records, or medical records.
- Talking with relevant witnesses, including neighbors, police, emergency personnel, teachers, and doctors.
- Retaining experts to support your case if necessary and ensuring those experts are within your budget.
- Analyzing important legal issues that affect your case, including state and evolving Oregon Appellate family law court cases.
(3) Choose a Lawyer Who Will Organize and Coordinate Your Case.
When a divorce or family law matter is initiated, your lawyer should draft all appropriate paperwork and file it with the appropriate court. Once the case is initiated, the real organization and coordination begins. Organization is vital in both settling your case and preparing for trial. Your lawyer should:
- Determine the whereabouts of the opposing party so that necessary paperwork can be served in compliance with Oregon law.
- Arrange for a professional process server to serve paperwork upon the opposing party in accordance with the law.
- Investigate the opposing party to find any criminal convictions or other useful information we can that may help your case.
- Draft written requests for documents so that we can get information from the opposing party.
- Timely respond to the opposing party’s written requests for information from you.
- Prepare for and take depositions of relevant witnesses or parties.
- Prepare you to have your deposition taken, and defend you during your deposition.
(4) Choose a Lawyer Who Will Fully Prepare You for Trial.
Not all cases end up going to trial. However, if your case does end up going to trial, your lawyer should do the following:
- Prepare you and other necessary witnesses for trial – this includes discussing what types of questions will be asked of you and your witnesses at trial, so everyone is adequately prepared.
- Advise you on the best way to act, dress, and present yourself at trial.
- Selecting exhibits for trial. Good lawyers know that more is not always better.
- Create necessary trial exhibits, often including photos, financial records, or even videotapes of relevant information. This information needs to be highly organized and properly marked for introduction at trial.
- Prepare an opening statement, direct examination questions, cross-examination tactics, and closing statements.
- Prepare and present any pre-trial motions relevant to your case.
- Research new and relevant case law.
- Try the case.
(5) Choose a Lawyer Who Will Efficiently Take Care of Post-Trial Matters.
Even after a case has gone to court or has settled, there is often substantial work to be done to get the final judgment in place. A family law lawyer will:
- Draft a judgment in a timely manner.
- Allow you to review the judgment before sending it to opposing counsel, or review your feedback on a judgment drafted by them.
- Order the audio of the court proceeding to ensure that the judgment conforms with the judge’s ruling or the settlement placed on the record.
- Timely address conflicts or objections from opposing counsel, sometimes requiring a post-trial “form of judgment” hearing.
- Finalize the judgment and submit it to the court.
- Seek attorney fees from the opposing party, if appropriate.
(6) Choose a Lawyer Who Will Give You Closing Advise.
After your judgment is finalized, a good family law lawyer will:
- Provide you with a copy of the signed final judgment.
- Provide a checklist of do’s and do not’s going forward.
- Advise you about issues to be wary of, including name changes, changing of wills or insurance policies, and how to enforce judgments.
- File any appropriate supplemental judgments, including those necessary to divide retirement accounts or provide life insurance information.
- File a notice with the court advising court staff that the attorney-client relationship has been concluded, so that future court notices reach you instead of your lawyer (which saves you money).
(7) Choose a Lawyer Who You Feel Comfortable Hiring.
One decision that cannot be quantified, but must not be overlooked, is hiring a lawyer with whom you are comfortable. You are placing a great deal of trust in your lawyer and so it is important to feel that the relationship is a “good fit.”
Reprinted from “Duties Of The Great Divorce Lawyer”, originally appearing in Jill Brittle Family Law Group legal blog, copyright Jill Brittle Family Law Group.
Now that you know what to look for in a lawyer, what are the red flags you should consider when choosing a lawyer?
(1) Avoid a Lawyer Who is Unnecessarily Aggressive.
Most people’s goal in a divorce or family law matter is to get through the process while preserving as much dignity, resources, and family cohesiveness as possible. We have all heard about the “bulldog” or “shark” family law attorney, sometimes as a positive trait. But when it comes down to it, do you really want an attorney who is willing to create problems where there are none already? Be wary of an attorney who is pushing you to pick fights over problems that you don’t really have. For instance, if you and your spouse have worked hard to come to a complete settlement agreement, does the reviewing attorney want to unwind your agreement only to create a battle in court? Is this really advancing your interests? Evaluate carefully – more often than not, these unnecessary battles serve only to generate legal fees. A good family law lawyer recognizes that long after the judgment is signed, the parties (not the lawyers) must live with it. How the parties resolve their case is just as important as the ultimate result.
(2) Avoid a Lawyer Who Has Unreasonable Billing Minimums.
Attorneys are required to practice pursuant to ethical guidelines, including a requirement that fees be reasonable. What constitutes “reasonable” is certainly up for debate. However, it should raise a warning flag if an attorney charges 20% or 30% of an hour every time they touch the file. Sometimes such billing minimums are baked right into the fee agreement.
Consider this: A family law lawyer billing at $250.00 sends you an e-mail that takes 2 minutes. Pursuant to that lawyer’s fee agreement, they bill at a 0.3-hour minimum. Suddenly, that 2-minute e-mail is billed for 0.3 hours or 18 minutes. At $250 an hour, this email just cost you $75.00! Now multiply that out over several months and potentially hundreds of similar small transactions. You can see how that over-billing can add up fast. Unfortunately, this practice is too common and is often accepted by clients who see it as part of the process. It is not. You are entitled to fair billing practices.
(3) Avoid a Lawyer Who Does Not Send Monthly Billing Statements
You should be cautious with any attorney billing on an hourly basis who does not send you regular invoices or statements for work performed. Too often lawyers will send a bill after 6+ months of service, sometimes for tens of thousands of dollars. In the most egregious cases, the sum is not even itemized. How are you to determine (1) what your attorney is actually working on; or (2) if their bill is reasonable if they are not keeping you updated? Good billing practices mean your attorney will account for the time spent working on your case. You should receive some sort of written accounting at least every two months, but preferably monthly. This allows you to keep tabs on your total bill and account for the work being done on your behalf. Unless the attorney is working on your family law matter for a flat fee, you should be wary of the lawyer who refuses to provide you with a regular accounting of their services.
(4) Avoid a Lawyer Who Makes Grand Promises.
Attorneys are problem solvers. Generally, they like helping people. However, be skeptical if your lawyer makes absolute promises or guarantees about the outcome of your case. The law is an inherently uncertain area of professional practice, and family law even more so. Any time a case goes before a judge or jury, the outcome can never be guaranteed. Many attorneys have generated very unhappy clients by having a “slam dunk” case go sideways. Even professional basketball players miss a dunk now and again. The law is no different. If your lawyer is making a guarantee about the outcome, ask yourself what their motives might be. Is it just because they want your case? Your money? A good family law lawyer is always mindful of your objectives but careful in providing you with an expected outcome.
Note: A lawyer noting that you have “a very strong case based upon similar cases I have encountered” is very different from the lawyer stating “oh yeah, you will get $X spousal support for 10 years guaranteed.” Be wary of promises with no caveats.
(5) Avoid a Lawyer Who Demonstrates Poor Communication.
Lawyers work for their clients. Accordingly, they should have regular communication with their clients. Different areas of law require different levels of communication between client and attorney. However, absent from unusual circumstances, a family law client should be able to reach their attorney within a few business days at most. If weeks or even months go by with unanswered phone calls or e-mails, this is a serious problem. Ultimately, the family law matter is yours. You have a right to receive timely updates on the matter for which you hired the attorney. Whereas reasonable delays should sometimes be tolerated (the lawyer is on vacation, in a trial, preparing for trial, maternity leave), you should not have to wait weeks to get a response. Of course, you should be cognizant of the lawyer’s personal life (i.e. 2:00 a.m. phone calls generally will not be answered), but it should start to concern you if inquiries during normal business hours go ignored for long periods of time.
Chapter 2: Process Options and Court Procedure
There are a number of ways you can resolve your divorce or family law matter. These are referred to as “process options,” and your case may involve more than one of these options. Choosing the correct option(s) for your family is important and should be discussed with your lawyer at the time of your initial consultation. What follows is a list of the most commonly-used options in Oregon.
The parties use pre-made forms (available through the court in the county where you reside) and file their paperwork directly with the Court. No professionals are used. If you choose this option, remember to use court-approved forms only, versus a paralegal or other similar service.
(2) Kitchen Table
The parties agree on the terms of settlement themselves. A neutral party (a mediator) may answer legal questions, draft paperwork, and monitor documents through the Court system. Parties may consult lawyers on a “coaching” basis.
(3) Collaborative Law
The parties sign an agreement not to litigate or threaten to litigate. Each client has a lawyer. Lawyers and clients meet in a series of settlement conferences called “4-way” meetings. Lawyers operate as advocates and are specially trained to assist couples in a non-adversarial resolution of issues. Lawyers draft the paperwork to finalize any agreements. Other professionals may also be involved (personal coach, child specialist, financial specialist, etc.). See Chapter 3 for more details about this unique process option.
The parties reach an agreement with the assistance of a third-party neutral (mediator). They may utilize lawyers as consultants, usually outside the mediation itself, on a “coaching” basis. Either the mediator or one party’s lawyer will draft the necessary paperwork.
(5) Lawyer Negotiation
The parties each hire a lawyer, and parties either exchange written settlement proposals or attend a settlement conference together to work toward a negotiated agreement. Lawyers may threaten Court action and file in Court to keep the process moving forward. When an agreement is reached, one of the lawyers will draft the necessary paperwork.
In this adversarial process option, the judge makes the ultimate decision on all contested matters. The parties have no control over the outcome, but may simply tell the judge what he/she thinks should happen in terms of division of assets, custody, support, etc. At the conclusion of a trial, one of the lawyers will draft the final paperwork as directed by the judge.
Choosing the correct option(s) for your family is important and should be discussed with your lawyer at the time of your initial consultation.
The specific court procedure for your divorce depends on the county you are in, but generally follows the timeline below:
Step 1 – File Petition: One party files a Petition for Dissolution, which tells the court who the parties are, when they were married, whether they have children and their ages, and generally what relief they are requesting from the court (i.e., custody, child support, spousal support, etc.). It is not necessary to layout a specific division of property or an exact parenting plan at this point. The goal is to tell the court who you are and what issues the court will need to decide. The person filing the petition becomes the “Petitioner.”
Step 2 – Service: The Petitioner next arranges for service of the initial court documents on the other party (known as the “Respondent”). This can be via a process server, sheriff, or other non-party. The Respondent may also agree to accept service voluntarily.
Step 3 – Response: The Respondent has 30 days from the date served to file a Response to the Petition. This document tells the court whether the Respondent agrees or disagrees with the relief requested by the Petitioner. Again, it can be quite general at this point.
Step 4 – Discovery: Depending on the county where you file, the court will either set a trial date several months away or will set a status conference. While those dates are approaching, the parties are required to attend a parenting class and attempt mediation. The parties must also exchange financial documents so that both parties know the full extent of their assets and liabilities. During this period, parties may engage in settlement negotiations. This can occur in the form of letters between attorneys, directly between the parties, in mediation, or at a formal judicial settlement conference. Most divorce cases settle without going to trial! Even when cases do not fully settle, it is possible to settle pieces of the divorce which limits the issues that the court must decide.
Step 5 – Temporary Relief: In many cases, a party may request that the court address certain temporary issues while the divorce is pending. These include temporary custody and parenting time decisions, support awards, and exclusive use of the personal and real property.
Step 6 – Trial: If a settlement cannot be reached, then the parties will attend the trial with their attorneys and a judge will make a determination on all outstanding issues. Judges usually issue their rulings immediately, but sometimes take time to review the evidence and submit their findings via letter or at a later hearing.
Step 7 – Judgment Drafting: The judge’s ruling is incorporated into a General Judgment, which is the document that finalizes the divorce. Both attorneys (and thus their clients) will have the opportunity to review the form of the judgment before it is submitted. If there are any disagreements about the language, then the court will make a decision as to what it should say. The judgment is final when it is signed by the court, however many timelines within the judgment may begin when the judgment is actually entered into the court records.
Step 8 – Post-Judgment Matters: Certain matters (i.e., the division of retirement accounts, opening of a child support account, etc.) are addressed once the judgment is entered. You should also receive a closing letter from your attorney giving you instructions on any other tasks you need to do (such as changing your name, filing forms with the IRS, etc.).
Chapter 3: The Collaborative Method
As discussed in Chapter 2, there are a variety of methods for handling your divorce case or other family matter. This chapter is designed to give you general information about the Collaborative method. You should contact a lawyer trained in the Collaborative method for more details.
(1) Collaborative Divorce process provides a positive alternative to litigation
Collaborative law is a positive alternative to the traditional adversarial posture of family law litigation. It was designed to keep families out of court, preserve relationships, and facilitate creative options for the resolution of family conflict. Collaborative law is a “process” option, just as is traditional litigation.
Collaborative law is a positive alternative to the traditional adversarial posture of family law litigation.
The difference is in the approach. Rather than each side starting off in an adversarial position, both parties come together with collaboratively-trained lawyers and discuss their respective underlying interests and goals for the process. They agree not to litigate or threaten to litigate while working through the collaborative settlement process. If either party chooses to go to court, both attorneys must withdraw and the clients must hire litigation lawyers. As part of the process, the parties may choose to involve a larger team of professionals, including personal coaches, financial advisors, and child specialists.
(2) Collaborative Divorce allows you to design an outcome that best suits your family
Clients report high levels of satisfaction with the Collaborative Divorce process; in fact, nearly 90% of all collaborative cases result in settlement within the process. One of the most appealing aspects of Collaborative Divorce is the flexibility and control it provides to the parties. Clients are able to control the outcome of their divorce, as well as the pace of the process, by focusing on which factors are the most important to them. Rather than decisions being made by a judge who is unfamiliar with a family, clients are able to craft agreements that best suit their families. Parties are able to determine what is important to their own individual case, rather than considering what is “relevant” under the law.
Collaborative Divorce provides clients with both legal and emotional support throughout the process and allows clients to proceed at their own pace, rather than one dictated by the court system. Negotiations and financial information remain confidential since neither side will be submitting financial records or other private information in a trial setting.
Developing an agreed outcome through dialogue and cooperation preserves relationships with former spouses, and allows people to transition into their new lives in a manner consistent with their values. In cases where children are involved, this increases the likelihood of better co-parenting. Further, when parties reach a resolution together, they are more likely to adhere to that agreement, limiting future conflicts.
(3) Collaborative Divorce provides you with a team of professionals, all dedicated to your goals
Collaborative negotiations are similar to mediation and traditional settlement negotiations in that they seek to resolve issues outside of court. However, unlike in traditional litigation, collaborative negotiations are made at four-way meetings with both clients and attorneys present. Also unlike litigation, collaborative negotiations are “interest-based.” This means that the negotiations focus on identifying what is most important to each party and how those interests can be met. The parties will share all relevant factual and legal information, identify interests and concerns, and create a shared resolution.
…negotiations focus on identifying what is most important to each party and how those interests can be met.
In addition to having the legal advice and guidance of their individual attorneys, clients also have the option of bringing in other professionals to assist the family. Often each client has a “divorce coach,” a mental health professional who helps the client work through the emotional complexities of a divorce. If children are involved, a “child specialist” may be hired to represent the interests of the children and to develop the best parenting plan for the family, with the input of both clients.
Often a “financial specialist” is hired to assist in optimizing a financial settlement for clients. The financial specialist provides insight into the long-term results of a contemplated settlement. This team approach allows the parties to gain professional advice that focused on the individual family’s needs, without resorting to dueling expert testimony as in traditional litigation. This saves families money since experts are shared rather than each party hiring and paying for separate experts, as occurs in litigation cases.
Collaborative divorce employs use of a team tailored to your family’s needs.
(4) Collaborative Divorce process requires lawyers to commit to settlement
By disqualifying lawyers from representing their clients in an adversarial process, the Collaborative Divorce process requires lawyers to commit to and advocate only for settlement. Because going to court is not an option, Collaborative Divorce lawyers invest the time and effort into developing negotiation and settlement skills that help their clients reach a resolution. While your lawyer is still your advocate, just like in traditional litigation, Collaborative Divorce lawyers are better able to work together with the clients to reach the clients’ stated goals.
(5) Collaborative Divorce lawyers are specially trained in the process
Collaborative Divorce lawyers have all of the knowledge and drafting skills of a conventional attorney. However, Collaborative Divorce lawyers are specially trained to facilitate conversations so that the parties may productively confront conflict rather than avoid it. They learn how to engage clients in meaningful discussions about client’s needs, goals, and concerns. These skills are not yet taught to a meaningful degree in law schools, which is why Collaborative Divorce lawyers seek additional education in this special area. It is important to ask your lawyer if they have completed the required training courses to identify themselves as collaboratively trained.
(6) The Collaborative process applies to other situations, beyond divorce
The Collaborative approach can be transferred beyond divorcing couples. It is useful in situations where one party is relocating and a new parenting plan needs to be developed, where financial circumstances have changed and spousal support or child support needs to be readdressed, or co-parenting has broken down. Before filing motions to modify, talk to a Collaborative lawyer about your options.
Further Reference: For more information on the cost of collaborative divorce, you might also find our article titled Cost of a Collaborative Divorce Versus Litigation helpful.
Chapter 4: Court Authority
Oregon family law courts have broad authority in family law matters. Trial judges make decisions on a wide variety of issues. These include assigning custody, developing a parenting plan, dividing assets and debts, determining the value of assets, assessing what is in a child’s best interests, and structuring the amount and duration of support obligations. Oregon judges can order a party to leave his/her residence, pay certain bills, and sell real property. They can require a parent to undergo a psychological evaluation, engage in drug and alcohol treatment, and take parenting or anger management classes. The court can appoint an attorney for a child, annul a marriage, and require a parent to participate in a custody and parenting time evaluation.
This broad authority comes from the Oregon legislature, which entrusted family law courts with the authority to make “just and equitable” economic decisions and to act in a child’s best interests. Oregon law states that family law courts have “full equity powers,” which means a judge is guided by fairness. This broad authority means that, if a case is not settled prior to trial, someone other than yourself and your spouse will be making these very important decisions.
Note: Interestingly, it is the broad authority of the court that oftentimes pushes parties towards settlement. Fear of going to trial and having somebody else make decisions about one’s own family can incentivize parties to negotiate and craft a settlement on their own terms.
Chapter 5: Divorce
The divorce process will resolve a number of questions, including:
- How your assets and debts are divided;
- Who is awarded sole custody or whether joint custody is an option;
- What amount of child support should be paid;
- Whether spousal support is appropriate, and if so, how much and for how long;
- How will the real property will be disposed of or transferred;
- Who carries health insurance for the children and how uninsured costs are shared;
- Whether either party must carry life insurance for the benefit of the other; and
- What type of parenting plan best fits your family situation.
There are several process options for resolving your divorce case – traditional litigation, mediation or other settlement methods, Collaborative Divorce, and uncontested divorces. All of these options are discussed in this book. The divorce process can be confusing, particularly given the emotionally sensitive subject matter. It is important that you have an advocate who can effectively explain your options and help guide you through the process. Your attorney should look at the long-term financial effects divorce may have on your future.
In addition to the emotional and financial uncertainty that divorce generally causes, it can also substantially disrupt years of carefully planned financial investment. This is particularly true if your marital estate is large, contains multiple investment accounts, assets located in other states or internationally, business or real property interests, or substantial retirement accounts. When necessary, your lawyer should bring in independent expert witnesses or forensic accountants. Whether it is to value a personal business, to forecast a retirement account, or even provide valuations of land, using the right professionals to evaluate your marital estate is critical to obtaining the best results.
In addition to the emotional and financial uncertainty that divorce generally causes, it can also substantially disrupt years of carefully planned financial investment.
Regardless of the process option, ultimately the General Judgment prepared at the end of the case will definitively resolve all issues noted above.
Chapter 6: Custody vs. Parenting Time
The issues of custody and parenting time are very distinct in Oregon
Attorney Jill Brittle discusses the difference between custody and parenting time in Oregon.
“Custody” refers to decision-making authority over the “major decisions” in a child’s life. “Major decisions” include non-emergency medical care, education, and religious training. Thus, if parties have agreed to “joint custody,” they have agreed to make those decisions jointly. This means neither parent gets to be a tie-breaker. In contrast, a designation of “sole custody” means that a parent gets to make these decisions on his/her own. It is preferred if a custodial parent communicates with the other parent about these decisions in advance and takes the other parent’s feedback into consideration. However, the custodial parent ultimately makes the final decision.
Even if you are not the custodial parent, you have rights under Oregon law. You have the right to speak with your child’s teachers and doctors, and to obtain school and medical records. You have the right to make emergency decisions for your child. You may take your child to the church of your choice during your parenting time. Knowing these rights often helps the non-custodial parent realize they cannot be shut out of the child’s life.
Parenting time is a separate issue from custody, and (contrary to some parents’ beliefs) is not determined by the custodial parent. Absent an agreement of the parties, a judge will determine an appropriate plan for the non-custodial parent. This plan is required to be in a child’s best interests and should foster and encourage a relationship between the child and the non-custodial parent. It is the policy of the State of Oregon to ensure that meaningful contact occurs.
Parenting time is a separate issue from custody, and (contrary to some parents’ beliefs) is not determined by the custodial parent.
Traditionally, a non-custodial parent might only see the children every other weekend. That type of structured parenting plan stemmed from a traditional household, where Mom cared for the kids while Dad worked all day, only spending substantial time with the children on weekends. As family structures have changed, so have the parenting plans developed by lawyers and the courts. The courts in Oregon are moving away from such limited contact. Your attorney should lay out for the court why a particular schedule works for your family, taking into consideration work schedules, school and extracurricular activities, and each parent’s historical involvement with the children.
Further Reference: For more information on this topic, you can review the following articles on our blog:
1) Three Common Reasons that Parents Terminate Joint Custody
2) Five Costly Mistakes That Can Harm a Custody Case
Chapter 7: Child Support
Family Law in the state of Oregon contains many gray areas. As previously mentioned, courts are given wide discretion to make decisions regarding the division of marital property, marital debts, marital assets, as well as to make decisions about custody and parenting time. However, determining the amount of child support is generally not as murky as some of the other areas of family law.
Attorney Jill Brittle discusses the factors that control the Oregon child support calculation.
(1) Oregon uses a “calculator” to determine the correct amount of child support
Child support in Oregon is a creation of the legislature. Whether you agree with our elected officials or not, they have put together a set of administrative rules that govern the guideline amount of child support. In every case involving minor children, the court expects the parties to use these guidelines to show the court what the “correct” amount of support should be under the law. The amount generated by the calculator is presumed to be the correct level of support, although in some instances that amount may be increased or decreased depending on the specific circumstances of the case.
(2) Income is the key determining factor for the calculator
The basis of the child support calculator is each party’s gross average monthly income. Each party’s determined income may also include regular hourly wages, bonuses, and overtime wages. Often the court uses a person’s W2 form or end-of-year pay stubs to determine the appropriate income to use in the calculator.
(3) Parenting time impacts the support amount
The amount of parenting time awarded to each parent will impact the child support amount. Parenting time is generally calculated on an overnight basis, although in some circumstances long blocks of time may be considered “overnights” for purposes of the calculation.
(4) Parents get credit for carrying health care coverage
The calculator assumes that one or both parents will provide health care coverage for the child. The cost for the parent’s own coverage, as well as the coverage for the child, are included in the calculator. If neither parent has access to affordable health care coverage for the child, the court may require one parent to apply for the Oregon Health Plan.
(5) Parents get credit for paying child care costs
The calculator also allows a parent to enter the amount of childcare costs incurred on a monthly basis. However, there is a cap on the per-child amount that may be included.
(6) Parents may need to pay additional support for medical costs
A parent may be required to pay “cash medical support” to contribute both to health insurance costs incurred by the other party and the uninsured health care costs incurred by the other parent. In some cases, parties agree instead to share the uninsured health care costs as they arise, rather than making the cost a part of the child support calculation.
Note: There are many other components to a child support case, including factors that may rebut the presumptively correct amount, the treatment of a parent with a disability, and the treatment of an unemployed or underemployed parent. These are fact-specific issues that should be discussed with an attorney.
Chapter 8: Spousal Support
In some divorce cases, it may be appropriate to award spousal support (also known as alimony) to a party. There are three types of spousal support in Oregon: (1) transitional – meant to help a spouse transition back into the workforce, receive additional education, or pursue job-training; (2) compensatory – meant to compensate a spouse who made a significant contribution to the other spouse’s education, training, career, or earning capacity; and (3) maintenance – meant to maintain a spouse’s standard of living post-divorce.
When considering whether support should be awarded, the court looks to a variety of statutory factors, including but not limited to: the age of the parties; the length of the marriage; the relative earning capacities of the parties; the education, training, and work experience of each party; each party’s child care responsibilities; tax consequences to both parties; the health of the parties; and any other factor the court deems just and equitable. In other words, the court considers all of the specific circumstances of your case when making a decision about support obligations or awards. These factors become very important down the road in the event either party seeks to modify spousal support, as the court will look to the original purpose of support when assessing the request.
The court considers all of the specific circumstances of your case when making a decision about support obligations or awards.
Spousal support is tax-deductible by the paying spouse and treated as taxable income to the recipient spouse under the Internal Revenue Code. This means there are possible income tax advantages to the individual paying spousal support. Spousal support is a very individualized and fact-specific part of a divorce. Because no specific formula exists to calculate spousal support, it is important to work with a lawyer to focus on the best legal arguments in your case. While a lawyer can review past cases for guidance, each case needs its own careful analysis.
Chapter 9: Division of Assets and Debts
Whether a judge is making a decision at trial or the parties settle without a trial, a determination must be made as to how the parties will divide their assets and debts. Every asset or debt acquired during the marriage is considered part of the marital estate and is subject to division. In some circumstances, the court may decide it is also equitable to divide assets incurred prior to the marriage, depending on how parties treated those assets during the marriage.
You might also find the following topical articles helpful:
1) What is the Oregon statutory restraining order?
2) Using a financial specialist
Assets and debts are typically placed in a spreadsheet with a column for each party. As assets and debts are “awarded” to each party, it makes it easy to determine the financial difference of the distribution.
Oregon law requires that assets and debts be divided in an “equitable” manner. “Equitable” does not necessarily mean “equal,” although that is often the end result, particularly in long-term marriages. In very short marriages, the easiest and most fair solution may be to “unwind” the financial entanglements and return people to the position they were in at the time of the marriage.
“Equitable” does not necessarily mean “equal”
Oregon law assumes both parties contributed equally to assets acquired during the marriage. This is true even if one person was the wage earner and the other was a stay-at-home parent or spouse. The court considers the role of a “homemaker” to be of equal value as that of a wage earner. However, a party may offer evidence to show that the contribution was not equal, and thus that the division should also not be equal, though it is a high bar to prove such a case.
If one person receives more assets than the other person, it may be appropriate for an equalizing cash payment to be made. This is sometimes done with the sale of a residence or the transfer of a retirement account. There may also be tax implications to the division of certain assets.
Warning: This is a potentially complicated part of the divorce process and individuals would be wise to consult with a lawyer about what to expect in court, particularly if there are substantial assets, business interests, or real property involved.
Chapter 10: Exchange of Documents
Oregon law requires the parties in a divorce to exchange financial documents before trial. The purpose of this law is to make sure that both parties have a clear understanding of the extent of all assets and debts in the marriage.
The types of documents exchanged include tax returns, income records, bank statements, credit card statements, documents related to real property, appraisals, retirement statements, and credit reports. Virtually anything related to the parties’ finances or assets and debts can be requested.
In cases where parenting matters are at issue, a party may request things like diaries, calendars, school records, emails, or other similar documents.
It is not unusual for one party to be reluctant to provide the requested information. In those cases, a lawyer can file a “motion to compel the production of documents,” which asks the court to order a party to provide the requested information. Failure to comply with that order can result in a party being held in contempt of court, which can mean fines, jail time, or other punitive sanctions. As Oregon law requires full disclosure of parties’ finances, there is no reason or incentive to delay in this regard. Not providing full disclosure only drives up legal fees and delays the process.
Note: For a more in-depth discussion of the broad scope of discovery, see the blog article You want what? The lowdown on financial discovery during Oregon divorce
Chapter 11: Temporary Assistance
A common frustration with the divorce process is the length of time it often takes to get from filing to a trial date. In general, a divorce should be completed within one year, although that does not always occur. Parties often need more immediate assistance. In some cases, parties can request more immediate temporary assistance from the court (sometimes referred to as pendente lite support).
When children are involved, a court may issue a temporary “status quo order,” which prohibits the parties from changing the children’s residence and schedule until a judge has ruled otherwise. The court may also:
- Order temporary child and spousal support;
- Require one party to move out of the residence;
- Determine temporary custody;
- Develop a temporary parenting plan;
- Grant one party exclusive use of vehicles; and
- Require one party to pay certain bills.
When considering settling on temporary issues, it is important to consider the long-term implications of such a settlement. While a court may modify any temporary agreements, it is not unusual to have temporary agreements continued in the final judgment. For that reason, a party should be cautious about establishing these temporary obligations or routines.
Note: As a practical consideration, it is important to weigh the benefit of the limited temporary assistance the court may grant against the cost of having a temporary hearing, which is essentially a mini-trial. It makes no sense to spend several thousands of dollars in attorney fees to have a “mini-trial” to recover a smaller amount of support.
Chapter 12: Going to Trial
In the weeks leading up to your trial date, your lawyer will be engaging in trial preparation. This can include gathering financial documents from both parties, taking depositions, speaking with witnesses, preparing exhibits, writing memorandums, and preparing witness questions. You should work with your lawyer to pinpoint the key issues or facts that need to be presented at trial. When you discuss your testimony with your lawyer, make sure you share what you think the judge needs to know to make a decision in your case. This is your chance to “tell your story.”
Remember that first impressions do count. Dress like you are going for a job interview for an office position — if custody of your children is involved, this may be the most important “job interview” of your life! If you are unsure of what to wear or bring with you, speak with your lawyer.
Remember that first impressions do count.
On the day of trial, both lawyers will generally have the opportunity to give opening statements at the start of the case. Next, each party will put on his/her case — present evidence, call witnesses and offer exhibits. The Petitioner goes first; the Respondent goes second. Each attorney will have the opportunity to cross-examine the other side’s witnesses. At the end of the trial, both attorneys may make closing remarks to the judge.
At the conclusion of the trial, the judge will either immediately make a decision on all contested issues or will take the matter under advisement. In the latter situation, it may be several weeks before a decision is received. The judge will then order one of the attorneys to prepare a judgment that reflects the judge’s ruling on all issues.
The trial is your one chance to tell your side of the story. It is important that you and your attorney are well prepared to address both the facts and legal arguments of the case.
Chapter 13: After Trial
Once your trial is over, there are a number of things that your lawyer should oversee. The first step is to prepare or review a General Judgment reflecting the judge’s ruling (or the settlement agreement reached by the parties). The judgment is very important and must include all of the terms laid out by the judge. Anything not included in the judgment will not be enforceable later.
After both parties approve the General Judgment, it is submitted to the judge for signature. If the parties’ retirement accounts are being divided, the lawyer often stays on the case until a Qualified Domestic Relations Order (QDRO) is completed. This document is generally prepared by a specialist who is familiar with the Federal tax implications of the division of these accounts.
Once both the General Judgment and QDRO are completed, the lawyer will notify the court of his/her completion of the case and will ask to be removed as the lawyer of record. This is done for the client’s protection, as any future modifications could otherwise be served on the lawyer rather than the client. This can be problematic if the client has moved and the lawyer cannot reach him/her.
Note: Sometimes clients are offended that an attorney asks the court to be removed from the matter at the conclusion of legal work. This is actually a sound legal procedure and is done for the client’s protection. The attorney can always get back on the case if something changes at a later date.
Finally, at the conclusion of the case, the lawyer should provide you with instructions about how to follow and enforce the General Judgment. The lawyer should also remind you of post-divorce tasks you should complete, such as changing your name, residence, and marital status with the IRS.
Chapter 14: Moving Forward After Divorce
Clients often ask what they should do after a divorce, to protect themselves going forward. This is, of course, very fact-specific and must be answered on a case-by-case basis. Sometimes we suggest clients maintain a parenting time log, utilize the services of the Department of Justice Child Support Department, or engage the services of a Parent Coordinator. We often recommend people update their Will, or consider a prenuptial agreement if they are going to remarry.
We suggest that our clients surround themselves with an emotional support system, whether that be family, friends, or mental health professionals.
Most of all, we encourage our clients to give themselves time to heal and adjust to life post-divorce. Going through a divorce is often compared to experiencing the death of a loved one – a person struggles with the same five stages of grief (denial and isolation, anger, bargaining, depression, and acceptance). The first year is often the toughest, as clients begin to establish new traditions during holidays and special events. We suggest that our clients surround themselves with an emotional support system, whether that be family, friends, or mental health professionals.
Chapter 15: Modification of Your Judgment
After the entry of a General Judgment that reflects the terms of the client’s divorce or other family law matter, there may come a time when a modification of the terms of that judgment is necessary. Generally speaking, a court may only modify the following: custody, parenting time, child support, and spousal support. A brief description of each follows.
A. Modification of Custody
A modification of legal custody occurs in two ways. First, if parties had previously agreed to have joint legal custody of the parties’ children, then generally simply telling the court that the parents can no longer work together in the children’s best interest is sufficient to modify custody. The court must then decide which parent is better suited to have sole legal custody of the children.
Second, if one party was awarded sole legal custody of the parties’ children, then a party requesting a modification must prove there has been a substantial change of circumstances related to a parent’s ability to make decisions for the children. This is a high burden and requires careful consideration and a sound legal strategy to be successful.
There are a number of statutory factors the court considers when making a decision on custody, both in the initial determination and in a modification case. For more information on these factors, see Chapter 6.
B. Modification of Parenting Time
In determining whether it is appropriate to change a parenting plan, the court will really only consider one question: “Is this in the best interest of the child?” Courts do not ask “Is this going to be convenient for the parent?” when determining a new parenting plan.
It is important to inform a judge about why your plan is in the children’s best interests. We encourage our clients to organize their concerns around evidence showing how the plan improves their children’s lives, education, well-being, or health.
C. Modification of Child Support
The court may modify child support whenever there has been a substantial change to a party’s financial circumstances. The Department of Justice may also modify support on a party’s behalf if the collection and enforcement of child support are being handled through their offices. We see modifications of support most often in the following circumstances.
(1) Change in income. The main factor in any child support calculation is each party’s income. Therefore, whenever you have experienced a reduction in your income (loss of a job, change of job, etc.), or the other parent has experienced an increase in income (new job, promotion, etc.), you should have your child support reviewed. Anytime there has been a substantial change in financial circumstances, child support may be modified.
(2) Change in parenting time or physical custody. When there has been a change in physical custody or the parenting plan has changed substantially, child support may also need to be updated. Along with income, the amount of time each parent spends with the child may dramatically change child support.
(3) Birth of a child. Whenever either party welcomes a new (non-joint) child into their family, child support may need to be adjusted to acknowledge the new expenses that the parent will incur.
(4) Change in health care coverage. Child support may need to be reviewed when one parent starts/stops carrying health care coverage for a joint child. It may be appropriate for the parent paying cash child support to also pay “cash medical support,” to help defray the cost of the child’s health insurance premium and out-of-pocket medical costs.
(5) Every 3 years. Currently, the Oregon Administrative Rules allow the State of Oregon child support personnel to review your child support every three years, even if there has not been a change of circumstances as noted above. If you are receiving support, it is a good idea to take advantage of this benefit, as the calculator changes periodically to adjust for inflation and other changes in the law.
D. Modification of Spousal Support
The court must consider several questions in determining whether spousal support should be modified. First, has there been a change in circumstances that is both substantial and unanticipated at the time the judgment was entered? Second, has that change satisfied the original purpose of spousal support? For example, if the purpose of support was to allow you to obtain a college degree over six years and you obtain that degree in four years instead, your ex-spouse could request a reduction of support to take into consideration the change of circumstances.
The four most common reasons for a court to grant a modification of spousal support are:
- A change in either party’s income or earning capacity.
- A change in either party’s standard of living (which may include a remarriage).
- A change in either party’s health (which may also impact income).
- A change in a child’s needs (which may also impact a parent’s income).
Before deciding whether or not to request a modification of your General Judgment, it is important that you speak to a lawyer about your options, your chances, and your goals. There may be important legal issues to consider in terms of timing alone.
Chapter 16: Oregon Resources
The following is by no means an exhaustive list of legal resources for family law in Oregon, just some of the most commonly accessed.
- Jill Brittle Family Law Group Blog
- Oregon Court of Appeals Decisions
- Oregon Supreme Court Decisions
- Oregon Child Support Calculator
- Oregon Department of Justice
- Oregon Legal Aid
- Oregon Lawyer Referral Service
- Oregon Courts
Jill Brittle Family Law Group maintains an active blog on some of the most commonly asked questions regarding Oregon divorce and family law and is a valuable resource if you want to search for your specific question.
Chapter 17: How Jill Brittle Family Law Group Can Help You
Our goal at Jill Brittle Family Law Group is to provide clients with as much information as possible, both about the court process in general and specifically about a client’s own special circumstances. We offer legal assistance in a variety of ways:
(1) Full Representation
In most cases, we provide full representation for clients. This means we handle all aspects of the case from determining what financial and other documents are needed, to drafting a parenting plan, to negotiating with a spouse’s attorney, to appearing in court. Clients are a part of the team and are expected to provide information to us in a timely manner. Because family law varies so dramatically based on the circumstances of each family, it is important that clients are involved every step along the way.
In cases of full representation, we expect a client to pay an initial retainer, which is held in trust in his/her trust account. In the case of an hourly fee agreement, every month clients receive a detailed billing statement reflecting the work done and the amount of money we have withdrawn from their trust account. Part of the retainer will be returned to the client if the case resolves quickly; likewise, if the case takes longer than expected, an additional retainer may be required.
We also take cases on a flat fee basis. The amount varies depending on the type of matter, whether litigation is necessary, and other factors.
(2) Uncontested Matters – Flat Fees
In cases where clients have agreed to the terms of their divorce or modification, we can prepare the necessary court documents on a client’s behalf. We offer this service on a flat fee basis. Why use us rather than a cheaper paralegal service? In simple terms: because we will prepare the documents correctly. We often have clients come to us after using a paralegal service looking for help to correct a mistake. This is generally more costly and time-consuming than doing it right the first time.
Some clients wish to handle their case without attorney representation but want the opportunity to ask questions as-needed. We do offer “coaching” advice, which can be anything from explaining court forms to helping a client prepare for trial. In those situations, a client will pay a small retainer to our office, or we will work on a pay-as-you-go basis, and a client is charged for the time we spend assisting him/her.