What does “dissolution of marriage” mean in Oregon?
In Oregon, a divorce is more accurately referred to as a “dissolution of marriage” in court filings. This is because the legal entity of marriage is being dissolved by the court. Oregon is a no fault state so it would be incorrect to say one souse is “suing” the other for divorce. Either spouse in a divorce can request of a court that the marriage be dissolved.
What is the difference between legal separation and divorce?
Many couples consider separation in lieu of divorce when they aren’t quite clear on whether or not they wish to end the marriage. A legal separation action will decide child custody, child and spousal support, visitation, and the division of property and debts, just like a divorce. However, the parties will remain legally married and cannot therefore remarry. The separation may either be temporary or for an unlimited period, and can be dismissed if the parties reconcile or decide to convert into a divorce.
A legal separation may be desirable for religious reasons, or when there appears to be a possibility of a future reconciliation. But since this action must resolve virtually all of the same issues involved in a divorce, it will generally cost as much as a divorce and is rarely utilized. While legal separations can sometimes be helpful, they generally should not be looked at as long-term alternatives to divorce.
What is an annulment?
An annulment is a legal process which allows a marriage to be declared void, and is extremely rare. An annulment may be granted only if one of the following circumstances exist: (1) either party was incapable to consenting to the marriage because they were underage or lacked the capacity to understand the marriage contract, (2) when the consent of either party was obtained by force or fraud, or (3) either party was already married at the time of the marriage or when the parties are first cousins or near kin to each other. If an annulment is granted, the marriage ceases to exist.
What are considered grounds for divorce?
In Oregon, we have what is called “no fault” divorce. This means that it is not necessary to prove adultery, abandonment, cruelty, or other types of marital misconduct on the part of one spouse for a divorce to be granted by the courts. An allegation that you and your spouse have developed “irreconcilable differences (i.e. you are no longer getting along)” is all that is required. A divorce may be requested by either spouse without the permission of the other, and one spouse cannot stop a divorce if the other wants one.
The spouse filing the petition for divorce must have lived in Oregon for at least six months prior to such filing and the petition must be filed in the county in which either of the spouses lives.
Do I need an attorney to file for divorce?
Oregon law does not require parties to a legal separation, divorce or annulment to retain attorneys, however there are significant risks in proceeding pro se (without legal counsel). At the very least, an attorney should be contacted at the very beginning of any family law proceeding to determine the complexity of the case. Many attorneys will not charge for an initial consultation, and there may be important issues in your case which an attorney would be able to spot, but that would likely go unnoticed by someone unfamiliar with the law.
Also keep in mind that many cases start out with everyone on their best behavior and the best of intentions, only to deteriorate later for a variety of reasons. It is also important to recognize that divorce cases often involve not only the complex valuation and division of substantial assets (real property, personal property, debts, bank accounts, insurance and retirement benefits, etc.), but also the critical and emotionally volatile issues of child custody, support and visitation.
How long does a divorce take?
In Oregon, there is no technical waiting period for divorce, but the Respondent (the party required to respond to the divorce petition) has 30 days to respond. If the Respondent does not respond, the Petitioner (the party filing the case) can seek a default judgment from the Court. Contested divorces take much longer to finalize than stipulated cases (cases where both parties agree to the divorce, and all of the settlement terms). Most uncontested divorce cases take a few months to finalize, based on the 30-day service period, and slow court dockets. Contested cases can take several months or even a year or two to resolve depending on the complexity of the case, the local court docket, and attitude of the parties towards continued litigation.
What does a divorce cost?
There is no easy answer to this question. Most attorneys charge by the hour for their legal services, and therefore the cost of a divorce is directly related to how much work needs to be done on the case.
What if my spouse has already served me with papers for a divorce?
You’ll need to read over the paperwork very carefully, and quickly decide how to respond. You typically have only 30 days from the date of service to respond or the court can enter a default judgment (i.e. the opposing spouse “wins”). In some proceedings, you may only have 14 days to respond. If you are served with papers, do not delay in contacting an attorney. Most attorneys are very busy and it may take an attorney a week or two to properly respond to pleadings filed by the opposing spouse.
Where will my divorce or child custody case be heard?
It depends on where the parties live, but when both parties reside in the same county, the case is filed and heard in the county seat. For example, if both parties live in Portland Oregon, the case will be heard in the Multnomah County Circuit Court. If both parties live in Beaverton Oregon, the case will be heard in the Washington County Circuit Court. If both parties live in Lake Oswego Oregon, the case will be heard in the Clackamas County Circuit Court.
Will it make a difference which spouse files first?
Although there is no legal significance in who files first, there may be practical or strategic advantages in being the first to file. The filing of a petition requires the payment of a filing fee and results in the issuance of an automatic and immediate order freezing certain accounts, preventing cancellation of insurance policies, and prohibiting the changing of beneficiaries on retirement accounts.
The divorce proceedings begin when the petitioner serves the respondent with a copy of the petition by either having the sheriff or private process server deliver such copy, or by having the respondent sign an acceptance of service which acknowledges receipt of such copy. The respondent must answer the petition within 30 days after being served.
What happens with regard to spousal/child support/custody while the case is pending?
Once a petition for divorce is filed, the parties usually try to come to an agreement on temporary child & spousal support, custody, visitation, use of vehicles and home, and other issues which need to be resolved immediately. Any agreement on temporary support payments should take into consideration that such temporary payments may set a precedent for permanent support payments.
If the parties do not come to an agreement, either party may file an action to resolve these temporary issues and a hearing will be heard in front of the judge who make decisions on these issues.
What if my spouse and I reconcile after divorce proceedings have begun?
If after filing a divorce petition, the parties decide they want to try and reconcile their marriage, the petition can be dismissed, or simply put on hold (which saves time and expense of refiling) while the parties try to work things out.
Can I change my name as part of a divorce?
Yes, this can be done either as part of the divorce or independently as a request for a name change. As part of the divorce proceedings, the court is required to change a wife’s name back to the name she held before the marriage, if she so requests (the other spouse cannot object).
How is division of property determined?
Under Oregon law, the judgment of marital dissolution shall provide for the division or other disposition between the parties of the marital real and personal property (including retirement plans), as may be just and proper (“equitable”) in all the circumstances. Generally, all marital debts are also divided or disposed of between the parties in a just and proper way as part of the distribution of the martial assets. Equitable does not necessarily mean equal.
The court shall consider the contribution of a spouse as a homemaker as a contribution to the acquisition of martial assets. There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held. The court shall require full disclosure of all assets by the parties in arriving at a just property division and the court shall consider the reasonable costs of the sale of assets, taxes and any other costs reasonably anticipated by the parties. If a spouse has been awarded spousal support in lieu of a share of the marital property, the court shall so state on the record, and shall order the obligor to provide for and maintain adequate life insurance for the benefit of the obligee.
How is debt allocation determined?
If the spouse responsible for payment of a marital debt fails to pay such debt, the creditor has the right to collect such debt from the other spouse, and so there should be a provision in the marital dissolution judgment dealing with that situation. You should prepare a detailed schedule of all marital assets and liabilities in order to ensure that such items are properly provided for in the judgment of marital dissolution. In a trial, each party is allowed to testify as to who should receive the asset and the fair market value of such asset.
How is division of retirement benefits determined?
Generally, all retirement benefits earned or accrued during a marriage are considered marital property and must be divided in a just and proper manner. Because of the complexity and tax consequences of dividing many types of retirement plans, the court prefers to award all of the assets in a retirement plan to the spouse who earned such retirement benefits and provide the other spouse with an equivalent amount of non-retirement assets. There are special rules dealing with when the assets in the retirement plan can be distributed which have to be taken into consideration when divided up such assets.
How will a divorce affect my will or estate plan?
Under Oregon law, the finalization of your divorce will make certain provisions of your will ineffective, and therefore you should have your estate plan reviewed and updated accordingly.
Which personal documents will I need to provide to the court & opposing party?
In a proceeding for divorce or legal separation, each party is required to provide the other party copies of the following documents in their possession or control within 30 days after receipt of a request for such documents:
(1) All federal and state income tax returns filed by either party for the last three calendar years
(2) All records showing any income earned or received by either party for the current calendar year
(3) All financial statements, statements of net worth and credit card and loan applications prepared by or for either party during the last two calendar years
(4) All documents such as deeds, real estate contracts, appraisals and most recent statements of assessed value relating to real property in which either party has any interest
(5) All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due
(6) Certificates of title or registrations of all automobiles, motor vehicles, boats or other personal property registered in either party’s name or in which either party has any interest
(7) Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has any interest
(8) The most recent statement describing any retirement plan, IRA pension plan, profit-sharing plan, stock option plan or deferred compensation plan in which either party has any interest
(9) All financial institution or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently open or closed.
It is critical in a divorce proceeding that your attorney have complete information on all of your obligations. A good source of that information is a credit report which can be obtained for about $15 from Equifax, Experian, and/or Trans Union Corporation (check their websites for how to obtain reports). Since each company may have different information in its report, you may want to order more than one report.
The credit report lists each of the debt accounts you have (including joint accounts), when the accounts were opened, the original amount of the debt, the current outstanding balance, credit limits, and any negative information associated with such accounts. It is also a good idea to check your credit report to make sure that is it completely accurate as it is not uncommon for errors or derogatory information to mistakenly appear in such reports.
What’s the typical process for a divorce case in Oregon?
Typically one spouse files a petition for marital dissolution with the local court where at least one of the parties resides. The filing spouse is thereafter referred to as the “Petitioner.” The Petitioner then serves a copy of the petition on the opposing spouse (thereafter referred to as the “Respondent”). If the Respondent disputes the allegations in the petition, the s/he may file what’s called an “answer” to the complaint.
Both parties to the dissolution are required to exchange financial documentation relating to net worth, debts, property held, etc. These financial documents, along with other relevant documentation and evidence are referred to as “discovery.” Negotiations between the two parties typically occur after both parties have all discovery necessary to make an informed decision on how to divide up marital property. If the parties are able to reach a resolution, the case can be settled without a trial. If the parties cannot agree to terms of a settlement, the case may be set for mediation, arbitration, or trial.
At the conclusion of a contested dissolution case, the judge will ultimately decide how debts, spousal support, and property should be allocated. If children are involved, the court will also determine child custody, child visitation, and child support. Finally, the court will issue a written judgment detailing all of the above. This judgment may be enforced later by either party if the other spouse fails to comply with the terms.
What specific steps can I expect my divorce process to include?
Generally, the following steps will be occur in a typical divorce proceeding:
1) Initial consultation with client to generally explain divorce process, answer questions, develop strategy, execute engagement letter and pay retainer
2) Preparation, filing and serving of petition for dissolution of marriage (or response to petition) and payment of required filing fee
3) Collection of detailed information on financial matters and other related issues
4) Negotiation of settlement dealing with temporary custody, visitation, child support, spousal support and related temporary issues and preparation, filing and execution by judge of agreed upon order
5) If no agreement is reached on temporary issues, preparation and filing of motion to determine temporary issues and preparation for and attendance at hearing on such motion
6) Both parties to complete parenting class and mediation dealing with custody issues
7) Negotiation of settlement dealing with all issues involved in the marital dissolution and preparation, filing and execution by judge of agreed upon order
8) If no agreement is reached on all marital dissolution issues, implementation of discovery including requests for production of documents, interrogatories, and depositions
9) Participation in final settlement negotiations before trial
10) If no settlement is reached, preparations for trial (review of issues, updating of legal research, determination of trial strategy, preparation of pre-trial motions, etc.)
11) Preparation and filing of trial memorandum outlining issues and trial position
13) Judge to issue ruling on trial issues
14) Prevailing attorney to draft form of judgment of dissolution of marriage, which is reviewed and approved by or objected to by opposing attorney
15) Judge to review proposed form of judgment and any objections thereto. Judge to issue and sign final judgment of dissolution of marriage
16) Parties to exchange personal property and documents, and attend to any remaining issues required under the judgment.
How do I select the best divorce attorney?
Start by calling our office. We can schedule a consultation. If we can’t help you, we can almost certainly point you in the right direction.