The divorce primer

Grounds for divorce

Oregon is a “no fault” divorce state, so it is unnecessary to prove wrong-doing as a basis for dissolving your marriage. If your spouse wants a divorce you cannot prevent it from happening.  Seek early legal representation to understand your rights, particularly if your spouse is attempting to intimidate you into making concessions.

Contested and uncontested divorce

Your divorce will be contested unless you can agree on everything including division of assets and property; child custody, support and parenting time; payment of debts, attorney fees and court costs.

The role of the Family Law Attorney is to negotiate a fair settlement to avoid having to go to court.  If a settlement cannot be reached, the case will be scheduled for trial, generally within six months after filing.

Filing for divorce

To begin the divorce process, we file a Petition for Dissolution of Marriage.  To file in Oregon you must live here for at least six months (The 6-month residency requirement does not apply if you are filing for legal separation).  After the Petition is filed in the county where you or your spouse reside, negotiations will begin to determine issues such as division of assets and debt, spousal support and custody.

Service and acceptance

If you initiate the divorce, you will be identified as the “Petitioner.”  Your spouse, the “Respondent,” will be served with a copy of the divorce petition.  Your spouse may either come to our office to sign an Acceptance of Service, or we can use a private process server or the Sheriff’s office to ensure delivery.

When to file

Especially if custody is an issue, there is an advantage to being the first to file. Along with the Petition for Dissolution, we can also file a Motion for Temporary Custody and Support.  The person winning parenting time status as the primary parent likely will be allowed to remain in the family home in order to preserve a stable environment for the children.  The other parent will be granted parenting time and will likely make child support payments.

Legal Separation

When a married couple chooses to live separately but remain married, they can file for a legal separation to divide their assets and debts, and to cut off exposure for increased spousal support.

Leaving the family home—order to vacate

You should remain in your home if you think you will ultimately want to live there.  If you are afraid for your safety, I will help you obtain a Restraining Order that will require your spouse to stay away from the home.

Freezing assets

The Divorce Petition automatically puts limits on transfer of assets, prevents cancellation of insurance and prohibits the changing of beneficiaries.  If you believe your spouse is diverting assets or liquidating property in anticipation of filing for divorce, you can stop this erosion of assets by filing a Divorce Petition.

Waiting period

In Oregon, a divorce judgment can be entered the same day the divorce action is filed and will be effective immediately if both parties are in complete agreement.

Reconciliation

After filing for divorce, some couples are able to reconcile their differences.  We can either terminate the divorce action, or put it on hold to avoid incurring fees again if you later decide to proceed with the divorce.

Temporary relief

While the divorce action is pending, we can petition the court for certain protections including support, use of the family home or vehicle, and use of vacation property.  The court will schedule a hearing to receive testimony or affidavits from you and your spouse before making an award.  The party who files first for these protections has some advantage in having them later awarded on a permanent basis.

Spousal support and modifications

Alimony (now usually referred to as spousal support) is a payment paid by one spouse to another.  It is common for the amount of alimony to be changed if one person’s financial position changes substantially.  If the spouse making payments dies or loses employment, payments may be terminated.  For that reason, I prefer to have clients emerge from divorce with a settlement that allows them to go forward with their lives without being solely dependent upon the ex-spouse.  Factors used to determine support include:

  • length of the marriage
  • the age and health of each spouse
  • the standard of living they enjoyed during the marriage
  • the income and earning capacity of each party
  • each person’s training and employment skills
  • work experience
  • financial needs and additional resources
  • child support obligations.

Spousal support payments are tax deductible by the spouse making the payment.  The spouse receiving payment will be required to treat the income as taxable income under the Internal Revenue Code.

Modifications to Spousal Support Orders are common because life circumstances are always changing.

Name changes

A wife can assume her former name during or after divorce.  Before we prepare the Petition for Dissolution, let me know if you would like to change your name. A husband cannot force a wife to stop using his name.

Property division

Oregon is an “equitable” property division state, which means that courts seek a fair division, but not necessarily an equal one.  Marriage is viewed as a partnership where income earned and property acquired during the marriage is marital property, regardless of who holds title.  Debts are also divided equitably. The division of real property, investments and pensions can be extremely complex, and carry tax consequences.  The length of the marriage, the economic status of each party, and the nature of the property are all considerations. People who feel guilty about leaving the marriage may ofter generous settlements, but it is more common for them to have disagreements over what is fair.  If agreements cannot be reached, a hearing will be held and a judge will divide the assets according to what the court views as being equitable.

Retirement benefits

Retirement benefits earned during the marriage can be divided by the court. This includes pensions, profit sharing, individual retirement accounts and other benefits payable upon retirement.  Income received from retirement benefits is a factor in determining support.

Court costs, retainers and attorney fees

There are immediate expenses involved when filing for divorce, and additional expenses as the case progresses.  If the case goes to court, the client can expect to see a rise in costs.  Court costs of approximately $300 must be paid before you are allowed to file documents with the court. Attorneys generally request a retainer which is placed in a trust account in the client’s name.  When fees are earned, or costs are incurred, the attorney draws funds from the trust account. You are always entitled to an accounting of the funds you have in trust.  As the funds in trust are depleted, your attorney will ask you to make additional deposits.  The initial amount placed in trust rarely is sufficient to pay all costs and fees associated with a contested divorce.

Generally, each party pays their own fees.  However, if one party is especially contentious, thus driving up fees, the court may award partial attorney fees to the more reasonable partner to protect them against harassment.

Fee agreement

Before we can represent you, we need a signed Fee Agreement spelling out how you will be billed and what services are provided including:

  • Forcing accurate disclosure of financial records and assets
  • Analyzing your financial holdings
  • Preparing legal documents
  • Negotiating property settlements
  • Obtaining and utilizing specialists to strengthen your case
  • Developing plans for custody, visitation and child support
  • Examining transactions relating to property sales, business sales, pensions and investments
  • Handling all transactions with Lane County Courts
  • Seeking enforcement and modifications as needed.

Confidentiality

Attorneys are legally required to report evidence of child abuse.  Everything else about your case is confidential.  It is important that you feel comfortable disclosing the details of your relationship so that we can anticipate and prepare for the arguments that may be made by your spouse.

Steps for handling your case

Complimentary Consultation:  this is an opportunity for you to describe your situation so that we can give you a brief explanation of your options.  It is also an opportunity to get acquainted.

Follow-up:  if you hire me to represent you, you will need a follow-up appointment where you submit the Fee Agreement and place funds in trust.  We want to receive all of your financial records at that time.

Negotiations:  we encourage you and your spouse to try to work out an agreement regarding property and custody. If you have disagreements, we will negotiate a settlement on your behalf.  If we cannot settle the case, we will litigate the case in court.

Litigation:  preparing for a trial may include issuing subpoenas, taking depositions, obtaining expert testimony, and filing motions with the court. When couples have substantial business holdings, real estate, pensions and other assets, it is imperative to understand the long-term consequences and tax implications of asset management.

Finalizing your divorce:  your divorce becomes final when a judge signs a General Judgment for Dissolution of Marriage.  This occurs after you have reached an agreement, or your trial has concluded.  Judges can either make an immediate ruling or take the case under advisement for a later ruling. Generally, divorce cases in Lane County are concluded within six months.  You are considered single once the General Judgment is filed, and are free to remarry the following day.  Property awarded to you becomes yours when the General Judgment is signed but it may take additional time to exchange or record transfer documents.

Conclusion:  when your case concludes, I will speak with you and/or send you a letter explaining the terms of the Judgment and also meet with you to answer questions.  Especially where support is ordered for a spouse or child, it is common for clients to rely on us for continuing assistance.

Enforcement and Modifications:  if your ex-spouse is not abiding by the terms of the divorce decree, we can seek to enforce the Judgment for you.  If circumstances change considerably, we can seek a modification to support payments.  Property divisions are final and not subject to modification.

Post Divorce Services:  the Oregon Probate Code voids certain provisions of your Last Will and Testament upon divorce.  We encourage you to draft a current Will, and to change beneficiaries as needed.  We provide this service to our divorce clients at a reduced rate when the work is commenced within 30 days following divorce.

Many divorce clients rely on us for help with prenuptial agreements when they plan to remarry.

Child custody

If one parent has assumed primary responsibility for the care of the child, and is doing a good job, that person will likely remain the primary parent.  Oregon law directs the court to consider the following factors in awarding custody:

  • emotional ties
  • the parent’s interest in and attitude toward the child
  • the desirability of continuing an existing relationship
  • preference for the primary caregiver
  • willingness to facilitate the child’s relationship with the other parent and extended family.

The child will live primarily with the custodial parent, and that parent will make most parenting decisions on a daily basis.

Joint or sole custody

Joint custody gives each parent an equal say in making major decisions for their child, but it does not mean that time is shared equally.  Both parents must consent to joint custody.  If the parents have animosity toward one another, coming to shared agreements can be difficult.

Sole custody is more common because it allows the custodial parent to make decisions regarding religious practice, health care, education etc. without interference. Ideally the non-custodial parent would be consulted and involved in making major decisions.

Parenting plan for visitation

There are sample Model Parenting Plans that couples can use to help them come to agreement about visitation rights and other parenting issues.  Some factors to consider include:

  • the age of the child
  • where the parents reside
  • work and travel schedules
  • access to extended family
  • the child’s interests and involvements
  • the willingness of the child to spend time with each parent.

Mandatory parenting class

Early in the divorce process both parents are required to attend a four-hour parenting class that covers topics such as parenting time and how to help your child adjust to divorce.  Your divorce cannot be finalized until you have filed a certificate of course completion with the court.

Mediation regarding children’s issues

Following completion of the mandatory parenting class, you will attend mediation where a neutral third party hired by the court will help you reach agreement on custody and a parenting plan.  We prepare our clients for mediation by reviewing all relevant issues and advising them on what a judge is likely to rule if they are unable to reach agreement.  Most people prefer to come to an agreement to avoid the emotional and financial cost of litigation.

Child support

Who will pay support, and in what amount, will be decided by the court based upon guidelines developed by the State of Oregon.  The amount is influenced by each parent’s income and expenses, as well as the amount of time spent with each parent.  To estimate your support payments, go to www.dcs.state.or.us and click on “go to guidelines calculator.”  Child support is generally paid until the child reaches age 18.  If the child attends college, support paid directly to the child can be extended to age 21.

It is common for people to make errors when reporting their income and expenses to the state.  It is a good idea to ask for our assistance especially if you are self employed, have fluctuating income or various sources of income, have debt, plan to retire soon, or have special circumstances that affect your earning capacity, such as health issues.

The Divorce Primer has been adapted from a similar Primer developed by Salem Family Law Attorney, Paul Saucy.