Frequently Asked Questions
Hiring A Divorce Attorney
No. You can show up to court and take your chances. By the end of the day, if the case goes to trial, you will be divorced. The risk is that you do not account for all the assets or debt, or that an asset or debt is mis allocated, that you either do not request the court for some thing you are entitled to receive, such as spousal support, or that you pay to much, or that a parenting plan is not practically and thoroughly constructed by a judge who only has passing familiarity with your situation. If you can live with these risks, then you do not need an attorney.
The legal process is anything but straightforward unless you have been through it before. The attorney will gather all of the information about the assets and liabilities of the marriage, learn about the children, and then develop a plan to achieve either the most practical or most advantageous settlement for the client. If there is no settlement, then the attorney will prepare the case to go to court – where the judge the fate of the couples’ property and liabilities.
In Oregon, are there resources available for a person getting a divorce who does not want to hire a lawyer?
A divorcing spouse does not need to hire an attorney. However, it really depends on the situation and the complexity of the couple’s assets and liabilities. For a couple with no assets or debts, the online forms published by the State of Oregon are sufficient, generally. If there are children, the divorce becomes more complicated because in addition to dividing property and debt, the couple needs to work out custody, parenting time and child support. An industrious person can do this, but there are pitfalls an experienced lawyer can help avoid. If there are complicated financial holdings, retirement accounts, business which need to be valued, then an experienced attorney really is necessary.
There are a lot of very good, competent and pragmatic divorce attorneys in Oregon. If you have not been through this process before, you probably should plan on speaking to at least two attorneys. Look for differences in approach. Ask pointed questions about how many cases they to take to trial in your county. Is the attorney attempting to scare you or stoke your anger at your spouse? If so, he or she will probably not be a good hire. Needless to say, look for recommendations from friends, family and other professionals. Experience, more so than impressive credentials, is very important in the legal profession. How long has the attorney been practicing? Do they practice only in this area or also in other areas of law? I recommend hiring someone with at least five years experience, but ten or more is optimal.
A lot of the larger firms are divorce mills. The unspoken emphasis is on billing clients to maximize profits for the owners. You will likely be dealing with an associate or junior associate most of the time. Some of these firms produce outstanding results, no doubt. But, despite the money you will spend, not necessarily. However, the larger firms come with a price. Many of the smaller firms and sole practitioners have been in practice for many years. They are more responsive to clients. The big firms may have deeper wells of collective and institutional experience, but the attorneys in the smaller firms are likely in court more and you will be dealing directly with a partner or owner.
Fees & Costs In An Oregon Divorce
Typically, a lawyer will tell a client that it is difficult to know how much a divorce will cost because a case may settle or it may go to court or it may go up on appeal. The other attorney may be intransigent. One of the parties may cave. All of these things are true. The only rule of thumb is this: the more money there is, the more expensive it will be. Many times when hiring a lawyer, the conversation about money focuses on the amount of the retainer. A new client should focus on what the totals fees will run.
Remember, at $300 an hour, $3,000 is only ten hours’ worth of work and that will be used up in the first couple of weeks as the attorney becomes familiar with the client and the case. The best thing a client can do is talk to the attorney about fees and observe if the attorney is being forthright or evasive. The fact is: divorce is expensive. But, the client should have a good idea what he or she is getting into at the outset.
Fees pay for attorney time. Fees will also pay associates and paralegals’ time. Costs are third party expenses incurred to develop a case. For example, in a custody dispute, the attorney might suggest hiring a custody evaluator. The custody evaluator may charge $5,000 or $10,000. Or, the attorney may suggest taking a deposition of your spouse. The expenses associated with the deposition are also costs. The client is always responsible for costs. Other examples of costs may include office copies, postage, experts or court filing fees. The attorney should explain what costs a client can anticipate and consult with the client before committing to larger costs.
In Oregon, there are really only two types of fee agreements available to divorce and family law clients:
- an hourly rate or a flat fee. In an hourly rate agreement, clients pay their attorney for the attorney’s time, usually billed in .2 increments. Usually, with an hourly fee agreement, the attorney requires an advanced security payment to be deposited into the lawyer’s trust account.
- In a flat fee agreement, the lawyer estimates what the fee will be, and the client pays the entire amount up front. The fee is usually non-refundable. There is one additional type of fee agreement. A “contingent fee” agreement is usually the type of agreement available in a personal injury case where there will be a single payment at the end of the case. The Oregon Disciplinary Rules prohibit contingent fee agreements in family law cases on the theory that payment, for example, of fees should not be contingent on whether a parent gets custody of the child.
A retainer is money that is used as security by the attorney to pay for legal services. Money for the retainer is deposited into the Lawyer’s Trust Account. It is a security deposit against future fees. A lawyer will base the amount of the retainer against the complexity of the case and the amount of assets. The attorney may ask the client to keep a certain amount in the trust account. The law firm will credit the monthly invoice against the retainer for payment of the invoice.
The Divorce Trial
The primary difference between a divorce trial and other civil trials is the presence of a jury. In a divorce case, divorcing parties do not have the right to a jury. The process a court goes through in a divorce case is similar to the process the court will go through for any other type of case, except for the seating of a jury. The first part of any trial is about establishing the evidence and facts. After opening statements, both the Petitioner, the person who filed the Petition puts on his or her evidence first. That evidence may take two forms: live testimony from the parties or witnesses or documents. The Respondent has the constitutional right to cross examine the anyone who testifies. At the conclusion of the Petitioner’s case, the Respondent puts on his or case and can offer live testimony or documents. The Petitioner has the right to cross examine any testimony offered by the Respondent’s witnesses. At the close of Respondent’s case, the court will ask for closing argument. Once the closing arguments are completed, the court will either make a ruling then and there or take the case “under advisement.” If the judge takes the case under advisement, the judge will either issue a written, letter opinion or call the parties back to court to read the decision into the record.
In Oregon, there are three broad categories of issues in a divorce case: division of the assets and liabilities; support; and provisions for the minor children.
Yes. There are two types of witnesses you can call: fact witnesses and expert witnesses. Fact witnesses can testify to any issue relevant to your divorce which they know about personally through their own direct experience. An expert witness is qualified by the court to give an opinion on any aspect of your divorce in which they have expertise. For example, an expert witness may give an opinion on the value of an asset such as a home or business. A fact witness may testify about the negligent treatment of a couple’s children which they have witnesses personally.
Every divorce in Oregon ends with the General Judgment of Dissolution. It is the legal document which ends a marriage, divides the property and debt, provides for the minor children, and allocates future income in terms of spousal support. It becomes effective once it is signed by a judge on the Circuit Court.
If a judge misapplies a legal standard or has no factual support for her position, an unhappy litigant can appeal his or her case to the Oregon Court of Appels. Theoretically, if a litigant is unhappy with the Court of Appeals decision, that decision can likewise be appealed to the Oregon Supreme Court. However, it is very rare for the Supreme Court to hear a family law case. The standards to have a case overturned or remanded back to the lower court are extremely high.
Divorce Mediation And Alternative Dispute Resolution Venues
In Oregon, as a general matter, the courts require parties to a lawsuit to speak to one another about settlement before trial. Litigating parties, per the court rules, may need to engage in a process called Alternative Dispute Resolution or “ADR.” In ADR, the parties can either mediator or arbitrate their dispute. If the issues in the dispute are resolved through either of these the mediator or arbitration process, the parties can avoid going to court. If not, then both sides need to prepare for trial.
The primary benefit of ADR is that parties in litigation can avoid going to court. Going to court is stressful, expensive, and the outcome is always uncertain. Parties always risk that a judge or jury will not see the case the same way they see the case. ADR, and particularly mediation, gives parties more control and certainty over the outcome.
Divorce arbitration is a way of resolving disputes through a private process similar to trial. At an arbitration, the arbitrator will hear the evidence of both the parties and make a decision on the issues based on the laws of the state and the evidence introduced at the arbitration. Arbitrations may have relaxed rules of evidence making the process less stressful and expensive. Arbitrations will never have a jury. An arbitration may be court ordered, required by contract, or elected by the parties as an alternative procedure to court.
If the parties to a lawsuit go through arbitration, and one (or both) of the parties are unhappy with the result, the arbitrator’s decision can be appealed to the district or circuit court. This is because litigants have the right to have a judge or jury decide their case. This is called “non-binding arbitration.” On the other hand, if the arbitration is required by a contract, or the parties otherwise elect to go through arbitration before or after a lawsuit is filed, the arbitration will most likely be “binding.” In binding arbitration, the arbitrator’s decision is final and not appealable to the court if one or either of the parties is dissatisfied with the result.
Mediation is the process of resolving a dispute directly between the parties with the assistance of a neutral, third party professional. The role of the mediator is to assist the parties to achieve a result which both parties can accept. The parties problem or negotiate with the assistance of the mediator who keeps the discussion focused and constructive. Similar to arbitration, mediation is less stressful and less expensive than litigation in court. Unlike arbitration or trial, the final decision belongs to the parties. Either party may accept or reject a proposal and can elect to continue the discussions until the process is complete and results in an outcome acceptable to both.
Dividing Property In A Divorce
Oregon law provides a very nebulous standard for the courts to divide property and debt. That standard is “just and proper in all the circumstances.” Needless to say, parties to a divorce are not likely going to see “just and proper” in the same way. The Oregon Court of Appeals fleshed out how the courts should distribute marital property in a seminal case in 2004. The bottom line is this: the longer a couple has been married, the more equally the value of the properties will be divided. The court has the authority to include or exclude property which was separately acquired before marriage. The court has the authority to consider if there has been an equal contribution by both parties.
The Oregon court during a divorce will not, and should not, go through the finances of a marriage and re-litigate every spending decision or compare the finances of both parties to see if they both contributed. Equal contribution means that both parties contributed to the maintenance of the family use. In other words, the parent who stays home to raise the children has equally contributed. On the other hand, if a party leaves the house for years, that party has not contributed. If the parties have an agreement, and live up to it, to maintain separate finances, then there presumption of equal contribution may be defeated.
Suppose a couple has owned a house for fourteen years, since the year they married. The couple paid $300,000. There is $175,000 left on the mortgage. How will the equity in the home be valued and distributed? On these facts, it is impossible to determine the equity without knowing the present market value of the home. It is now certainly worth more than the $300,000 the couple paid for it. To determine the equity, the parties can hire an appraiser, either jointly or separately. The appraiser will give an estimate of the current market value. The couple can hire a relator, either jointly or separately, to do a market comparison of similar houses in the neighborhood to establish a range. Or, if the couple knows the market value of the house, they can jointly agree on the current market value. Once market value is established, it is a simple subtraction problem to determine the equity: market value minus the remaining loan obligation. If the home needs extensive repairs, that might reduce the equity. If the marriage is a long marriage, more than 8 or 9 years, in all likelihood, the equity in the home will be equally divided between husband and wife.
The legislature provides three grounds for a spouse to receive spousal support: transitional support, maintenance support and compensatory support. Transitional support is generally appropriate in a shorter marriage less than 7 or 8 years where either the husband or wife has been out of the workforce, transitional support may be awarded to help the spouse get back to work. Support may be used for tuition or other job training. Maintenance support is available for longer marriages or where one of the spouses is incapable of working. Maintenance support is intended to prevent the non wage earning spouse from falling too far from the standard of living he or she enjoyed during the marriage. Finally, compensatory support may be available where one spouse has assisted the other in the development of their career. For example, if a husband puts his wife through medical school, and then the wife divorces him, the husband is entitled to a portion of her future income stream in the form of spousal support.
There is no hard or set formula for setting the amount of spousal support. There is good reason for this. A final judgment may have wife paying more of the couple’s debt than the husband, so she may have a reduced spousal support obligation. Support may also be awarded in lieu of a division of property. If there is a child support award, there is a reduced pool of cash available out of which to pay spousal support. Often times, judges will look at the difference between two incomes and award a percentage of the difference. The bottom line: there is no set way to predict how much a judge will award for spousal support.
The amount of child support a parent must pay for the support of a minor child is set by statute. The statute uses a Child Support Calculator to determine the correct amount a parent must pay. The two important factors in setting child support are the income of the father and mother, and the amount of overnights the children will have with each parent. In other words, the amount of the child support obligation is both an objective amount and a set amount. In Oregon, the child support calculator is found on their official website. Spousal support on the other hand is completely negotiated between the parties. The legislature does not give guidelines for the amount of spousal support except that the support must by “just and equitable.” Also, the other big difference is that there is a large range of legal actions the state can take to punish someone who stops paying child support.
If an ex-spouse is ordered to pay spousal support and stops there are three options. A spouse can go to court and file a Motion to Enforce Judgment, and the judge will order the spouse to pay. A spouse can file a Motion for Contempt which includes fines and possibly jail time, though this rarely happens. And, the spouse can initiate garnishment proceedings against the non paying spouses income or assets
The amount of child support a parent must pay is determined by statute. It is not a negotiated amount (unlike spousal support). The objective factors which go into a child support determination are income, number of overnights, number of minor children, income from VA or SSA benefits, and insurance costs for the parent and child, and child care costs. Once these numbers are put into the Child Support Calculator, the calculator determines the amount of support. Under limited circumstances, child support can be deviated upward or downward. The Child Support Calculator is found here: https://justice.oregon.gov/guidelines/
The amount of child support can be modified after the initial amount is set if there is a “substantial change of circumstances.” A substantial change of circumstance may include a change in custody following a custody hearing, a prolonged period of unemployment, illness resulting in an inability to work, or other changes affecting a obligor’s (the person paying) ability to pay.
There are three ways to modify a child support order. Either parent can request the Oregon Department of Justice to modify the Order. Either parent can ask the county District Attorneys office to modify the Order. And, finally, either parent can go to court and request the court to modify the Order. This is usually done when there is a dispute about custody or parenting time.
An obligor (the parent paying support) is obligated to pay child support until the youngest child turns 18, unless that child is a “Child Attending School” or “CAS.” A CAS is an unmarried child between the ages of 18 and 21 who is satisfactorily attending school at least half time. The obligation to pay child support may also terminate if the minor child marries or is declared legally emancipated by the court.
No. Step parents are not legally obligated to pay child support.
Once child support is ordered by the court, of the State of Oregon through the Oregon Department of Justice, an obligor (the parent paying support) must pay regardless of the relationship between the parents. A parent may not withhold parenting time as a result of non-payment of support. Both parents are under court Orders. One parent to pay and the other to make the child available for parenting time. Failure to do either equally violates the court’s Order.
The State of Oregon has numerous administrative remedies to collect and encourage a non-paying obligor (the parent obligated to pay support) to make payments. For example, the state may intercept tax refunds, revoke state issued licenses, withhold unemployment or workers’ compensation benefits, collect support through employee’s wage withholding, and garnishment. The obligee (the parent receiving support) may apply to enforce a judgment or file a Motion of Contempt. The motion of Contempt may include both or either financial penalties or imprisonment. Finally, under rare circumstances, the county’s District Attorney may bring a criminal case for non-support.
Attorney Fees In Divorce Cases
After a Petition for Dissolution is filed, either party can file for interim relief. Interim relief is necessary because of the length of time it will take for the case to get to trial. Either party can request to award attorney fees from the other spouse to prosecute or defend the case. The courts will generally award suit money where there is a large disparity in income between the parties. If the parties do not earn a lot of money, the court is not likely to award suit money. If both wife and husband are high earners, it is unlikely that the court will award attorney fees.
Oregon law expressly provides that in a divorce the court may make an award of attorney fees at the end of a case. Oregon law specifies the factors which must be considered by the court in deciding to award fees. Those factors include the complexity of the case, the reasonableness of the parties, whether a party acted in good faith, the reasonableness of the fees, the amount of fees charged, and other factors.
The courts will look too whether there were meaningful negotiations, i.e., did one side attempt negotiations and the other side did not participate. The court will also consider if one side or the other offered reasonable negotiating positions or not. The court will consider whether there was dishonesty in the negotiations or if one party concealed assets.
You may not be able to get the money back, but you the judge may either order your spouse to come up with money for your attorney during the case, or may award you half of the amount in savings at the end of the case to be paid by your ex-spouse to you.
Unfortunately, in a child custody dispute, the word “custody” does not mean “custody.” When the word “custody” is used, it usually means possession. For example, if we say a criminal is “in the custody of the state”, we mean that person is in prison. If someone is a “Custodian of Records”, that person has possession of records. In child custody cases, “custody” does not mean possession. Custody means the right to make decisions regarding the child. The custodial parent is the final, the ultimate decision maker concerning the child’s education, medical and religious upbringing. There theoretically could be a situation where a non-custodial parent has more time under a parenting plan with the child or children than the parent with custody. The custodial parent is the parent designated by the court, or by agreement between the parents, as the parent who has the final say on the important decision concerning the children’s welfare.
Joint custody mean both parents share decision making responsibilities for the children. In Oregon, both parents must consent to this arrangement. A court will not impose, and in fact cannot, impose joint custody on an unwilling parent. Joint custody is most appropriate when a couple shares the same values, aspirations, and parenting style. Sole custody is appropriate when the couple are unable to communicate, there has been abuse, one parent is irresponsible, derelict or absent.
A parenting plan allocates how a child will spend his/her/their time between parents. A parenting plan guarantees that both parents will have both time with the kids and downtime for themselves. The parenting plan will describe pick ups and drop offs, a holiday and birthday schedule, and travel restrictions, if any. A parenting plan may provide that neither parent may disparage the other, not bring romantic guests home in the presence of the kids, or smoke or drink in front of the children. If the parents agree not to observe the parenting plan, then they are free to deviate. However, the parenting plan is a guarantee of parenting time so that both parents can continue to develop their relationships with the children.
Child custody decisions are made on a “best interest of the child” standard. Oregon law lays out the factors which must be considered in determining best interest. Those factors include the child’s relationships with family members, mother and father’s interest in and attitude towards the child, abuse between the parents or between the parent and child, the desirability of maintaining existing relationships and who has been the primary parent. The court weighs all of these factors in deciding “best interest.”
There is no law blocking a father from having custody in Oregon. However, all things being equal, judges, based on years of hearing expert testimony, will likely conclude, that mother should be awarded custody. Most mothers provide nurturing and support that are necessary for a child’s growth and maturation in ways that fathers do not. And, setting aside science and experts, there is a prejudice that children should have their mothers as the custodial parents. If mother is not fit, and it is not in the best interest of the child for mother to be the custodial parent, then father may certainly prevail in a custody determination.
Parenting Plans in an Oregon Divorce
Recall that the parent with sole custody makes the decisions about the child. A parenting plan directs where the child will spend his/her/their time. The typical parenting plan is the child is with dad every other weekend, a couple of weeks during the summer, and spends holidays with mother or father every other year. A parenting plan may require supervised visits. The parenting plan will also direct neither parent to disparage the other parent in front of the kids, will provide for who picks up the kids when, will prohibit a parent from drinking or smoking in front of the children, and may provide other protective language.
If both parents can agree to the terms of the parenting plan, then the parents agree. If not, and it is necessary to go to court, then a state judge will decide the terms of a parenting plan.
The judge will hear evidence from both the parties. Both mother and father will testify, put on witnesses or bring in documents to support the parenting plan that they believe is in the best interest of the child. After both parties have submitted their evidence to the court, and the attorneys have made closing argument, the judge will make her decision based on a “best interest of the child standard.”
A good parenting plan is specific to the needs of the child and accounts for the child’s interests, school, and activities. A good parenting plan considers the developmental age of the child and the child’s maturity. A good parenting plan has room to grow, and is specific enough to resolve conflict between the parents but not so inflexible that one parent or the other will feel aggrieved if is not adhered to strictly.
The parenting plan is in place to protect both parents relationships with the children. If the parents are getting along, and parenting is working smoothly, then the parents are free to ignore the parenting plan, as long as they both agree to any changes. If they cannot agree to changes, either on a temporary basis or on a more long-term basis, then they are obligated to both follow the parenting plan. In the event of chronic disagreements, they may need to go back to court to modify the plan.
If one parent does not follow the parenting plan, the other parent has two options: he or she can go to court to get an Order to Enforce or file a Motion for Contempt. A Contempt motion may ask for jail time and financial punishment. Oregon law also provides an expedited motion to enforce parenting time, specifically. The expedited motion is intended to be used by parents without the need for hiring an attorney.
Oregon Divorce Forms
The Summons alerts the respondent spouse that there is now a court case pending against him or her. Both the Summons and Petition for Dissolution must be filed on the spouse. And, a Proof of Service must be filed with the court. The Proof of Service is either an affidavit by the process server that the Respondent has been served or it is a signed acknowledgement of receipt of the Petition and Summons. The respondent has 30 days to file a response or an answer with the court. Failing to file an answer or response will result in a default win for the petitioner.
The Petition for Dissolution of Marriage is the first “pleading” filed with the court in a divorce. (Pleadings are the documents which are filed with the court. You can identify pleadings because they are numbered down the left side and usually have two parallels running downward the length of the page. Any document filed with the court needs to be on pleading paper.) The Petition for Dissolution does two things: it requests that the court grant the Petitioner the relief he or she or they seeks, e.g., to dissolve the marriage, to award custody and determine parenting plan, and to divide the property. The other thing the Petition for Dissolution does is notifies the spouse that a divorce has been filed and what is being asked for. The Petitioner is limited in what he or she can be awarded by what is in the Petition. For example, if the Petitioner does not ask for spousal support in the Petition, the court cannot award spousal support.
The legislature requires the parties to a divorce to submit sensitive personal information, such as dates of birth, drivers license numbers and social security numbers. This information is segregated from the public portion of the record. Court staff can access the Confidential Information forms, but the public cannot. A confidential information form is required for the petitioner, respondent, and the minor children, plus any child who is attending school. A Notice of Confidential Information form is also required. Under limited circumstances, a party can access another party’s CIF.
There are three types of judgments: General, Limited and Supplemental. A limited judgment provides interim relief before the final General Judgment of Dissolution is entered. Interim relief maybe for temporary child or spousal support, or exclusive use of the home or personal property and or “suit money.” A supplemental judgment is awarded after the General Judgment has been signed by the court. A supplemental judgment may be entered to reflect a change in the terms of the General Judgment, for example, an increase or decrease in spousal support.
The General Judgment of Dissolution is the Court’s Order dissolving the marriage, dividing the property, and accounting for the future income of the parties in the form of spousal support. It is the document which controls the divorcing parties post dissolution legal relationship. The General Judgment also includes a section called “Money Award.” This section summaries the terms of money to be distributed between the divorcing parties, and gives the receiving party the right to use collection procedures to obtain money he or she is owed, for example, through garnishment of bank accounts, seizure of assets, or wage withholding orders against income.
A General Judgment of Dissolution is divided into several sections.
The introductory paragraph lays out who the parties are, if they have representation, the date of the trial, or if the judgment is taken by stipulation or default. This paragraph is called “Introductory Paragraph.” The next section is called “Findings of Facts.” These are the facts upon which the court relies in making its Order or Judgment. These are either stipulated or litigated. This section is important for a couple of reasons. The facts need to be supported by evidence submitted at trial. If not, a case may later be overturned by an appeals court. They also identify facts at a particular time. In the event of a future motion to modify the judgment, e.g., to discontinue spousal support, the court will look to the Findings of Facts to determine what the parties’ income was at the time the judgment was entered. Following the Findings of Facts comes the Orders, for example, an order to pay child support. This section usually starts with the language “It is hereby Ordered and Adjudged.” Finally, there is a section called “Money Award.” This is a summary of any monetary order imposed by the court. It contains all the financial information related to the Order in one place. Finally, there is a section for the judge’s signature. There will also be a Certificate of Readiness, and a Certificate of Service.
A Supplemental Judgment is a Judgment which is entered after the General Judgment. In family law cases, a Supplemental Judgment may be entered after a hearing or directly if the terms are agreed, to change custody, modify spousal or child support, or to enter a QDRO- an order to split an employer sponsored retirement account.
All About “Discovery”
In a lawsuit, a party to the lawsuit may not have all of the information he or she needs to either make or defend his or her case. The other party (or parties) may have the information, or the information may be held by a third party. Discovery is the process of obtaining the evidence necessary to prosecute or defend a lawsuit.
In a divorce, both spouses have a right to an accounting of the present assets and liabilities of the marriage, among other things. Both husband and wife are required to exchange bank account statements to show what the individual and joint accounts hold. They do this by making a Request directly to one another. If for some reason, husband does not want to disclose what is in a bank account he owns, then wife can subpoena his bank for his bank records. If husband refuses to reveal where he does his banking, then wife can put him under oath at a deposition and ask where he does his banking. If husband does not disclose all of his banks, he may be subject to the penalty of perjury or other sanctions.
Oregon Law, at ORS 107.089, provides that if a party request specific documentation of the assets and debts of the marriage, the spouse must comply. Those documents include such things as tax returns, income and wage records, bank, retirement and investment accounts statements, among other things. Both parties have the right to a full accounting of the assets and liabilities of the marriage.
There are two ways to obtain documents in discovery, and which mechanism depends on who is being asked. If documents are in the possession of the other party to the lawsuit, then the first step is to serve the other party with a Request for Production. The party receiving the Request must either produce the document or give a reason why the document is not discoverable. The reasons can be challenged by brining a Motion to Compel to the court. The second way to obtain documents is by filing a subpoena on a third party, such as a bank. To obtain spoken testimony, either party can take the deposition of a party or a person who is not party to the lawsuit. A deposition is a sworn and transcribed statement regarding the issues in the lawsuit. At a deposition, an attorney will ask the person being deposed a series of questions which call for a factual answer. The deponent must answer unless there is a legal valid reason for not answering, such as the answer is protected by a privilege.
Generally, any document which tends to prove or disprove an element of a case, or any document which is likely to lead to discovery of relevant evidence, is discoverable. Documents which are not discoverable include such things as medical records or therapeutic records, statements made during communion, communications made between a lawyer and client. However, each of these is context specific. In a personal injury case, medical records are necessary to prove an injury. In a custody case, therapeutic records may be discoverable to prove a parent is unfit to be the custodial parent. In a family law case, the discoverable records will depend on the issues raised in the Petition, such as child or spousal support.
Suppose husband and wife are divorcing, and husband asks wife for documents related to a trust held in her name. Wife refuses to produce the documents. Husband’s best option is to file a Motion to Compel Production with the court. The court will hear oral argument and then decide whether wife is required to produce related to the trust. If wife refuses to comply with the judge’s Order to produce records, she may be held in contempt of court, or the court could impose other sanctions, like refusing the wife to put on certain evidence in her case, or perhaps even contempt of court if she refuses to testify on the stand when she is giving evidence.
THE BENEFITS OF A “ONE DAY DIVORCE”
One Day Divorce is a process of dissolving a marriage available only through the law office of One Day Divorce and Mediation, located in Portland Oregon. It is a cooperative hybrid mediation/arbitration model of divorce with a defined in advance schedule and budget. You will know when you will be divorced and exactly how much it will cost.
One Day Divorce was created in response to the many, many significant drawbacks of traditional divorce litigation. With the traditional adversary model of divorce, both husband and wife are required to hire lawyers to represent them through a complex judicial process. The process necessarily makes a bad relationship worse as the couple watches the attorneys argue about issues which seem tangential to getting the divorce and as the attorneys’ fees continue to escalate at $200 or $300 per hour. In Oregon, it may take a year to get to court, after many false starts. Both husband and wife are required to produce mountains of documentation. And, then, you go before a judge and lose all control over the final outcome. One Day Divorce was created specifically to remedy each of these drawbacks.
One Day Divorce was designed by a lawyer who watched his clients struggle with the legal process for decades. With a One Day Divorce, the couples pick the date for the mediation/arbitration. The process is mediated, meaning that the couple retains the power to shape their future post marriage relationship. This is especially important if there are children. The cost of the divorce is determined by the couples’ assets, and not a $300 or $400 hourly rate. The couple know exactly how much the legal fees will be in advance, and we pay the court costs. Both parties receive the same information about Oregon law to help make their decisions. The process of collecting information is streamlined. It is just a superior process.
One Day Divorce is not appropriate for all couples. Couples with complicated financial instruments which will need to be valued, or who own closely help businesses will be better served through a court process. Couple’s requiring advance financial planning in response to medical and health issues would also be better served through traditional litigation. If there has been significant violence in the relationship, court is a better forum. Finally, if there is a dispute over custody of minor children, court is warranted.
The One Day Divorce process involves a hybrid mediation, binding arbitration model of dispute resolution. This means that the parties mediate their differences for a set period of time. Whatever issues are not resolved through the mediation process are decided by the mediator, who takes on the role of arbitrator, and applies Oregon law to resolve the outstanding disagreements. This process ensures that the divorce is done fairly, that the parties stay in control of the outcome, and that the divorce is completed within the scheduled time frame and on budget.
A One Day Divorce will be significantly less expensive than traditional litigation. The couple only pays one fee to the mediator. Fees are based on the assets of the marriage and the children, and not on the amount of time the attorney spends on the case. The fee schedule can be found on the website.
Getting Financial Help After An Oregon Divorce is Filed – Pendente Lite Relief
Pendente Lite support is interim support. In a divorce case, interim support is necessary because it can take so long for the case to get to trial. In some Oregon counties, a case may get to trial after only six months. But, the average is closer to nine months, with some counties taking a year or longer. Interim support becomes necessary if one of the parties needs financial assistance during the time it takes a case to come to trial.
Incidentally, Pendente Lite is Latin, and I have no idea what it means.
Pedente Lite support, otherwise known in English as “interim support” or “temporary support” is available after the Petition of Dissolution is filed but before trial. In other words, a divorce litigant can request interim support from the court after the Petition is filed. If and after support is awarded, it last until either the General Judgment of Dissolution is signed by a judge unless the divorce case is dismissed by the Petitioner.
The general practice in Oregon to obtain interim support is to go to court to obtain an Order to Show Cause. The Show Cause order directs the spouse to show up to court at a particular time and day and Show Cause why the court should not order the request relief. In actuality, the movant, the person requesting the relief, needs to prove that he or she is entitled to receive the relief. This particular motion is handled differently in different counties. For example in the tri county area, there will be a hearing before a judge. In Columbia county, it is handled by affidavits, and no live testimony.
Under the Oregon Revised Statutes, a party can request the court to award temporary custody, child support and parenting time, a party can also request temporary spousal support, and exclusive use of the home, suit money (meaning money for lawyers), exclusive use of personal property and payment of bills, and prohibit a party from disposing of real or personal property.
There are several advantages of requesting Pendente Lite relief. It takes some financial pressure off a parent at a time when life is already stressful enough. If spousal support is awarded, the award will likely be close to what the court will decide at trial. If custody is in dispute, the parent who prevails on temporary custody will have an advantage at trial because the primary parent is given some advantage in deciding who should get custody of a minor child. The disadvantage would be losing on any of the issues and having the court later using the temporary support decisions as a basis for a decision at trial. The other disadvantage is expense. A hearing on interim/temporary support requires a good amount of attorney time to prepare. It may be worth the expense if the movant prevails on child or spousal support, but it still adds another layer of expense on an already expensive process. Finally, litigants need to be aware of the timing. I have seen many times where there are no judges available for the hearing and the interim support hearings gets pushed back up until almost the time of trial. It does not make sense to go through an interim hearing if trial is only a month away.
The Oregon Uncontested Divorce
Under the American judicial system, lawsuits, including divorces, are necessarily adversarial. The interests of the parties are presumed to be adverse to one another. Lawyers argue before neutral judges and juries for their clients’ position. Usually, cases settle before trial because litigants see that there is a middle ground for compromise and that their interests do align. Litigants also settle because of the inherent uncertainty of bringing their case to court.
An uncontested divorce is one where the parties agree on all the issues in the case before filing the Petition of Dissolution. Both parties agree on how to divide the property and debt, spousal support and children, if any. Within each of these issues, there may be numerous smaller issues to deal with. If both husband and wife can work out their differences before the Petition of Dissolution is filed, then an uncontested divorce is possible.
There are several advantages to an uncontested divorce. The divorce will be significantly less expensive. It can be completed in a matter of weeks or months, not years. It is much less stressful that going to court. In fact, the parties do not need to appear in court or before a judge. And, finally, wife and husband remain in control of the process and the outcome.
You do not necessarily need an attorney to complete the court documents for an uncontested divorce. If you do it yourself, the chief disadvantage is that you may not understand the documents you are completing. The court supplied forms are not as clear as they could be and can be confusing, and yes, even for lawyers. YOu may end up in court years from now trying to resolve a conflict with your ex because something was omitted or handled incorrectly. Further, you may be entitled to receive something or you may give something away which you are entitled to keep. If real estate, retirement accounts or children are involved, you may need the assistance of a professional with experience in these areas. These downsides are minimized if you hire an attorney to help with your uncontested dissolution.
The vast majority of divorces in Oregon occur without the assistance of an attorney. The State of Oregon creates forms for self-represented litigants. You can find those forms here: Oregon Divorce Forms. You can also find them in the Family Law Section of your local court’s website.
An uncontested divorce, by definition, means that both spouses agree to all the terms of the divorce. If you disagree about any of the terms of the divorce, then the divorce is not uncontested. However, you and your spouse can agree, in writing, to all of the issues except spousal support, and still go to court only on that one issue. You will both put on your evidence and the court will issue its ruling on the outstanding issues. This is fairly common. You will need to be sure that you have memorialized your entire agreement and that both sides have agreed in a signed writing to be bound by that agreement going forward.
You do not necessarily need an attorney to complete the court documents for an uncontested divorce. If you do it yourself, the chief disadvantage is that you may not understand the documents you are completing. The court supplied forms are not as clear as they could be and can be confusing, and yes, even for lawyers. You may be entitled to receive something or you may give something away which you are entitled to keep. If real estate, retirement accounts or children are involved, you may need the assistance of a professional with experience in these areas. These downsides are minimized if you hire an family law attorney