Oregon Divorce Process: Frequently Asked Questions
General Questions
Yes. Both spouses need to agree to the same terms for the hybrid mediation/binding arbitration to succeed.
One Day Divorce determines legal fees based on the complexity of the marriage. Fees are set based on objective criteria. Fees do not increase. You will know exactly how much your divorce will cost upfront. Learn more about our fees.
In a traditional divorce, each person enters into an open ended contract with a lawyer at $200 or $300/hour and for paralegal time which can cost up to $175/hour. The agreement is open ended. You need to trust your attorney not to run up your bill. Divorce can cost $10,000 for a day in court, per party, if not more. Spending $15,000 or $20,000 is not unusual. Further, you will be asked for a $3,000 or $5,000 retainer which you will need to replenish as your case proceeds. (Ask a prospective attorney directly how much you can expect to spend and notice the evasiveness or ask your friends how much they spent.)
No. One Day Divorce fees are paid per couple, not per person. At the mediation, the couple can discuss fee sharing or fee shifting.
No. All costs are included. One Day Divorce pays all costs, including court filing fees. The only fees that a couple may be responsible to pay is the required parenting class, if appropriate.
In traditional divorce litigation, clients not only pay for legal fees, but also pay costs. Costs include such things as court filing fees (about $300), witness fees, trial fees, law firm administrative costs, fees for specialized attorneys to divide retirement accounts, costs for obtaining account records, and the list goes on.
You will receive comprehensive on-line questionnaires which will detail exactly what information you need to provide. Each questionnaire includes an explanation and instructions. You will also receive the detailed One Day Divorce Guide. The Guide will walk you through Oregon law, how to deal with specific assets, and how to prepare. Finally, the couple will participate in a Pre-Mediation Conference. At the conference, the mediator will explain Oregon law and the documentation you will need to provide at the hybrid mediation/arbitration.
The One Day Divorce website shows the available mediation dates. You and your spouse will agree on a time via an on-line scheduling app. The date you and your spouse choose is the date that the mediation\arbitration will occur. The prep period is six week.
Soon after the conclusion of the scheduled mediation/binding arbitration, you will receive documents to e-sign. Once those documents are received back in the office, they will be filed with the court. The court may take a couple of days or a couple of weeks to review and sign the General Judgment of Dissolution. Once the Judgment is signed, you will be divorced.
In traditional divorce litigation, the attorney needs to prepare the initial documents, wait for a response, and then go through the process of discovery. There may be interim motions and hearings. The court may set a trial date after six months, and then you will learn that the court does not have a judge available on the day the court told you to show up. You will wait for months after that for a new trial date. Usually, it will take about one year to get to trial.
Here is a dirty little secret. You very well may be required by the court to mediate with your spouse. Mediation is mandated in many courts. Even if the court does not require some form of “alternative dispute resolution”, your attorney will likely suggest mediation. The attorney will tell you that it is always better to discuss settlement with your spouse and come to an agreement rather than taking a risk by going before a judge.
Collaborative law is a form of negotiation in which the attorneys agree that they will resign from the case in the event the couple cannot settle. This creates pressure on the couple to agree. Attorney fees are paid on an hourly basis. There is no guarantee that your case will be resolved without going to court or that you will not be paying attorney fees twice.
We offer online mediation via Zoom. After an introduction, the parties are separated into different breakout rooms. The mediator “shuffles” back and forth between breakout rooms until an agreement is reached or until the time is exhausted. At that time, the parties will reconvene, and the mediator will discuss the outstanding issues, and then make a decision (or soon thereafter) on the unresolved items. By special arrangement, mediations can be conducted in person.
The participation agreement requires that both parties sign the General Judgment of Dissolution, and other court documents, within seven days of receipt. After that, the non-signing party is in default. Per the Mediation/Arbitration Participation Agreement, the non-complaint spouse incurs a penalty payment, and the court is granted a Power of Attorney to sign the Judgment. This may sound onerous, but it is intended to ensure that both parties honor the agreement they made to engage in this process.
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.
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.
Spousal Support
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
Child Support
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.
Child Custody
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
Oregon Divorce Negotiations – An Introduction
Any negotiation is a process of convincing the other side that your proposal is in either their best interest or your mutual best interests. Unlike, for example, a negotiation for the purchase of a car, the parties cannot walk away. If I want to buy a new Toyota, I can accept the dealer’s offer or not. I can locate the car from another dealer or buy a different brand. In divorce, you are stuck negotiating with your spouse. You must achieve a resolution with this person. And, there are only two ways to come to resolution. You can come to an agreement on the issues in the divorce. Or, you can go to court and a judge will decide the issues for you. If you decide to go to court, the calculus is always the same: will I obtain a better or worse result than what I could negotiate with my spouse. The motivation to settle depends on how this question is answered.
Every attorney who goes to court has stories of judges’ ruling which surprised them. Lawyers are trained to read the law, which means knowing how to read statutes and case law to understand the state of the law at any particular time in his or her jurisdiction. We are trained, or are supposed to be, to objectively evaluate evidence in light of the law and to recognize both good facts and bad facts. Attorneys always have some element of confirmation bias, meaning we are somewhat predisposed to see the evidence through our client’s eyes. Despite that, the cases which settle, settle because the attorneys have a similar view of the evidence and likely outcome at trial. When a case goes to trial, it means that the attorneys and the parties have a different view of how the court will rule on the evidence. Once you go to court, the controversy is submitted to a person with their own biases and values and view of the world. It is always a risk to go to court. Unless an attorney has been before the same judge for years, they likely will not be able to account for a judge’s personal perspective on specific issues. There is also the simple fact that a judge will have a different understanding of the case after both sides have presented their evidence. I have seen too many cases where I was certain my client would prevail only to find that a judge had a prejudice against my client’s politics or a deeply held belief which ran counter to a position I took which was still consistent with the law and facts. In short, going to court is never risk free, and an attorney who categorically states that the client will prevail runs the risk of badly advising the client.
The first factor to consider is whether all of the assets, liabilities and income have been accounted for and disclosed. Without needlessly raising doubts about the spouses’ integrity, is the client certain (or at least highly confident) that there are no outstanding assets which should be divided or that are there no liabilities which should be allocated through the divorce settlement. If there are children, are there issues of the children’s safety or welfare which need to be addressed. If one of the spouse has been a stay at home spouse, or has minimal work skills, is that spouse entitled to receive spousal support. The other factors include the transactional expenses in terms of legal fees and costs, the length of time it will take to get to court, the state of the parties’ relationship post-divorce.
Oregon Divorce Negotiations, Continued
Oregon law provides specific criteria for the court to award custody to one parent or the other. Remember, in Oregon, a court cannot impose joint custody. The parents must agree to share custody, and if one parent refuses, then either one parent or the other will be the custodial parent. (See, ORS 107.169) The factors to be considered for a court to determine custody are found at ORS 107.137. Since the outcome of a custody determination is win/lose, an objective analysis of the criteria of 107.137 is before attempting to negotiation a best interest of the child parent with the other parent. Needless to say, it is never ever never a good negotiating tactic to argue that it is not in a child’s best interest for one parent NOT to be the custodial parent. For any loving parent, that is starting a negotiation with an insult—unless it is clearly, obviously and patently true, for example, a parent is a known drug user, or it is documented that the parent is physically or verbally abusive. In short, use the statute as a guide to negotiate custody.
Before a husband or wife can negotiate for or against spousal support, it is a good idea to understand the purpose of spousal support, and the laws surrounding an award of spousal support. The place to start is the Oregon Revised Statutes, ORS 107.105. Briefly, Oregon law provides three categories of spousal support: transitional, maintenance and compensatory. The basic standard for an award of support is that the award be “be just and proper in all the circumstances.” The two factors in an award of spousal support are amount and duration. The amount is based on the relative earnings of the two parties and the potential earnings of the spouse seeking support. In arguing against an award of support, the payor spouse may argue that his or her income is not stable or is subject to future change. Duration is largely a function of how long the couple was married. Other factors include the health and age of the parties, whether child support will also be ordered, and how the marital debt is allocated during the divorce.
There are a couple of first things to know about negotiating a property settlement in an divorce in Oregon. Firstly, Oregon is NOT a community property state. Unlike Washington and California, duration of marriage is a factor of how property is divided in a divorce. In general, in a short term marriage, the court will attempt to put the parties back to the position they were in prior to the marriage. A short term marriage is about less then three or four years. In a long term marriage, usually considered more than seven or eight years, the courts will split the property in a manner which is “just and equitable.” This means that the courts will split the assets evenly, but not necessarily. The courts can, generally, divide any property the parties own to achieve this end. Property which is separately held may, or may not, be considered in how the court divides the couple’s property, depending on the parties intent during the marriage.
Restraining Orders
There is a general category of restraining orders which a court will issue to prevent an “irreparable harm.” There is a restraining order to prevent the abuse of an elderly person. In criminal cases, there is a stalking restraining order. In family law cases, there are two different types of restraining orders: The first is the Family Abuse Protective Act, restraining order. And, there is a second type which automatically goes into effect once a Petition for Dissolution of Marriage is filed which prevents a party from disposing of property except in the normal course of business.
ORS 107.710, the cite to Oregon law, provides that any person who has been the victim of abuse within the preceding 180 days may request the court for relief if the person is in imminent danger of further abuse.
“Abuse” is a defined term. Abuse means is one or more of the following acts between family or household members:
1) attempting to cause or intentionally, knowingly or recklessly causing bodily injury.
2) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.
3) Causing another to engage in involuntary sexual relations by force or threat of force.
“Family or household members” means any of the following:
1) Spouses
2) Former spouses
3) Adult persons related by blood, marriage or adoption
4) Persons who are cohabiting or who have cohabited with each other.
5) Persons who have been involved in a sexually intimate relationship with each other within two years immediately preceding the filing by one of them of a FAPA petition.
6) Unmarried parents of a child.
You do not need a lawyer to get a FAPA. Generally, you go to either the county courthouse where you reside or the county courthouse where the abuser resides. In the morning you will fill out the Petition. You will need to bring with you dates and descriptions of the abuse. The more factual information you have the better. In the afternoon, you will go before a Judge who will either grant or deny the Petition. It is best to call the courthouse first to confirm times and locations. The signed Restraining Order then needs to be served on the abuser, who can request a hearing to contest the Judge’s decision. If the abuser does not challenge the FAPA restraining Order it remains in effect for one year, unless it is renewed.
If the court grants a petitioner a restraining order, the court is authorized to impose the following (if requested by the petitioner):
- Temporary parenting custody on the petitioner subject to reasonable parenting time.
- The respondent may be required to move from the family home, regardless of ownership or marital relationship.
- That the respondent may not enter the home or a reasonable area around the home of the petitioner.
- That a police officer accompany the leaving party to retrieve his or her belongings.
- That the respondent is restrained from intimidating, molesting, interfering with or menacing the petitioner, or attempting to do any of these things.
- That the respondent is restrained from intimidating, molesting, interfering with or menacing the petitioner, or attempting to do any of these things to any child in the custody of the petitioner.
- Restrain the respondent from entering or attempting to enter any premise, such as an office or school to prevent the petitioner from being intimidated, molested, interfered or menaced.
Under Oregon law, if you need to restrain an abusive partner with whom you share a child, the court is authorized to make arrangement of temporary custody and temporary parenting plans. The court can also, on a showing of exceptional circumstances, make provisions for the safety and welfare of the child.
How do I get Custody?
Before answering this question, you must first know what “relevant” evidence is. To know what evidence is relevant, you will need to know what the issues are in a custody dispute. To know what the issues are, you need to know what both the custody statute provides and what the case law provides.
The Oregon Revised Statute (the ORS) covering the determination of custody is found at ORS 107.137.
ORS 107.137 tells the judge the factors the judge must consider in making a determination of custody between mother and father. Some of those factors include:
The child’s relationship with others
The child’s relationship with the other parent and the other parent’s family.
Abuse in the parental relationship
The desirability of continuing existing relationships
A preference for the primary caregiver
If the child has been the victim of abuse by one parent or the other
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. So, for example, to show the desirability of continuing existing relations, one could put on evidence about the child’s good relations with schoolteachers, doctors, clergy, and friends. The language of the statue makes this evidence relevant. If the child was sick, then the evidence of the relationship with the doctors would be considered more persuasive. It would not be relevant to show, for example, the existence of a political figure living in the same city with whom the child has had no contact.
Witnesses can testify to relationships they know about firsthand. A litigant or a witnesses, meaning mother or father, can testify about the relationship a child has with a teacher by discussing the projects or homework the child does for that class, the child’s comments about the teacher, the child’s reaction about going to school. A parent could bring in favorable comments on a report card. A parent could bring the teacher into testify, though this would be very inconsiderate of the teacher and for a not a particularly important point, taken alone. The reason the child’s comments about the teacher are not hearsay is that they are not offered to prove the truth of the contents of the comments, only the child’s relationship with the teacher. It’s also not hearsay because witnesses are given some leeway in relying on evidence in forming opinions, such as “my child has a good relationship with his/her/their teacher.”
Modifying or Changing a Divorce Decree
A spousal support award can be modified, either increased or decreased, on a showing of a change of circumstance. For example, a husband receiving spousal support at the time of the divorce may find that he is earning more than anticipated, and that would be considered a change of circumstance. A husband paying spousal support, for example, may suffer a debilitating medical condition reducing his capacity to earn. That change of circumstance would allow the court to modify the spousal support downward.
Child custody can be sought when there is a substantial change in circumstances affecting the best interest of the child. To change custody, the court will apply a best interest test. The court will look to ORS 107.1035 for the criteria to award custody. A parenting wanting to modify a custody award must show that there has been a substantial change in circumstances since the original judgment and that the change is in the child’s best interest.
There are three different ways to modify child support. You can contact your local district attorney’s office. That office will assist with a modification of child support. You can contact the Oregon Department of Justice. Likewise, that office will assist with the process of modifying support. Finally, you can file a modification case in your county circuit court. Both the DA’s decision and Oregon DOJ’s decisions on child support can be appealed to the Circuit Court. Usually, its best to start with the DA or the DOJ if the only issue is child support. However, if changes in custody and or parenting time are sought, then the change in child support may result in a new child support amount.
Unlike custody, to modify a parenting plan does not require a change of circumstance. A parent who wants to change a parenting plan must only show that the change is in the child’s best interest. Of course, it is not necessary to go to court to do this if both parents agree. For example, if the parents agree to move the child to a new school and this requires different pick up arrangements, the parties can agree to this themselves. Oregon law provides that the parties should submit to the court a signed and notarized stipulation of both parties of the change. Note also, that if the modification of the parenting plan involves modifying the number of overnights, the parents should run a new child support calculation.
As a rule, property division cannot be modified following a divorce. A party has thirty days to file an Appeal if he or she is not happy with the result. If no appeal is filed, then it is not legally possible to modify the property award. If an appeal is filed, the appeals court could directly modify the judge’s decision, remand the case back to the trial judge, or leave things as they are. The process of appealing will take about one year. Remember, you always have the option of directly negotiating with your ex spouse. Maybe you received something your spouse wants and you can work out a trade. If you do this, be sure to memorialize your trade in writing.
Oregon Rules of Professional Conduct for Lawyers
Oregon attorneys are obligated to follow the Oregon Professional Rules of Conduct, found Here. Some of the rules that an attorney must adhere to include:
- The obligation to keep client confidences
- To be a “zealot” advocate
- To avoid conflicts of interests between the attorney and client and between multiple clients of the same attorney or firm
- Not to charge “clearly excessive fees”
- To act diligently on a client’s behalf.
Every Oregon attorney is obligated to follow the Oregon Professional Rules of Conduct promulgated and enforced by the Oregon State Bar.
An attorney appearing in court is also considered as an “officer of the court.” In certain circumstances, the attorney’s obligation to the court is higher than the duty to the attorney’s client. A lawyer has a duty of candor to the court and may not misrepresent facts or law or fail to later correct an inadvertent misrepresentation. A lawyer may not put forward evidence he or she knows to be false. A lawyer as an affirmative duty of candor to the court.
If an attorney knows her client is lying under oath, the lawyer must ask the client the question again. If the client answers the same way again, the lawyer is obligated to withdraw from the case at that time. This prevents the lawyer from suborning perjury. Both the judge and opposing counsel will understand what just transpired. Often times, an attorney may ask for a quick recess to discuss with the client whether the client will change her answer. If there is a good faith mistake or differences in perception, the client may amend their early answer.
If you believe that your attorney has violated the Professional Rules of Conduct, you can submit a complaint to the Oregon State Bar. Be prepared to offer concrete examples, with dates, of the violations and any documentation you have. The attorney will have a chance to respond. If the violation is sufficiently egregious, the Bar may take disciplinary action. The bar can privately reprimand an attorney, publicly reprimand an attorney, or suspend the attorney from practice for a period of time. In sufficiently egregious cases, an attorney may loose his or her license to practice law.
Oregon judges are obligated to follow the Judicial Cannons. Violations of the Cannons, actually called the “Code of Judicial Conduct”, are investigated by the Oregon Judicial Fitness Commission.
How Will Assets be Divided in an Oregon divorce?
There is no single or simple answer to this question. Every case is different and every divorcing couple has different needs and goals. The answer will depend on how long the couple was married, how much property they own, and how much equity is in the home, among other factors. Under Oregon law, ORS 107.105, the court must divide the real property in a manner which is “just and proper in all the circumstances.” In a long marriage, this is read to mean “equally.” The court may award all the equity in a home to one spouse and offset that with retirement accounts or other property. Typically, the court will split the equity equally between the parties. In a shorter term marriage, say less than 5 years, the court may look to offset the equity by other contributions to put the parties back to the position they were in before the marriage. The courts have a lot of flexibility under a “just and proper” standard to fashion a result they see as fair. Also, the court can order an immediate sale of the home or delay the sale of a home for years while children grow. When the house is sold, the equity may then be divided as an absolute dollar amount or a percentage of the net proceeds from the sale.
Whether you can get a down payment back depends on the facts of each case. The court will consider how long the couple was married, what the intent of the parties was, the extend to which assets and liabilities were co mingled during the marriage, and other factors. There is not set answer to this question.
Under Oregon law, ORS 107.105, retirement accounts are personal property. The court will consider how much was in the retirement account at the time of marriage and how much appreciate (or loss) there has been in the account during the marriage. In a longer term marriage, 7, 8 or 9 years or longer, the court will split the retirement account equally. The court will also consider if both spouses made contributions to the account during the marriage, what the actions were in comingling other assets, and other factors to achieve a “just and proper” division of the assets of the marriage.
Pets in an Oregon divorce are treated as if they are any other personal property. The courts will look to the facts and circumstances of each case to determine who to award a pet to. The court will consider such factors as was the pet purchased during the marriage or was it owned by one of the parties prior to the marriage, who has cared for the pet, who has shown a greater interest in the pets welfare. Unlike other personal property, a pet is not assigned a monetary value.
Often times, heirloom objects have significantly more sentimental value than monetary value. If the object has no monetary value, the court will look to the intent and circumstances behind the acquisition of the item. Was it a gift from a parent or other family member? Usually, it is pretty clear who should be awarded an heirloom object. On the other hand, if the heirloom object has significant financial value, in a long marriage, the court may offset the value of the property when dividing the marital estate. In other words, the heirloom object will be credited against the parties portion of the marital estate.
Generally, in an Oregon divorce, the courts will treat an engagement ring as a gift. As a gift between spouses, the value of the ring will not be debited against the party’s share of the marital estate. On the other hand, if the ring is purchased as an investment, it may be considered as a part of the marital estate and the spouse receiving the ring will be debited the value against their share of the estate.
Divorce Mediation in Oregon
The process of mediation is about the same everywhere. The parties to a dispute meet with a neutral facilitator who will help the parties find a solution to their conflict. This is the heart of mediation and is the same whether the parties are divorcing, in small claims court, or are trying to resolve a business dispute.
Mediation is a form of “Alternative Dispute Resolution.” The other form of alternative dispute resolution include arbitration. Courts in Oregon require in civil cases some form of Alternative Dispute Resolution. The county courthouses determine which types of cases need to go to ADR.
In divorce cases, mediation specifically may be required. Some counties require mediation for property disputes, and some counties require mediation for disputes involving the kids. You can call the family law clerk in your local county to find out if mediation is required in your case.
In some counties, you may not be able to have a trial on your case until you have gone through mediation. You can file a motion to waive mediation if there has been violence in the relationship
Mediation fees in Oregon run the gamut. Most attorneys charge by the hour. An average hourly rate is about $300/hour. The ultimate cost will depend on the many factors including how many assets the parties own, how much debt needs to be divided, whether there are children, how hostile the parties are towards one another.
Leskin Law & Mediation handles fees differently. You will find a fee schedule on the website which tells you exactly how much it will cost based on how complicated your marital estate is. You will not enter into an open ended agreement at $300/hour for an indeterminate amount of time. You can find the Leskin Law & Mediation fee schedule here: https://leskinlaw.com/portland-divorce-fees/.
Mediation carries one significant downside: you and your spouse can negotiate and mediate in good faith but still fail to reach an agreement. You may reach a partial agreement, but there is no guarantee that you and your spouse will still not end in court in trial before a judge.
One Day Divorce does divorce mediation differently. We engage in a hybrid mediation binding arbitration process which guarantees divorcing spouses will be done in one day. Our process involves the mediator making the outstanding decisions applying Oregon law. This resolves the risk of the parties still ending up in divorce court.
Every county requires some form of mediation. However, every county is a little different. Some counties require mediation for property issues only. Other counties require mediation to resolve differences relating to children.
Every county offers some form of court sponsored mediation. In these cases, there is no cost for the mediator’s time. However, parties can always hire private mediators to resolve the other issues in the divorce.
All about Oregon Divorce Mediation
There are several types of mediation in Oregon for divorcing couples. Broadly, there is court ordered mediation and private mediation. For court ordered mediation, every county has different requirements for mediation. Some counties will require you to mediate property disputes but not custody disputes. Others, custody but not property. The advantage of court mandated mediation is that it is free. The mediators tend not to be attorneys but are usually pretty capable individuals. With court mandated mediation, you will be assigned a mediator. With private divorce mediators, some are experienced divorce attorneys and others are not lawyers. I do not doubt that many of the non divorce lawyers are experienced and no the law well, and are good at mediation, but there is no guarantee. Conversely, some attorneys may be very good at knowing the law and have a lot of trial experience, but are not particularly good at the mediation process. In hiring a private mediator, the best advice is to schedule a phone call, and discuss the mediator’s experience and approach.
Divorce mediators are not required to be attorneys. Any person on the court mediation lists needs to be qualified by education and experience. Attorneys who mediate are not required to have any special credentials.
If a mediator is an attorney, he or she is required to follow the Oregon State Bar Professional Rules of Conduct. If a mediator is a member of the Oregon Mediation Association, he or she SHOULD follow Core Standards and Practices, but this is not mandatory, and there is no enforcement mechanism for a member who does not. If you are specifically concerned about confidentiality or conflict of interest rules, then you should consider hiring an attorney mediator. Having said that, I have yet to meet a non attorney mediator, or heard of a non attorney mediator, who violated participant’s confidentiality or otherwise engaged in unethical behavior.
It is a common practice that after your attorney has worked on your case for five or six months, he or she will tell you that it is a good idea to mediate. The attorney will say, it will be cheaper than going to trial, or that you never know what a judge is going to do, or the advantage of mediation is that you and your soon to be ex can keep control of the situation and fashion a better result than a judge who does not know you. This is very common, except in cases where there is abuse, a power imbalance between the parties, very high conflict, or where assets may have been concealed. All of those things are true. However, if they are true, then why not just hire a mediator in the beginning and forego the attorney?
You may be able to file a motion with the court to waive the requirement to mediate, especially if there has been violence in the relationship. However, I advise my clients to go and listen to what the spouse is saying. This is the best way to anticipate what facts the spouse will rely on in court.
Preparing for an Oregon Divorce
There are a number of things you can do to prepare for an impending divorce. A divorce is a document intensive process. You will need to locate documents connected to your retirement, investment and bank accounts, credit card and other debts, real estate, taxes and income. If you suspect that your spouse is hiding assets, the best time to look for evidence of the hidden assets is while you are still in the home.
You should start to close joint accounts. If you have joint accounts, you can take half the money in the accounts. Do not leave your spouse with nothing. If you and your spouse have already separated, to the best of your abilities, separate out the physical property. If you cannot agree on who should get what, that’s OK. It is really OK to disagree. Just keep an inventory of the things you disagree about. You can discuss those things later. For the things you disagree about, you will need to figure out the monetary values of each of those items.
You should obtain a copy of your credit report. The credit report will tell you if you have debt in your name of which you were not aware. If you have kids or you suspect that spousal support will be an issue, request an Earning Statement from the Social Security Administration. Income will be a key factor in setting the amount of child and spousal support, and the Social Security Administration’s records are authoritative.
If there are children and custody is going to be an issue, start keeping a log of your spouse’s interactions with the kids, or any conduct which affects the welfare of the children. You will not remember everything, and the log will help jog your memory when the divorce gets stressful.
Stay active and healthy. Find a spiritual practice. Contribute to your community. Recite a gratitude list every morning. If your spouse has substance issues, attend Al Anon for your own well-being. Listen to podcasts on surviving divorce.
Do not run up large bills thinking that your spouse will pay them. Do not withdraw funds from bank and investment accounts except as needed in your daily business. If you fear your spouse will withdraw funds without your knowledge, then get the divorced filed sooner rather than later. In Oregon, there is a statutory restraining order which “prevents” this behavior. Do not post about your spouse or the divorce on social media.
Talk to a couple of lawyers until you find someone you are comfortable with and can trust. Talk about the process. Understand what the next steps will be. Talk about money. How much will it cost. Do not accept vague or non responsive answers. All lawyers will say “It depends” because it is impossible at the outstart to know how complicated a divorce will be. However, if a lawyer tells you $12,000 to $15,000 per person to settle a case, and twice that to go to court, that will be ballpark accurate.
What are the Stages in an Oregon Divorce
A divorce trial is very similar to any other type of civil or criminal trial. Any lawsuit is initiated with a Complaint or Petition. A Petition request the court to do something. In a divorce, the Petitioner petitions the court to dissolve the marriage, make provisions for the children, and divide the assets, liabilities and income. The respondent files an Response or Answer admitting or denying the allegations of the complaint, and has the opportunity to also petition the court for things not otherwise requested by the Petitioner. The next stage is called discovery. Discover entails both sides disclosing information they need to make or defend their case. Discovery can come in many forms, including depositions and subpoenaing third party witnesses for information. The next stage is negotiations prior to trial. If negotiations do not result in a settlement, the next stage is trial. Following trial, either party may appeal an unfavorable trial judge decision
The Petition of Dissolution in a divorce proceeding is the court filing which starts a divorce. Once the Petition is filed, the court will assign a number, and possibly a judge, to the case. The Petition requests the court to do certain things. For example, the Petition asks the court to award sole custody of the kids to one of the parents, asks the court to award spousal support, and to make a division of the property and debt. The things that a party can request are found in the Oregon statutes. For example, a parent could not ask the court to coerce a sex change. Something like that is not authorized under the dissolution statute.
After the Petition is filed with the court, it must be served on the opposing party. The opposing party is now know as the “respondent”. The Petition for Dissolution must be served on the Respondent within 91 days or the court will dismiss the action. The Petitioner needs to hire a process server or the county’s sheriff to serve the Petition on the Respondent. The Respondent then has 30 days to “enter an appearance” in the case. The respondent can file a general appearance declaring that they have appeared or a more detailed response with optional counter claims, meaning claims they want to bring against the Petitioner.
Discovery is the process or obtaining information from the adverse party or from third parties to make or defend a case. Discovery can come in the form of a Request for Production, a request to the other side for specific documents. Discovery can also include depositions where a party or witness is put under oath and asked questions “on the record.” Discovery can also include subpoenas to third parties with information relevant to the case, for example medial or school records. Parties are required to comply with discovery requests and can incur penalties for non-compliance.
After discovery is completed, divorcing spouses may engage in settlement negotiations. Some Oregon courts require the parties to attempt court mandated mediation. In other words, the courts do not want people to go to trial without first attempting to resolve their differences directly. At mediation, a neutral, professional mediator will go back and forth between the parties until they are able to find solutions to their differences. If they are unable to agree, then the outstanding issues will still get tried before a judge. If they are able to agree, then the mediator will complete the paperwork to finalize the divorce.
There are really only three issues in any divorce case: division of the property and the debt, provisions for the minor children (and Children Attending School) and allocation of future income in the form of spousal support. If wife and husband are unable to agree, each will bring their evidence and arguments before the court and the judge will make decisions on the outstanding issues.
Debt and Divorce in Oregon
How debt is handled in an Oregon divorce depends on the facts surrounding the debt and the type of debt incurred. How debt is handled also depends on how long the couple were married and whether the debt was incurred before or during the marriage or after the couple separates.
Also, has a general rule, during the marriage all debt incurred for the “benefit of a family member” is family debt and both partners are responsible to pay that debt. There are few exceptions to this rule. A creditor can come after both parties to a marriage for debt incurred by one of the parties, even if that debt is incurred on his or her own credit cards. In other words, all debt is joint debt.
It is important to understand the different types of debt. The first distinction is between debt which is secured by collateral and unsecured debt. Your house and car are secured debt. In the event you fail to make payments, your car can be repossessed and your house foreclosed. Secured debt is backed by collateral.
In a divorce, the court is very unlikely to split the collateral from the obligation to pay the debt secured by the collateral. Whoever gets the collateral, i.e., the house or car, will also likely receive the obligation to pay the debt – as long as this does not violate the terms of the loan.
There is revolving debt and installment debt. Revolving debt replenishes with each payment, for example, your credit cards of the line of credit on your home. As long as payment of the debt remains current, the debtor can continue to charge against the credit extended by the creditor.
Installment debt is debt that is paid down over time, e.g., student loans or car loans are installment debt.
Courts treat installment debt and revolving debt separately. Revolving debt is assigned a value at a particular moment in time which the court will order one party to pay. For example, if at the time of judgment, a Visa card has $1,000 on it, the judge will order one party to pay the Visa. In an installment loan, the court will likely assign one party the responsibility of paying that particular loan. This is significant because credit card terms are subject to change whereas installment loan terms do not change over times, although the interest rates may change with time.
If a debt is not paid during the marriage, the creditor can go over one or both the parties for repayment. Marital debt in Oregon is considered joint debt.
Suppose a divorce decree assigns to husband the responsibility to pay the Visa account, and husband does not. In order to preserve her credit rating, wife pays the Visa bill assigned to husband. What can wife do?
The Judgement of Dissolution will or should give wife some remedies to collect from husband the amount of the Visa account which wife paid, which husband was supposed to pay. Wife can go back to court to get an Order to Enforce the Judgment or even a Contempt Order. This should compel husband to pay the Visa account.
