Anatomy of a Divorce | Part 2 – Pleadings | One Day Divorce

So how do you actually start a lawsuit? What’s the paperwork that’s needed to actually get a case moving through the Oregon courts?

Well, whether it’s a divorce or just general litigation, like a car accident or a defamation case, the complaint’s gonna start with an instrument called either a petition or a complaint. A petition asks the court to do something. A complaint says to the court, we are bringing a case against another person for redress of damages in a divorce.

The lawsuit, the divorce, is actually initiated with a document called a Petition for Dissolution of marriage. And the petition does two things primarily. First, it gives notice to the court that you’re starting a case. It is the beginning of the case, but it’s giving notice to your spouse and the other party that A: you’re divorcing, and then B: what you’re asking for.

So the divorce, the petition may include things like spouses, what you’re requesting spouses for, or attorney fees or, to divide the property in assets. And so the petition lays out, and gives notice to the other side what the filer, what the petitioner is requesting the court to do.

So the petition does a couple of other interesting things as well. Firstly, it lays out who the parties are. It tells the court, uh, and the opposing party who the petitioner is and who the respondent is. And those are usually the only two people in divorce. If there’s a child between the ages of 18 and 20, that child may be a child attending school, and that child may become part of the divorce process as well, because they have an interest in child support.

So I mentioned a moment ago that the petition tells the parties what the petitioner is asking for. If the petitioner doesn’t ask for something, they can’t bring it up at trial. So, for example, if petitioners want spousal support, but it’s not in the petition, the court won’t allow any testimony and won’t make a decision about whether or not the other spouse will be obligated to pay spouse support. And that’s just a basic due process, right? You have the right to notice about what’s being requested of the court in the same way that if you filed a car accident case against someone, you couldn’t then sue them for defamation as well. You’d have to allege defamation in the car accident complaint. So, I don’t know if this is interesting or not. Kinda interesting to me because I’m a lawyer, but maybe, maybe not to you.

The question is what controls, what goes into the petition? What are the contents of the petition and why is that important? So what goes into the petition is governed by Oregon statute and the ORS, the Oregon Revis Statute at chapter 107 controls the divorce proceedings, and within 107, there’s a subsection called Contents of Petition and that lays out exactly what you can ask for. So for example, if you want, uh, to go back to a prior name, you can ask the court to reassign you your prior name. If you want the spouse support or trial support or child custody, all of that is laid out in the statute, and that’s what you have the right to ask for.

So this shows like the interplay between what the legislature authorizes, what the courts can do, and what a petitioner or a respondent can request.

Now, I just use the word respondent for the first time because the respondent is the party that responds to the petition. What that means is that a respondent can come in and admit or deny all of the allegations of the petition. So, for example, you can deny that the petition has the right for spousal support and then you can counterclaim and bring your own allegations of what you have a right to receive and what you’re asking the court to appoint a portion to you.

So that’s what a respondent is. A respondent is responding to the complaint, to the petition, and also has the right to bring their own fresh allegations of things that they want out of the divorce as well.

So once the complaint is filed with the court, it needs to be served on your spouse who’s gonna become the respondent. And as soon as it’s filed and served, a couple of interesting things happen. The first is that an automatic restraining order goes into effect, which is that the assets of the marriage cannot be disposed of except in the normal course of business.

So for example, you can’t go out and buy that Ferrari after you file for a divorce. It’s not a purchase made in normal course of business for most of us. You can’t run up an extraordinary amount of debt, right?

Those are things that are restrained as soon as the petition is filed and served. The second thing is that as soon as you’re served, a clock starts to run on spousal support and child support. And so the petitioner can ask for spousal and child support all the way back to, um, the time of service. So if the divorce runs a year, the court could come back and say, you owe a year’s worth of back support.

Another thing that happens is that you become restrained from canceling your spouse’s medical insurance. You can’t do that after you’re served with papers for the divorce. Do it before, but you can’t do it after. And then finally, parties of a divorce have the right to know everything about the finances, assets, and liabilities. Of course, in a marriage, you have the right to it. You’re an owner of those things, but you have to make, after the divorce is filed and those party ask for it, you have to make available, documents documenting how much debt you have, how much assets you have, how much the assets are worth, or owed on. And that becomes mandatory after the divorce is final.

So moving, let’s jump to the end because the lawsuit starts with the petition, but it ends with something called the general judgment of disillusion and ultimately, what we’re shooting for here, is to get the judgment of disillusion complete. And we’re gonna talk about this at in the last video.

The last video in the series is called trial, and that’s gonna be the subject of the judge. Judgment dissolution is gonna be the subject of that video, but where we start with the petition end in a judgment, and that’s true for any type of case.

Again, my name is Steven Leskin and I am a divorce attorney in Portland. I’ve been practicing water in Oregon since 1992, since just a moment ago. I mentioned discovery. I think we’ll pick up on the next video, part three, with discovering what it is and why it’s important.

Thanks for watching.
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