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Oregon Divorce & Separation
First Things First - Should I Leave?
Leaving your family home is a serious decision. Sometimes, after all things are considered, leaving is necessary. First, you should know that if you are the victim of physical abuse, you may be eligible for a restraining order under the Family Abuse Prevention Act. This order will require your abuser to leave the family home and, on a temporary basis, award you custody of any joint children.
Even without a restraining order, it is possible for you to be awarded temporary possession of a family home and/or temporary custody of children. Such temporary orders can be obtained after filing for divorce or separation, and after notice and a hearing before a judge.
In some situations, you may have to leave your family home without a restraining order or temporary order. You should consider the following precautions: First, make an inventory of personal and joint property. Any property taken from the family home should be noted. Second, make an inventory of joint checking or savings accounts. If possible, divide the accounts fairly before leaving the family home. A person who withdraws funds from a joint account may be subject to an accounting or reimbursement in later proceedings. Third, consider canceling any joint credit cards or credit lines, because after you leave, your spouse may incur debt which you may be responsible for. If you have trouble canceling such accounts, you can report the card as lost or stolen and attempt to reopen the account in your own name.
If you leave with your children, you should know that generally the other parent is entitled to reasonable visitation and contact with the children. If you do not have a temporary custody or protective order, the other parent will have equal custodial rights until a court determines otherwise.
Leaving your family home is a serious decision with significant consequences. It is important to obtain professional legal advice, preferably before and certainly after you leave.
Facts About Divorce
A divorce is a legal proceeding that formally ends a marriage. A filing fee is required and at least one party must be an Oregon resident for at least six months. After filing, a petition must be served on the other spouse, who must file a response within 30 days of service. The divorce will be granted if irreconcilable differences between the spouses have caused a permanent breakdown of the marriage. It is not necessary for either spouse to show fault in the breakdown of the marriage and, generally, evidence of specific acts of misconduct are not considered by the court unless they are relevant to custody or visitation issues. Depending on the issues involved and the extent of disagreement, the process can be as short as 90 days or could require one year or longer.
People going through divorce may be faced with a number of major issues, including the division of property and debt, retirement assets, alimony, child custody and visitation, child support, and attorney's fees. The court may address these issues both during the pendency of the divorce, so the parties have temporary ground rules to follow, and as terms of the final judgment. Alimony, or spousal support, may be awarded to either spouse on a temporary or permanent basis, and may be awarded in a lump sum or by scheduled payments. Alimony is considered taxable income to the recipient and is deductible by the paying party.
Issues in a divorce can be complex and may require the services of not only an attorney, but also experts in other areas, including evaluation of assets, taxation, and child custody.
The spouses may agree on the terms of the divorce or separation, and if they cannot, the court will determine these issues at trial. People who disagree on issues in their divorce may use a mediator to help reach agreement on some or all issues. Mediation is often mandatory for custody and visitation issues. Whether the issues are mediated or litigated, it is always a good idea to obtain professional legal advice.
Like a divorce, a legal separation will decide custody, support, and visitation issues, and divide property and debts. Unlike a divorce, the parties remain formally married. This means that during a legal separation, you cannot remarry, and you are considered married for inheritance, tax, and other purposes. However, separated spouses may file taxes separately and specifically change their inheritance and estate plans.
You may be interested in a separation for religious reasons, or when their appears to be a possibility of a future reconciliation. A separation may be temporary, or for an unlimited period. In either situation, a separation may be dismissed if you reconcile with your spouse, or modified to become a divorce.
To obtain a separation, it is not necessary for either party to show fault in the marriage relationship and, generally, evidence of specific acts of misconduct are not considered by the court unless they are relevant to custody or visitation issues.
Like a divorce, separation issues can be complex and may require the services of not only an attorney, but also experts in other areas, including evaluation of assets, taxation, and child custody. A legal separation results in significant and often permanent changes in your life. For that reason, it is important to obtain professional legal advice before proceeding.
AnnulmentsAnnulments are rare and in most cases people file for divorce or legal separation. Believing the marriage to be a mistake is not grounds for annulment.
An annulment may be granted in a few specific situations. First, when either party to a marriage was incapable of consenting to the marriage because they were under age or lacked the capacity to understand a marriage contract. Second, when the consent of either party was obtained by force or fraud. Third, an annulment will also be granted when it is determined that a party was already married at the time of the marriage, or when the parties are first cousins or nearer kin to each other.
Once an annulment is granted, the marriage ceases to exist. An annulment may void the marriage from the beginning or from the time of the annulment decree.
Dividing Marital Property
As a general rule, all property of both or either of the parties is divided in a divorce or separation in an equitable manner that is just and proper. Property acquired during the marriage is considered marital property, which the law presumes resulted from the equal contributions of both parties. The contributions of one spouse may be in the form of homemaking, contribution to the career or education of the other spouse, or other intangible or indirect contributions. Property acquired before marriage, by inheritance and during separation may also be subject to division by the court. The ultimate division of property need not be equal. Important factors include the contributions of the parties, the duration of the marriage, the financial condition of the parties, and the age, health, and earning capacity of each of the parties.
Dividing a marital home is frequently an issue. A court may award the property to one spouse subject to a money judgment in favor of the other spouse, or may order the property sold and proceeds divided or used to pay marital debts.
Property issues can be complex and may require the services of not only an attorney but also experts in one or more areas, including the valuation of assets, such as real or personal property, pensions or other retirement assets, business interests, and tax ramifications of the property division.
A professional mediator can help parties reach a fair settlement while reducing legal costs, but professional legal advice for each party is a good idea before submitting any final order to the court. Before any final settlement can be reached, there must be full disclosure of all the parties' assets, income and debts, whether acquired before or during the marriage. Unlike custody, visitation and support matters, property divisions, once ordered, are not modifiable.
If you have questions about these issues or about your particular situation, contact a family law attorney.
Dividing Marital Debts
As a general rule, all debts of both or either of the parties are divided in a divorce or separation in an equitable manner that is just and proper. Debts incurred during the marriage are considered "marital debts." Debts include credit cards, liabilities to third parties for loans, the purchase of real or personal property, living expenses, taxes, and the like. A court order in a divorce or separation that establishes the responsibility of one party to pay a joint debt does not relieve the other party from responsibility for payment. If the responsible party does not pay the obligation, the creditor may attempt to collect the debt from the other party. Sometimes a party who has been ordered to pay a debt may attempt to discharge this obligation in bankruptcy.
An attorney can help in protecting a spouse against the unfair discharge or nonpayment of debts to be paid by the other spouse. For example, it may help to secure a debt with real property or with alimony.
Generally, each party is responsible for their own debts incurred during a separation, except for debts incurred for the support and education of the parties' minor children. However, extreme care should be exercised during a separation period to avoid situations where a creditor may try to hold one party liable for the other's separation debts.
Problems in divorce surrounding responsibility for payment of debts are complicated. If you have questions about this issues or about your particular situation, contact a family law attorney.
Dividing Retirement Benefits
As a general rule, all pension and retirement benefits and investments earned or accrued during a marriage are considered marital property and must be divided in an equitable manner. Generally, such benefits earned or accrued during the marriage will be shared equally. Because dividing a retirement plan is complicated, a court usually prefers to award one spouse the full retirement assent and the other spouse equivalent non-retirement assets if this can be done in a way that results in a fair or equal balance. When appropriate, a court will divide a retirement plan but, in most cases, the spouse awarded such benefits will not be eligible to receive them until the other spouse is formally eligible. This is usually a retirement age set by the plan. Other accounts such as IRAs may be divided by the court and distributed immediately. In many cases, early distribution penalties are waived. However, a party receiving a retirement benefit will be subject to tax on any money received.
Valuing a retirement asset can be a complicated process and often an actuary must be hired. It is important to not simply rely on the account value or balance in deciding the value of a retirement benefit.
A divorce or separation judgment is not enough to divide a retirement asset. If a retirement benefit is divided, a formal document called a Qualified Domestic Relations Order is often required. This can be done by an experienced attorney or competent financial advisor. Unless and until the retirement plan administrator accepts a formal order, the benefit cannot be divided.
Retirement benefits are often earned before and during a marriage. In such cases, it may be necessary to determine a spouse's share of the benefit in proportion to the benefit accrued during the marriage. Determining a proper distribution in such circumstances may require the use of an attorney or actuary.
Valuing retirement benefits and distributing them fairly is an important matter. You should obtain professional legal advice to determine your rights.
Divorce and Bankruptcy
One or both parties in a divorce may file a petition for bankruptcy, either during the divorce or after it. Although the issues are interrelated, a divorce or separation is filed in a state circuit court and a bankruptcy is filed in a federal district court. While still married, you can file for bankruptcy individually or jointly, even if a divorce is pending, although it may not be wise to file jointly at such a time. After a divorce, you must file individually.
While a divorce or separation judgment may divide debts between parties, the creditors' rights against whichever party owed the debts do not change. Serious problems can arise if the person who the divorce judgment says must pay a debt does not do so. This is especially true of the nonpaying ex-spouse files a bankruptcy case, because that bankruptcy will usually seriously change the debt distribution, notwithstanding the divorce judgment. Sometimes a debt assumed by one spouse is discharged in a bankruptcy, leaving the other spouse fully liable. Furthermore, an obligation in a divorce judgment by one spouse to pay money to the other can, in many cases, be written off through bankruptcy if the obligation was not for child or spousal support. In all these cases, it is usually difficult, if not impossible, to change the divorce judgment to seek relief. Therefore, if you are given notice of a bankruptcy, or believe there is a likelihood that one will be filed later, you should obtain professional legal advice from an experienced bankruptcy or family law attorney. While bankruptcy courts generally favor debtors, the law has been changed recently to give the other spouse some new opportunities.
Good financial planning by experienced attorneys during divorce or separation can often avoid a bankruptcy or lessen its harmful effects.
As part of a divorce, a court is authorized to change your name to the name the you held before the marriage. The court must grant the name change request and the other spouse cannot object.
Generally, the request for name change is made in the petition for divorce, but the request can be withdrawn or modified until judgment is granted. After a divorce judgment is granted, in most cases, name changes are handled by other regular court procedures.
Most Oregon courts have self-help packets to help you with name changes outside a divorce. If you have questions, you should obtain professional legal advice.
Mediation of Family Law Disputes
Mediation is a private, confidential, low-cost or no-cost process to resolve family law disputes. In most Oregon counties, mediation is both mandatory and free. Where mediation is mandatory but physical abuse has occurred, mediation can be waived. By law, all statements made in mediation are confidential and may not be used for or against either party in legal proceedings.
Mediation can result in an agreement on some or all family law disputes, either on a temporary or final basis. When you reach an agreement in mediation, the mediator will often draft a document for both parties to sign. An attorney for one of the parties will then draft the agreement in the form of a court order.
In most cases, mediation is only between the mediator and the parties in the dispute. In some cases, if all agree, attorneys may participate in mediation.
Mediation can be an excellent and low-cost way to achieve agreement in divorce or separation issues. However, to make mediation effective and successful, it is helpful to consult with an attorney during the process. An attorney can help you gather information prepare for mediation sessions. In almost all cases, you should review your proposed agreement with an attorney before signing it. An attorney can review the agreement to make sure that it is fair and meets the requirements of state law.
Once both parties sign a mediated agreement, it will usually be approved by a court, even if you have second thoughts after signing it. Therefore, consulting an attorney is important before you finalize a mediated agreement.
Arbitration is a formal but alternative dispute resolution process. Certain family law disputes require mandatory arbitration. Arbitration is required if there are no minor children of the marriage and neither party requests spousal support.
When arbitration is required, the arbitrator is chosen from a list supplied to the parties by the court. Each court has a list of eligible arbitrators, generally experienced attorneys with expertise in family law disputes. Each court has its own procedure to determine how the arbitrator is chosen from the list of nominees.
Once an arbitrator is chosen, a hearing is set generally within seven weeks. An arbitrator will hear and consider evidence about a divorce or separation just like a court would. However, the rules of evidence are more relaxed in an arbitration. Generally, sworn written statements and documents listing assets and debts can be considered by an arbitrator.
An attorney may represent you in an arbitration and, in almost all disputes, it is important that you at least consult an attorney early in the process.
Once an arbitrator makes a decision and files it with the court, it is considered final unless you or the other party appeal the decision within 20 days of filing. If appealed, the entire matter will be heard by a court judge, without any consideration of the evidence or the arbitrator's decision. However, if the appealing party does not improve their position before the judge, they may be liable for some or all of the attorney fees and costs incurred by the other party.
Although arbitration is a less formal process, it still can result in a final determination of your rights. For that reason, you should consult a family law attorney.
In determining the amount of alimony, the Oregon court considers the duration of the marriage, the recipient's education, current skills and previous employment experience, the financial needs and resources available for each party, the tax consequences of paying or receiving alimony, and the financial responsibility for children. The court may consider other factors deemed relevant to make a ruling on support that it considers just and equitable.
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