Things You Should Consider If You Are
Thinking of Dissolution
1. GROUNDS: Oregon has adopted the concept of “no-fault” divorce. Generally, wrongdoing by you or your spouse/partner will not make any difference to the final result. Neither of you has to prove the other wrong. An allegation that you and your spouse/partner have developed “irreconcilable differences” will suffice. “Irreconcilable differences” is an advanced case of not getting along with each other.
2. LEGAL SEPARATION: Although in some instances a legal separation is possible, it is not generally used. A legal separation is useful if you wish to remain married, but you are concerned with how your spouse is handling your marital assets. If you are not ready for a divorce but want to talk things over with someone, we recommend counseling services and not legal services.
3. RESIDENCE REQUIREMENTS: You must have lived in Oregon for 6 months prior to filing your Petition. The Petition can only be filed in the county in which you reside or where your spouse resides.
4. STARTING THE PROCEEDINGS: The first step is the preparation and filing of a Petition for Dissolution of Marriage or Domestic Partnership. The Petition states basic factual information about you, your spouse, your marriage/partnership, any children; it provides the court with the facts necessary for the court to assume jurisdiction; it tells the court that your legal relationship should be dissolved - in most cases because of “irreconcilable differences;” and it asks the court for orders regarding property division, support, custody of children, parenting time, attorneys fees, and court costs.
5. WHO SHOULD FILE: There is no legal significance who files the Petition, although there may be procedural and tactical advantages for the Petitioner. Pride is another matter. Talk it over with your spouse and avoid a race to the courthouse and further hurt feelings over this small item. However, if child custody is going to be an issue, you may want to file first.
6. WAITING PERIOD: In a majority of circumstances, no divorce can be granted until at least 90 days after the date the Petition is served on your spouse. This is a minimum interval unless waived by the court. We can discuss situations where a waiver may be possible.
7. CUSTODY: Oregon law directs the court to consider various factors when deciding which parent shall be given custody of minor children.
In practical terms, the parent who has accepted the primary responsibility for bringing up the child in the past may be awarded the care and custody of the child in the future. The noncustodial parent will be allowed parenting time based on the child’s needs. Joint custody will only be granted if both parties agree. In general, joint custody will work only if the parents communicate and cooperate with each other. Disagreement over custody and parenting time is guaranteed to put you right in the middle of a contested and expensive divorce.
8. PARENTING TIME: If you and your spouse can agree to details of parenting time, the court will usually approve the plan which you have worked out. Mediation is available as a way to work through parenting time issues.
9. CHILD SUPPORT: There are support guidelines which the courts use to determine the amount of child support. The guidelines are used to set support in your case, unless there are exceptional circumstances present. We will be discussing the guidelines with you as your case proceeds. The court can require support of a child until the age of 18. Support is extended to age 21 if the child is attending school. Please ask for more information on these issues.
10. PROPERTY DIVISION: There is no fixed way to determine how you or the court should divide the property in order to obtain a just and proper result. Some things are clear: Debts, as well as assets, are to be considered; liabilities and assets in either name are available to be divided; and retirement benefits accumulated by either spouse/partner are considered a form of property. Some factors include the nature and extent of the property; the duration of the marriage; and the economic circumstances of each spouse. If you and your spouse/partner can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property.
11. SPOUSAL SUPPORT: Oregon courts can provide for spousal support (also known as alimony) following a divorce. We would be happy to discuss these issues with you in greater detail.
12. TEMPORARY RELIEF: A judge can make various orders directed to you and your spouse/partner, even before your legal relationship is finally dissolved. Either party may ask the court to restrain one or both of you from using marital assets or increasing marital/partnership debt. We can discuss other areas where temporary orders may be needed.
13. UNCONTESTED DIVORCE: Your divorce will be contested unless you and your spouse/domestic partner agree to the divorce and to all aspects of custody, parenting time, support, property division, and the payment of liabilities, attorney’s fees and court costs. If your spouse/partner disputes any of these matters, you have a contested divorce, and a trial may be necessary.
14. REMARRIAGE: You may not marry anyone until after the judge signs the Judgment of Dissolution of Marriage (“Decree”). If you choose to reconcile with your spouse, you must do so prior to the judge signing the final Judgment. After that time, the divorce is final and you would have to remarry your former spouse. In some instances, a pre-nuptial agreement is advisable.