Subject Index
Responsive Pleadings and Default
Assistance for Low-Income Families
Information
on
Oregon Divorce
and
Family Law
Grounds for Divorce
In 1971, Oregon enacted legislation providing that the court may grant a judgment of dissolution of marriage, or an unlimited or permanent separation, “when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.” No other grounds are required. This approach is commonly known as “no-fault divorce.”
In practical terms, “irreconcilable differences” may be nothing more than a simple decision by one party that she or he no longer wants to be married. It is not necessary to prove that there has been adultery, cruelty, abandonment or any other misconduct. Generally, unless a case presents issues affecting the parties’ children, evidence of a party’s conduct or character is irrelevant. If child custody is in dispute, the court may consider a parent’s conduct, marital status, income, social environment or life style, but only if first it is proven that one or more of these factors is causing or may cause emotional or physical damage to the child.
Unmarried Couples
Oregon law provides for situations in which the parents of a child are unmarried. If paternity has been established, the court will apply the same standards that are used in cases involving married parents in making decisions on custody, parenting time and child support.
If paternity has not been established, either party may file a filiation petition to initiate proceedings. A filiation judgment will establish paternity and will generally provide for custody, parenting time, child support and various other rights and responsibilities.
In cases where unmarried couples have property or debts that are in dispute, the court may have no jurisdiction, or only limited authority, to make awards. It is highly unlikely that an Oregon court would order support (other than child support) for a former domestic partner unless the parties entered into a contract specifically providing for support.
Legal Separation
Occasionally, a spouse will ask the court to grant a “legal separation” rather than a divorce. In a separation, the parties live essentially as single persons for as long as the separation remains in effect, but they have the option of reconciling and recovering their legal status as husband and wife. A “limited” separation ends after a certain period of time, while an “unlimited separation” continues indefinitely. Either type of separation may be converted into a divorce.
Legal separations are uncommon. They are generally requested for strictly financial reasons. For example, a separation may be appropriate in a case where a husband and wife no longer want to live together, but still want to continue health insurance benefits for one spouse.
In other cases, a husband and wife may ask for a separation for purely emotional reasons; they may be unsure about whether they want to end their marriage forever. In these situations, each party may benefit from a consultation with a lawyer, but it might be a good idea to see a family counselor first.
Residence Requirements
Unless the marriage took place in Oregon, at least one spouse must have lived in Oregon for six months before a petition may be filed with the court. At least one party must live in the county in which the case is filed.
Starting the Proceedings
Your attorney will need certain information before documents can be drafted and filed with the court. The party initiating the action then files a petition, which is a statement of the basic facts of the case, followed by a request to the court to enter a judgment and, usually, a money judgment.
A petition must provide information indicating that the court has jurisdiction to decide the issues. For example, the petition must confirm that at least one party is an Oregon resident and that there are no other domestic relations pending between the parties in any other court.
A petition would also ask the court to grant certain relief or to make particular awards when the marriage is dissolved. Typically, the court will be asked to enter provisions regarding child custody, parenting time, child support, division of assets and property, the apportionment of marital debts, spousal support, attorney fees and court costs.
Depending on the circumstances, various other papers would be filed with the petition, such as motions for temporary orders, affidavits, certificates and state forms. After the case is filed, true copies of all of these papers must be served on the other party.
Who Should File First?
There is no particular legal significance who files the petition, but sometimes there are certain tactical advantages to filing first, especially if children are involved. If a dispute over child custody is likely, it often is better to be the first to file.
Service
After the petition is filed, the responding party must receive proper notification. Generally, a deputy sheriff or private process server will personally deliver a true copy of the petition and a summons, together with copies of all other papers that have been filed.
In the alternative, the respondent may be willing to simply acknowledge receipt of the court papers and to sign a document called an “acceptance of service.” If it is possible for the parties to communicate with one another and to agree that the respondent will accept service, the respondent can avoid the embarrassment that people normally experience when they are served in public with court papers.
Responsive Pleadings and Default
The respondent will have 30 days from the date service is made to file a responsive pleading. This may be a “response,” with or without counterclaims, or a “motion.” If the respondent fails to file a responsive pleading within the time allowed, the petitioner may then apply to the court for an order of default. If a default order is entered, the petitioner can then ask for a default judgment that will generally grant the petitioner everything requested in the petition.
Waiting Periods
Changes in the law that became effective in 1999 did away with waiting periods. In the past, except in unusual cases, no divorce would be granted until at least 90 days after the date responding party was served. Now, if both parties agree to a settlement and are willing to sign a stipulated judgment, the 90-day waiting period may be waived. Likewise, it used to take another 30 days after the judge signed a judgment of dissolution before the marriage was legally dissolved. Now, the divorce is final at the moment the judge signs the judgment.
Child Custody
Oregon law directs the court to consider the following factors (among others) when deciding which parent should be given custody of children:
(a) the emotional ties between the child and other family members;
(b) the interest of the parent in the child and the parent’s attitude toward the child;
(c) the desirability of continuing an existing relationship; and
(d) the present custody placement. In practical terms, this means the parent who has accepted the primary responsibility for bringing up the child in the past will probably 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.
The court will also tend to give preference to the parent who has shown a willingness and ability to encourage a close and continuing relationship between the other parent and the child.
The court must consider incidents of sexual assault or patterns of domestic abuse in making determinations of child custody and parenting time.
The judge is not allowed to award custody to a mother simply because she is the mother, or to a father simply because he is the father.
Joint Custody
In Oregon, the court must award joint custody if both parties request it. Likewise, the court cannot order joint custody if one parent objects to it. A joint custody arrangement cannot work if the parents are unwilling or unable to communicate and cooperate with each other.
There are few legal terms that are as misunderstood as “joint custody.” A joint custody award establishes only the legal relationships of the parents and a child. By definition, “joint custody” means an arrangement by which parents share rights and responsibilities for major decisions concerning their child, including, but not limited to, the child’s residence, education, health care and religious training. An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.
Joint custody does not mean that the child is scheduled to spend equal time with each parent. Although parents may agree to evenly divide their time with a child, shared physical custody is not the automatic result of a joint custody order.
Likewise, the existence of an order of joint custody does not, by itself, determine the responsibility of either parent to pay child support.
A joint custody order can be modified if there is a change of circumstances and a showing that the modification is in the child’s best interests. The inability or unwillingness of one parent to continue to cooperate in a joint custody arrangement constitutes a change of circumstances sufficient to modify a joint custody order.
Parenting Plans
The 1997 legislature, in response to recommendations by the Oregon Family Law Task Force, adopted several laws and policies regarding parenting time. The courts and parents are now required to develop a comprehensive “parenting plan.” This approach was intended to encourage both parents to actively participate in their children’s lives. The courts and parents were supposed to look beyond traditional (and usually more confrontational) expectations regarding “custody” and “visitation.”
Unfortunately, many lawyers (and some judges) who do not specialize in family law continue to analyze cases only in terms of custody and visitation. Many of them have merely retrained themselves to use the term “primary residential parent” in place of “custodial parent,” and to substitute the term “parenting time” for “visitation.” This approach misses the point of the new legislation. The general idea is to try to develop a comprehensive parenting plan, which can be as general or as detailed as circumstances require.
In any situation where lawyers and judges misunderstand or resist this new approach, parents will be likely to assume that the lawyers and the judge expect them to fight. In this environment, parents will be more apt to think of their rights and responsibilities as mere commodities that the court will “award” to one parent or the other. Resolving a family dispute on these terms creates the mistaken impression that a case involving children will be “won” or “lost.” It should be clear that the children will be hurt in any family case that must be resolved in a custody trial.
On the other hand, if both parents can agree to the details, the court will usually approve practically any parenting plan that the parents have worked out. A good parenting plan will encourage the parents and the children to remain flexible in accommodating each other’s schedules. It is the policy of this state to encourage the non-residential parent to be involved in the child’s activities and upbringing and to allow extended and unrestricted access to the child. Of course there are circumstances where a more restrictive approach is appropriate. In most cases, however, if parents can put their differences aside and are willing to be flexible and cooperative, the children are far better off.
Interstate Custody Disputes
It is not unusual when families break up for one parent to move to another state with the children, or to move away and leave the children. Over the past few decades, the courts, state legislatures and commissions have developed uniform state laws that clearly define the procedures that will be followed when family disputes cross state lines. Similarly, certain treaties may apply to disputes that have crossed international borders.
Generally, when parents and children have lived in two states, or in several states and a dispute arises, the courts must first decide which state should assume or exercise jurisdiction. Commonly, judges from the courts of two or more states will schedule a conference call and will discuss the issues presented by a particular situation before making a determination as to the most appropriate forum. Uniform state laws ensure that the judges will apply the same standards in making a decision on which court should hear and decide the case.
Consider this example: Mother and Father are granted a divorce in Vermont. Shortly after the divorce, Mother and the children move to Oregon. Father then moves to New York. Three years later, Father becomes unhappy with the schedule for his summer parenting time and wants to make changes, but Mother disagrees. Father gets angry and returns to Vermont. He files a motion for modification and asks the court to order joint custody. Should the court order Mother to return to Vermont to appear and defend in this case?
There are many variations of this example, but generally speaking, the courts will try to cooperate in applying the uniform laws and will quickly determine which court should hear the new issues the case presents. In the example above, judges from Vermont and Oregon (and possibly New York) would confer and consider evidence and arguments. In this simple example, the judges would probably agree that the case belongs in Oregon, because Vermont is an inconvenient forum, Oregon is now the children’s home state and most of the evidence that would be helpful to a court in making a decision would exist in Oregon.
Most interstate cases are far more complicated. In a situation that involves courts in two or more jurisdictions, it is advisable to consult an attorney who is thoroughly familiar with the Uniform Child Custody Jurisdiction and Enforcement Act.
Child Support
There are support guidelines that the courts follow in determining the amount of child support to be paid. The court must follow these guidelines unless there are exceptional circumstances. Generally, the obligation to contribute to a child’s support will continue until a child reaches the age of 18. Support is extended to age 21 if the child continues to attend school.
For detailed information about child support, you can visit the web site hosted by the Oregon Department of Justice, Division of Child Support.
Property Division
Oregon is not a community property state. In dividing of the marital estate, the court will consider the parties’ debts, as well as their assets. Other factors include the nature and extent of the property, the duration of the marriage and the economic circumstances of each spouse.
If the marital estate includes a business, investment or retirement accounts, or tax-sheltered assets, the parties and their attorneys would probably enlist the aid of a CPA, a financial planner, an appraiser, or perhaps a number of experts. The division of financial assets can become extremely complex and mistakes can be disastrous to either party or to both parties.
In some cases, the court will consider the gross misconduct of one party in dividing the property. In most cases, the parties eventually reach an agreement they can live with. If the court finds that the parties’ settlement is reasonable, the language of the agreement will be incorporated into the final judgment. If the parties cannot reach an agreement on all issues, the case will go to trial and court will divide the parties’ property and debts.
Temporary Relief
The court automatically enters temporary orders to maintain the status quo when a divorce or parental rights case is filed. These orders prohibit either party from selling, hiding, or destroying certain assets while a case is pending.
The court often enters other temporary orders to protect the parties and the children until all issues in the case are resolved. Although there are many difficult and emotionally-charged issues that must be addressed when a couple separates, the court encourages the parties to resolve these issues, either through informal agreements or with the help of a mediator. If these efforts are not successful, the circuit court in Jackson County schedules “show cause” hearings every week where a judge can make rulings that will remain in effect until a case is finally resolved in a settlement or at trial. If the parties have minor children, temporary orders generally designate one party as the primary residential parent. In this event, the court will also develop a schedule that provides for the other parent’s access to the children and will enter orders requiring payment of child support. Although these orders are frequently entered only a few weeks after a case is filed, the court’s findings and decisions at the show cause hearing generally have the effect of establishing rights and responsibilities that will be made permanent when a final judgment is entered months later.
Under certain circumstances, the court may award temporary spousal support, or award to one party the exclusive possession and use of a home, a vehicle, or other marital property until the case is finally decided. Other orders may require one party to disclose information concerning business assets, real or personal property, debts, or any other financial matter. Occasionally, the court will enter an order early in the case that requires one spouse to pay the other’s attorney fees in advance.
The court will restrain a spouse or parent from entering the family home or having any contact with a spouse or the children if there has been an incident of domestic violence or other abuse. A family abuse restraining order can be obtained quickly if abuse is alleged. The order is then filed with the sheriff’s office to guarantee that an arrest will be made if the order is not obeyed. The court will schedule a hearing if there are any objections to the restraining order, or if changes to the order are requested.
The “Uncontested” Divorce
A divorce or family case is uncontested only if both parties agree to everything. If either party raises any issue — regarding custody, parenting time, support, property division, the payment of debts and liabilities, attorney fees, court costs, or any other matter — the case will remain “at issue,” meaning that it is scheduled to go forward to trial. The parties may reach a settlement at any time. Often, the parties settle their case on the morning of their trial.
Spousal Support (Alimony)
Oregon courts can award either temporary or permanent spousal support (alimony). The 1999 legislature made dramatic changes in this area.
There are now three forms of spousal support: “transitional spousal support,” “compensatory spousal support,” and “spousal maintenance.”
The court may modify an award of transitional spousal support or spousal maintenance if there is a change of circumstances.
Court Costs
The court charges a fee when a petition, a response, or a modification motion is filed. In Jackson County, court costs may be waived or deferred for parties with limited income and resources. A form, which is available at the Jackson County Justice Building, can be submitted to request a waiver or deferral.
If papers must be served, a private investigator or deputy sheriff may be employed. The usual fee for service is between $25 and $50, but this fee will quickly increase if the other party cannot be found or if service must be made immediately. Attorneys generally expect their clients to pay these costs in advance.
Attorney Fees and Expenses
The fee for professional services will vary by case. Basic professional services in any family law case generally include an initial conference, the preparation and filing of a petition, response, or other documents to be filed with the court, the gathering of information concerning assets, liabilities, income and expenses, making recommendations concerning property division and support, advising of options for custody and parenting time, preparation or review of an order or judgment and attending to the details remaining after the case is resolved.
Additional fees are generally charged for ongoing conferences, negotiations with the other party or attorney, telephone calls, tax planning and advice (such as spousal support arrangements), preparation or review of property division and support agreements, temporary orders of all kinds and for all court appearances.
If a trial is necessary, the court may order one party to pay some of the opposing party’s attorney fees. The court may occasionally order full payment of the attorney fees an opposing party has incurred. Unless the court orders otherwise, each party is responsible for his or her own legal fees.
Lawyers generally bill for their time in tenths of an hour, or six-minute increments. A lawyer’s hourly rate is not always an accurate measure of the total amount the lawyer will require to complete a case. A specialist who charges a certain hourly rate may have developed a very efficient practice and may be able to complete various tasks in a fraction of the time required by a less experienced lawyer with a lower hourly rate. The point is, both the lawyer and the prospective client should be candid with one another. Expectations and requirements should be clear. There is no point to paying good money to a lawyer the client cannot trust.
Additional costs may be incurred for depositions, witness fees, photocopying, long-distance telephone charges, travel and other expenses. The lawyer and client should have a clear agreement on how these additional expenses will be paid.
A new client will generally be required to sign a fee agreement and to pay a retainer before a lawyer will begin working on a case. Some lawyers will agree to credit terms. Most lawyers are willing to discuss their credit policies during the first consultation.
Assistance for Low-Income Families
Parties who cannot afford to retain an attorney may qualify for professional services offered by the Center for Non-Profit Legal Services, Inc., at 225 West Main Street in Medford. You can contact Legal Services at 779-7291. Many fine lawyers work at Legal Services. Many other Jackson County attorneys accept pro bono work through Legal Services.
The Modest Means Program is sponsored by the Oregon State Bar. Lawyers who are willing to accept cases at a reduced hourly rate participate in this program. You can call the Oregon State Bar at (800) 452-7636 for further information.
Many people, for reasons that may or may not involve money, decide to go to court without attorneys. They appear in propria persona, which means “in proper person,” or pro se, which means “for one’s self.” Occasionally, a litigant who is unrepresented will be referred to as appearing “pro per,” but this usage is incorrect.
Various forms are available at the trial court administrator’s office at the Jackson County Justice Building that can be used by parties who are proceeding pro se, whatever their reasons may be. Forms are also available online at the Family Law Programs and Services pages posted online by the Oregon Judicial Department.
Reconciliation
Any divorce or family law case can easily be dismissed if the parties reconcile. A good family law attorney will encourage a client to try to reduce tensions between the parties and to find fair solutions to common problems. This is especially important in cases where children are involved. A good family lawyer should always encourage efforts toward reconciliation, if this is a reasonable possibility.
Change of Wife’s Name
If requested, a wife’s former name can be restored when the final judgment is signed. It is not necessary to begin separate proceedings for a change of name if it is ordered at the time a divorce becomes final.
The Judgment
A general judgment dissolution of marriage or a general judgment establishing parental rights and responsibilities is viewed as the final, permanent resolution of the issues presented in a case. A judgment becomes effective immediately when a judge signs it. Under certain circumstances, a judgment may be set aside. For example, the Oregon Rules of Civil Procedure allow that a judgment may be set aside after it is entered, if, for example, there has been a fraud on the court, or if new evidence is discovered.
If a case has gone to trial and a party believes that the trial judge made an error in interpreting or applying the law, the case may be appealed. If a party wants to appeal a judgment, a notice of appeal must be filed within 30 days, or the right to an appeal is lost.
Remarriage
A divorcing spouse may remarry as soon as the divorce becomes final.
Grandparents’ Rights
In June 2000, the U.S. Supreme Court announced its decision in a controversial and highly publicized case affecting the rights of parents and grandparents in cases where grandparents ask a court to grant visitation rights over the objection of a parent. See Troxel v. Granville.
In response to the Troxel decision, the 2001 Oregon legislature made dramatic changes to statutes affecting the rights of grandparents requesting custody or visitation. On October 31, 2001, the Oregon Court of Appeals issued an opinion that further delineates the legal standards the courts must apply in determining the outcomes of cases involving grandparents. To review the opinion of the Oregon Court of Appeals, link to Newton v. Thomas. Other opinions relating to the rights of non-parents and grandparents are listed on this site.
Confidentiality
Lawyers are required to observe strict ethical rules. Complaints of ethics violations are investigated in detail by the disciplinary counsel of the Oregon State Bar.
One of a lawyer’s ethical duties is to keep client secrets and confidences. Except in extraordinary circumstances, any secret or confidence a client shares with his or her lawyer is strictly confidential and cannot be disclosed without the client’s permission.
Client Responsibilities
Any lawyer will expect a client to be cooperative and truthful. Many lawyers will simply resign from a case if it is discovered that a client has been deceptive, has failed to respond to letters or telephone calls or has otherwise made it unreasonably difficult to protect the client’s interests. Likewise, any attorney will expect a client to honor all financial commitments, not only to the law office, but also to other parties involved in the case.
A client should always notify his or her attorney immediately of any new fact that could have a bearing on a case.
Friendly Advice
Almost everyone has a friend or relative who is all too willing to offer legal advice. However well-intentioned this person may be, legal advice from a non-lawyer is likely to be inaccurate, incomplete or completely wrong. Such advice is to be followed only at one’s own peril. The facts of each case are unique and the results of most cases are unpredictable under the best circumstances.
This same caution obviously applies to anonymous “friends” in cyberspace. Although this website features a number of hyperlinks, these reliable resources may be only a click or two away from a mother lode of misinformation.
Other Resources
Lawyers are experts in legal matters. A lawyer can be a skilled advocate and fight tirelessly to protect a client’s legal rights, but without further education and experience, even the most compassionate attorney will not be qualified to help a client recover from the physical, emotional and spiritual sickness that usually results from the loss of a spouse or family.
Doctors, family counselors, spiritual and religious advisors and other professionals can be of enormous assistance during these difficult times. Parents should be particularly aware that anything that is said or done during the breakup of the family will almost certainly have an enormous effect on children. Parents should take advantage of any resource that will give them guidance in protecting their children from the terrible emotional effects a divorce or family crisis can cause.
