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Divorce In Oregon
Oregon does not recognize common law marriage, in general. Common law marriages may be recognized if entered in a state or country that does recognize them, but in most cases you have to actually have been married in order to be divorced.
Many people live together without marriage, of course, and what some people call domestic partnership dissolutions are not uncommon.
If a couple lived together for a time, and acquired assets during that time, and then got married, matters may be somewhat more complicated.
If there was a prenuptial agreement, matters may become more complicated still, as many prenuptial agreements are either poorly written or implemented, or are ignored by the parties after a period of time.
Even without a prenuptial agreement, there can be significant issues surrounding property brought into the marriage by one spouse or the other, or property inherited by one spouse or the other.
Issues relating to children can be even more troubling, and should be handled with care, to try to minimize the harm that can result to children. There are many good resources that address such issues. In addition, in most counties in Oregon, there are mandatory parenting classes which the courts require parents to take if they are going through a divorce. These can be very useful. If there is even one tip which may help alleviate current or future problems or pain for a child, the course will have been well worth the time and money involved.
Most counties in Oregon also require mediation of parenting issues in a divorce, unless the parents have already agreed on all aspects of custody and parenting time (which used to be called visitation). If matters cannot be resolved by mediation, of course, the courts will resolve these issues in a trial or other hearing.
In situations where mediation is inappropriate (as, for example, when one party is in fear and unable to adequately negotiate), mediation of custody and other child related issues may be waived, with the parties proceeding directly to a trial or other hearing if matters cannot be resolved otherwise.
Many counties in Oregon have default parenting (visitation) plans, which are often helpful, and which can serve as the basis for building a specialized plan that the parties can work together to build, which takes their individual family situation into account. In situations where agreement cannot be reached, even with the help of a mediator, a custody evaluation can also be helpful. If no agreement can be reached, of course, the court can resolve these and other differences at a trial.
There are at least two separate concepts which are sometimes referred to by the term “custody” in Oregon. First, there is joint as opposed to sole custody. In most counties, unless both parents agree to joint custody, the court will award sole custody to one parent or the other. Second, there is what may be more properly referred to as the primary parent and the parent with parenting time. Even in a situation where both parents retain joint custody, one parent will be designated the primary residential parent. The primary residential parent will usually make most of the important decisions in a child’s life (sometimes in consultation with the other parent who retains joint custody), and will be the parent with whom the child lives most of the time. The other parent will often have much less control over important decisions, and will have the child only during periods set out in the formal parenting plan (or as agreed between the parties, in some cases).
It is rare for a child to spend an equal amount of time with each parent, even when both parents retain joint custody.
Child support is usually calculated pursuant to very complex guidelines set out in the Oregon Administrative Rules. In appropriate cases, the guideline support amount can be rebutted, where children have special needs, parents have unusual expenses or resources, or there is other good cause.
Child support continues to age 21 for children who are attending school. Between the ages of 18 and 21 children become real parties in interest, who are necessary parties to their parents’ divorce or any modification of support (including suspension of support for those children who are between 18 and 21, but who do not qualify as children attending school).
Spousal support (alimony) can be very complex in Oregon. Factors that are often considered include the age of the parties, any special needs or restrictions on earning ability of a party, education and work experience of the parties, the standard of living enjoyed during marriage, and the like.
There is a presumption in Oregon that all of the property that a couple acquired during a marriage should be divided equitably between the parties. In many cases, an equitable division can mean an equal division. Sometimes, however, this presumption can be rebutted and/or it can be demonstrated that it would not be equitable to divide the property equally.
In addition, of course, there is often a question of exactly how property should be divided, whether the home should be sold, or awarded to one party; which party should get a particular asset; how retirement assets should be handled; or other issues specific to a particular case.
In general, one spouse is entitled to half of any pension or retirement asset that the other spouse acquired during a marriage. How these assets should be valued, what the effect of tax issues are on the value of such an asset, whether there will be a delay in payout of such an asset and what effect this has on the value of such an asset, and the like can be contentious issues.
Debts of the parties can also raise significant issues, with a spouse being liable for some kinds of debts in some kinds of situations, even if he or she has not signed the underlying debt instrument. As an example, health care costs can be treated very differently from debts for the purchase of a new car. It can be important to properly characterize debts, and to properly assign these debts in any divorce. It can also be important to build in safeguards where a joint debt is assigned to one spouse, in case that spouse fails to make these payments, or in case a creditor seeks to collect from the other spouse.
Special circumstances can also arise with regard to assets, particularly where one spouse has a health problem. It can be important to use properly constructed special needs trusts to protect assets of a spouse who may need to apply for government benefits, including Medicaid, or the like. Medicaid can be available to disabled persons who are well under the normal Medicaid age of 65. Without proper structuring of a divorce settlement, assets which could have been protected for this person may be subject to spend down, for example.
Because Oregon is a “no fault” state, there is little that can be done to prevent a divorce from happening if one partner decides that it is over, and that they will sue for divorce. In addition, because Oregon is a “no fault” state, many behaviors that may have led to the divorce will not actually result in a change in the division of property, or even in the awarding of custody of children, although each person’s circumstances are, of course, unique, and such things are very important in certain cases.
Some people wonder whether there is any benefit to winning a race to the courthouse, and being the first to file.
As with most legal questions, this depends on the facts of a particular case, and on the personalities involved.
In many cases, there is little advantage to being the first to file.
In other cases, particularly where there may be child custody issues, and when it is important to either freeze the current situation (children living with a particular parent, in a particular place, other parent not present), or let a new situation develop into the norm, the time of filing can made a great difference.
In addition, it can be very important to file a divorce quickly if it is necessary to freeze assets and real estate. Once a case has been filed, a lis pendens can be filed in property records putting potential buyers on notice that a piece of property is subject to a divorce case, for example. This will have the effect of preventing the other spouse from selling a piece of property that is in his or her name alone, and preserving the total asset picture of both parties, but this cannot be done until an action has been filed in court.
In addition, once a case has been filed in court and documents have been served on the other party, a statutory order of restraint preventing both parties from disposing of assets (except in very limited circumstances) comes into effect. It can be very important to obtain such protections without delay in some cases.
It may also be important to file a case earlier rather than later if one is making a claim for child or spousal support, or if there is a need to request a court for some kind of interim relief.
In sum, divorces in Oregon are no fault divorces - there does not have to be a specific reason for the divorce so long as one person has decided that the relationship is over. Issues that often arise in divorces include issues relating to children, including custody and parenting plans; property issues, including issues relating to property acquired during marriage, property brought into the marriage, future expectations and inheritances, and pension or retirement assets; support issues, including child support and short or long term spousal support (alimony); modifications that may be needed as children age and/or as family situations change; changes to child or spousal support as incomes and needs change; and the like. Each situation is different. In some cases, time can be a significant factor, and in others there may be less advantage to a race to the courthouse. In any case, it may be important to contact a skilled attorney to discuss options that are available, and issues which are unique to each person’s situation.
NOTE: The above is not intended to be legal advice, nor does it reflect the situation in all divorce or family law cases. It is merely a general review of some of the factors that are issues in family law in Oregon. Each individual situation is different, different issues or situations can render the above inappropriate or irrelevant in an individual situation, and different circumstances can bring different factors and legal doctrines into play. Legal doctrines and rules also change from time to time, sometimes unpredictably, as new case law, administrative rules, and statutes come into play. The advice of a skilled family law attorney can be necessary to fully understand an individual situation, to explore the possibilities available, and to work toward the best possible solution in any given situation. The above should not be considered legal advice, nor should it be taken as a statement of the only time that one might benefit from consulting a legal or other professional.
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