I am providing you below with answers to frequently asked questions about dissolution of marriage cases. I hope this provides you with assistance during your Oregon divorce.
What is a dissolution of marriage? A dissolution of marriage, commonly referred to as a “divorce,” is the legal act of terminating a marriage when, in the opinion of the judge, differences between the parties have caused the incurable and permanent breakdown of the marriage. There is an assumption that prior to moving forward with a dissolution of marriage, you and your spouse have been unable to resolve the differences between you, and that the divorce procedure, which is often lengthy and always traumatic for both spouses, is your final option.
What is meant by the term “no fault”? Oregon is a “no fault” jurisdiction. “No fault” dissolution means that the only grounds required for a divorce is your inability to get along with your spouse. It also means that the judge generally will no longer permit or require evidence of
specific acts of misconduct or fault in granting a dissolution of marriage, except where child custody is an issue.
What are the Oregon residence requirements? Except for rare circumstances, at least one party must be a resident of this state for six months prior to the time a petition for dissolution of marriage is filed.
What court procedures are involved? A dissolution of marriage proceeding is always heard by a judge, without a jury. As your attorney, I will prepare you for any hearing by explaining your role and court procedures. Temporary orders may be issued concerning restraint, custody, support, visitation of children and costs prior to the final hearing on your dissolution. A custody decision may be made prior to a decision on any other issue.
What starts a dissolution of marriage? A summons and petition for dissolution are the initial pleadings filed to commence a dissolution of marriage proceeding. The Petition recites certain facts about your marriage, and usually requests that the Court make a fair ORDER regarding child custody and support, alimony, visitation and the division of your real and personal property.
What costs are involved? The initial court costs are approximately $405.00. This does NOT include any of your attorney’s fees. If your case should go to trial, there are additional court costs and on occasion expert witness costs. Attorney time is billed on an hourly basis.
Does it matter who files for divorce first? This depends entirely on individual circumstances. YOUR SPOUSE CANNOT STOP YOU from filing, but if both of you later agree that you do not wish a divorce, your case can be stopped immediately. Your divorce is a “contested” one unless you and your spouse both agree on ALL issues to be determined between you (i.e., custody, support, visitation, alimony, property division, payment of debts and court costs).
When will my case go to court? A dissolution of marriage case normally will not go to court until 90 days have passed after service of the summons and petition. There are exceptions. However, if any matters are contested, the waiting period may be substantially longer. This period can be used by the parties to reconcile, if desired. A trial date is normally assigned to a case once a Response to the Petition for Dissolution is filed with the court.
Who will get custody of the children? In a dissolution of marriage proceeding the main concern of the judge is the welfare of the children. The property rights and the welfare of the adults involved are usually secondary. Oregon law provides that no preference be given to the mother regarding custody. However, the courts often tend to ignore this provision of the law. The following factors, among others, influence the judge’s decision on custody: (a) ages and sexes of the children; (b) compatibility with each parent; (c) ability of each parent to take care of the children; (d) personal characteristics of each parent and his or her past and present personal conduct. In most counties, if the parties to a dissolution proceeding cannot agree concerning custody and/or visitation, mandatory mediation must take place. “Mediation” is a meeting of sorts between both parties and an objective third party who is employed by the county. If, after mediation, the parties still cannot agree, a custody and/or visitation study is normally conducted by the county. Such a study can also be obtained from an independent psychologist or psychiatrist, but the cost is approximately $2,500.00. This amount can vary. In Oregon, it is NOT PERMITTED for the court to award joint custody. The only way that joint custody will be approved by the court is if BOTH parties agree.
Who will be required to support the children? Both parents have a legal duty to support and maintain their children. The judge may require one or both parents to contribute to support of the children depending upon the needs of the children and the parents’ ability to pay. In Oregon there are child support guidelines in which child support is determined generally based upon the gross monthly incomes of both parents. Child care expenses and the cost of medical insurance for the children are taken into account in the child support equation.
Will either party be required to pay alimony (spousal support)? A party may be entitled to receive support from his or her spouse if their income and earning capacity are much less than the spouse’s. The court considers the following factors, among others, to determine whether support of a party to a dissolution is appropriate: (a) the duration (length) of the marriage; (b) ages of the parties; (c) their health and physical conditions; (d) their work experience and earning capacities; (e) their financial conditions, resources and property rights. There is no “magic formula” in determining spousal support; rather, fairness and equality of financial conditions between husband and wife are considered. An award of spousal support is not automatic.
What about division of property? In determining division of property, the judge will consider the following factors, among others: (a) the length of the marriage; (b) amount of property brought into the marriage by each party; (c) the amount of property available for division; (d) the financial needs, prospects, ages and health of both parties and their children; (e) education, work experience and income of the parties. Typically, property acquired during the marriage will be split equally between the parties. It would be extremely helpful for you to provide us with a list of property and assets, including retirement plans, bank accounts, IRA’s, insurance policies and business interests, as well as values and supporting documentation for each asset.
Mediation. As stated above under custody, the circuit court in your county may provide mandatory mediation for child custody and visitation disputes. Property division and support issues may also be mediated, but only with the written approval of the parties or their attorneys. All mediation proceedings are private and confidential. A mediated agreement can be incorporated into a property settlement agreement and/or stipulated judgment and decree of dissolution of marriage.
Can a spouse have a former name restored? Upon request, a petition to restore a former name may be made, and the judge may grant the change.
What is a property settlement agreement? A property settlement agreement is a written contract between the parties listing and dividing the marital property and financial obligations. It may also be used in settling custody, child support and alimony in accordance with the free wishes of the parties. It is now common for the parties’ to memorialize their settlement by way of a stipulated judgment and decree of dissolution of marriage and often times a property settlement agreement is no longer utilized.
What is a judgment and decree of dissolution? A judgment and decree of dissolution restores the parties to the status of unmarried persons, and becomes final upon signature by a judge. “Stipulated” simply means the parties are agreeing to all terms of settlement.
Who should draft the court papers and advise me of my rights, duties and expectations? The legal problems and consequences involved with dissolving a marital relationship require professional judgment that should come from an attorney.
What are the court costs? The filing fee for a dissolution proceeding is approximately $405.00. The fee to respond to a dissolution summons and petition is approximately $266.00. Service fees are approximately $50.00.
What is separation? A separation, either temporary or for an unlimited time, may be decreed when differences between the parties have caused a breakdown of the marriage.
Is reconciliation an option? An effective reconciliation is often a better solution than dissolution.
What can I do for temporary relief and protection? You may request various forms of “pendente lite” (temporary) orders prior to a final judgment and decree of dissolution being entered. These include restraining orders to prevent the sale, transfer or encumbering of the parties’ assets, orders relating to custody and visitation, support orders to provide for child or spousal support pending final disposition of the case, payment of debts and/or attorney fees, and for temporary use and possession of certain family assets (i.e., family home) to name a few. There is also a Family Abuse Restraining Order that may be obtained if certain abuse has occurred. These must be dealt with at an early stage of the case so if you believe these problems apply you should discuss them with me right away. Your spouse may also request similarrestraining orders against you. This does not appear to be an issue in your case.
Who can my attorney represent? I can only represent you and it is neither ethical nor practical for me to represent both you and your spouse.