Oregon divorce law general information from
Robert Larson, Attorney, Eugene, Oregon.
Member Oregon State Bar since 1971.
See an attorney
for specific legal advice about your situation. Feel free to call me at my office at 541 343 3640 or 541 685 9100. If you have been served papers don't delay.
OREGON DIVORCE LAW.
Robert J. Larson
Attorney at Law
399 E. 10th Avenue
Eugene, Oregon 97401-3202
Phone (541) 343 3640
Facsimile (541) 343 4116
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Copyright (C) 1996 through 2006 by Robert J. Larson. All rights reserved.
Last updated January 22, 2008.
The following are the answers to some common
questions regarding divorce (dissolution of marriage),
annulment, alimony or spousal support and child support
law in Oregon. Before you do anything else, ask yourself
if you have given this matter the most serious
consideration. Make sure you are not acting out of sudden
emotion or anger. Ask yourself what the effects will be
on yourself and your children. Also look at the effects
on your financial situation.
If you decide you want to get a divorce, DON'T go
yelling and arguing with your spouse and tell him or her
that you are going to see the attorney
"tomorrow". Chances are your bank account may
be cleaned out by then and the credit cards maxed out to
their full limit.
Try counseling first. Chances
are you don't know everything, just like the author of
this advice.
Having said that, here is some basic information
regarding divorce or as it is now called in Oregon,
dissolution of marriage. Please remember, this
information only applies to Oregon and is of a general
nature.
Every case has its own particular set of
circumstances. Other states have different rules.
The
information contained on this site is not meant to
provide or constitute legal advice for a particular
person. If you need legal advice you should see an
attorney licensed to practice in your jurisdiction for
specific legal advice as to your problem. Every legal
problem is unique and a few facts or different laws of
different states can effect what advice an attorney would
give you. Talk to a licensed attorney for legal advice.
1. What is a dissolution of
marriage?
A dissolution of marriage, formerly 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 irreconcilable and permanent
breakdown of the marriage. In practical terms if one
person says there are irreconcilable differences, a
divorce will be granted.
2. What is meant by the term
"no fault"?
"No fault" dissolution 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, and then the misconduct must relate to the care
and custody of the child.
3. What are the Oregon
residence requirements?
Except for rare circumstances, at least one party
must be a legal resident of this state for six months
prior to the time a petition for dissolution of marriage
is filed. Members of the armed forces who maintain their
legal residence in Oregon may file here despite being
temporarily stationed elsewhere.
4. When will my case go to
court?
A dissolution of marriage case may not go to court
normally until ninety days have passed after service of
the summons and petition. However, if any matters are
contested, the waiting period may be substantially
longer. In some cases it is possible to get the Court to
waive the 90 day waiting period. In many cases the
parties agree as to what the divorce decree should say
and never actually appear in court. If one party fails to
respond to the initial petition and summons the other
party may obtain a default decree and final judgment that
is binding on the other party.
5. What should I do if I am
served with a summons and petition?
(a) You should see an attorney immediately and review
all of your options with her or him. A divorce
substantially affects your property and personal rights.
If you fail to respond to the petition you may suffer
substantial loses of money, child custody, property, etc.
After reviewing the matter with competent counsel you may
decide to contest the matter, allow the other party to
have the divorce without any contest or you may attempt
to negotiate a settlement. In most cases, settlements are
negotiated on such issues as child custody, support,
spousal support, distribution of property and sharing of
pension plans.
(b) You may contest custody, child support, alimony
and property division by appearing in court and filing
appropriate legal papers. You
should see an attorney for help with this procedure.
6. What court procedures are
involved?
(a) A dissolution of marriage proceeding is always
heard by a judge, without a jury. Your attorney will
prepare you for the hearing by explaining your role and
court procedures. In many cases an appearance may not be
required if the parties negotiate a settlement or one of
the parties fails to respond to the petition for
dissolution.
(b) Temporary orders may be issued concerning
restrain, custody, support, visitation of children and
costs prior to the final hearing on your dissolution. In
the case of abuse it is possible to go to court
immediately without an attorney and without paying fees
to get immediate help in the form of a restraining order.
The other party will have an opportunity to request a
hearing on the restraining order.
7. Who will get custody of the
children?
In a dissolution of marriage proceeding the main
concern of the judge is the best interest of the children
if there is a dispute over custody, support or
visitation. The property rights and the welfare of the
adults involved are secondary to that end. Oregon law
provides that no preference be given to the mother or
father regarding custody. The following factors, among
others, influence the judge's decision on custody.
Ages and sexes of the children;
Compatibility with each parent;
Ability of each parent to take care
of the children;
Personal characteristics of each
parent and their past and present
personal conduct.
Depending on the age of the child,
the child's preference.
7A Who will support the
child(ren)?
In most cases the Court will require the
non-custodial parent to pay reasonable child support
until the child reaches the age of 18 or 21 if regularly
attending school or unless emancipated. The amount per
child varies with the circumstances of each case.
The actual amount of child support may differ
depending on the desire of the parties, their income, the
attitude of the judge, and the skill of the attorneys
involved. It is not unusual for an order to provide that
child support in the sum of at least $150 to $250 per
child per month be paid or more depending on the parties income. Support is initially determined
in Oregon by the use of guidelines prepared by the
Support Enforcement Division of the State Department of
Justice. These guidelines establish a presumptive amount
of support. The presumptive amount may be rebuted, either upwardly or downwardly, depending on
individual circumstances.
Support orders are periodically
reviewed by the Support Enforcement Division of the State
of Oregon. You can also seek review of such orders by
hiring an attorney to help you.
Under Oregon law child support is set by using the
Support Guidelines that are put out by the Department of
Justice. There are exceptions to these guidelines. Such
support orders also require that medical insurance be
purchased or obtained if available and other medical
bills be paid or shared by the non-custodial party.
Adjustments are allowed for the parent paying for health
insurance. The support calculations will also allow for
part of the cost of child care of the custodial party.
8. Will either party be
required to pay spousal support?
1. The judge will consider the following factors,
among others, to determine whether support of a party to
a dissolution is appropriate:
The duration of the marriage;
Ages of the parties;
Their health and physical conditions;
Their work experience and earning
capacities;
Their financial conditions, resources
and property rights.
The Court will also consider whether spousal support
should be ordered on a temporary or permanent basis The
law regarding spousal support was changed by the 1999
Legislature and the changes are contained in ORS Chapter 107 (1999).
9. What about division of
property?
1. In determining division of property, the judge
will consider the following factors, among others:
The length of the marriage;
Amount of property brought into the
marriage by each party;
The amount of property available for
division;
The financial needs, prospects, ages
and health of both parties and their
children;
Education, work experience and income
of the parties.
Amount of retirement pension that has
been earned during the marriage.
This is an area of the law which is constantly
changing and the help of a skilled attorney is highly
recommended.
Return to Main Page.
10. What is a property
settlement agreement?
A property settlement agreement is a written contract
between the parties listing and dividing the martial
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. Although
a property settlement agreement is encouraged, it will be
subject to the judge's approval. Also a recent Oregon Supreme Court case
has cast doubt as to whether all provisions of a Marital Agreement are enforceable so
make sure you review this with your attorney and don't do it yourself.
11. Can the wife have a former
name restored?
Upon request, your attorney in the dissolution
proceeding may petition to restore a former name and the
judge may grant the change.
12. What is a decree of
dissolution?
A decree of dissolution restores the parties to the
status of unmarried persons,and may become effective immediately unless
specifically stated otherwise in the decree.
This is a change from the old law. Make sure you read your decree
to be sure of the effective date.
The decree of dissolution also sets forth the
amount of child support that needs to be paid, the
property division, who gets custody and other important
decisions relating to the termination of the marriage.
13. Who should draft the court
papers and advise me of my rights, duties and
expectations?
The legal problems and consequences involved with
dissolving a martial relationship require professional
judgment which should come from an attorney. Beware of
the so-called "do it yourself divorce" and
other nonprofessional advice. You may have to live with a
bad decision for a substantial period of your life if you
don't get good advise. For instance, property decisions
are not modifiable under most circumstances and child
support decrees, although modifiable, are not generally
favored by the court unless you can show a material
change in circumstances.
14. What are the court costs?
Have your attorney advise you of the court costs in
your county. As of this writing (November 2003) the
filing fee for a divorce in Lane County, Oregon is $330, The court filing fee for filing a
response is $203. The filing fee for a Motion to Modify Custody or Support is $95 and the fee for a response to the same is also $95.
In addition, there are costs
for serving papers, and trial fees. Also if you take
depositions, the sworn and reported statements, of a
party, that will increase your costs substantially.
Paying from $250 to $1,500 for transcribed depositions is
not uncommon, depending on the length and type of deposition ordered.. See if the other party will agree to tape
recorded depositions or split the costs.
Some costs may be deferred or the other party may be
required to pay the costs. In other counties in Oregon,
additional fees may be charged for mandatory mediation
services, etc. If child custody is an issue, mediation is
required in Lane County but there is no additional charge
for those services.
15. What will an attorney
charge?
The fee will depend upon the time spent and the
circumstances of each case. Ask your attorney to explain
fee and billing procedures to you at your first
conference. You will be solely responsible for your
attorney's fee regardless of the outcome of the
dissolution and regardless of an award of attorney's fees
in your favor. Some attorneys will charge a set fee and
others will charge an hourly rate. Don't hesitate to ask
for a written fee agreement or explanation. Remember not
to mix up attorney fees with costs, they are not the same
thing and costs are not included in the fee. If the
attorney charges a retainer fee, make sure you understand
whether or not it is non refundable or refundable and under what
circumstances.
16. What is an annulment?
Under certain circumstances, your marriage can be
declared legally void from the beginning. This is called
an annulment.
17. What is a 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.
18. Should we reconcile?
An effective reconciliation may be a better solution
than dissolution. You may wish to consult a marriage
counselor or other professional. Review all your options
and don't act out of anger.
19. What if I don't have money
to hire an attorney, can I still get divorced?
Yes, you can. Legal Aid offices handle many divorce
cases but due to funding problems they may not be able to
handle all such cases. Call and ask the office in your
area. If you are a student at college, your college may
have a legal assistance office. Also, you can do your own
divorce and if there are no property or custody issues
you may be able to pick up the forms at your court house
but remember the Clerks are prohibited by law to give you
any legal advise, as they are not attorneys. As noted
above, you should be represented by an attorney to
minimize the possibility of problems.
Also, some attorneys will handle your case without
charging you in advance and will attempt to get the Court
to require the other party to pay the fee. If you make
such an arrangement make sure you understand what the fee
agreement is and whether or not the attorney expects you
to ultimately pay if your spouse does not pay.
Conclusion
If you need a lawyer and do not know one, call me
about my representing you at (541) 343 3640 or reach me
by E-Mail at bobl@efn.org. Please remember that E-Mail is
not secure and can be read by a good hacker so you should
use it only for non confidential contact with me. You can
also contact the Oregon State Bar Lawyer Referral
Service in Portland.
Robert J. Larson
Attorney at Law
399 E. 10th Avenue
Eugene, OR. 97401-3202
Phone 541 343 3640 or 685 9100.
Facsimile 541 343 4116
bobl@efn.org
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for services by Robert J. Larson, Attorney at Law.
Last Revised November 25, 2006.