When a divorce petition is filed, you are asking the court to end the marriage and separate your rights and responsibilities from those of your spouse’s. You may ask the court to resolve one or more of the following additional issues:
- Custody of Children
- Parenting Time with Children
- Child Support
- Spousal Support
- Asset Division
- Debt Division
- Military Parents
- Grandparents’/Third Party Rights
- Custody Modification
- Parenting Time Modification/Enforcement
- Legal Separation
- Document Review/Limited Representation
- Independent Adoptions
- Restraining Orders
- Stalking Orders
- Contempt/Enforcement of Judgment
Custody of Children
Custody is the decision-making authority, and this authority is separate and distinct from parenting time. Parties may agree to share joint custody and continue making decisions together for their child, but the court cannot order joint custody. Joint custody is only appropriate when parents have the ability to communicate and put the children’s interests first, and it is generally not appropriate if there is any significant degree of hostility between the parties which hinders their ability to communicate effectively or cooperate with one another.
Generally, the sole custodial parent will make decisions regarding which school the child will attend, which doctor the child will see and when, whether the child needs counseling, vision, dental or orthodontic care. Some parents additionally prefer to establish which parent will handle haircuts, piercings, and tattoos, or whether both parents will need to agree to any permanent changes to the child’s appearance. Some parents may also include specific provisions regarding religious decisions, which school district the child will go to, advanced notice for events and appointments for the child, etc. Parties may make their parenting agreement as detailed as they would like, and any agreement parties reach with limited exceptions is enforceable.
In determining an award of custody, the court will give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court will consider the following relevant factors, at minimum, generally giving special weight and attention to factors (e) and (f):
(a) The emotional ties between the child and other family members;
(b) The interest of the parties in and attitude toward the child;
(c) The desirability of continuing an existing relationship;
(d) The abuse of one parent by the other (which raises a rebuttable presumption against an award of custody to the abuser);
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.
Regardless of a custody award, under Oregon law each parent must give the other parent advanced written notice of their intent to move 60 miles or more further distant from the other parent, and this requirement is generally incorporated into the judgment. Additionally, absent limited circumstances, each parent will have the continuing right to attend parent/teacher conferences, talk to and meet with teachers, doctors, counselors and anyone who educates or cares for their child, and obtain all paperwork related to their child such as report cards and medical records.
Parenting Time with Children
The court will also give primary consideration to the best interests and welfare of the child in establishing the parenting time schedule, by considering the same factors above and any additional relevant information. Each county has established a local county rule parenting schedule (available on the county circuit court website) which generally divides parenting time between the custodial parent and noncustodial parent so that the custodial parent gets approximately two-thirds of the time and the noncustodial parent gets approximately one-third of parenting time, assuming no long-distance plan is needed. This division is thought to attempt to divide the high quality weekend and free time between the parents, while additionally awarding the custodial parent the portion of each week generally devoted to work, school, homework, doctor appointments and sports.
Each county also requires parents to take a parenting class which then provides parents with access to 8 hours of mediation services at no charge, so that parents may have the assistance of a mediator in an attempt to work out some or all issues related to custody and parenting time. The more parties can resolve by agreement the less the court must unilaterally decide. Parties may reach agreements far more detailed, specific and tailor-made to their situations than a court can order, and some items are enforceable by agreement but cannot likewise be ordered by the court.
Said another way, parties are free to reach any agreements they choose, and by agreement parties can enjoy the greatest flexibility in crafting a unique parenting plan. The same freedom does not exist for a judge issuing a ruling, and there are limits to what a judge may order as part of a parenting plan.
This extra flexibility is usually appreciated in crafting rules about the children being around new partners (when and under what circumstances this may occur), being exposed to or continuing to learn a certain religion, or having access to certain people or substances. Parties may agree to such rules, but a judge cannot order such without clear evidence that such an order is necessary to prevent a risk of harm to the child.
In Oregon a precise mathematical formula has been created to calculate child support. The amount of child support is primarily based on each party’s income, parenting time, and child-related costs such as health insurance and daycare. The calculator is available online at https://justice.oregon.gov/guidelines/ and detailed instructions are provided. Parties may agree to modify the guideline amount by 15% in either direction. A judgment must also address who will provide medical insurance, and whether one or both parents will be required to provide life insurance to ensure the child’s financial security in the event of one or both parents’ unexpected death.
In Oregon, three kinds of spousal support may be ordered: maintenance, compensatory and transitional. Each kind of support is meant for a specific situation, but more than one kind of support may be ordered under some circumstances. A description of the factors considered by the court in determining each type of spousal support award can be found in ORS 107.105(1)(d). Unlike child support, a precise formula is not available. Spousal support is awarded based on a comprehensive assessment of each party’s circumstances, and each judge and attorney may feel somewhat differently about what amount is appropriate in a given case. The burden of proof is on the party requesting support to prove the support award is appropriate.
Asset and Division
In Oregon there is a statutory presumption that each party has contributed equally to the acquisition of all assets accumulated during the marriage. This presumption may be rebutted in some circumstances. Assets accumulated before marriage and separately held during the marriage are generally awarded to the party who owned the asset before marriage. However, if an asset was accumulated before marriage but used by both spouses, the asset may be considered “commingled” and its value subject to division. Retirement accounts are generally valued as of marriage and separation, and only the portion accumulated during marriage will be divided through a Qualified Domestic Relations Order (QDRO), resulting in a separate account for each spouse. However, large inheritances or disparate earning capacities, spousal and child support awards, among many other factors can affect asset division. The court divides assets according to what is just and equitable under all the circumstances, and may deviate from the usual rules as necessary to reach a just and equitable result. However, a prenuptial or antenuptial agreement between the parties, if enforceable, will supersede the law which otherwise guides the court’s asset division decisions.
Just as in the case of asset division, debt division decisions made by the court are made with an overarching goal of reaching a just and equitable result under all of the circumstances. Just as in the case of asset division, a prenuptial or antenuptial agreement may override the otherwise applicable law. Generally speaking, however, debt incurred during the marriage for a jointly beneficial purpose is divided equally. Debt tied to an asset awarded to one party or the other will generally be awarded to the party who is awarded the related asset.
Paternity can be established in one of three ways in Oregon.
- By the birth of a child to a married woman.
- By the signing and filing of an acknowledgment of paternity.
- By a administrative order or court judgment.
If paternity is established by the child being born to a married woman, the mother’s husband is legally presumed to be the father of the child. The parties to the marriage may challenge paternity, but no other party may challenge paternity so long as the marriage remains in tact, unless the husband and wife consent to the challenge.
A voluntary acknowledgement may generally be withdrawn for any reason within 60 days after signing, and may be challenged at any time thereafter on the basis of fraud, duress or a material mistake in fact.
An administrative order or court judgment which establishes paternity may be challenged on the basis of mistake, inadvertence, surprise or excusable neglect within one year of entry. An administrative order or court judgment which establishes paternity may be challenged on the basis of fraud, misrepresentation or other misconduct of an adverse party within one year after petitioner discovery the fraud, misrepresentation or other misconduct. See ORS 109.070 and 109.072.
The Servicemembers Civil Relief Act allows service members of the military to postpone, cancel or modify a wide range of civil obligations under certain circumstances, including such things as cell phone contracts, rental or mortgage contracts, credit card debts, and even legal proceedings and trial. The purpose of the act is to relieve members of civil obligations while deployed. As it relates to custody and parenting time proceedings and judgments, the act:
- Stays (pauses) domestic proceedings during periods of deployment,
- Requires members be given adequate time prepare for trial after deployment has ended,
- Allows for entry of temporary orders specifically tailored to accommodate the member’s schedule during deployment and approved leave;
- Allows for reinstatement of prior parenting schedules and judgments once deployment has ended, and
- Helps prevent entry of default judgments in the member’s absence.
While some relief provided by the Act applies regardless of timing or any specific action taken by the service member, the bulk of the Act’s value to members can only be utilized in advance of deployment. Oregon law specifically requires expedited hearings to resolve proceedings in advance of deployment at the member’s request, and authorizes telephonic or alternative testimony by the member when the member cannot personally appear. The goal is to ensure continued contact between a child and deployed parent regardless of deployment, in the best interests of the child. See ORS 107.145 and 107.146.
Grandparents’/Third Party Rights
In some circumstances, third parties including grandparents, step parents, foster parents, and others may have the right to request custody, parenting time or visitation with a child over the objection of the legal parent. Third parties can request varying levels of relief based on the nature of their relationship with the child, but must rebut the statutory presumption that the parent has acted in the child’s best interests, and prove that the requested relief is in the child’s best interest, before relief will be granted. Depending on the nature of the relationship between the third party and child, certain time limitations apply. See ORS 109.119.
Custody may be modified following entry of an initial custody determination only in certain circumstances. Joint custody will be modified on request of either party, and the court will award one party sole custody based on the child’s best interests. Sole custody, however, can only be modified upon a showing that there has been a substantial change of circumstances (affecting the ability or inclination of one or both parents to care for the child in the best possible manner). This is a significant legal hurdle which must be overcome before the court will assess whether a change in custody is in the child’s best interests. A change of sole custody will only occur if both a substantial change of circumstances and best interests showing has been proved by the moving party.
Parenting Time Modification/Enforcement
Parenting time modifications will be ordered based solely on the child’s best interests. No substantial change of circumstances showing is required. Courts are reluctant to act, however, unless action would benefit the child. Especially where emotions are running high, parents often confuse their own best interest with the best interests of the child. Parents should carefully consider why they are proposing formal changes, and seek the opinion of an objective professional before engaging in repetitious litigation to better determine what would be best for the child, the chances of success and possible alternative solutions.
A separation judgment addresses and resolves each and every issue that a divorce judgment addresses and resolves, except does not end the marriage. Legal separation can be useful to resolve uncertainty and to separate finances so that the parties can focus their time and energy on determining whether the marriage can or should be saved. If both parties genuinely wish to consider saving the marriage, a legal separation can be very helpful in amicably resolving financial and other disputes in a reasonable, low stress and cost-effective manner.
However, if only one party truly wants the marriage to continue, and wants the chance to continue the marriage at the cost of agreeing to disproportionally favorable terms to the other party, he or she may find themselves divorced quickly after entry of the separation judgment without ability to renegotiate the unfavorable terms. Parties should seek the advice of an attorney before entering any judgment which may permanently affect their rights, particularly if they cannot separate their desire to continue the marriage from assessing what is or is not a fair and equitable division of assets, debts and/or parenting rights.
Once a separation judgment is entered, and assuming separation of finances and living arrangements in compliance with the separation judgment, the judgement can be readily converted into a divorce judgment upon request by either party within two years. If the parties have not complied with the separation judgment, certain issues may need to be relitigated as a result of accumulation of additional assets or debts, additional children being born, or other changed circumstances.
With agreement between the parties, a separation judgment may be set aside, which then continues the married status of the parties and ends all effect of the separation judgment.
Document Review/Limited Representation
Hiring an attorney and formally litigating family law issues can be expensive and stressful. It may also have a chilling effect on your relationship with your spouse. Especially where children are involved, you may wish to handle your case in a more informal, cooperative way.
O’Neill & Baldwin offers a wide range of limited representation options. We can simply review your documents, letters and settlement proposals for clarity and apparent problems or omissions, or we can guide you through the process of representing yourself. We can assist you in developing a comprehensive case plan and settlement options and let you handle the paperwork and settlement talks on your own.
However, we must clarify what you would like done for you, and what you want to do yourself, at the outset of the representation. Unless the representation is specific and limited, you may pay more attempting to represent yourself because it is generally faster for an attorney to do a specific task than it is for the attorney to teach you how to do it.
In some circumstances, parties are not able to communicate effectively at the end of a relationship. In this situation it may not be possible for you to effectively communicate with your spouse or former partner, and you may instead make settlement more difficult or unlikely in attempting to communicate. Sometimes a willing mutual friend can assist, and sometimes an attorney fully representing you may be the best option despite your desire to be reasonable and cooperative, where one or both parties are not able to conduct settlement negotiations in a polite, business-like manner.
Adoptions accomplished independently of a state or other agency is generally between family members, although there is no requirement that the adoptive parents be related to the child. An adoption may be accomplished by consent of the biological parent or parents any time after birth, or in the event one or both parents have abandoned the child.
Abandonment means no intentional contact for one year prior to filing the adoption petition. Intentional contact does not include such things as paying child support or running into the parent unexpectedly at the grocery store and saying hello, but it does include phone calls, requests to see the child, sending or requesting pictures or updates, or almost any expression of an active interest in seeing the child or building a relationship with the child now or in the future.
As part of the adoption and upon request, a new birth certificate may be ordered and the child’s name may be changed. The biological parent’s child support and all other obligations end upon adoption, and the adoptive parent becomes the legal parent for all purposes.
Restraining orders are issued to victims of abuse within 180 days of abuse by a family or household member. Restraining orders are issued at a hearing where only the party requesting the restraining order against another person is present. Generally, the party to be restrained by the restraining order receives no prior notice of this initial hearing and has no opportunity to attend or present any evidence.
Family or household members includes spouses, former spouses, adults related by blood, marriage or adoption, persons who are cohabiting or who have cohabited with each other, persons who have been involved in a sexually intimate relationship with each other within two years immediately preceding the request for issuance of a restraining order, or unmarried parents of a child. Abuse means attempting to cause or intentionally, knowingly or recklessly causing bodily injury, intentionally, knowingly or recklessly placing another in fear of imminent bodily injury or causing another to engage in involuntary sexual relations by force or threat of force.
The party against whom a restraining order is issued has the right to object and request a hearing on whether the restraining order should continue, but the objection and request for hearing must be filed within 30 days of service of the restraining order.
At the hearing to contest the continuation of the restraining order, the party who requested the restraining order (petitioner) must prove by a preponderance of the evidence (show that it is more likely than not) that (1) respondent (the party to be restrained) abused petitioner, (2) there is an imminent danger of further abuse to petitioner, and (3) respondent presents a credible threat to the physical safety of petitioner. If petitioner fails to prove any of these three facts at the hearing, the restraining order will be dismissed in its entirety.
While a restraining order is in effect, the restrained party may be required in some circumstances to pay monetary assistance to the requesting party, may have only limited or no contact with the requesting party, may be prohibited from returning to his or her home or from retrieving clothing and personal belongings in the home and may be prohibited from possessing firearms.
The existence of a restraining order may negatively impact the restrained party in a concurrent or future custody or parenting time proceeding, and findings of abuse in a restraining order case may be used against the restrained party in a custody or parenting time case. For these reasons, you should consult with an attorney to determine whether to object to the restraining order even if you wish to have no further or limited contact with the person accusing you of abuse. You cannot avoid the consequences of the restraining order once the 30 days to object has passed.
Stalking protective orders may be issued against a person who engages in repeated and unwanted contact with another person or a member of that person’s household thereby alarming or coercing the other person, the alarm or coercion is objectively reasonable and victim is caused reasonable apprehension regarding the safety of the person or a member of the person’s immediate family or household. Contact is defined by statute but given its ordinary meaning.
Special additional facts must be proved where the contact is limited to speech. In the case of speech only contact, the requesting party must additionally prove that the contact was a threat that “instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.”
The party requesting the stalking protective order must prove the required facts by a preponderance of the evidence, and a minimum of two unwanted contacts must have occurred within the two years immediately preceding the requestor’s request for a stalking protective order.
If a temporary stalking protective order is issued, the parties will be required to appear at a hearing to determine if a permanent stalking protective order should be issued. Neither party must object to or request a hearing. Instead, the hearing is automatically scheduled.
Contempt/Enforcement of Judgment
In summary, contempt and enforcement remedies are available where there has been a wilfull and ongoing violation of a court’s order. Willful conduct is done knowingly, and ongoing violation means a pattern of conduct and not an isolated or occasional violation. An attorney familiar with your specific circumstances can determine which remedy is most likely to provide the most benefit.
NOTICE: The above summary is meant for informational purposes and is not intended to be legal advice. It is meant merely as a broad overview of the rules applicable to the majority of cases, and does not diminish the need to consult with a professional regarding your specific circumstances.