Ending a marriage is a challenging process in many ways. Understanding the Oregon divorce process and your options should make your divorce less complicated and less stressful.
This guide is intended to help anyone who is considering, or already undergoing, divorce in Oregon. The guide includes:
Divorce law is different in every state in the U.S., and court rules also differ among the counties within a state. This Oregon divorce guide can help you to better understand the laws that apply to your divorce in Oregon and some of your legal options, but this guide IS NOT INTENDED AS LEGAL ADVICE. You should only accept legal advice from an attorney licensed in Oregon who understands the circumstances of your divorce case. For the most up-to-date information on divorce law in Oregon and how they apply to your divorce case, you should schedule a consultation with a qualified Oregon family law or divorce attorney.
If you are considering divorce in Oregon in the Portland metro area, an experienced family law attorney at McKinley Irvin Portland can help you no matter how complicated your case may be or how difficult your situation may seem. With over 20 years in family law practice, McKinley Irvin's experienced, compassionate and dedicated Portland divorce lawyers know how to protect your interests and help you through your divorce. We can explain your rights and options within Oregon law so you can make the best choices for you and your family.
Your children, home, other real estate, business interests and remaining assets are all at stake in your divorce in Oregon. Therefore, proceeding without an attorney involves significant risk. The primary reason is that once final court orders are entered in your divorce case in Oregon, those orders are often very difficult -- if not impossible -- to change. These orders can impact your home, your finances, your relationship with your children and other areas of your life for a very long time. Only a competent Oregon family law attorney is qualified to inform you of all your rights, interests, risks and opportunities associated with your divorce case. You aren't required to hire an attorney to get divorced in Oregon, but in almost every case, it is the smartest thing to do.
In a marriage, you have both legal rights and legal obligations to your spouse. The same is true in a divorce. When getting divorced, you have rights that protect your relationship with your children and your access to money and assets. You also have obligations to the health, education and well-being of your children, to the welfare of your spouse, and to your creditors. There are ever-changing laws in Oregon that address each of these rights and obligations, and it is a lawyer's job to understand the current law. Unless you have no assets, no debts and no children, you should obtain the advice of an experienced Oregon divorce attorney to fully understand how to protect your interests now and in the long-term.
As you look for an attorney to represent you in your Oregon divorce case, you should review each attorney's credentials and speak with the attorney directly, either in a phone consultation or a face-to-face meeting. Choosing your divorce attorney is a critical decision; you should be deliberate and thoughtful selecting the attorney who will represent you. Evaluate each attorney based on the following considerations to see if he/she is qualified for your case:
In divorce cases, which are often emotional and stressful, you should seek out a family law attorney who is professional and who demonstrates a sincere empathy for you and your family.
As a premier family law practice in Portland, Oregon, McKinley Irvin Portland works hard to provide the very best counsel through effective and compassionate representation, when our clients need it most. Since 1991, every family law attorney at McKinley Irvin has been protecting the rights and responsibilities of family relationships with respect, professionalism, and compassion.
You (or your spouse) may file for divorce in Oregon if you meet one of the following residency requirements:
You may only file for divorce in a county in Oregon where you or your spouse currently lives. However, your attorney does not need to be located in the same county where your divorce is filed. For example, if you live in Yamhill County and your divorce is filed there, it is acceptable to retain an attorney whose office is in Portland (Multnomah County). Any Oregon attorney can practice in all Oregon counties.
Legal separation can be filed if you don't yet qualify for divorce in Oregon.
A divorce in Oregon begins in one of two ways:
A sole petitioner can file for divorce in Oregon without the knowledge or consent of his/her spouse. A sole petitioner files a petition for dissolution and the spouse is served with the divorce papers (a summons and petition). The spouse (the respondent) must file a response within 30 days. The respondent states in the response whether he or she contests (disputes) the relief requested in the petition. A sole petitioner and respondent typically each have their own family law attorney.
Spouses are entitled to file as co-petitioners in Oregon when they can agree to all matters that the divorce court will otherwise decide (such as property division and child custody). These spouses file their petition jointly. In an uncontested divorce, the spouses sometimes file without an attorney. There are considerable risks involved in filing for divorce without consulting a family law attorney, so this is not recommended. Some couples choose to go to mediation to try and resolve their cases amicably. While this is a good option for some, it is still advisable to consult with an Oregon divorce attorney.
Oregon is one of many states in the U.S. that employs a "no fault" divorce model. This means that the particular reasons why you are getting divorced do not matter to the court. The Oregon family law court's only requirements for granting you a divorce are that you and your spouse have "irreconcilable differences," and one or both of you no longer wants to be married.
Generally, the Oregon family law court will not consider any spousal misconduct (such as infidelity, dishonesty, emotional disengagement or over-spending) when dividing your assets and debts.
However, if you have minor children, the Oregon courts will sometimes consider spousal misconduct when determining the custody and parenting plan for your children. Spousal misconduct is only considered if it may endanger your children or impact their health, safety or welfare. A spouse's current drug or alcohol abuse, history of domestic violence, mental illness or child neglect are all examples of spousal misconduct that may be relevant to the court when it decides parenting issues. If your marriage involves any issues like this, it is essential that your divorce attorney have experience in contested child custody and parenting plan cases to make sure your children's interests are well protected.
It is also possible, although rare, for an Oregon court to consider "economic" spousal misconduct (such as extreme overspending or hiding assets) when awarding spousal support or dividing property.
You can have your marriage annulled (declared invalid) by an Oregon court under only a few specific circumstances:
In Oregon, annulment is an alternative to divorce. It is not a form of divorce. Divorce ends a marriage, while annulment sets aside the marriage as if it had never occurred.
In Oregon, on average, it may take between six and 12 months from the date your divorce case is filed until your divorce is final.
However, there is no "typical" divorce. The amount of time your divorce will take depends on the particular facts of your case, including whether you have children, whether your assets require expert financial evaluation and whether or not one or more court hearings are required. Generally, contested divorces take longer than uncontested divorces in Oregon. Divorces where custody is disputed take longer than cases where custody or parenting plan issues are not disputed. The court's own schedule (for instance, whether other cases are in trial or whether judges are on vacation) may also impact how long it takes to get a divorce. Your attorney can give you an idea of how long your particular divorce case will take in Oregon.
Alternative dispute resolution methods, such as mediation and arbitration, can often be quicker than the traditional divorce settlement process or litigation, but not always. Again, it depends on the complexity of your case and many different factors.
There is a mandatory 90-day waiting period in Oregon from when you first file for divorce and serve papers on your spouse before your divorce can be finalized. If you have a very simple, uncontested divorce and do not wish to wait 90 days, it is possible for the court to waive all but 30 days of the waiting period.
Your Oregon divorce may include a combination of any of the following:
Litigation is the discovery of facts and documents, presentation of evidence and expert options, and legal argument (in writing or orally) to the court. Your attorney should provide a strategy for this process. There are considerable rules governing the litigation process in Oregon. Divorce litigation is focused on deciding what areas of disagreement may exist between you and your spouse, and then presenting your plan for resolving these disagreements with the best evidence and argument so that the court is more likely to decide in your favor. Litigation ends when the court enters a judgment of divorce.
In Oregon, if you have minor children, mediation of custody and parenting plan issues is required. Mediation can also be useful in resolving other issues in your divorce case.
Mediation is a form of Alternative Dispute Resolution (ADR) used in family law to resolve disputes and reach a settlement. An Oregon family law judge can order mediation of custody and parenting plan issues in your divorce. Mediation sessions are confidential, and the sessions themselves cannot be used as evidence in your case. A judge is not present at mediation. Mediation can usually occur sooner than trial and it is almost always cheaper.
Mediation sessions are led by a mediator. A mediator is a neutral third party who facilitates the negotiation process and may provide insight as to the risks each party might face at trial. For Oregon divorce cases, the best mediator is typically an experienced family law attorney or retired family law judge who has training in mediation techniques and who also knows the intricacies of divorce law in Oregon. Mediation may also be offered as a free or low cost service through the court system.
Divorce mediation is usually attempted by spouses after they have exchanged necessary documents and obtained expert opinions, but before the Oregon family law judge has made any final determinations. Mediation can usually occur much sooner than trial, and spouses sometimes feel that a divorce judgment that they have agreed to through mediation is fairer than one issued by a judge without the spouses' agreement.
Mediation works best when both sides are willing to participate. If both parties and their lawyers are not willing to negotiate in good faith, the process may not be successful. Your attorney can be included or excluded from the mediation sessions, but parties are often more successful at both negotiating and reaching sound agreements when each is represented by their own family law attorney. If mediation is successful, your attorney will present the court with the written, negotiated mediation agreement. If the settlement appears fair to the family law court, it will be approved. If any disagreements still remain, then a judge will make the final decision, although some lawyers will not settle part of a case without settling the entire case.
The intention of mediation is to come to a resolution, but it doesn't always happen. If no settlement is reached, the case will eventually proceed to trial.
Arbitration is a form of ADR used in family law where a third party, an arbitrator, is selected to hear and decide the case issues. The arbitration process closely resembles that of a court hearing, with the arbitrator acting as the judge. Arbitrations are normally held in a less formal place than courtrooms, such as the office of your attorney or the arbitrator's office. Unlike mediation, the aim is not agreement.
There are many reasons why arbitration is used in Oregon divorce cases. Like mediation, arbitration can occur much sooner than a trial, especially in instances where there is a long waiting period due to court schedules or where adversarial litigation is drawn out for a long time. Arbitration is governed by specific rules that are more flexible and less formal than those at trial.
Arbitration can also be used to resolve specific, contentious issues in a case where other issues are agreed upon. Your attorney will likely advise to not settle a divorce case unless every issue is settled. So, if a mediation or negotiation gets stuck on a particular issue, that issue may be resolved with arbitration. Once a final decision is made on that issue, further settlement negotiations on other issues may continue.
In binding arbitration, the decision made by the arbitrator, called the "award," is final unless one spouse appeals to the family law court. There is also a type of arbitration called "non-binding arbitration." This process is similar, except that the arbitrator's decision isn't enforceable by law or admissible in court (as it is in binding arbitration). Non-binding arbitration is typically used as a tool for negotiating a settlement.
Collaborative divorce is a method of ADR where each spouse is represented by a divorce attorney who has been trained in a practice known as "collaborative law." The lawyers also bring in other team members (financial specialists, appraisers, child development experts, etc.) who assist the process by providing expert opinions and analysis for specific issues.
The parties then work together to gather the necessary information, brainstorm possible solutions, evaluate the options available to them, and collaborate on a decision they feel will work best for all members of the family. The collaborative divorce process can feel more respectful than a traditional divorce.
Because the emotional nature of divorce can easily result in conflict, collaborative divorce isn't the best choice for every couple. This process can be a good method, however, for low-conflict Oregon divorce cases where both parties wish to compromise and communicate openly in a manner designed for spouses who want the best for one another. They must be willing to commit to voluntary full disclosure, as there are no "sides" in a collaborative divorce. This process is also a serious commitment in itself: if one of the spouses decides to withdraw from the process to pursue protection of his/her rights and interests in court, he/she will need to start over, and each spouse will require a new, different attorney. Your attorney and other team members must withdraw completely from the case, and any work completed during the collaborative divorce process is generally inadmissible in family law court.
Collaborative divorce continues until the parties reach a settlement or until they end the process and go back to court. If you and your spouse are considering collaborative divorce, you should fully research the pros and cons of the process and select a collaborative law attorney who has demonstrated success in this type of divorce.
To ensure you get the most objective and accurate advice, it is best to consult with a collaborative attorney who does not limit their practice to collaborative law. Unlike many firms, McKinley Irvin's collaborative lawyers practice in all areas of family law.
Cooperative divorce is a process similar to collaborative divorce, but does not require the parties to waive their right to go to court, nor to terminate their attorney if they eventually return to court.
Cooperative law is essentially an organized negotiation process with the goal of settling issues with minimal conflict and avoiding litigation. Like collaborative divorce, the goal of cooperative divorce is to minimize court contention, hearings and trials by focusing on the facts of the case.
Summary divorce is a process only for extremely simple divorce cases. In Oregon, to qualify for summary divorce, you must meet all of the following conditions:
If you and your spouse are in agreement about the terms of your divorce but don't meet all of the requirements to qualify for summary divorce in Oregon, you can file as co-petitioners for an uncontested divorce. Consulting a family law attorney is still advisable to ensure your rights are protected for the long-term.
Most Oregon divorce cases are settled (often during mediation) without going to trial. Each spouse and their attorney negotiate an agreement and present it to the family law court. If the court finds that all issues have been fairly addressed regarding child custody, parenting time, spousal support, and division of property and debts, the court will enter the divorce according to the terms of the settlement agreement.
If you and your spouse are unable to agree about all of the issues in your divorce, then the family law court must decide the unresolved issues at trial, after you and your attorney present your case.
Trials can be costly and stressful. But in some cases, trial is the best way to protect your rights, children or property when dealing with a highly contentious spouse or highly divisive issues. In a trial, your attorney presents your case and a judge makes all of the decisions based on the evidence. The court's decision is legally enforceable and there is no guarantee that the ruling will be in your favor.
An experienced divorce attorney will advise you whether a favorable outcome is likely before you go to trial. This assessment from your attorney will help you determine how willing you are to compromise on important issues and how many risks you are willing to take, before you make the decision to go to court.
When you get a divorce in Oregon, the court's judgment includes the following:
The date of your divorce is the date the family law judge signs the judgment.
A legal separation in Oregon is a process that involves essentially all of the same issues as divorce -- dividing property, determining custody, paying child or spousal support, but the parties are still legally married at the end of the case. So why do some couples choose to separate legally instead of divorce?
Some people are not ready to divorce, but still wish to live apart from his/her spouse. A legal separation allows them time to live apart while also defining the rights and responsibilities for each spouse while living separately. In Oregon, a separation agreement can establish precedence for the divorce, if the couple ultimately decides to divorce.
Other reasons for legal separation instead of divorce include religious beliefs, not meeting the Oregon residency requirements for divorce, the ability to retain medical or other benefits that a divorce would terminate, or to extend the marriage past a certain number of years in order to qualify for certain government benefits, such as social security or a military pension.
Because the effects of legal separation are similar to a divorce, and you have specific rights and obligations while separated, you should consult a qualified divorce or family law attorney who has experience handling legal separations. This attorney will help you decide whether legal separation is a good choice for you.
There are two types of legal expenses in a divorce case: attorney fees and legal costs. Attorney fees are payment for your attorney's work. Legal costs include (but are not limited to) court fees, fees to experts (such as property valuators and accountants), mediator/arbitrator fees, computer research charges, copying and telephone charges, etc. If you have minor children, there may be fees for a parenting evaluator, an independent attorney for the child, and parenting classes.
In addition to the legal expenses, you will have other, personal costs during the divorce process. Some of these costs will be upfront and some will be long-term. You should prepare and plan for these costs, because there really is no way to get a free divorce.
If you and your spouse live separately during the divorce, there will be the increased cost of maintaining two separate households. Living separately may also increase childcare costs. There is also the cost of your time: a divorce case can take up a great deal of your personal time and often requires time away from work if you are employed. You will need to spend time meeting with your family law attorney, filling out paperwork, finding and submitting documents, appearing at mediation or in court, and researching and collecting information you will need to provide your attorney. You may need to attend counseling to deal with the emotions of divorce.
Then there are ongoing costs that result from the financial effects of the divorce: decreased (divided) assets, child support, spousal support, separate health insurance costs, etc. These costs may last for years, depending on your divorce judgment.
With all of those unavoidable costs, some people attempt to save money on attorney fees by resolving their divorce case without a family law attorney. Typically, people representing themselves spend time and money working on their divorce but end up retaining an attorney anyway, or they overlook important issues, such as considerations for retirement accounts or social security, and end up paying for those mistakes indefinitely.
The same can happen if you hire an attorney who is too inexperienced, unprofessional, or not knowledgeable enough about family law or divorce cases like yours: you end up hiring a better attorney or end up living with the long-term consequences of errors made in your case.
While a good lawyer's bill can be pretty big, it's a smart investment. Making sure you get the best possible legal advice and outcome in your divorce case is the most effective way to protect your finances and family relationships in the long run.
The more argumentative your divorce case is, the more it will likely cost. Maintaining civil and constructive communication with your spouse and his or her attorney is the number one way you can save money on legal fees. But of course, this strategy requires both parties to approach their case in a similarly cooperative manner.
It is not a good idea to try to negotiate legal issues before hiring a family law attorney. You may end up promising your spouse things that you later learn, after discussing with your attorney, are not in your (or your children's) best interest. This can cause conflict and negative outcomes that could have been avoided by speaking with an attorney before attempting negotiations.
Avoiding litigation is another cost-saver. You should try to resist the emotional impulse to fight over every issue. Knowing when to compromise in order to reduce conflict will help you reduce the costs of your case. Your attorney should be just as willing to negotiate as to fight in court and should discuss these tactics with you when you prepare the strategy for your case. However, it is important to also keep in mind that the decisions and agreements you reach now will impact your life forever. Therefore, while it is in your best interest to negotiate in good faith, it is not in your best interest to give up rights and interests that are important to you and your future.
You should be prepared to pay your own legal and attorney fees in a divorce case. In Oregon, the most common outcome is that each spouse pays for his or her own attorney unless there is bad faith by one side, or sometimes if there is a substantial difference in the parties' financial positions.
Most lawyers charge an hourly rate for services rendered. This generally ranges from $200 to $500 per hour, and is usually billed in 5- to 10-minute increments. When you retain an attorney, you almost always pay an advance fee deposit ("retainer"), which is put into a trust account. The attorney fees and other costs are deducted from the advance fee deposit as your case progresses and fees and costs are earned. If the advance deposit runs out, you must generally make further advance fee deposits to pay the attorney's hourly rate and other fees if incurred. If there is money left in the trust account when your case is closed, the remainder is returned to you.
If the attorney has a staff that includes paralegals and associate attorneys, some of your case work will likely get assigned to other staff members, and you will be charged at a lower hourly rate for their work. This can be a cost-saver.
Some lawyers in Oregon may charge a flat, overall fee, especially for uncontested divorces. Divorce lawyers are prohibited by Oregon law from charging a contingent (percentage) fee in your case.
As the Pacific Northwest's largest family law firm, McKinley Irvin's depth of resources allows us to assemble a team of top-notch legal professionals at our Portland office for your particular family law matter. Your primary attorney will work with our staff of associate attorneys and paralegals and assign tasks according to the knowledge, skill level and billing rate necessary to complete it. This means that much of the work done on your case is billed at a rate much lower than your primary attorney's hourly rate. Not only does this reduce your legal costs, it also means that case work is completed in an organized, timely and efficient manner.
In Oregon, court fees can include (but are not limited to) the following:
There are similar Oregon court fees associated with annulment, legal separation and dissolution of a domestic partnership.
After divorce, your lifestyle and finances will be impacted, possibly for years. Understanding the financial implications of divorce will help you manage your finances. You may need to adjust to living with a lower income or taking on more responsibility for expenses. You make need to get a job or change jobs. Or you may have to adjust to making child support or spousal support payments. You may lose equity in your house if you have to sell it quickly. Your taxes will also be impacted by these changes, and child custody considerations will also impact your finances and your taxes.
Copyright 2011, McKinley Irvin, PLLC, all rights reserved. No part of this work may be reproduced in any form without written permission from McKinley Irvin, PLLC.
NOTICE: The content of this guide is provided for general informational purposes only. It is not intended to convey legal advice. The reader should not rely on the content of this guide for legal advice. McKinley Irvin, PLLC., makes no warranties, express or implied, in connection with the content. McKinley Irvin, PLLC., strongly recommends that any individual facing a family law action seek the advice of a qualified family law attorney.
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P: 503.487.1645 - F: 503.953.1026 - E: mi@mckinleyirvin.com
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