Stages of Divorce
Your Oregon divorce may include a combination of any of the following:
- Collaborative Divorce
- Cooperative Divorce
- Summary Dissolution or Divorce
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
In Oregon, if you have minor children, mediation of custody and parenting
plan issues is required in most counties. 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 relating to issues regarding the division of debts and
assets 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 LAW AND COOPERATIVE DIVORCE
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.
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.
WHAT DOES A DIVORCE JUDGMENT DECIDE?
When you get a divorce in Oregon, the court’s judgment includes the
- A declaration that your marriage is dissolved (because the legal term for
divorce in Oregon is “dissolution of marriage”
- The date your divorce is final (the date your marriage will legally end);
- If you have minor children, a parenting plan stating each parent’s
extent of custody of your children and the details of parenting time (previously
called visitation) and decision-making;
- If you have minor children or a qualifying adult child attending school,
a child support order detailing you and your spouse’s obligations
to financially support your children;
- A property division covering your cash, real estate, investments, retirement,
business interests, vehicles and other assets;
- A debt division; and
- A list of any future obligations you may have to each other, including
any spousal support or requirements to maintain health insurance or life
Read More: Legal Separation as an Alternative to Divorce