Q:How do you serve legal documents in your Oregon divorce?
A:If you’re the petitioner, documents should be personally served, preferably. You can also send documents to the opposing party with an acceptance of service. The opposing party will need to sign these documents in front of a notary before they can be filed with the court. If a notary signature is not possible, then a third-party process server or a sheriff may be appropriate to stand in for the necessary service. The stand-in for the notary will hand deliver the documents to the opposing party (just like you’ve seen on TV when someone says, “you’ve been served”). The third party, (sheriff or processer), will then sign an affidavit of service stating the date and time the documents were delivered to the opposing party, as stated in the affidavit. If you are unable to serve someone or if they refuse to file an acceptance of service, then you may need to ask the court for an order that will allow you to serve the person alternatively. Alternative examples include email, fax, registered mail, return receipt requested, or delivery to their last-known address.
Q:What are some common pitfalls of representing yourself in an Oregon dissolution?
A:Our team at Pacific Cascade Legal has seen several issues that stem from self-representation. Most of these issues are generally geared towards financial concerns that the self-representing party just didn’t think about throughout the process. For example: of the self-representing client might completely overlook retirement accounts if he or she isn’t aware that those accounts can be divided. Or, the self-representing party may not be aware of the tax implications, whether that includes dependency exemptions or the process of offsetting child support with spousal support.
We also see issues when dealing with real property, transferring real property inappropriately, or dealing with a mortgage that is in someone else’s name. While a self-represented individual may think they’ve done their research, they simply don’t have the necessary knowledge because they are not trained in the intricacies of family law.
Another major issue that we see from self-representation is how that person handles a court setting. Courtrooms can be a foreign setting for most, and it can be easy to get tripped up or leave out a major detail if you’re not a professional who has been trained to defend a case under pressure. If you don’t have qualified legal representation and you fail to bring important aspects of the case forward in court, that oversight can affect your child custody, parenting time, child and spousal support, and more. Unfortunately, these are very high-stakes risks.
If you are considering representing yourself, you should, at the very least, consider meeting with a professional for a consultation so that you can get an idea of just how complex your case is. Once you’ve met with a professional you can weigh the pros and cons of hiring a lawyer and determine whether or not it’s worth the risk to forego professional help from someone who will help obtain the most favorable outcome for your case.
Q:How do you qualify for a divorce in Oregon?
A:Determining whether or not a couple can file for a divorce in Oregon is largely dependent on where all of the marital property is located, where each spouse lives, and how long they have lived there. Figuring out where to file for divorce can be a much more complex than it may initially seem. The best thing to do is reach out to an experienced law firm and we can help you determine that answer.
Q:What is proper courtroom etiquette?
A:Courtrooms are very formal environments, so your behavior and attire should reflect that the atmosphere. When you’re addressing the judge, you should refer to him/her as “Your Honor” at all times. Your clothing should be conservative and formal, but there is no need to wear a full suit, (although you can if you want to). It is not appropriate to wear sweatpants, sweatshirts, slippers, pajamas of any kind, t-shirts, or sneakers. A safe bet is to wear a nice shirt and a pair of nice slacks to show the judge that you’re taking your hearing seriously.
You should also arrange for childcare prior to any hearing that you have, because many judges will not allow young children in the courtroom. If you have further inquiries, your attorney can help answer any questions you may have regarding proper courtroom etiquette.
Q:What are your options if you file for divorce and your spouse cuts you off financially?
A:If your spouse cuts you off financially after you’ve filed for divorce, your best option is to file for temporary relief. Temporary relief asks the court to order temporary support while your dissolution case is pending. If you are filing for a straightforward dissolution and there are no children involved, you may be able to obtain spousal support alone. If there are children involved, you may also be eligible to receive child support, depending on where the children are and who acts as their primary caregiver. While your divorce is still pending, the court can also determine who should be paying the mortgage, who should be paying joint expenses along with other expense-related factors.
Q:Can you date while going through a divorce or child custody case?
A:Legally speaking, yes you can date during a divorce. There is no law that prevents you from dating while going through a divorce or child custody case. That being said, during a divorce or child custody case, you’re often under a lot of scrutiny, so you should always assume that the court or judge will hear about what you say or do while the case is pending. Therefore, you want to be careful about who you bring your children around, and always be conscientious about whether or not your actions are in their best interest. If you and your ex get into a dispute about your dating habits while the case is pending, there’s a good chance the judge will hear about it too. Additionally, some court orders may have provisions that state that you can only introduce your children to significant others after a certain period of time. If that applies to your case, you want to make sure you follow the court order as it’s laid out, otherwise it could come back to bite you later.
Q:What does making an equitable distribution mean in a divorce in Oregon?
A:Equitable distribution in Oregon means that the court wants to divide your property in a way that is fair, or equitable. The court is looking for what is just and proper in all circumstances involved with the case. Other community property states, the process of dividing property is much more formula based. In Oregon, however, the goal is to do what is equitable, or fair. But, a fair division may not always be equal. There may be situations where one party takes the bulk of the debt, or the bulk of the assets, because in that given situation, it may be the most equitable option in the eyes of the court. Equitable distribution means that the court is looking for some manner of fairness through the dissolution process.
Q:Does it matter who files for divorce first?
A:At a conceptual level, the court does not give greater weight to a petitioner (the person who files first) or a respondent (the person who was filed against). In actuality and in function, however, it may make a rather large difference. If immediate child custody concerns are an issue or there’s a need for emergency or temporary orders, you may want to file first in order to get some manner of advantage or to get immediate relief from the court.
If you do not have any of those concerns, (ex. there are no children and no emergent issues), then being the petitioner or respondent will not make any difference in the outcome of your case.
Q:What does the term “no fault” mean in an Oregon dissolution?
A:The term “no fault” as it’s used within the statute of Oregon law, and as it relates to dissolution or divorce, means that neither party has to have a reason for divorce. The reasoning behind “why” a divorce is happening isn’t really of much interest to the court. The party who wants to get a divorce merely needs to allege that there are irreconcilable differences between the parties, at which point the court will need no further explanation. Under older law, there had to be proof of a valid reason, such as adultery, abandonment, cruelty, etc. However, this is no longer of any concern under modern law.
Q:What is a no-fault dissolution?
A:The concept of a no-fault dissolution is somewhat modern. A better way to phrase the question may even be “what is a fast-track dissolution?” or “what is the fastest way I can get a divorce?” In Oregon, we have a proceeding that allows us to fast-track a divorce when parties have an amount of property that is equal-to or less-than approximately $30,000. In order to qualify for this type of divorce, spousal support and child support must not be applicable, and there should be no custody matters to address. The advantage of going through a proceeding on a fast-track is that you don’t have to appear in front of a judge—you can appear in front of an arbitrator, which eliminates some of the court timelines. Even if there are certain disputes to work through, you can address those in front of your arbitrator, instead of waiting for the court’s docket.
In summary, a fast-track dissolution may be appropriate for some parties, but most people have support or child concerns that make this dissolution option inappropriate for their circumstances.
Q:How should you account for your retirement account in an Oregon dissolution?
A:One of the major issues that we see with dissolution cases in Oregon has to do with individual or joint retirement accounts. One of the major mistakes we see from people who are unrepresented or under-represented is that the separate party’s retirement account isn’t accounted for because of the mistaken belief that one spouses retirement is only theirs.
That’s not the way that Oregon views retirement accounts. According to Oregon state law, retirement accounts are a form of property, and the other spouse is entitled to a marital coverture fraction. In short, the court will look at the amount of time that the retirement has been added to while the marriage was in existence and determine how much should go to each spouse. That marital coverture fraction is entirely divisible in Oregon during marital proceedings, and can be offset by other items, such as equity in a house, or a different retirement account presumptively owned by the other party. These items should be considered in a manner that is fair and equitable to both parties. In summary, retirement accounts in Oregon are divisible, regardless of who owns the account in their name.
Q:How do you functionally divide retirement in an Oregon divorce?
A:Once we determine that there are retirement accounts that need to be divided in a dissolution case, we then need to deal with the functional division of those accounts. The functional division is done through a qualified domestic relations order, or a QDRO.
A QDRO is an order we send to the judge, the judge signs, and then the signed order goes to the planned administrator, whether it is a PERS, a 401K, etc. Once the necessary forms are delivered to the planned administrator, they effectuate the actual division.
One of the common misconceptions is that divided retirement accounts will result in substantial taxes. However, a division incident of divorce is not a taxable event. Thus, those gross dollars that are in a 401k will be divided into two accounts, presumptively one for each spouse, with no tax penalty at all. Once they’re withdrawn, a tax penalty will then occur.
Q:What are the legal requirements for annulment?
A:There are several different grounds for annulment, including fraud, duress, under the influence, lack of capacity, and bigamous and polygamous marriages. Annulments in Oregon are somewhat rare—they’re very detail-oriented, and they’re very fact-specific. If you’re interested in filing for an annulment for a short-term marriage, we encourage you to speak with a qualified attorney about your case.
Q:What is the difference between legal separation and divorce in Oregon?
A:A legal separation is very analogous to divorce, legally, though there are some differences. The primary difference between a legal separation and a divorce is that couples who divorce have irreconcilable differences that they know will never get better. In a legal separation, or an unlimited separation, the couple often believes there are reconcilable differences, which is why they do not officially end the marriage.
However, individuals who legally separate will essentially go through the entire divorce process without impacting the martial status and relationship overall. Custody, parenting time, child support, property division, and spousal support will all be addressed. A legal separation can be converted to a divorce, thus ending the martial relationship, with a motion from either party within two years from the date of the legal separation. The most common reason people opt for legal separations is because of a religious component between the parties that states that the marital relationship needs to stay intact. However, couples who are separated but do not want a divorce often need the court to settle various issues regarding custody, parenting time, child support, etc.
Q:How long does an Oregon dissolution take?
A:The duration of the dissolution process depends on the case and the parties involved. Some cases may take a couple of weeks to draft up paperwork, which then needs to be signed by the court. However, there are cases where people disagree on many, if not all, of the issues. These cases can be very complicated and require more experts to get involved. Thus, the duration of your dissolution really depends on the details of your case. The time frame can range anywhere from a few weeks to a few months, and on rare occasion, over a year.
Q:Is there anything else you should do after you dissolve your marriage or partnership?
A:Absolutely. You should make sure to execute any wills, trusts, as well as any documents that include your ex-spouse’s name. Any documents or accounts that require any changes of ownership outlined in your divorce decree or your dissolution of partnership must be altered accordingly.
Q:What is the Discovery Process?
A:Discovery in family law can take on several different forms. Initially, each case will deal with documents and paperwork. We will need to determine which physical documents are presently in existence that we can request to fill in the gaps by getting valuation of property, potential incomes, and any additional financial information. Discovery may also include depositions, or custody evaluations. The basic tenant of Discovery is that we want to gather as much information as possible so that we can be prepared for negotiation, trial, settlement conferences, etc.
Q:What are retainers and why do they vary from case to case?
A:Think of retainers as a security deposit for your case. When you’re initiating your case, we don’t know how much it’s going to cost, and we don’t know what’s going to come up. So, we take an advanced fee deposit that goes into our account and states that we have “X amount of dollars to put towards your case until we need an additional deposit. Retainers vary depending on where you are in your case, how complex your case is, how close you are to trial, and which legal team you’re working with. Each of our attorneys has a different hourly rate depending on their expertise and the complexity of your case.
Q:Can you serve legal papers if you don’t know where your spouse is?
A:With service of process in Oregon, we typically try to utilize a personal service first. If we can find the individual, that’s the method we want to use to serve them divorce papers. If we can’t find them, and after a diligent search, we can file an affidavit of non-service. This form means we did our best to locate this person, but we weren’t successful, so we need to ask the court for some manner of alternative service. The court may permit us to contact that person via email, Facebook, faxing, personal delivery to a home where we know they reside, first class mailing, or return receipt requested. These are all permissive ways to serve people after personal service has failed.