5 Things You Should Know About Divorce in OR

Going through a divorce is an incredibly challenging time, filled with emotions and uncertainty. The process can quickly feel overwhelming, adding to your stress and anxiety. However, by understanding the Oregon divorce process, you can eliminate many uncertainties and put yourself in a better position—both strategically and mentally.

Below are five things to understand when you are about to start a divorce in Oregon.

1. Oregon Is a No-Fault State

Historically, a couple could only get divorced if the spouse seeking to end the marriage could prove that their partner was at fault for the deterioration of the marital union. Examples of fault-based divorces include:

• Adultery,

• Bigamy,

• Criminal Conviction,

• Desertion,

• Fraud in Obtaining the Marriage,

• Mental Incapacity at the Time of the Marriage,

• Mental or Physical Abuse,

• Mental Illnesses or Disorders,

• Impotence at the Time of Marriage; and

• Incest.

However, Oregon has chosen to abandon fault-based marriages.¹Currently, Oregon does not recognize fault in the divorce process. Thus, couples can divorce based only on the fact that they do not get along or no longer want to be married. In legal terms, this is referred to as "irreconcilable differences.”

Fault is not entirely removed from the divorce process. Courts may consider one spouse's fault when deciding specific issues, such as which parent receives custody of the couple's children. However, not all of those factors would be relevant to the court's child-custody decisions. For example, a court would not likely award child custody to a parent because the other parent was unfaithful. On the other hand, a court would almost certainly consider that a parent was abusive to a child during the marriage when making a child custody determination.

2. It Usually Doesn’t Matter Who Files for Divorce First

It's a common misconception that the first spouse to show up at the courthouse and file for divorce is in a better position than their partner. Legally speaking, it makes very little difference who files for divorce first. The judge overseeing a divorce proceeding will not make any decisions based on which spouse filed for divorce first.²

The spouse filing for divorce is legally referred to as the "petitioner," and the other spouse is the "respondent." For the most part, petitioners and respondents are in the same position throughout the divorce process. For example, the filing fees are identical. Both parties have the same opportunity to present evidence and challenge the other party's evidence. Neither party has a higher burden than the other.

There is a minor benefit to filing for divorce first in some situations. If your spouse files for divorce first and is not expecting it, you may be surprised by an upcoming court date and feel rushed to hire a lawyer. However, courts generally understand this and routinely grant respondents additional time to secure a lawyer to prepare their case.

3. Oregon is an Equitable Distribution State

When it comes to property division, Oregon is an equitable distribution state.³This means that a court will distribute a couple’s assets based on what it believes to be fair but not necessarily right down the middle. Additionally, Oregon divorce law is unique in that assets either spouse obtained before the marriage may be subject to equitable distribution. When it comes to dividing marital assets, an Oregon divorce judge has broad discretion and is not bound by a list of factors they must consider. Typically, courts will review the following when dividing a couple's assets:

• The length of the marriage,

• The financial and non-financial contributions of each spouse to the marriage,

• Tax consequences of the distribution decision,

• Either spouse’s ongoing commitments to care for the couple’s children; and

• The education and employment prospects of each spouse.

4. Specific Issues Need to Be Resolved In A Divorce

Before a judge can grant a final divorce order, they must ensure that specific issues are resolved. While every divorce is different, most divorces involve the following:

• Distribution of Property and

• Debt,

• Child Custody,

• Child Support; and

• Spousal Support.

By default, the court will hear evidence from both spouses and decide on these issues. However, nothing stops a couple from agreeing on some or all of these issues.

Couples who can agree on some fundamental issues begin with mediation. Mediation is a private counseling session where a neutral third party works with both parties to devise some agreed-upon terms. Judges may require divorcing spouses to attend mediation before starting the divorce process, but that is not always the case. Mediation is private and confidential, and if either spouse is not happy with the result of the mediation, there is no obligation to accept any of the mediator’s recommendations. If a couple can work out some issues, the mediator will type up a summary of the agreements and forward this document to each of the parties' attorneys.

The judge overseeing the divorce will typically honor the couple’s agreements; however, the judge is not bound to keep child custody and parenting time agreements. This is because the judge is guided by what is in the children's best interest. However, judges routinely follow child custody and parenting time agreements, especially those created with the assistance of an Oregon divorce lawyer.

5. What Courts Consider When Deciding Which Parent Gets Custody of a Minor Child

One of the most critical issues in divorces is which parent obtains primary custody of the couple's minor children. When making any decision that directly affects a child, courts must consider what is in the child's best interests. While a child may be able to express a preference as to which parent they want to live with, courts will not necessarily follow a child's wishes. A court will at least consider an older child's preference. Regardless, the court will also review several other factors when determining which parent should have primary custody, including the following:

• The emotional ties between the child and other family members,

• Each parent's current and previous level of interest in raising the child,

• Each parent's attitude toward the child,

• The benefit of continuing an existing relationship with each parent,

• Whether either spouse has a history of engaging in child abuse or domestic abuse,

• The child’s preference, if the caregiver is deemed fit by the court; and

• The willingness and ability of each parent to facilitate a positive relationship between the child and the other parent.

A judge will consider other factors if they risk the child suffering physical or emotional harm in certain situations. For example, the court may consider each parent's conduct, marital status, income, social environment, or lifestyle, but only to the extent that these factors could hurt a child.

The divorce process is full of questions, and the more you know about what to expect, the better you can prepare yourself for what lies ahead. If you have unanswered questions about getting an Oregon divorce, reach out to a dedicated Oregon divorce lawyer for assistance.

About the Author:

Gearing Rackner & McGrath