jump to navigation

News: Divorce Rates Skyrocket in India February 21, 2008

Posted by shelleycm in Dissolution, International, News.
1 comment so far

The International Herald Tribute runs this story about increasing divorce rates in India, a place where arranged marriages are customary and, historically, long-lasting.   The reasons for the increase?  Women’s financial independence, weakening of taboos, laws permitting divorce, and Western-style expectations of love.  Interesting stuff, particularly for Oregon’s large East Indian population.

Here come the brides: the Oregon Family Fairness Act February 17, 2008

Posted by shelleycm in Child Custody, Child Support, Dissolution, Domestic Partners.

With the Oregon Family Fairness Act (OFFA) now in effect, registered domestic partners now have some of the same rights as a married couple, at least in Oregon and any other state which chooses to recognize these partnerships.* This post explains what a domestic partnership is, both for heterosexual and same-sex couples, and what the benefits of registering are for same-sex couples.

Let’s start with what seems like the easy part: what are domestic partnerships? Under OFFA, same-sex couples over 18 may register as partners. However, heterosexual couples may not register as partners (primarily because they already have the ability to receive these benefits through marriage). Because the Oregon Constitution limits marriage to heterosexual couples, a separate mechanism for uniting families was required. (Check out the Basic Rights Oregon website for a wonderful guide to the legislation.)

But what are these automatic rights married couples get that unmarried and unregistered domestic partners don’t have?

Some rights are obvious: for example, to make medical decisions for a partner when the partner is unable to make those decisions him or herself or to automatically inherit property if a partner dies without a will. Others aren’t as obvious, like the ability to claim wrongful death benefits or crime victim survivor benefits if a partner is killed.

Some rights are provided by the state, like the automatic inheritance of a partner or how custody would be determined in a partnership dissolution, because inheritance and family laws are set by the state. Other rights are federal, like the ability to file jointly on federal income taxes. Oregon’s domestic partnership law can only affect state-provided rights. Subsection 9 of the legislation provides that “any privilege, immunity, right or ben3efit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married….is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership…”

It doesn’t get more equal than that in Oregon, save in name alone. Additionally, registered partners also have all the same responsibilities as married couples!

But since this is a legal blog, we’re mostly concerned about the juicy bits – those rights dealing with estate planning, wrongful death claims, adoptions, custody, and, of course, dissolution of the partnership.

But first, a little history. Some readers might be surprised to learn that domestic partnerships in family law courts aren’t new in Oregon. In fact, Oregon family law courts have dissolved an increasing number of heterosexual domestic partnerships. In doing so, the court would look back and determine whether or not the parties actually intended to form a domestic partnership: even though these are relationship dissolutions, frequently one party argues it was not a partnership (usually the party with assets) and the other argues that it was (usually the party with fewer assets). To find out what the parties intended, the court uses a test usually used in the context of business partnerships – did the parties intend to pool resources and share liabilities? If the answer is yes, then the court tries to find an equitable way to divvy up the parties’ resources. If no, then the parties keep their separate property.

Sounds easy, right? But it’s not. The court can’t order spousal support. Custody of children is very complex, because for a non-biological parent to receive custody or visitation, another action must be filed (although in fairness, it may be joined to the dissolution of domestic partnership action). Basically, in the absence of a clear statute, the family law court exercises its equity powers — basically, whatever the court thinks is fair on that day. This means results can vary even more widely than they can with the assistance of statutes.

What OFFA does for same-sex couples is give the court all of the well-developed tools the legislature has enacted over the years for the dissolution of marriage cases, as well as providing more options for determining custody of children in a partnership dissolution. (If you want to know just how busy the legislature has been in developing and honing those family laws, take a gander at ORS 107 and ORS 109!)

We hope domestic partnerships thrive. However, if you have registered a partnership and wish to dissolve it, think carefully about your next steps and consult with an attorney well versed in dissolution of marriage procedures. Due to the sensitivity of the subject matter, don’t be shy about asking your attorney what he or she thinks of your lifestyle. It does matter. It’s important that there be an open and trusting atmosphere in your dealings with your dissolution attorney.

*Although states are supposed to give each other’s laws “full faith and credit” under the US Constitution – and this includes honoring marriages – states do not have to do so when another state’s laws violate public policy in that state. This was, generally, the way the law was practiced before the enaction of the so-called “Defense of Marriage Act” (or DOMA) in 1996, but it’s now the law of the land. So, for example, if a couple marries at the age of 14, and that is legal in the state in which they reside, but is illegal in another state, the question of the marriage’s validity in the second state is up for grabs, depending on the policy implication of 14 year olds marrying. If thinking about this makes your head hurt, you’re not alone: the topic of marriages alone took up weeks in my Conflicts of Law class.

New Case Law: Two new Oregon spousal support cases. February 16, 2008

Posted by csstephens in Legal Developments, Spousal Support.
Tags: , , , , , , , ,

istock_000001909034xsmall.jpg istock_000004621270xsmall.jpg As an Oregon divorce lawyer, I am always interested in what the appellate court says regarding spousal support.  The Oregon Court of Appeals published two spousal support decisions on February 6, 2008. Both decisions provide some guidance to husbands and wives dealing with spousal support claims at the trial court level.

In Potts and Potts, ____ Or. App ___ (2008), a self employed husband challenged a $7000 monthly award of indefinite spousal support to Wife. The court denied wife’s property appeal, and reduced husband’s spousal support obligation to $5000. Husband’s main argument was that the spousal support award gave wife a much higher net income than him after he paid support. Husband argued that he faced an increase in business expenses that should be deducted from his income, and that wife could earn substantial income from the property received, thus reducing her need for monthly support. The court didn’t buy husband’s “increased business expenses” argument, and found that wife’s potential for investment income should be reduced by the cost of the home she would purchase with her property award. The court still reduced husband’s support to $5000 per month for an indefinite term, holding that the goal of enabling the parties to live separately at a standard of living similar to the marriage could be met at this amount. The court calculated husband’s after tax income to be $139,671, and wife’s to be $88,744. The court considered these figures roughly equal in part because husband received the riskiest, most volatile assets, with wife’s property award being more stable.

In Van Riesen and Cross, ____ Or. App. ___ (2008), the court considered husband’s argument that he should have been awarded maintenance support. The court agreed, holding that husband was entitled to both temporary and indefinite support from wife.

The parties were married in 1979 and divorced in 2004. They have two children. Husband worked full time during the marriage, and was fired from Intel in 1996 after a bad review. He took time off to recover from the emotional blow, and after an 18 month employment hunt, did not seek new employment because his investments were doing well, and he anticipated a $2,000,000 payment from Intel from his employment grievance with Intel for lost compensation. His employment grievance was ultimately denied. Husband then developed diabetes, dyspepsia, and depression. Wife filed for divorce in 2003. At that time she earned about $120,000 per year.

At trial, husband and his experts argued he was unemployable based on his personality, age, and health conditions. The trial court awarded husband $25,000 in transitional support, and the “long half” of the property. (Really not that much more than half, only $31,565 more than wife in a $1,600,000 marital estate) Wife argued on appeal that husband had skills, and that he could work but had voluntarily retired. Husband argued that he could not work based on his age, health, and time out of the workforce. The appellate court found husband capable of work, but not at his previous salary (approximately $120,000 including bonuses.) The court also found that husband’ s unemployment was not voluntary as wife claimed. The court awarded husband maintenance support of $2,500 per month for 4 years until he could draw on his retirement, and that a lesser amount be paid after that time.

There is no magic formula for spousal support. The court considers each claim on a case by case basis, applying the statutory factors in ORS 107.105(1)(d) and existing case law. Both cases are interesting, and informative to parties with similar issues and claims.

Introducing Domestic Partnerships February 14, 2008

Posted by shelleycm in Domestic Partners, Legal Developments.
1 comment so far

Last May, we blogged about the passage of a bill granting same-sex Oregon couples many of the rights of heterosexual married couples.  After a few hiccups in federal court, Oregon counties are now open to register same-sex couples as domestic partners (occasionally not the way the legislature intended).

Other than giving a boost to Oregon’s diamond and wedding supply retailers, what was the legislature’s intent with this bill? What are the rights of married people that a registered same-sex couple now also possesses?  What is the difference between a same-sex domestic partnership and a heterosexual domestic partnership?  What happens when same-sex or heterosexual domestic partnerships break up?  If children are involved, how exactly would a court determine custody?

In the following posts, we’ll examine these questions and explain the differences between types of domestic partnerships.  We’ll look at the rights married people receive automatically at the time of marriage, and how an unmarried couple (of any configuration) can duplicate those rights using other legal means.

New Case Law: Property division, inherited property, and a clear trial court record. February 14, 2008

Posted by csstephens in Dissolution, Legal Developments, Property Division.

istock_000004820705xsmall.jpg On February 13, 2008, the Oregon Court of Appeals decided an interesting real property and equalizing judgment issue in Olson and Olson, ____ Or App _____ (2008). As a Portland, Oregon-based divorce attorney (Based in Oregon’s most populous county, Multnomah County), I am always interested in how the Oregon Court of Appeals adjusts trial court’s property divisions. The Olson decision addresses the issue of the division of inherited property, the division of appreciation on separately held property, presumptions regarding property division, the effect of credibility findings by the trial court, and the definition of what is a “just and proper” in dividing assets and liabilities.

The Olson decision dealt with husband’s appeal from a trial court ruling equally dividing husband’s inheritance (an 80 acre estate consisting of timber and a residence.) The trial court (in Lane county) treated the 80 acres as a marital asset and divided the inherited value and post-inheritance appreciation equally between the parties. Husband appealed in light of the Oregon Supreme Court’s ruling in Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004), arguing the court should have excluded the inherited property from division, or awarded wife only a small fraction of the property’s value.

Wife and husband married in 1995, and divorced in 2006. In 1995, husband’s father (“grandfather”) lived on an 80 acre timber property. Father’s relationship with grandfather was strained, but father was closer to grandfather than other family members. The parties jointly considered buying the property from grandfather, but did not complete the purchase. They spent $3000 investigating the purchase. Husband and wife’s relationship with grandfather soured in 1997, and the parties shelved their plans to move to the property. Husband’s relationship with grandfather improved, but cwife’s did not.

Grandfather died in 2000, and husband inherited the entire estate. Husband transferred the 80 acres to himself in his sole name (the property was worth $330,000 at the time.) Wife was not put on title. Other proceeds of the estate were mixed with the parties’ finances. Husband sold equipment and deposited it into a joint account, and the parties spent $10,000 in joint funds on an attorney for the estate. Husband and wife continued to file joint income taxes. At the time of trial in 2006, husband’s inherited property was worth $465,000.

In Oregon, property division at trial is controlled by ORS 107.105(1)(f). Under the property division statute, property received by a party during the marriage (by inheritance, gift, wages, or otherwise) is considered a “marital asset”, which means the court assumes both contributed equally to earning the asset, and that the asset should be divided equally. This is a “rebuttable” presumption, meaning that either spouse can challenge the other spouse’s contribution to an asset (and thus argue to receive a larger share of the asset.) Herein lies the main dispute in Olson. The trial court held that wife, through her labor on the property, and the use of the joint account in maintaining the property, had established that the property was “marital” and subject to equal division. The trial court equally divided both the premarital value of the property, and the appreciation on the property during the marriage. The trial court did not make specific findings as to WHY it had exercised its’ discretion in awarding wife half of the inherited value and the appreciation on the property during the marriage.

In reducing wife’s property award, the Oregon Court of Appeals quoted the Oregon Supreme Court’s construction of ORS 107.105(1)(f):

In dividing the parties’ property, we follow ORS 107.105(1)(f), as construed in Kunze, 337 Or at 134-36. Under that case, we undertake a series of inquiries, described by the Supreme Court:

“If a party establishes that the property at issue is a marital asset * * *, then the court must apply the rebut table presumption of equal contribution under ORS 107.105(1)(f) as its next step in the analysis.* * * [T]he presumption directs the court that, unless proven otherwise, the court must find that both parties have contributed equally to the acquisition of marital assets. When the statutory presumption is not rebutted, this court has determined that, absent other considerations, the ‘just and proper’ division of the marital assets is an equal division between the parties. * * *

“Because the presumption of equal contribution under ORS 107.105(1)(f) is rebut table, either or both of the parties may seek to overcome it. If a party seeks to overcome that presumption, then that party has the burden of proving by a preponderance of the evidence that the other spouse’s efforts during the marriage did not contribute equally to the acquisition of the disputed marital asset. In assessing whether a party has satisfied that burden, ORS 107.105(1)(f) requires the court to consider both economic and non-economic espousal contributions, including the contributions of a spouse as a homemaker. ORS 107.105(1)(f) (court shall consider contribution of spouse as homemaker). If a party ultimately rebuts the presumption that the other spouse contributed equally to a disputed marital asset, then the court decides how to distribute that marital asset without regard to any presumption and, instead, considers only what is ‘just and proper in all the circumstances,’ including the proven contributions of the parties to the asset. When a party has proved that a marital asset was acquired free of any contributions from the other spouse, however, this court has determined that, absent other considerations, it is ‘just and proper’ to award that marital asset separately to the party who has overcome the statutory presumption.

“After the court makes its preliminary determination of the appropriate division of the marital assets by applying the statutory presumption, ORS 107.105(1)(f) next requires that the court consider what division of all the marital property–that is, both the marital assets and any other property that the parties had brought into the marriage–is ‘just and proper in all the circumstances.’ By contrast to the focus upon the parties’ respective contributions under the statutory presumption, the court’s final inquiry as to the ‘just and proper’ division concerns the equity of the property division in view of all the circumstances of the parties. * * * The trial court’s ultimate determination as to what property division is ‘just and proper in all the circumstances’ is a matter of discretion.”

The Oslon court held that for Wife to benefit from the premarital value of the property, she must show that her contribution to the property influenced the inheritance, and that grandfather intended for her to receive the estate. Wife did not show that her work on the property influenced the inheritance, or that she was the intended recipient of the estate. The court thus concluded that she did not influence the inheritance and also did not contribute equally to the acquisition of the property.

The Oslon court next considered whether Wife was entitled to a portion of the appreciation on the property during the marriage. The Olson court held that it must consider both economic and non-economic contributions in considering whether the presumption of equal contribution has been rebutted. Wife, without compensation, had primarily raised the partes’ children. She contributed her earned income to the family. She made substantial contributions of labor to grandfather’s property. The Olson court held that husband had not rebutted wife’s contribution to the appreciation on the 80 acres.

The court went on to award wife 25% of the pre-inheritance value of the property because it was “just and proper in all the circumstances.” In awarding wife a portion of the pre-inheritance value of the property, the court primarily considered that the property had been treated as “commingled” by the parties. While held in husband’s name alone, the parties had intermingled the property with their personal affairs, and jointly labored on the property. Wife has separately researched whether they were eligible for a Ballot Measure 37 claim. In considering what was “just and proper” the court found that some fraction of the inherited value, less than half, should be awarded to wife. The Court of Appeals awarded wife 25% of the inherited value, and 50% of the appreciation between inheritance and divorce. The Court of Appeals then reduced wife’s equalizing judgment.

The Court of Appeals went out of its way to explain that the trial court’s decision had been modified because the rationale for the decision was not clear in the court’s record. Normally, the Appellate court respects the lower court’s rulings as to husband and wife’s credibility, both express and implied. If the trial court record does not reflect why it made a credibility decision, it is subject to adjustment at the appellate level.

What lesson does Olson offer for a husband or wife facing a divorce trial in Oregon? First, present the court in a trial memorandum with the proper property division analysis under ORS 107.105(1)(f) and the Kunze case. Second, make sure the court’s ruling is clear in the final judgment (see our earlier post on well drafted judgments.) Third, make sure the court’s record and the divorce judgment includes findings as to WHY the court is making the specific property division. Make sure your lawyer asks the court to make specific findings of fact! If the trial court exercises discretion in dividing property, but does not explain why, you are leaving your decision open to reconsideration by a higher court.

Divorce Tech: Online parenting class February 10, 2008

Posted by csstephens in Divorce Tech, Out of State.

In our last post we talked about the requirements for talking the local parenting class in Multnomah, Clackamas, and Washington county. As a divorce lawyer in Portland, Oregon, I frequently consult with parties living outside of Oregon or the United States who have an Oregon divorce or family law case involving children. One issue that repeatedly comes up in out of state cases with kids is what to do about the local parenting class requirement. Are you going to be prejudiced if you cannot complete the local parenting class requirement? Are you going to have to pay for a trip to Oregon just to take the local parenting class?

Local courts will usually approve a substitute class if a party cannot take the local parenting class because of distance or travel schedule. One good solution we found is an on-line parenting class offered through “Positive Parenting Through Divorce.” The website offers an on-line class that, with court permission, can substitute for the local parenting class requirement. The class was developed by Dr. Paul Maione, Ph.D., LMFT. The cost is $60, and a certificate of completion is mailed or faxed out within 1 business day of completion. Our out of state clients report good experiences and fast turnaround with the program.

Information about the mandatory parenting classes in Multnomah, Clackamas, and Washington County, Oregon. February 10, 2008

Posted by csstephens in Child Custody, Dissolution, Grandparents, Modification.

istock_000004700105xsmall.jpg As a divorce lawyer in downtown Portland Oregon, I frequently get asked about the parenting class requirements for family law cases in Multnomah, Clackamas, and Washington county. Some people already know of the class requirement, some don’t. A common reaction on learning of the class is “Me? Need a parenting class? Why?” A series of questions usually follows. “What is the cost? How long is the class? Can I waive it? Will I have to attend with my spouse?” The following is our effort to summarize the court’s authority to require the class, the reasons behind the class, and provide information about the classes in the tri-county area.

ORS 3.425 gives each family court department (or presiding judge) the power to set up a family law education class for parents in family law cases. The purpose of the class is to inform parents about the impact of family restructuring on children in family law litigation. If the county establishes a class, the class must include at a minimum information about: (1) The emotional impact of a divorce or separation on children at different developmental stages, (2) Parenting during and after a divorce or separation, (3) Custody , parenting time, and shared parenting plans, (4) The effect on children of parental conduct, and (5) Mediation and conflict resolution. The class may be required in divorce, annulment, legal separation cases, custody or parenting time petitions, modification of custody or parenting time actions, and enforcement actions. Our three local counties in the metro area (Multnomah, Clackams, and Washington) have all adopted mandatory parenting class programs.

Multnomah County: The court’s rules about the class are located in Multnomah County Supplemental Local Rule 8.125. The class is required for parties to divorces, annulments, legal separations, petitions for paternity and custody or parenting time, and modification actions if a parent has not previously completed the class. The class costs $45 – $60, depending on how fast you register. The class is one session and takes three hours. Online information about the Multnomah County class can be found at Family Court Services website. You can register online, or register by phone by calling (503) 988-3037.

Washington County: The court’s rules about the class are located in Washington County Supplemental Local Rule 8.102. The class is required for the following cases where the parties have children under the age of 17: divorce, annulment, legal separation, petitions for custody or parenting time, modification of custody and parenting time, and filiation cases. The cost of the class is $145 per adult. You can pay for the class with Visa, MasterCard, debit card, and money orders. The class consists of four (4) ninety minute workshops. Classes are scheduled weeknight evenings and Saturday mornings. You can find the Registration packet for Kids’ Turn, the class schedule, and a FAQ here. You can register for the class by returning the above packet or by calling the Kids’ Turn office (503) 846-0665.

Clackamas County: The court’s rules about the class are located Clackamas County Supplemental Local Rule 8.015. The class is required for the following types of cases where the parties have a child under the age of 18: Annulment or dissolution of marriage actions, legal separation actions, petitions to establish custody or visitation, and post-judgment litigation involving custody or visitation. The cost of the class is $60, but is reduced to $45 if your register within 45 days of filing your case. The class is one session, 3 ½ hours, held Wednesday evenings from 5:30 to 9:00 p.m. and on Saturday mornings from 9:00 a.m. to 12:30 p.m. You can register on the web, by fax at (503) 650-5656, by mail, by phone at (503) 655-8415, or in person at 2051 Kaen Rd. Oregon City, OR 97045. The registration link is here. The FAQ put out by Clackamas County Family Court Services about the Parent Education Program is here.

Our recommendation is to take the mandatory class as early as possible in the process. You may learn something to help your kids, and you won’t irritate the court.

Top 10 list: Top 10 questions to ask a divorce lawyer in the first consultation. February 10, 2008

Posted by csstephens in Child Custody, Child Support, Dissolution, Out of State, Property Division, settlement, Spousal Support, Top 10 List.

first meeting with lawyer If you are contemplating divorce, you should consult with an experienced family law attorney. Once you set up a consultation, be prepared for the first meeting, and have a list of questions to ask the lawyer. The following questions should help you understand the divorce process, how your lawyer’s office operates, and if the lawyer is a good fit for you and your case.

  1. How experienced are you in family law? All lawyers have law degrees, but many lawyers practice in several fields other than family law. You don’t want a generalist. Family law is a specialized field, and you will likely be better served by a lawyer who focuses on family law. Make sure that most of their cases are family law cases. Ask the lawyer if they have handled cases like yours before.
  2. What steps are involved in the divorce process? Your lawyer is there to educate you and guide you through the process. Have the lawyer clearly explain the process to you, from filing the petition, negotiating temporary orders, and the trial process.
  3. How will you charge me? If you hire the lawyer, you should expect to sign a retainer agreement that covers how you will be charged. Ask about the hourly rate, and how often you will be billed. Ask if you will be charged for time spent with paralegals and other staff in the office, and at what rate. Ask what will happen if you cannot pay your bill in full every month. Ask if you can pay by credit card, and if payment plans are available.
  4. How will we communicate? Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call. Is your lawyer tech savvy enough to email you draft documents as PDF files? Is your lawyer’s office set up to scan and email incoming and outgoing correspondence? Do you automatically get a copy? The last three are essential if you live out of state, or a distance from your lawyer’s office. Lawyers ta
  5. How long will the process take? Ask your lawyer about what is their estimate for how long the case will take depending on if you settle quickly, settle after protracted negotiations, or have a trial.
  6. Can you estimate the cost of my divorce? This is an important question, but a very difficult one to answer. Don’t worry if your lawyer is hesitant to answer. The cost of a divorce depends on what you ask the lawyer to do, the level of conflict between you and your spouse, and the reasonableness of your spouse and their lawyer. Many of the cost factors are outside your control.
  7. What kind of resources do you make available to clients to make the divorce process less difficult and painful? Divorce is a difficult time, and good lawyers provide information and resources to help deal with the human side of the impact. Does your lawyer provide information about the process for self education? Are they patient with you? Do they offer referrals to other professional services if you request them? Our firm provides information through this blog, and educational articles on our website. We also maintain a list of recommended reading materials, and a list of qualified counselors and therapists for those who ask.
  8. Do you recommend mediation? Ask your lawyer if your case is appropriate for mediation. Ask about private mediation, and about how often the lawyer uses private mediation with clients. Good lawyers try to settle their cases once they have analyzed the case. A lawyer that does not use private mediation or other alternative dispute resolution tools may be doing you a disservice.
  9. What fees and costs can I expect other than charges for your time? Your local county (Multnomah, Washington, Clackamas, etc.) will charge a filing fee to open a case. You will likely have to pay a process server to server your spouse with divorce papers. Your case may require experts, such as appraisers, actuaries, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
  10. How would you predict a judge would rule on the issues in my case? While no lawyer can guarantee specific results, listen closely to the analysis behind the lawyer’s answer. Understanding the facts that would make a favorable ruling more likely will help with strategy during the case.

Divorce Myth: Your spouse can block a divorce by objecting to it. February 7, 2008

Posted by csstephens in Dissolution, Myths.

istock_000004511002xsmall.jpg A “myth” we come across with surprising frequency is that you need your spouses’ consent to get a divorce.  As an Oregon divorce and family law lawyer, I am repeatedly surprised by the number of people who believe spousal consent is required.  This myth comes in varying forms, from (1) a belief you can’t get divorced unless your spouse agrees to get divorced, to (2) you can’t start the divorce process unless your spouse “accepts” the divorce papers, to (3) you can’t get a divorce unless your spouse signs the final judgment. In Oregon, all three are myths, myths, and more myths! While your divorce may not be simple if your spouse objects, your spouse cannot stop a divorce that you want.  If you want the divorce, and you jump through the right procedural hoops, you can get the divorce with or without your spouses’ blessing.

This myth is wrong for several reasons. First, Oregon is a “no fault” divorce state, meaning you don’t have to prove any wrongdoing to get a divorce. All you have to prove is that you have  “irreconcilable differences.” ORS 107.025. The fact that you want a divorce and your spouse doesn’t is considered an “irreconcilable difference.” So, when someone “objects” to a divorce, really all they can do is dispute the terms of the divorce (custody, parenting time, property division, support), but not the divorce itself.

Second, your spouse cannot block a divorce by not accepting the divorce papers. To start a divorce action, you need to serve your spouse with the divorce petition and other pleadings. Your spouse can accept them voluntarily, or you can serve your spouse without their consent. If your spouse is avoiding service, you may be able to get permission from the court to allow for “alternative service”, basically permission to serve your spouse through posting, mailing, or even publishing information about the divorce in the newspaper! If your spouse is dodging service, talk to your lawyer about whether alternative service is a good option.

Finally, your spouse does not have to sign the final divorce papers for it to be approved by the court. If your spouse won’t cooperate, you can get a divorce by “defaulting” your spouse. Once you file your divorce petition, serve your spouse (with or without their blessing), and wait 30 days, you can get an order from the court barring your spouse from objecting to the divorce. At 90 days after service you can submit a final judgment of divorce, without your spouse’s signature. Even if your spouse objects and files a response, the judge can and will order a divorce over his or her objection at trial.

So, now you know. If you are contemplating divorce and your spouse tells you that you can’t get divorced without their permission, consult with a family law lawyer. Your spouse either doesn’t know, or they are misleading you.

Tools to settle your case outside of court. February 6, 2008

Posted by csstephens in Alternative Dispute Resolution (ADR), settlement.
Tags: , ,
1 comment so far

handshake - mediation Good lawyers use tools other than the courtroom to get results for clients. A trial is one way to resolve your case, but not necessarily the best way. Good lawyers try to settle their cases after they have analyzed the case. A lawyer that pushes court as your only option may be doing you a disservice. The majority of contested divorces settle without a trial, and there are several tools available to assist you in the process. Once you have done your homework, and know what a court may do at trial, consider the following options:

1. Judicial Settlement Conference: A judicial settlement conference is a meeting, guided by a judge, to help parties settle a lawsuit. In some counties they are mandatory, while in others the parties must request them. One benefit is cost. The court does not charge for the settlement conference, but your lawyer will charge you for his or her time. Usually, what happens at a settlement conference is confidential to make sure parties feel good about making their best offers. What happens at the conference? Usually the judge will meet with both sides to see where there is middle ground. The judge may help the parties and lawyers by giving their opinion of what should happen in a case. If the parties reach an agreement, the court can put the settlement on the record on the spot.

2. Mediation: Mediation is a way of resolving a dispute in which an impartial person (the mediator) helps you discuss your case and, if possible, reach a voluntary agreement. The mediator helps you think about your needs, clarify your differences, and find common ground.

Oregon courts require mediation for custody and parenting time disputes. The benefit of county mediation is that it is free. Lawyers do not attend. The downside is that you likely cannot resolve your case if it involves financial or property issues. Also, your county mediation department may be overwhelmed with cases, and they may not have enough time or energy to get both parties to “yes.”

Good lawyers steer clients towards private mediator, if appropriate for the case. In private mediation, the parties jointly hire an expert to help resolve a dispute. The expert is usually a retired judge or experienced divorce lawyer. Usually the lawyers attend to provide guidance. The parties pay the mediator for his or her services (the best mediators in Oregon charge $250-$300 per hour) and pay for their lawyer’s time. While expensive, if you reach a resolution, it is generally less expensive and less stressful than having a trial. Unlike court, you have the opportunity to reach a flexible and creative solution to your dispute. Most important, the result is voluntary, rather than imposed on you by a judge you just met.

      Make sure to talk to your lawyer about your dispute resolution options other than the courtroom. While a courtroom may be necessary, you have other options. Talk about these options with your lawyer to see if they are right for you.