Part 8: After Divorce

Post Divorce Issues and Considerations

FROM RELOCATION TO CO-PARENTING TO SUPPORT MODIFICATIONS

After divorce, you may still have some financial matters that must be addressed to fully separate your money from your former spouse’s. You may experience emotional setbacks for awhile as you process the end of your marriage. If you have children with your former spouse, you will have years of co-parenting together and possible conflicts over custody issues and parenting styles. You may experience changes in your circumstances and wish to make changes to your divorce judgment or support orders. This section suggests methods for handling these post-divorce issues.

Is the Divorce Judgment Final?

Even if you resolved your divorce by settlement (agreement) rather than a court determination, you may still have some lingering disagreements with your divorce judgment. It’s important to discuss these with your lawyer to determine your options, if any.

CAN I APPEAL MY DIVORCE JUDGMENT?

Yes, unless your judgment is the result of a settlement. If your judgment is based on a settlement, then in most cases your judgment cannot be appealed.

If your divorce judgment was entered by the court upon its own findings (not a settlement), then you can appeal so long as you do so within a short time period (30 days after the date the judgment is entered). This appeal is based only upon the trial court’s existing record. The appeal will include written briefs and oral argument, but no new evidence. The appellate court may make one side pay some or all of the other side’s attorney fees on appeal, but this is discretionary with the appellate court. You may appeal your property division as well as support and parenting plan issues. You may appeal only part of the judgment, or several parts. Be aware that appeals are typically expensive and lengthy. It may take more than a year for the appellate court to issue its decision.

If your divorce was decided in an arbitrator’s award, then you can appeal to Circuit Court so long as you do so within a short time period (20 days after the arbitration award is filed in court). This appeal is “de novo,” meaning that your divorce issues will be considered from the beginning. This time, the divorce judge (not an arbitrator) will hear your case. The judge will ignore anything that happened at arbitration, so the appeal will cover all issues in your divorce. Whoever files the appeal from the arbitration must receive a better result from the judge than they received from the arbitrator, or else owe all of the other person’s attorney fees incurred after the arbitration award. This means that if you file an appeal and win, then usually you and your former spouse will each pay your own attorney fees. But if you file an appeal and lose, then you must pay all attorney fees, for both sides, owed for the appeal.

Your divorce judgment will usually stay in effect until — and unless — the appellate court reverses the judgment. Sometimes the trial court will “stay,” or freeze, certain parts of the judgment pending the decision on appeal.

CAN A COURT MODIFY THE DIVORCE JUDGMENT?

If you only want to change the support order, custody or parenting plan in your divorce judgment, then you can file a modification request. Modifying parenting plans and support orders are discussed under those headings below. Modification is faster, simpler and usually much cheaper than an appeal. Generally, you cannot modify other issues decided in your divorce, such as the property division.

Fully Separating Your Finances

Your divorce judgment likely doesn’t completely divide all of your assets and debts. You probably will need to finalize some details of the judgment.

WHAT DO I NEED TO DO TO FINALIZE THE PROPERTY DIVISION?

Depending on your particular assets and debts, and whether these changed ownership in the judgment, you may need to complete certain tasks to fully separate your finances from your ex-spouse.

  • In order to finalize most retirement plan divisions, a Qualified Domestic Relations Order (QDRO) will need to be prepared and signed by the judge. The employer paying the benefits on that account will need the QDRO to determine any “alternate payee,” that is, anyone other than the person who paid into the account.
  • You will need to file deeds with your county recorder’s office for any real property that is changing ownership.
  • You may need to refinance mortgages or other loans.
  • You will want to change title on any vehicles that changed ownership, and inform your automobile insurer of any changes.
  • You may want to close joint bank accounts and joint credit cards, if allowed or ordered in your judgment.

CAN I CHANGE MY BENEFICIARY DESIGNATIONS?

So long as the court judgment allows for it, you generally can change the beneficiary on your retirement and estate planning documents after a divorce is final. (Read your divorce judgment especially carefully in the case of life insurance. See Part 4 of this guide, “Life Insurance.”)

You may need to change beneficiary designations for the following:

  • Pensions and retirement accounts
  • Investment accounts
  • Bank accounts
  • Life insurance
  • Annuities

Documents you may need to change include:

  • Will
  • Living will
  • Power of attorney
  • Revocable and irrevocable trusts

Changing Your Name

CAN I KEEP MY LAST NAME?

Yes. The court (nor your ex-spouse) can require you change your name.

CAN I CHANGE MY LAST NAME?

Yes. If you ask for a name change as part of your divorce, then the court will grant your request, regardless of whether your spouse objects. Your divorce judgment will include a provision changing your name.

If you didn’t change your name during your divorce, you can still file a name change request with your local county court. Many courthouses have simple self-help packets for this purpose.

HOW DO I INFORM OTHERS OF MY NAME CHANGE?

Get a certified copy of your divorce judgment. Take it to your local social security office and Department of Motor Vehicles (DMV) and fill out the necessary forms. You usually will need to appear in person to do this. It is a good idea to call or check websites before you go to know what else you may need to bring, such as your social security card.

Once you have a new driver’s license and social security card, it is usually a simple process to change your name on your passport, bank accounts, investment accounts, credit cards, insurance policies, lease or mortgage and your utility accounts.

Changing Your Child’s Name

If your former spouse agrees to the name change, you can probably change your child’s name. File a Petition for Name Change for Minor in the appropriate county court and include the signed consent forms for each parent. There is a small filing fee. If your child is under age 14, the court will appoint a Guardian Ad Litem, an evaluator to help determine whether the name change is in your child’s best interest. If your child is age 14 to 17, your child is allowed to consent to the name change.

In about one or two months, the court will hold a hearing on the name change. If nobody objects, then the name change will usually be ordered. Once you have a court order changing your child’s name, contact the Oregon Center for Health Statistics if you want a new birth certificate for your child.

You can possibly change your child’s name, even if your former spouse disagrees. The process is the same as described above, except that you will not be filing a consent form for your former spouse.

If you have sole legal custody, and the name change is in the best interest of your child, then the court will order the name change regardless of whether your former spouse consents to the change.

If you have joint legal custody, then the court will consider your former spouse’s objection. At the hearing, the court will also consider your child’s age, your child’s own name preference, any parental misconduct, and the impact of a name change on your child (including your child’s relationship with both parents). The court will decide in the best interest of your child.

Relocation: When You or Your Former Spouse Moves

Many people change homes as part of separation and divorce. An initial relocation is common when spouses are separating. However, after divorce, some divorced people may want to move again, often because of new jobs or new spouses.

If you have minor children, you should consult a lawyer before you move. You will want to discuss whether a court will allow you to move, the steps you will have to take, and whether you can take your children with you.

You should also consult a lawyer if you have minor children and you learn that your former spouse plans to move. You will want to discuss whether and how to object to the move, and how this may change your custody arrangement.

IF I DON’T HAVE CHILDREN WITH MY FORMER SPOUSE, CAN I MOVE?

Yes. There are no restrictions on your moving.

CAN I MOVE AND TAKE MY CHILDREN?

The short answer is: it depends, even if you are the custodial parent. First, check your divorce judgment. It probably requires that you notify your former spouse before moving more than 60 miles away. Your former spouse then has the right to object to your relocation and ask the court to intervene.

  • If you are moving less than 60 miles away, and will stay in Oregon, then you technically do not have to give advance notice of your anticipated move to your spouse. If your short-distance move will change your child’s school or impact your former spouse’s parenting time, then you should probably give advance notice. Your former spouse may still object and ask the court to block your move.
  • If your former spouse consents to your move, then no court hearing will be needed.
  • If your former spouse objects to your move, then the court will hold a hearing on the issue. You will want to retain an attorney to assist you with your relocation hearing.

The court will allow your move if it is found to be in your children’s best interests. It can take many months before the court decides this issue, however. If you are considering a move it is extremely important that you discuss the specific facts of your case with an experienced family law attorney.

Note that for the first six months after your children leave Oregon, the Oregon court will still have jurisdiction over any parenting plan issues. After six months, usually the children’s new home state takes jurisdiction.

CAN I MOVE IF MY CHILDREN DO NOT LIVE WITH ME?

The short answer is: probably yes. First, check your divorce judgment, because it probably requires that you notify your former spouse before moving more than 60 miles away. Your former spouse then has the right to object to your relocation and ask the court to intervene. If your spouse objects, then the court will hold a hearing on the issue. If your former spouse consents to your move, then your move may proceed without a court hearing.

Co-Parenting

Even though your marriage to your former spouse has ended, your children will likely still have a relationship with that person (and their extended family). You may have many years of co-parenting with your former spouse. This can be contentious and expensive, if you involve lawyers. The more you understand your co-parenting rights and responsibilities now, the better off you will be in the future, by avoiding return visits to court.

HOW CAN I COMMUNICATE WITH MY FORMER SPOUSE?

Some co-parents are able to communicate and negotiate well, especially after time has passed since the divorce. Civil communication is in your and your children’s best interest.

If you are in high conflict, however, or if you are uncomfortable dealing directly with your ex-spouse for any reason, you may want to consider structuring your communication methods to efficiently share information about your children. Such methods include online calendars (for children’s appointments and the parenting time schedule), email, and a notebook that travels with the children between homes. Try to avoid conflict, especially on issues irrelevant to the children (such as either of you dating).

CAN MY FORMER SPOUSE BE PRESENT DURING MY PARENTING TIME?

It can be disconcerting to see your former spouse during your own parenting time, such as at your children’s sports practices and school performances. Generally, there is no prohibition on your former spouse’s attendance, so long at the event is in a public place (such as an outdoor playground) or your children’s school. Your children should be allowed to greet your former spouse at these events.

Your former spouse is not allowed into your home without your consent, even for holidays or the children’s birthday parties. If you believe that your former spouse’s repeated presence rises to the level of stalking, then you should consider seeking an appropriate court order.

WHAT DO I DO IF I DISAGREE WITH MY FORMER SPOUSE’S PARENTING STYLE?

Generally, unless your former spouse is being abusive to or neglectful of your children, or violating your parenting plan, there isn’t much you can do, legally. Having a detailed parenting plan can help in this regard, but disagreements over parenting style most often must be settled between the parents. You may have to focus on your own parenting and try to adjust to your children also receiving another style of parenting.

WHAT IF I OBJECT TO MY FORMER SPOUSE’S NEW ROMANTIC PARTNER?

It is understandable to be concerned about a new adult with whom your children have contact. Unless this contact violates your parenting plan, you usually have no legal recourse. Provisions of your parenting plan may have been created to address this, such as:

  • A prohibition on non-parent adults staying overnight when the children are present in the home.
  • A right of first refusal stating that if one parent is not able to care for the children directly during his or her parenting time, then the other parent must be offered that time first (before a babysitter or even a stepparent).
  • An agreement that no new romantic partners are to be introduced to the children until certain requirements are met (such as until a specified time period or a meeting with the other parent).

WHAT IF MY FORMER SPOUSE INSULTS ME TO MY CHILDREN OR TO OTHERS?

Generally, there is no legal recourse. In extreme cases, if your co-parent “brainwashes” your children against you and your children participate in insulting you, you may have a claim for parental alienation. Similarly extreme, if your co-parent lies about you in public and thereby causes monetary damage to you, you may have a claim for defamation. Both kinds of claims are difficult to win. If you believe you may have such a claim, you should contact a lawyer.

WHAT IF MY FORMER SPOUSE VIOLATES THE PARENTING PLAN?

You can file a motion in your divorce court for enforcement of the parenting plan. There is a modest filing fee (which is sometimes waived). The court will conduct a hearing within 45 days. Sometimes the court will order mediation. At the hearing, if the court finds there was a violation of the parenting plan, it can do any of the following:

  • Nothing;
  • Enforce the parenting plan (that is, re-state its requirements);
  • Modify the parenting plan, usually by making it more specific or adding new conditions;
  • Order additional parenting time, if it is in your children’s best interest, to compensate you for wrongfully denied parenting time;
  • Order the parent who is violating the parenting plan to post a money bond;
  • Order either or both parents to attend counseling focusing on the impact of violation of the parenting plan on children;
  • Award the parent who prevails at the hearing that parent’s expenses, including attorney fees and court filing fees, incurred in enforcing the parenting plan;
  • Terminate, suspend or modify spousal support;
  • Terminate, suspend or modify child support; or
  • Schedule a hearing for custody modification.

If you believe your former spouse’s violation of the parenting plan is willful, you might ask your attorney about filing a motion for contempt of court. Usually a contempt hearing will not occur as quickly as a motion for enforcement. At the hearing, if the court agrees that there was a violation and that it was willful, the court can impose sanctions against your former spouse including payment of your attorney fees, a monetary fine, or even jail time.

WILL THE POLICE ENFORCE MY PARENTING PLAN?

No, not without a special court order specifically requiring police assistance. This order, called an Order of Assistance, is entered only when a person has taken away a child from a parent who is entitled to custody. The order is meant for extreme cases, such as kidnapping, and the statute that creates this order specifically states that it cannot be ordered to enforce parenting time or visitation rights.

WHAT IF MY CHILDREN DON’T WANT TO SEE MY FORMER SPOUSE?

You should comply with the parenting plan, as it is pursuant to a court order. If you believe that your parenting plan is no longer in your children’s best interests, you should meet with a family law attorney to discuss your options for modifying the parenting plan. If you believe your children are being abused, take action as detailed in the section below.

WHAT IF MY CHILDREN ARE BEING ABUSED?

If you believe your children are in immediate danger, you should call 911. You and your attorney can also go to court in person and ask for an “ex parte” hearing under statute ORS 107.139. You will need to write a detailed affidavit explaining the immediate danger. You will also need to show the judge that you made a good faith effort to contact your former spouse about the purpose and time of the hearing prior to appearing in court. The judge may then make an order awarding you temporary custody and will arrange to serve the order on your former spouse. If your former spouse contests the order, there will be another hearing within 14 days.

If your children are not in immediate danger, you should call the child abuse hotline for your county. The numbers can be found online at http://www.oregon.gov/DHS/children/abuse/cps/cw_branches.shtml. State that you wish to report suspected child abuse.

Except where the abuse is an emergency situation requiring a 911 call, you should probably contact a lawyer about your options before you make a report to the authorities. Your lawyer can give you a realistic evaluation about how the court or welfare office might respond. Your lawyer can also help you avoid court and other sanctions for unwarranted abuse reports. The Oregon court system often looks unfavorably on a parent who makes abuse allegations during the pendency of a custody dispute when the child has no physical injuries or has not made clear disclosures of abuse.

Modifying Custody and Parenting Plans

CAN THE COURT MODIFY THE PARENTING TIME SCHEDULE?

You and your former spouse can agree to modify the parenting time schedule at any time. You are strongly advised to put any modification in writing, with both of your signatures, and to file it with the court for the judge’s signature. Your modification is probably not enforceable unless the judge signs it. If a judge signs it, it becomes the final court order, replacing the old one.

You can also file a motion in court to modify the parenting time schedule. A court can modify the parenting time schedule if it is in the best interests of the child, even if the other parent disagrees.

CAN THE COURT MODIFY CUSTODY?

You and your spouse can make a written agreement to change custody, as in the previous section.

You can also file a motion in court to modify custody. Custody is more difficult to change than the parenting time schedule. Generally, you must show that there has been a substantial and unanticipated change in circumstances since the date of the divorce judgment (or previous custody order) and that a custody change is in the best interests of the child. The court will often order a custody evaluation and mediation to assist the process.

A change of circumstances may occur if the custodial parent is in jail, abusive or otherwise unable to care for the children. It can also mean that a non-custodial parent who was previously unable to care for the children is now able to do so. If a parent has committed domestic abuse, there is a rebuttable presumption that it is not in the best interests of the children for that parent to have custody. A court may consider a parent’s remarriage (especially if the new spouse has any record of abuse). A court may consider a custodial parent’s upcoming move out of Oregon, if the move will have a significant adverse impact on the children. Inability or unwillingness to continue to cooperate with the other parent counts as a change of circumstances sufficient to modify a joint legal custody order.

However, the court will not consider either parent’s conduct, marital status, income, social environment or lifestyle unless these factors are causing, or may cause, emotional or physical harm to the children.

Custody modifications are among the most frequently denied motions filed in family court. Sometimes there are sanctions, such as monetary fines, for filing unwarranted or excessive motions to modify custody. Therefore, you are strongly advised to consult a qualified family law attorney before filing such a motion.

What if Support isn’t Paid?

WHAT IF MY FORMER SPOUSE FAILS TO PAY CHILD SUPPORT?

If your children have ever received public assistance in Oregon, then generally the Oregon Department of Justice, Division of Child Support (DCS) will help you collect child support (in addition to other services, such as establishing paternity and collecting past-due medical support payments). Often this will include garnishing the wages of the non-paying parent.

If your children have never received public assistance in Oregon, then the District Attorney (DA) of your county will help you collect child support, in similar ways.

As a third option, you can hire a private attorney to help you collect child support. This has the advantage of permitting you to exercise more direct control over the collection process than if the government is collecting support. This is because a private attorney works for you directly; DCS and the DA work for the public rather than you. Collection by a private attorney is often faster than government collection.

Finally, you can opt to hire a for-profit support collection company. These vary in effectiveness.

Support services by the Division of Child Support or District Attorney will require payment of a modest fee (currently $25/year, per child). Private attorneys usually charge hourly rates for this work (sometimes the court will order the non-paying parent to reimburse your attorney fees). For-profit companies often charge a percentage of whatever amount they collect for you.

WHAT IF MY FORMER SPOUSE FAILS TO PAY SPOUSAL SUPPORT?

The District Attorney (DA) of your county may be able to help you collect back spousal support. Alternatively, you can hire a private attorney (sometimes the court will order the non-paying party to reimburse your attorney fees). In some cases, the attorney will file a motion with the court for contempt (willful violation of the spousal support order). The attorney may seek to collect the past-due amount through wage garnishment or other means.

Modifying Support Orders

CAN THE COURT MODIFY A SPOUSAL SUPPORT ORDER?

Yes. Either you or your spouse can file a motion in court for a modification of spousal support at any time. The court will modify the order if it finds a substantial, unanticipated change of circumstances has occurred. If the person who filed the motion is the person paying support, that person will usually want to show that his or her income has decreased, or expenses have increased (because of new children, for instance). On the other hand, if the person who filed the motion is the person receiving support, that person will usually want to show that the paying person’s income has increased.

You cannot obtain spousal support after divorce if your original divorce judgment did not provide for payment of any spousal support.

CAN THE COURT MODIFY A CHILD SUPPORT ORDER?

Yes. Either you or your spouse can file a motion in court for a modification of child support. The court will modify the order if it finds a substantial, unanticipated change of circumstances has occurred impacting the parents’ relative incomes and expenses. Relevant changes may include either parent’s change in income, either parent’s remarriage (especially if their new spouse also has an income), the paying parent’s new children, any changes to parenting time, and the children’s changed expenses.

If you request it, the district attorney of your county may also perform a “periodic review” once every three years to determine whether the current support amount is consistent with Oregon’s child support guidelines. This does not require any change of circumstances.

CAN THE COURT MODIFY PAST SUPPORT?

No. Any change can only be ordered by the court from the date the motion to modify support is served on the other parent.

Single Parenting After Divorce

As you transition to becoming a single parent, take advantage of the many resources (including books, support groups and single-parent friends) available to help you. This guide will not fully summarize those resources, but you may wish to focus on the following:

  • Support your children’s relationship with your former spouse, as that approach best helps your children integrate their dual families. It will also help you in any later custody or parenting plan modifications.
  • Create new family routines and traditions. For instance, rather than fighting a parenting time schedule that allows you only Christmas with your children only in alternate years, you may wish to celebrate the holiday a week late, after your children return from the other parent.
  • Watch for children’s reactions to the new family structure. Help them articulate their needs and help negotiate solutions. For example, a young child may wish to bring a favorite toy or even a pet back and forth between homes to instill familiarity. An older child might be comforted by a bedtime phone call to the other parent.

Dating & Remarriage

HOW LONG MUST I WAIT TO REMARRY?

There is no minimum waiting period to remarry in Oregon.

WILL REMARRIAGE AFFECT HOW MUCH SPOUSAL SUPPORT I PAY/RECEIVE?

If a person receiving spousal support remarries, the support obligation does not generally end, unless the divorce judgment says so. If your ex-spouse remarries, you can request a modification of your support order if his/her financial situation improves significantly due to the remarriage.

If you pay spousal support, remarriage (especially if you have children or step-children with your new spouse) may affect your income and expenses and you can consider requesting a modification of the spousal support order.

Divorce Recovery

Divorce is an emotional process as well as a legal one. Recovering from your divorce can take a long time as you grieve not only the loss of your partner, but also the dream of a long-lasting, happy marriage with that person. Make sure to find and take advantage of various support resources, including your extended family, friends, therapist, clergyperson, and/or divorce support groups.