Part 3: The Divorce Process
An Oregon Divorce Case from Start to Finish
Understanding the structure and requirements of the divorce process will better prepare you for your divorce case in Oregon. Most commonly, one spouse files for divorce against another spouse. This is the Oregon divorce process primarily discussed in this part of this guide. (Other processes — filing jointly or getting a summary divorce — are covered briefly at the end.) Before beginning any type of divorce process in Oregon, you should discuss your options with a qualified Oregon family law divorce attorney. An attorney will help you best determine the proper approach for your situation.
If you are considering divorce in Oregon, the attorneys at McKinley Irvin in Portland, Oregon can help you no matter how complicated your case may be or how difficult your situation may seem. With over 20 years in family law practice, McKinley Irvin’s experienced, compassionate and dedicated divorce attorneys know how to protect your interests and help you through your divorce. We can explain your rights and options within Oregon law so you can make the best choices for you and your family.
WHAT SHOULD I DO IF I AM SERVED WITH DIVORCE PAPERS?
The discussion below is from the viewpoint of a spouse filing for divorce in Oregon. If you are the spouse who is served with divorce papers, the process is the same as outlined below, except that your spouse is the “petitioner” and you are the “respondent.”
If you receive a divorce summons and petition filed by your spouse, you should speak with a qualified Oregon divorce attorney immediately about protecting your rights to property, assets and children. Read the summons and petition carefully and discuss your concerns with your divorce attorney. You have 30 days to respond to the petition, but you must consider the time it will take you to hire an attorney, review the petition, locate paperwork and records, and complete any other tasks that will be involved in preparing your response and filing it with the Oregon court.
Filing for Divorce as a Sole Petitioner in Oregon
The following outlines the basic steps for a typical Oregon divorce case, from start to finish, when filing for divorce as a sole petitioner. Filing as a sole petitioner is where you file for divorce against your spouse, rather than the two of you filing it together.
|1||Establish Jurisdiction and Venue||Determine in which state and county you can file for divorce.|
|2||Complete a Petition for Dissolution of Marriage||File this document with the Oregon family law court to begin your divorce case. This document also “restrains,” or disallows, any disposal of marital assets.|
|3||Summons and Petition Served||Arrange for your spouse to receive copies of the Summons and the Petition.|
|4||Response and Counter Petition||Your spouse can file a response and/or counter petition, or may choose not to respond. If there is no response, that means can apply for entry of an order of default against your spouse and ask that the court grant you a divorce. If your spouse files a counter petition, that means your divorce is contested.|
|5||Temporary Hearings||You can ask for and receive temporary orders from the Oregon family law court regarding your children, home and finances while your case is pending. If you and your spouse agree about how your affairs should be managed during the divorce, then temporary hearings may be unnecessary.|
|6||Mandatory Parent Education||In Oregon, if you have minor children, you and your spouse are each required to attend a mandatory parent education course.|
|7||Discovery||You and your spouse will exchange information and documents and investigate disputed issues.|
|8||Mediation||You and your spouse may choose to resolve issues via an impartial mediator.|
|9||Settlements||If you and your spouse agree on all issues in your divorce, then you will present a written settlement document to the Oregon divorce court and if approved, your divorce is finalized. You will not move on to step 10.|
|10||Trial||If you and your spouse cannot agree on all issues in your divorce, then you will each present evidence and arguments to the Oregon family law judge at a trial. The judge will decide on the issues, approve a final judgment, and finalize your divorce.|
This list is intended only to show the “typical” process of a divorce case in Oregon. Every case is different, so you may not go through each step in the list for your divorce, or in this particular order. You may also have additional tasks to complete for circumstances unique to your case. Your divorce attorney will be able to explain what steps are likely to be necessary for your particular Oregon divorce case. Your attorney will also assist and guide you through each step.
Step 1 — Establishing Jurisdiction and Venue: Where Do You File for Divorce?
To get divorced in Oregon, you need to prove to the Oregon family law court that it has proper venue over your case. You can file for divorce in Oregon only if you meet one of the following residency requirements:
- You were married in Oregon and either spouse is a resident of (or currently lives in) Oregon at the time of filing the divorce case, or
- You or your spouse lived in Oregon continuously for at least six months prior to the date your divorce case is filed.
Your divorce attorney does not need to be located in the same county in which your divorce is filed. Any Oregon attorney can practice in all Oregon counties, as long as they are licensed to practice in Oregon State.
Step 2 — Beginning Your Divorce Action: The Petition for Dissolution of Marriage in Oregon
In Oregon, there is only one basis for obtaining a divorce: irreconcilable differences between the parties that have caused the irremediable breakdown of the marriage. Oregon does not recognize any fault-based grounds for obtaining a divorce. In order to begin a divorce action in Oregon, you or your attorney must complete and file with the court a Petition for Dissolution of Marriage in which you state that your marriage is irremediably broken. To ensure that your petition is completed and filed correctly, it is strongly recommended that you do not file a petition without assistance from a qualified Oregon family law attorney. The petition template can be obtained from your county clerk or you may be able to download a copy of the form from the clerk’s web site.
WHAT IS A PETITION FOR DISSOLUTION OF MARRIAGE?
The Petition for Dissolution of Marriage is a legal document filed in court to initiate a divorce process in Oregon. Part of the document contains objective factual data on each spouse, your marriage, your property, and your children (if any). The other part of the document states how you want to resolve issues in the divorce, including the parenting plan, child support and insurance, spousal support (alimony) and insurance, division of real estate and personal property, and distribution of debts.
Working with a qualified Oregon divorce attorney is the best way to make sure that the legal documents are complete and filed properly. To complete the petition, you will need to collect paperwork, perform research and be as complete and accurate as possible in your requests. Lack of attention to detail in the petition could result in delays or mistakes in your case.
FILING THE INITIAL DIVORCE DOCUMENTS
Once the Petition for Dissolution of Marriage has been completed, you or your attorney will file both documents in the clerk’s office of the courthouse in the appropriate Oregon county.
When your petition is filed, a Record of Dissolution of Marriage (a vital statistics form) will also be submitted to the Oregon family law court.
You will be charged a filing fee when you file your petition, unless you have the fee deferred or waived due to economic hardship (this requires another form). The filing fee varies across Oregon, depending upon the county.
WHAT IF YOU HAVE AN EXISTING CHILD SUPPORT ORDER OR HAVE A PENDING CHILD SUPPORT PROCEEDING?
If you have children, then your attorney needs to file a Certificate Re: Pending Child Support Proceedings and/or Existing Child Support Orders/Judgments with the Oregon family law court. This form notifies the court whether there are any existing child support proceedings or child support orders relating to your children.
PROTECTION AGAINST IDENTITY THEFT VIA YOUR COURT DOCUMENTS
In order to protect you from identify theft, your attorney will file a Confidential Information Form and Notice of Filing a Confidential Information Form. These forms make sure your personal information is not made available to the general public, including your social security number and social security numbers for all dependent children.
Documents you must file with the Oregon family law court at this stage:
- Petition for Dissolution of Marriage
- Record of Dissolution of Marriage
- Certificate Re: Pending Child Support Proceedings and/or Existing Child Support Orders/Judgments
- Confidential Information Form(s)
- Notice of Filing Confidential Information Form(s)
THE EFFECT OF FILING THE PETITION
Once your petition is filed, the clerk will assign a case number. Everything to do with your Oregon divorce case from now on will be organized under this number. Also, your case number must be on the summons served on your spouse.
You and your divorce attorney should keep copies of everything filed with the court for your own records.
RESTRAINT ON MARITAL ASSETS
In Oregon, filing the petition automatically activates a legal “restraint” on the disposal of marital assets. This is a law intended to prevent either spouse from trying to sell, spend, give away or otherwise dispose of property to avoid sharing it with the other spouse. It also is meant to stop either spouse from cancelling, modifying, or failing to pay the premiums of any and all insurance policies that cover the other spouse or the children.
After the petition for dissolution is filed with the clerk, a copy of the restraint on the disposal of marital assets must be attached to the summons which is served on your spouse.
Step 3 — Serving Your Spouse
Once your petition is file d and a case number is issued, you must serve your spouse with a “summons” and a copy of the petition. This is called “being served” or “service.” The purpose of the summons is to allow your spouse (the “respondent”) to respond to your petition. The summons provides your spouse with notice that if he or she does not respond to the petition within 30 days of being served, the Oregon divorce court may grant you what you requested in your petition without having to consider any objections your spouse may have.
In Oregon, service can be made by any person over the age of 18 who is not a party to the case or any attorney for a party to the case. Most people use either a process server or the sheriff to complete service; your divorce attorney will typically handle this. If your spouse lives outside of your county or outside Oregon, the sheriff of the county in which your spouse lives or a process server in that area can be used to complete service.
No matter who is hired to serve your spouse, that person must fill out a Proof of Service form. Once service has been completed and the Proof of Service has been filled out by the server, you must file the Proof of Service and copy of the summons with the court clerk.
WHAT IF I CAN’T LOCATE MY SPOUSE?
If your spouse cannot be found (either in Oregon or outside of Oregon) to be served personally, you may file a motion with the Oregon family law court to serve your spouse by publication. If this method is approved, service is made by publishing the summons in the newspaper and mailing it to your spouse’s last known address. In order to do this, you will likely need to explain to the judge what you have done to try and locate your spouse. In order for the motion to serve by publication to be granted, you must demonstrate to the judge that you have tried to locate your spouse for service using “due diligence.”
If your motion is granted, you can send copies of the summons and the petition to the newspaper through which you are serving by publication. The newspaper will then publish the summons four times and send you a sworn affidavit stating that publication has taken place. Once you file this affidavit with the court clerk and mail your spouse a copy of the summons and petition to your spouse’s last known mailing address, service is complete.
WHAT IF MY SPOUSE IS IN THE MILITARY?
If your spouse is in the military, he or she must be personally served with the summons and the petition. The military spouse may seek to have the divorce proceeding postponed for the entire time he or she is on active duty and for up to 60 days thereafter. If the divorce is uncontested, then the petitioning spouse may not have to serve the military spouse as long as the military spouse signs a waiver affidavit and it is filed in the court.
Documents you must file with the Oregon family law court at this stage:
- Proof of Service
Other documents you may need to file:
- Sworn affidavit from newspaper stating that service has taken place (in the event of service by publication)
Step 4 — Response to the Petition
Once you have served your spouse, he or she has 30 days to file a “Response” to your petition.
CONTESTED DISSOLUTION PROCEEDINGS: IF YOUR SPOUSE FILES A RESPONSE
If your spouse files a response in court within 30 days, then your divorce is “contested” and you will proceed with a contested dissolution. In the response, your spouse will state which portions of your Petition he or she disagrees with.
If your divorce is contested, you and your spouse should both retain competent Oregon divorce attorneys (if you haven’t already) to advise and represent you during the course of the proceedings.
Once your spouse has filed a response, the Oregon family law court will set a trial date. However, most divorces in Oregon are resolved by settlement before you ever reach the trial date.
UNCONTESTED DISSOLUTION PROCEEDINGS: IF YOUR SPOUSE DOES NOT FILE A RESPONSE
If your spouse does not file a response within 30 days, your divorce is “uncontested” and you may proceed with an uncontested dissolution. In order to do so, you must file a Motion and Order Allowing Judgment by Default. This notifies the Oregon family law court that your spouse has failed to respond. In addition to the motion, you must include an Affidavit of Non-Military Service. This is required to prove your spouse is not a member of the military. If your spouse is a member of the military, then you may not be able to proceed with your divorce action until after your spouse ends active duty.
If your Order Allowing Judgment by Default is granted, you should file a Motion for Judgment without Hearing, an Affidavit of Petitioner, a General Judgment of Dissolution of Marriage, and — if there are children involved — Child Support Computation Worksheets. After making sure that your court file is in order, the Oregon family law judge will sign your judgment and you will officially be divorced.
Documents you must file with the Oregon family law court at this stage:
- Motion and Order Allowing Judgment by Default
- Affidavit of Non-Military Service
- Motion for Judgment without Hearing
- Affidavit of Petitioner
- General Judgment of Dissolution of Marriage
Other document you may need to file:
- Child Support Computation Worksheets
Step 5 — Temporary Orders
Once your case is filed with the court, your divorce attorney may advise you to move for temporary orders that will be effective while your case is pending. Temporary orders establish the conduct required of each spouse until the divorce is final. Typical forms of temporary relief that may be ordered by the Oregon family law court include: temporary child support or custody, temporary spousal support, temporary exclusive possession of the family home, temporary payment of monthly bills, and payment of attorney’s fees to assist you in paying for your case.
To avoid increased fees, you and your divorce attorney should attempt to agree on temporary orders with your spouse before appearing before the court. If you cannot resolve the temporary issues, you may need to schedule a hearing with the court to do so.
In Oregon, once your divorce is final, the temporary orders will no longer be effective.
Step 6 — Mandatory Parent Education
In all counties in Oregon, if you are in the process of divorce and you and your spouse have children together, you are both required to attend a parent education class. You do not have to attend together if you do not want to. The Oregon mandatory parent education class is provided to inform you about how restructuring your family with a divorce may impact your children and what you will need to know about co-parenting your children with your soon-to-be former spouse. The class typically includes information on the emotional and developmental impact of divorce on children, how custody and parenting plans work, the conduct that is required of parents, and parenting after the divorce is final.
There is a fee to take the class, and it is recommended that you complete it as early in the divorce process as possible. Besides fulfilling a requirement of the Oregon divorce court, you will be better prepared to negotiate parenting issues with your spouse during the divorce process and minimize the negative impact your divorce may have on your children.
Step 7 — Discovery
Regardless of whether you settle or go to trial, you will likely need to exchange financial information and documents with your spouse. This is a process called “discovery.” The purpose of discovery is to inform both parties about the issues so that a settlement agreement can be reached or to prepare trial arguments that are fair and equitable. For this reason, it is prudent to have all of your spouse’s financial records for your attorney to review before proceeding.
Discovery is almost always necessary, unless both sides quickly resolve issues and are able to enter agreed final orders with the Oregon family law court. Documents you should seek in discovery include all documents pertaining to income, retirement funds, investment accounts, inheritances, insurance policies and real property.
WHAT DOES THE DISCOVERY PROCESS INCLUDE?
Discovery is governed by Oregon’s rules of civil procedure. The discovery process can include:
- DOCUMENT REQUESTS: You may ask for the physical documents themselves in production requests.
- RELEASES OF INFORMATION: You may subpoena persons or institutions to gain access to information relevant to your case. This can include documents such as bank statements, medical records, employment/income information, etc., to be acquired from banks, medical providers or employers.
- REQUESTS FOR ADMISSIONS: You may submit statements to your spouse and request him or her to admit or deny them.
- DEPOSITIONS: You may conduct oral examinations of witnesses who may have relevant information to your case.
FAILURE TO PROVIDE INFORMATION
In Oregon, if your spouse refuses or fails to provide you with relevant documents within his or her control, you may file a Motion to Compel with the court. If the court chooses, it may enter an order requiring your spouse to produce the documents you seek, and may also order your spouse to pay your attorney fees for the motion to compel.
WHAT IS REQUIRED OF YOU?
You are also required, by the same guidelines outlined above, to provide your spouse with your own financial records and other documentation and to comply with legal requests made by your spouse during the discovery process.
Step 8 — Mediation
If you and your spouse are committed to reducing costs and are willing to communicate, mediation can be a good alternative to trial.
In most counties, you will be required to attend mediation if you and your spouse disagree on any issues relating to custody or parenting time with your children.
In Multnomah County, you will be required to participate in mediation (or a mediation like process) prior to going to trial if you and your spouse disagree on any issues relating to spousal support, division of assets or division of debts
During mediation, you and your spouse (along with your attorneys, usually) will meet with an impartial mediator who will aim to help you resolve any disputed issues and reach an agreement. Mediation also affords you and your spouse greater flexibility than a trial.
Step 9 — Settlement
If you and your spouse reach an agreement on all of your issues either through negotiation with your divorce attorneys or during mediation, your attorney will draft aGeneral Judgment of Dissolution of Marriage. Both parties must sign the final agreement or judgment in order for it to be binding and enforceable. Once both parties have signed the agreement, it can be presented to the Oregon divorce court. Your divorce is finalized when the Oregon family law judge signs the General Judgment of Dissolution of Marriage.
Document you must file with the Oregon family law court if you settle:
- General Judgment of Dissolution of Marriage
Step 10 — Trial
If you and your spouse cannot agree to settle the issues in your divorce, you will go to trial. In Oregon, a divorce is tried by a judge, not a jury. At trial, your divorce attorney will present your case to the judge through testimony of witnesses (including yourself) and providing documents called “exhibits.”
Since you filed the initial Petition for dissolution, you are the “Petitioner” and your case is presented first. Your spouse is the “Respondent” and will present his/her case second. Your attorney will call witnesses to testify on your behalf, who will be subject to questions (cross examination) by the opposing party, and will present exhibits to the court. After your attorney “rests” your case, the opposing party presents his or her own case in the same manner. You, as petitioner, may then have the opportunity for a brief rebuttal. Afterward, both sides will usually make closing arguments to the judge.
HOW LONG DOES A DIVORCE TRIAL LAST?
The length of the final trial will depend upon the complexity of your case. A typical divorce trial in Oregon may last between one and three days. If you hire experts to testify during your trial or have a custody dispute over children of the marriage, your trial may last longer.
HOW IS A DIVORCE TRIAL DECIDED?
At the conclusion of the trial, the Oregon family law judge will issue his or her decision on the issues presented in your divorce. Either your attorney or your spouse’s attorney will then draft a judgment to record the judge’s oral ruling or letter opinion and present it to the judge. If the judge agrees that the attorney’s proposed judgment conforms to his or her actual rulings, he or she will sign the judgment and your divorce will be finalized. You should obtain copies of the final judgment from the Oregon family law court for your records.
Other Types of Divorce Processes
If your divorce is uncontested, meaning that you and your spouse are in agreement about your divorce, there are other options you can consider to divorce in Oregon: filing as co-petitioners and summary dissolution. For both of these procedures, the services of a divorce attorney are still strongly recommended. An Oregon divorce attorney will be able to provide guidance, answer questions, and ensure the process is completed without error.
FILING FOR DIVORCE AS CO-PETITIONERS
If you and your spouse are in agreement about your divorce from the very beginning, you may file jointly by completing and filing a Co-Petition for Dissolution. The same requirements apply for the petition when you file as co-petitioners as when you file separately. That is, you must pay the filing fee and file the following documents with the Oregon family law court:
- Co-Petition for Dissolution of Marriage stating that your marriage is irremediably broken,
- Certificate of Document Preparation for documents not drafted by an attorney,
- Confidential Information Forms and Notice of Filing Confidential Information Forms to protect yourselves from identity theft,
- Certificate Re: Pending Child Support Proceedings and/or Existing Child Support Orders/Judgments if you have children,
- Record of Dissolution of Marriage, a vital statistics form.
As is the case when only one spouse files the petition, the filing of the co-petition activates a restraint on the disposal of marital assets.
To finalize your divorce, you and your spouse must apply for a General Judgment of Dissolution of Marriage. To do so, you should file a Motion for Judgment without Hearing, a Judgment of Dissolution of Marriage, and-if there are children involved- Child Support Computation Worksheets. After making sure that your court file is in order, the Oregon family law judge will sign your judgment and you will officially be divorced.