Part 7: Special Divorce Cases
Considerations for More Complex Divorce Cases
Almost all divorces are complicated in some way, and almost all have lasting effects on your children and financial life. Some divorce cases, discussed below, have additional legal differences that should be handled by specialized divorce lawyers.
High Net-Worth Divorce
High net-worth divorce cases are often substantially more complex than other divorce cases, because of the following:
FORENSIC RESEARCH OF FINANCIAL HOLDINGS
The financial holdings and history of the spouses’ assets and debts may be so complex that detailed forensic research or tracing is required to determine both the extent of property as well as the character (i.e., whether it is treated as joint or separate property).
COMPLEX ASSETS AND INTERSTATE OR INTERNATIONAL FINANCIAL HOLDINGS
Assets may include complex kinds of property such as tax shelters, limited partnerships, venture capital funds, angel investments and subordinated debt. Assets or investment interests may also be owned and/or located interstate or internationally. The valuation of these types of complex assets will require the use of financial experts and accountants.
VALUATION OF BUSINESS INTERESTS AND INVESTMENTS
The property involved may be related to a business, business interests, or investments that must be valued. Valuation is typically based on expert appraiser and accountant opinions, with each spouse providing one or more experts and the court deciding among them. Valuation methods are varied and complex, especially for assets which will not be immediately sold. Selecting, working with, preparing, and presenting the case using appropriate experts is critical, as well as effectively coordinating with a retained expert to weaken the persuasiveness of the opposing expert.
The court’s distribution of family businesses or investments may be more complicated than simply evaluating the current value of the investment and selling it for cash, or by one spouse buying out the other.
There may be legal, financial, accounting and tax issues related to business entities and ownership, real estate, fine art and other collections, employee contract and benefit plans, and various other types of properties and interests. There may also be tax implications for alternative property and debt distribution scenarios.
HIGH NET WORTH USUALLY MEANS MORE CONTENTIOUS LITIGATION
In a high net-worth divorce, there is often the possibility of significant spousal maintenance, and a large amount of property is at risk. Because of the high stakes, one or both parties may engage in dramatic, combative, and extensive discovery, negotiation, mediation, and/or litigation, supported by their substantial wealth and the substantial wealth risks of the divorce. One or both spouses may suspect the other of hiding assets, undervaluing or overvaluing assets, or breaching a fiduciary duty during the marriage. Investigating these suspicions may require specialized discovery and trained experts.
High net-worth divorce cases can be long and stressful for both the client and the attorney. To best protect your interests, make sure that your lawyer has experience with these kinds of cases and has strong professional relationships with accounting, appraisal and tax experts.
Divorce When One Spouse is in the Military
The grounds for a military divorce in Oregon are the same as a civilian divorce. A military divorce, however, is subject to some unique conditions, and specific state and federal laws/rules will apply.
Divorces involving a spouse in the military can include some of the following special issues:
- The divorce proceeding may be postponed while the active service member is on duty and for up to 60 days thereafter. However, this right can be waived by the military spouse.
- While the usual Oregon property division laws apply to most assets, federal law governs how military retirement benefits are calculated and divided upon divorce.
- Child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances (including housing allowances, veteran disability and hazard pay).
- Parenting time can be difficult to arrange, especially if the military member is subject to out-of-state relocation or overseas duty.
- Collection of child and spousal support may be aided by the military organization and the military spouse’s superior officer.
Divorces that involve spouses who reside in different countries, or who own assets in different countries, can be legally complicated:
- Other countries’ laws and international treaties may apply. The Hague Child Abduction Convention may or may not apply, impacting a parent’s ability to retrieve minor children if one parent absconds with them.
- If one spouse is located overseas, there may be special requirements before the Oregon court can handle the divorce.
- Custody and parenting time issues can be particularly emotional because of the long distance.
- Property division can be complex, involving differing laws and cultural or religious beliefs.
- While the Oregon court can decide your divorce, it may not have jurisdiction over property or children located in another country. Oregon courts can divide property located in other states and (usually) other countries. However, the Oregon court may not be able to enforce certain provisions of the judgment for assets and children located overseas.
- There may be visa or immigration issues.
Even after your divorce is final, international complications may continue. Obtaining a passport for your children under age 16 generally requires both parents’ consent, except in cases where one parent is awarded sole custody and the exclusive right to obtain a child’s passport.
The effectiveness of international child and spousal support collection also varies widely, depending on the other country.
If your divorce involves international issues, it is vital that your lawyer consider the enforcement ability of the Oregon court and possible future complications.
WHAT IS COMMON-LAW MARRIAGE?
A common-law marriage is a marriage created without a government marriage license. States that recognize such marriages have specific requirements, such as a minimum period of cohabitation and specific conduct by the partners.
DOES OREGON RECOGNIZE COMMON LAW MARRIAGES?
You cannot begin a common-law marriage in Oregon, because they are not valid here. But if you began a common-law marriage in a state that recognizes such marriages, then you can continue that marriage in Oregon. If you need to sign legal documents as a married couple, then you will probably have to provide evidence to the relevant government office (for instance, the county assessor for real property ownership issues) that your former state recognized your marriage.
HOW CAN I DIVORCE MY COMMON-LAW SPOUSE IN OREGON?
You cannot obtain a standard divorce from an Oregon court. Instead, you and your spouse have several options:
- File for divorce in the state in which you marriage began, if that is allowed by that state’s court rules.
- Decide between yourselves how to divide your assets and debts, and how to co-parent any children you share. This approach is not recommended unless you have no children and very little assets and debts. Property valuation, complete debt division and co-parenting are all complex matters meriting a lawyer’s review, even if you do not have a civil marriage.
- Hire a lawyer to assist you. A single lawyer cannot represent both you and your spouse, because you have conflicts of interest. A lawyer can advise you individually about your rights, suggest a reasonable settlement and help you finalize the property division and any parenting plan.
- Have a neutral mediator (jointly paid by the two of you) hear both sides and assist with negotiating a divorce settlement. A lawyer can assist you in locating an appropriate mediator for your case, representing you in the mediation and finalizing the settlement.
- If you have minor children together, you may want to file an agreed parenting plan in your local court. This is not required, but it can be extremely useful in case you need later assistance from the court to enforce or modify the parenting plan.
- If you and your spouse cannot agree on a parenting plan, then one of you can file a custody lawsuit in court so that a judge can decide the issue. A custody lawsuit follows the same procedures and laws as set out in Part 4 of this guide. Your custody lawsuit will not include a division of assets and debts, because your lawsuit is not a divorce.
- If one of you wants child support, and the other spouse agrees, then you or your lawyers can write up a simple agreement without the court’s involvement. Alternatively, you can ask the court to approve your agreement and enter it as a court order. A court order is required to collect unpaid child support.
- If one of you wants child support, and the other spouse does not agree, then you will need to file a custody lawsuit and request child support. Generally, the court will also require that you prove that you and your spouse are each a biological or adoptive parent of any child for whom support is sought. This may require a paternity action.
- Because common-law marriages are not valid in Oregon, and you cannot file for dissolution (divorce) of a common-law marriage, an Oregon court does not have authority to award spousal support for your divorce.
Registered Domestic Partnerships
WHAT IS AN OREGON REGISTERED DOMESTIC PARTNERSHIP?
A registered domestic partnership is a union created by two people of the same sex. Both partners must be at least 18 years old and at least one partner must be an Oregon resident. The union legally begins when the partners file a Declaration of Domestic Partnership with their county clerk. The Declaration requires a small filing fee.
Oregon has legally recognized domestic partnerships since January 2008.
CAN I TERMINATE MY DOMESTIC PARTNER IN OREGON?
Yes. Either of you can file for a dissolution of domestic partnership. This kind of lawsuit is very similar to a divorce, or dissolution, of a civil marriage. The main differences are:
- If you have minor children, the court will generally require that you prove that you and your partner are each a biological or adoptive parent of any child for whom child support is sought. This may require a paternity action.
Divorce While Pregnant
Divorce is a very stressful phase of your life. So is pregnancy. It can be especially challenging to combine these.
CAN I GET DIVORCED IF I AM PREGNANT?
In some cases. However, the court may delay finalizing your divorce until the child is born, because the divorce court will need to know that there is a live child, with a social security number, in order to decide any child support. However, you can initiate the divorce process while you or your spouse is pregnant. If the Court finalizes your divorce before you have your child, you will have to initiate a separate court proceeding once the child is born to deal with issues relating to custody, parenting time and child support for that child.
WHAT IF THE HUSBAND IS NOT THE FATHER OF THE PREGNANT WIFE’S CHILD?
Your divorce petition should state that the wife is pregnant and whether the husband is or is not the father. If the husband is the father, then the divorce court will decide child support and custody issues for the new child. If the husband is not the father, then the divorce court will not decide such issues for that child. That can be done in a separate paternity suit between that child’s parents.
HOW IS PATERNITY DECIDED?
The divorce court will presume that the husband is the father of the unborn child unless one of the spouses contests that presumption. The spouse who contests will state, in their divorce petition (or counter-petition), that the husband is not the father of the wife’s unborn child.
If the husband and wife disagree on paternity, there are several options:
- The wife who believes her husband is the father can allege his paternity.
- The husband who believes he is the father can allege his paternity.
- The wife who believes a third person is the father can sue that third person for paternity.
- The third person who believes he is the father can sue the wife for paternity.
- Oregon’s [Child] Support Enforcement Division can sue the person it believes is the father. This is commonly done if the mother is receiving public aid.
- A parent can ask Oregon’s Support Enforcement Division to establish paternity through an administrative proceeding.
A paternity suit is a separate lawsuit from the divorce. The paternity suit will determine the legal father of the child and will also determine custody, parenting plan issues, and child support.
WILL THE HUSBAND BE LISTED ON THE BIRTH CERTIFICATE?
If a married woman gives birth, she has two choices: she can list her husband as the father (even if he is not the father), or she can leave the father section blank.
Putting the father’s name on the birth certificate is the mother’s personal decision. If you are considering not naming the father on the birth certificate because you want to avoid the father or have other reasons, you should consult an attorney.
CAN THE BIRTH CERTIFICATE BE CHANGED TO LIST A DIFFERENT FATHER?
If there is a paternity determination, then Oregon’s Center for Health Statistics will issue a new birth certificate with the legal father’s name on it.
If someone otherwise wants to change the father’s name on the birth certificate, that person must submit forms to the Center for Health Statistics.
WHO DECIDES THE CHILD’S LAST NAME?
The person filling out the birth certificate application in the hospital — usually the mother, or the mother and father together — fills in the full name, including last name, of the child. If there is a later paternity determination, then both parents may agree to change the last name of the child.
WILL DIVORCING NOW AVOID CHILD SUPPORT ISSUES?
No. The child’s parents have the same child support issues, regardless of whether the child was born before or after the divorce filing. However, if the husband is not the father of the wife’s unborn baby (because the spouses agree on this, or because a paternity test determined so), then the husband would not have any child support obligation to the child.
Divorce for Men and Father’s Rights
Men have legitimate, sex-specific concerns during the divorce process.
You will likely, if you are a father, be concerned about your children. A father may worry that custody is primarily given to mothers. In fact, Oregon law is sex-neutral in custody determinations, but custody is often awarded to the primary caregiver, who most commonly is the mother. You may be frustrated at the amount you will have to pay for spousal or child support in addition to the expenses of your own, new household. You may especially be frustrated that you will no longer see your children daily.
These are significant issues that you should discuss with your lawyer. Do not assume that you will not be awarded parental rights or rights to property because you are male. A qualified family law attorney can help you fight for what is equitable and in the best interests of your children, regardless of gender. The good news is that many fathers enjoy an improved relationship with their children after separation and divorce.
You may want to be cautious in dealing with any law firm that professes to espouse “men’s rights,” as their political agenda may not match the needs of your particular case. A competent and ethical attorney should be focused primarily on the rights and interests of the client, not on gender issues or politics.
Divorce for Women and Mother’s Rights
During divorce, women often have special concerns about how to pay their household’s bills when a breadwinning spouse has moved out. An attorney can help reduce these concerns by requesting temporary orders to provide financial relief during the divorce process.
Women also face some special issues once the divorce is final. Divorced women generally face a much lower standard of living, overall, than do divorced men. This is especially true when a stay-at-home wife needs to re-enter the workplace after divorce. Your attorney should consider your situation carefully and work to ensure that your division of property and spousal support awards will provide you with the time and resources you need to become self-sufficient financially.
Many single mothers struggle with inadequate finances. Especially if you have primary custody of minor children, it may impact employment; you probably can’t work evening hours or travel regularly for work if you have to be at daycare at 6 p.m. daily. Again, your lawyer may be able to explain to the court why your change of circumstances requires spousal support or special considerations in the property settlement.
Divorced mothers may find it exhausting to “do it all” at work and at home. There are some significant upsides. Resources (from job transfer or child-care arrangements) and support groups for single mothers abound. You may feel stronger and happier than ever as you manage by yourself. And you may develop deep alliances with other divorced women and their children.
Divorce after 40
Statistically, most divorces involving couples over age 40 are initiated by wives. Women at this age may be self-supporting, or want to be, and look forward to the freedom of singlehood. Many men of this age are unaware of this and can feel blind-sided by divorce and their changed family structure.
At this stage in life, couples are more likely to have minor children, investments and property that will create complexities in your divorce case. Because of these complexities, consulting an attorney is critical for ensuring that you and your children are well-protected.
Both men and women need to seriously consider what they want from divorce and what, realistically, will change when they become single. Men and women over 40 who divorce will want to consider whether to change careers (or obtain higher education). You must decide whether you want the upkeep of your former marital home. You might have to balance saving for your own retirement with saving for your children’s college. All of these issues should be discussed with your lawyer because they will guide what you will ask for in a property and monetary settlement.
Most over-40s who divorce will date again, and many will re-marry. Dating and remarriage can be complicated by the needs of your existing, minor children. The impact of future remarriage is highly relevant to your existing divorce, if you already have children. You will want to discuss with your lawyer what is realistic to expect about custody, co-parenting, child support, and future stepparents.
Divorce after 50
If you are over age 50, the ending of a marriage and division of property can present some special considerations that don’t apply as strongly to divorcing couples earlier in life.
You may be concerned about (re)building enough retirement assets in the ten or twenty years you have left to work after dividing these assets in a divorce. Your lawyer, perhaps with the help of a financial expert, should advise you regarding an appropriate division of your retirement assets.
If you have children in college, this can be an additional financial strain that should be addressed in your divorce settlement.
People over 50 who have newly returned to employment or school may feel like a fish out of water. Older persons may face age discrimination in the workplace. It can be difficult to begin a remunerative career at this stage of life. A good lawyer can help you seek spousal support, if you are eligible, to help this transition.
If you have been married a long time, it may feel extremely awkward to be single, especially among your married friends. If you have children, they are likely in college or grown and no longer living with you, so you may feel lonely at home. Some of these expected post-divorce challenges can be addressed by a fair monetary divorce settlement; some cannot. Yet, all of these changes can be discussed with a compassionate lawyer. Your lawyer will have the names of resources, from counselors to support groups, to help you in this life transition.