SUGGESTED GUIDELINES FOR ASSISTING AND PARENTING CHILDREN DURING A DIVORCE OR CUSTODY LITIGATION

No matter how well parents think their children are adjusting to a divorce or custody case, it is traumatic for them. They feel the same strained emotions, uncertainties, and tensions as you do, but have the added factor of being torn between two loving parents. How a child reacts during this stressful time could have a significant impact on the remainder of his life, whether the child is now two years old or eighteen years old.

The following suggestions are made to help you and your children cope with the stress of divorce.

1. Think first of your children's present and future emotional and mental well-being before acting. This will be difficult because of your own feelings, needs, and emotions, but try, try, try.
2. Maintain your own composure and good emotional balance as much as possible. Remember it is not the end of the world. Laugh when you can and try to keep a sense of humor. What your children see in your attitude is to some measure reflected in theirs.
3. Allow yourself and your children time for readjustment. Convalescence from an emotional operation, such as a divorce, is essential.
4. Remember the best parts of your marriage. Share them with your children and use them constructively.
5. Assure your children that they are not to blame for the breakup and that they are not being rejected or abandoned. Children, especially the young ones, often mistakenly feel they have done something wrong and believe the problems in the family are the result of their own misdeeds. Small children may feel that some action or secret wish of theirs has caused the trouble between their parents. Explain to them there are other children whose parents have been divorced and that they are not going to lose their mom or dad.
6. Continuing anger or bitterness toward your spouse can injure your children far more than the divorce itself. The feelings you show are more important the words you use. Refrain from voicing criticism of the other parent. It is difficult, but absolutely necessary. For the child's healthy development, it is important for him to respect both parents.
7. Do not force or encourage your children to take sides. To do so encourages frustration, guilt, and resentment.
8. Try not to upset the children's routine too abruptly. Children need a sense of continuity. It is disturbing to them if they must cope with too many changes all at once.
9. A divorce often leads to financial pressures on both parents. When there is a financial crisis, the parents' first impulse may be to keep the children from realizing it. Often, they would rather make sacrifices themselves than ask the child to do so. The atmosphere is healthier when there is frankness and when children are expected to help.
10. Divorces are as hard on the children as their parents. The children may not always show their distress or realize at first what this will mean to them. Parents should be direct and simple in telling children what is happening and why, and in a way a child can understand and digest. This will vary with the circumstances and with each child's age and comprehension. The worst course is to try to hush things up and make a child feel he must not talk or even think about what he sees is going on. Unpleasant happenings need explanation, which should be brief, prompt, direct, and honest.
11. The guilt parents may feel about the marriage breakdown may interfere in their disciplining the children. A child needs consistent control and direction. Over permissiveness or indecisive parents, who leave a child at the mercy of every passing whim and impulse, interfere with a child's healthy development. Children need and want to know quite clearly what is expected of them. Children need leadership and sometimes authority. Parents must be ready to say "NO" when necessary.
12. Do not overlook the fact that you are only human and admit it. You will not be able to make a 100 percent score on being a perfect parent (no one ever does, even in good times). When you fail in your attempts, acknowledge it, and resolve to attempt to improve day by day.
    Read and reread these basic guidelines. Add to them by writing down your own constructive, positive approaches to the handling of your new way of living. Discuss your thoughts and feelings with others you trust and feel comfortable with and benefit by sharing their positive attitudes.

NON-CUSTODIAL PARENT'S BILL OF RIGHTS

Oregon Revised Statute 107.101: State policy regarding parenting. It is the policy of this state to:

1. Assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child;
2. Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated of dissolved their marriage;
3. Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, if necessary;
4. Grant parents and courts the widest discretion in developing a parenting plan; and
5. Consider the best interests of the child and the safety of the parties in developing a parenting plan.

Oregon Revised Statute 107.149: Policy. It is the policy of this state to assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

Oregon Revised Statute 107.159: Effect of order granting parenting time rights or restricting ability of custodial parent to change residence. (1) In any court order or decree granting custody of a minor child and parenting time or visitation rights relating to the child, except for an order under ORS 107.700 to 107.732, the court shall include in its order a provision requiring that neither parent shall move to a residence more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence and providing a copy of such notice to the court.

(2) Notwithstanding subsection (1) of this section, a parent is not required to give notice of a change of residence if the court, upon ex parte or other motion of the parent and for good cause, enters an order suspending the requirement

Oregon Revised Statute 107.154: Effect of order granting sole custody of minor child to one parent on authority of other parent. Unless otherwise ordered by the court, an order of sole custody to one parent shall not deprive the other parent of the following authority:

1. To inspect and receive school records and to consult with school staff concerning the child's welfare and education, to the same extent as the custodial parent may inspect and receive such records and consult with such staff;
2. To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records;
3. To consult with any person who may provide care or treatment for the child and to inspect and receive the child's medical, dental and psychological records, to the same extent as the custodial parent may consult with such person and inspect and receive such records;
4. To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable; or
5. To apply to be the child's conservator, guardian ad litem or both.

Oregon Revised Statute 107.164: When parents to notify each other of emergency circumstances or substantial change in health of child. Unless otherwise ordered by the court, both parents shall have a continuing responsibility, once a custody or protective order concerning the child is issued, to provide addresses and contact telephone numbers to the other parent and to immediately notify the other parent of any emergency circumstances or substantial changes in the health of the child.

Step Parent Adoptions

Our office offers affordable services and personal treatment in facilitating step-parent adoptions. Step parent adoptions are the most common type of adoption in Oregon. They consist of taking a blended family and asking a court to name the Mom and Dad as the child's real parents in the eyes of the law. Once a step-parent adoption is final, the step-parent, now deemed the legal parent, has all the rights.

This typically takes the form of a parent remarrying and their new spouse wanting to be viewed as the child's legal parent, not just step-parent. This type of situation always involves one biological parent of the child or children retaining their parental rights to the child.

Many people wish to do a step-parent adoption because they are concerned about what might happen to the child were the biological parent to become incompetent or die. Under those circumstances, without a step-parent adoption, the child or children could be forced to live with a formerly absent biological parent that they do not necessarily know or consider a parental figure.

Step-parent adoptions generally involve either a birth parent consenting to their rights being terminated by signing a Waiver and Consent to Adoption or a court doing so over their absence or objection. Once a birthparent's rights have been terminated, they are no longer responsible for paying child support and are no longer entitled to visits with a child.

Step-parent adoptions typically take between 2 and 6 months to finalize. This is greatly dependent on a criminal history check being processed quickly by the Oregon State Police on the adoptive parent and the Department of Human Services issuing a letter waiving a home study in the matter.

Division of Property

Generally, Oregon is an "equitable" property division state. Equitable does not mean an equal division; rather, it means a fair division in terms of value. As a broad concept, Oregon law treats a marriage as a partnership, and all income earned and property acquired during the marriage is marital and should be fairly divided. Marital property is subject to division between spouses regardless of which spouse holds title. Debts as well as assets will be considered. There is no fixed way to determine how either you or the court should divide your property. Factors that the court considers include the nature and extent of the property, the duration of the marriage, and the economic circumstances of each spouse. In some cases, gross misconduct by a spouse (such as supporting a mistress) can be considered. The court will approve your division if you and your spouse can reach a reasonable agreement. The court will hold a hearing and divide your assets and debts according to its own opinion of "equity" if you and your spouse cannot reach an agreement.

CUSTODY

Generally, Oregon courts make initial custody decisions based on what is "in the best interests of the child." In making this determination, the court is instructed to consider the following factors when deciding which parent will be awarded custody of minor children:

1. The emotional ties between the child and other family members;
2. The interest of the parent in the child and the parent's attitude toward the child;
3. The desirability of continuing an existing relationship;
4. The abuse of one parent by another;
5. The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
6. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

In practical terms, this means that in many cases, the parent who has accepted primary responsibility for bringing up the child in the past will probably be awarded the care and custody of the child in the future provided that they encourage ongoing contact between the child and their former spouse. The non-custodial parent will be allowed reasonable rights of visitation. Oregon law calls this visitation schedule a "parenting plan."

Joint Custody vs. Sole Custody

Joint custody is an award of the child's legal custody to both parents with a specific provision made for his or her primary place of residence. It assumes that each parent has an equal say in making major decisions that impact the child's life. Joint custody does not necessarily mean equal parenting time. The court is only allowed to order joint legal custody if both parties agree. In general, joint custody will work only if both parents communicate and cooperate with each other. Joint custody can be terminated at any time simply by the request of either parent. At that time the court will be required to determine which parent should be awarded sole custody as well as the non-custodial parent's parenting time schedule.

Conversely, an award of sole custody means that one parent has the sole right to make vital decisions regarding a child's education, religious training, health care, and the like. Sole custody is far more common due to the agreement and cooperation required to make joint custody work and the ease of termination of joint custody. Disagreement over custody and time-sharing is guaranteed to put you right in the middle of a contested and expensive divorce.

Parenting Time (Visitation)

The court will usually approve any parenting plan (visitation schedule) agreed to by you and your spouse. A typical schedule is to alternate weekends and specify time during the summer and holidays. We encourage liberal time-sharing except in extraordinary circumstances.

Every county has a model parenting plan that can be used by those families that do not want to write their own. Click on the following link to connect to the Oregon Judicial Department's sample parenting plan packets: Oregon Judicial Department. Contrary to popular belief, the model plan is not a statement of the law, a minimum or a maximum time allowed between the child and the non-custodial parent. It is exactly what it says it is: a model plan that can be adopted or ignored at your own discretion.

Mandatory Parenting Class

Oregon requires that both you and your spouse complete a parenting class early in the divorce process. Each county has their own classes. Information regarding these classes can be found on each counties website or at each courthouse.

The typical class lasts four hours and covers topics including ways that parents can help their children adjust to divorce and how to make shared parenting time better for the children. The court will not allow your divorce to become final until both parents have completed the class and filed the appropriate certificates with the court.

In Washington County, the parenting class required by the courts is called "Kid's Turn." It includes four sessions over a four week period for two hours. The cost of the class is currently $145.00. This fee must be paid prior to beginning the classes unless a payment plan or deferral has been approved by the court.

Mediation Regarding Children's Issues

You and your spouse will be required to attend mediation once each of you has completed at least two sessions of the mandatory parenting class. Mediation is a procedure in which both parents speak with a neutral third-party hired by the court to help you reach an agreement on custody and to set a parenting schedule. The mediator will not discuss financial issues, give advice, or provide therapy. Prior to attending mediation we will meet with you to discuss your expectations and the process. Please be aware that attorneys do not attend mediation.

In Washington County, both parents will need to attend mediation orientation after they have completed two Kid's Turn classes. Orientation is held at the Juvenile Court located at 222 North First Avenue in Hillsboro on every Monday at 8:30 a.m. excepting holidays. Once both parties have attended orientation, mediation will be scheduled within approximately 30 days.

Modification of a Prior Custody Order

After a custody judgment is entered granting one parent sole custody, the court will not modify its judgment unless the parent seeking to modify custody proves two elements. The first element is proof that after entry of the original judgment, there has been a "substantial and unanticipated" change in circumstances regarding ability and/or willingness to properly care for the child. Second, the party seeking modification must prove that it is now "in the best interest of the child" to change custody. The factors the court uses in deciding what is in the best interest of the child are the same factors that the court uses to make an initial custody decision, discussed above.

CREATING A PARENTING PLAN THAT WORKS

Parents who are experiencing moderate to high conflict with each other are encouraged to consider the following ideas when creating a parenting plan. This checklist is not intended for use by parents who are able to negotiate parenting time schedules in a cooperative way. Keep in mind that not all of the ideas are appropriate for all parents. The parenting plan should take into consideration the unique circumstances of each family.

• Parenting time provisions.
  1. Specify the exact days and times the child will be with each parent.
  2. Consider how holidays, vacations, and special occasions will be treated.
  3. Draft the schedule in a way to minimize the number of transfers from parent to parent (for example, have the non-residential parent pick up the child from school or day care rather than from the residential parent's home).
  4. Eliminate mid-week parenting times and insignificant holidays and add an extra weekend overnight instead.
  5. Consider keeping the school year schedule in effect during the summer and have the child stay with the non-residential parent for a couple of weeks during the summer, and also for a week in October, February and May.
     
• Pick up, drop off.
  
  1. Specify the exact time and location for pick up and drop off, with a short grace period.
  2. Fashion the plan to avoid face to face contact between the parents during the exchange when possible.
  3. Face to face exchanges should occur in public places (restaurant, library, day care, etc.).
     
• School and extracurricular events.
  1. Parents should avoid attendance at these events at the same time, unless they are major life events.
  2. Specify in the plan which events each parent shall attend or a method for determining who will attend (for example, Mom attends on even numbered days and Dad attends on odd numbered days).
  3. Both parents should make it possible for the child to participate in regularly scheduled activities, such as sports and other extracurricular events, even if the activities occur during parenting time.
     
• Anti-Move Provision. The law requires each parent to give the other parent reasonable notice before moving more than 60 miles further distant from the other parent.
  1. Clearly define what "reasonable notice" is. 
  2. Geographic distance may be shortened to something less than sixty miles.
  3. Create a restriction which prevents a parent from moving the child outside of the school district.
  4. Consider making the moving parent prove that the move is in the child's best interest.
     
• Safety Considerations.
  1. If drugs, alcohol and/or domestic violence are involved, consider using supervised parenting time services, supervised pick up/drop off, drug and alcohol evaluations, testing, treatment, and/or batterers intervention. Ask for information about the court's Parental Access Program.
     
• Communication.
  1. Generally, the parents should not communicate about the child in the child's presence.
  2. Specify that the parents are not to communicate with each other through the child.
  3. Depending on the preferences and resources of the parents, e-mail or telephone contact between the parents may be appropriate.
  4. A method for the child to communicate with the parents may be specified.
     
• Decision making.
  1. Specify decision making responsibility. Generally, the less cooperation that is required, the less potential for conflict.
  2. Discuss specific items (i.e., diet, religion, appearance, dating, etc.) that both parents have an interest in at the time the plan is drafted.
     
• Flexibility:
  1. Specify the degree of flexibility that will be allowed. High conflict parents may need an inflexible, highly structured plan.
     
• Child's Toys and Possessions.
  1. Each parent has a set of toys, clothing, car seats and other personal items for the child.
  2. When the above is not possible, be specific about which items will be transferred and what shape they will be in when they are returned (i.e., washing most of the clothes being returned).
     
• Child's refusal to spend time with a parent.
  1. Children should not be permitted to decide if they will spend time with the non-residential parent.
  2. Teenagers' social needs and busy schedules should be taken into consideration.
  3. If child is extremely ill, make up time can be forwarded to the following week. Siblings should still go.
     
• Dispute resolution.
  1. Parents should consider submitting future disputes about the parenting plan to a parenting referee.
  2. Parents should be aware of free mediation services provided by their county for resolution of custody and parenting time disputes.

Calculating Child Support

In Oregon, the court uses a strict formula to set the amount of support to be paid from one parent to the other on behalf of a child. Child support is thus typically the result of a fairly mathematical equation. Each party enters into the variables of that equation numbers which apply to their particular case and the calculator sets a final child support award.
The variables of the child support equation include, among other things:

1. Number of joint children;
2. Number of non-joint children for each parent;
3. Spousal support paid and spousal support received;
4. Gross monthly income of each party;
5. Social Security and Veteran's benefits received for the benefit of joint children;
6. Number of overnight visits each child spends with each parent;
7. Cost of providing health insurance for the benefit of joint children;
8. Uninsured and recurring medical expenses for joint children that exceed $250 per year; and
9. Cost of providing child care for the benefit of joint children.

The formula can be found on the web at http://www.dcs.state.or.us/calculator/default.htm.

It may be helpful and informative to run the formula on your own to see the effects of changing the variables.

Rebutting the Child Support Guidelines

The state's child support formula will be used unless your case presents exceptional circumstances. The most common examples of such circumstances are an obligor's inability to pay or special needs of the child.

Termination of Child Support

The court generally orders child support to be paid until the child's 18th birthday. Depending on particular circumstances, the court may extend support to age 21 if the child is attending school. It is possible for support for a child attending school to be paid directly to the child. Drafting of a child support judgment is important in making these determinations.

Modification of a Prior Child Support Award

Every two years either parent can ask their local county Deputy District Attorney, Support Enforcement Division, to recalculate support based on the current income figures of the parties. This service is free. In addition, a party may request a recalculation at any time if there has been a substantial change of circumstances. Examples of such changes are significant changes in either parent's income or a significant change in the amount of time that a joint child spends with each parent.

Timing of Modification

The court cannot modify or terminate an award of child support that was due or owing prior to filing of a motion to modify/terminate support. There is an exception to this general rule in that the court will give credit when the parent paying support had physical custody of the child with the knowledge and consent of the custodial parent. Generally, however, until a modification proceeding is filed, support will remain as determined under the judgment regardless of new or changed circumstances of the parties.

Spousal Support

Generally, Oregon courts can provide for spousal support (alimony) following a divorce. The criteria considered in an award of spousal support include:

1. The duration of the marriage;
2. The age and health of each spouse;
3. The standard of living established during the marriage;
4. The relative income and earning capacity of the parties;
5. Each spouse's training and employment skills;
6. Each spouse's work experience;
7. The financial needs and resources of the parties;
8. Custodial and child support responsibilities;
9. And any other factors that the court deems appropriate.

Tax Consequence of Spousal Support

Spousal support is tax deductible by the paying spouse and treated as taxable income to the recipient spouse under the Internal Revenue Code. This means that there are possible income tax advantages to the individual paying spousal support.

Modification/Termination of Spousal Support

Both the amount and duration of a spousal support award are determined by the facts of each case and by the terms of the specific judgment. In Oregon, unlike California, there is no provision for an automatic termination of spousal support when a former spouse remarries. Rather, an original support award is modified or terminated based on a finding by the court as to whether or not there has been a substantial change in economic circumstances. In determining whether or not a substantial change of circumstances exists, the court inquires into the income opportunities and benefits of the parties from all sources. A voluntary reduction in the obligor's income is not a sufficient change of circumstances.

Timing of Modification

The court cannot modify or terminate an award of spousal support that was due or owing prior to filing of a motion to modify/terminate support. This means that until a modification proceeding is filed, support will remain as determined under the judgment regardless of new or changed circumstances of the parties.

Restraining Orders

Generally, under the terms of Oregon's Family Abuse Prevention Act (FAPA), you can obtain a Physical Abuse Restraining Order against your spouse if you believe there is a genuine physical danger to you or to your children. This is something that should not be taken lightly and should be discussed with us in advance.

How to Apply for a Restraining Order

FAPA procedures are designed to be easily accessible to a party who is unrepresented by an attorney. Your local county courthouse provides free of charge instructions that explain the requirements, how to apply, and the relief that you are allowed under a FAPA restraining order.

Eligibility

The family and household members who are eligible for relief under FAPA include:

1. Spouses;
2. Former spouses;
3. Adults related by blood, marriage, or adoption;
4. Persons who are cohabiting now or who have cohabited;
5. Persons who have been involved in a sexually intimate relationship with each other within the preceding two years; and
6. Unmarried parents of a minor child.

Requirements

If you are requesting a FAPA restraining order, you must show that:

1. You have been the victim of an incident of abuse within the preceding 180 days;
2. You are in imminent danger of further abuse; and
3. The party against whom the restraining order is sought presents a credible threat to your physical safety or the safety of your minor child.

Relief

If the court determines that you are entitled to a restraining order, possible relief includes:

1. An award of temporary custody and parenting time;
2. Ouster of the respondent from the family home (whether or not it is jointly owned);
3. An order requiring the respondent be restrained from entering or attempting to enter a reasonable area surrounding the residence;
4. An order requiring an officer to accompany the party who is leaving your home to assist in the removal of essential personal effects;
5. An order restraining the respondent from intimidating, molesting, interfering with, or menacing you or your child;
6. A no-contact provision; and
7. Emergency monetary relief.

Relief ordered by the court lasts from one year from the date of issuance. FAPA orders may be renewed after the date of issue for an unlimited number of years so long as a petitioner is able to show to a court that the order is still warranted.

Contesting the Issuance of a FAPA order

Once a person who has had a restraining order filed against them (called the "Respondent") is served, they have 30 days in which to determine whether they wish to contest the matter and if so, file a request for hearing with the court. Respondents may contest the entire order or only portions of it such as an award of temporary custody of minor children and designated parenting time.

If a Respondent requests a hearing to contest the restraining order, the court typically holds a hearing within 21 days from the receipt of that request. In cases where temporary custody of minor children has been granted in the order, a hearing will be held within 5 days from the date of the request.

Respondents should be aware that prohibitions against the possession of firearms may occur if a request for hearing is filed with the court and the restraining order is upheld. Persons who are considering filing a request for hearing should consult with an attorney prior to filing the request if at all possible.

Unmarried Couples

Generally. Unmarried couples (of both opposite-gender and same-gender pairings) can use the judicial system to resolve disputes when their relationships dissolve. However, the court will not apply the same standards to dissolution actions between unmarried and married couples.

Support. The court will not make a spousal support-comparable award in the case of an unmarried couple. The only form of support that a court can order in the case of an unmarried couple is support for a joint child.

Property Division. The court generally looks to the intent of the parties when dividing property of an unmarried couple. A written agreement is not necessary to prove intent. The court can look to the facts in each particular case to determine what the parties impliedly agreed to. Was the asset owned jointly? Did the parties intend to share in the value of the asset? Did both parties contribute to the acquisition of or increase in value to the asset? The court will then divide property based on what it finds to be the intent of the parties to the relationship.

Custody and Child Support. Either parent can start a civil proceeding to determine the issues of custody or support. The father of a child born out of wedlock will have the same rights as a father who is or was married to the mother once paternity is established. The court can then make a determination with regard to custody and child support. If paternity has been established, the parent with physical custody at the time of filing has "sole" legal custody until a court specifically orders otherwise. The court will then hold a hearing and proceed to make a determination on both custody and child support using the same criteria as is used in a divorce proceeding. See Custody and Child Support sections.

Terminology and Chronology of Divorce
Glossary of Terms

Terminology and Chronology in Dissolution

A major part of the emotional stress of divorce is being involved in something that you do not understand. A potential divorce unleashes a variety of fears and concerns that may result in an inability to think clearly about financial settlements, personal needs, and the needs of your children. We have prepared this primer as a brief overview on Oregon divorce to help clarify, explain and interpret the steps that you must go through in this process.

1. Grounds. Oregon has adopted the concept of "no fault" divorce. It is not necessary to prove cruelty, adultery, abandonment or any other fault on the part of your spouse for the court to grant a divorce. A simple statement that you and your spouse have developed "irreconcilable differences" is all that is required. "Irreconcilable differences" is the legal phrase used to say that you and your spouse are no longer getting along. Either party can request a divorce without the other's permission or agreement. You cannot stop the divorce from happening if your spouse wants one.

2. Legal Separation. A legal separation divides all of your assets and debts as of the date of the separation while allowing you to continue to be married. It is a court process that we do not generally use. The cost associated with a legal separation is comparable to the cost of a divorce. To go through that entire process and remain married is rarely beneficial. It is possible that such a separation can save your marriage. The new perspective gained may help you discover what is wrong in your relationship. However, we find that distance seldom resolves marital conflict because you need to be together to work out problems.

In addition, you can achieve many of the results clients are looking for with a legal separation by simply separating physically from your spouse. Many, but certainly not all, clients physically separate during the pre-divorce period. It is a hassle free self-help process. One party simply moves out of the family home.

3. Leaving the Family Home. Many clients ask if they can or should leave the family home. There is no generally applicable answer to this question. The correct decision is dependent upon your specific circumstances. There are a number of strategic considerations that should be a part of making such a move if you think a trial is likely. The departing spouse takes a real chance that re-entry will not be possible. In addition, moving away from the family home and the children may influence a judge as they make their custody decision. Do not move out without consulting us first.

You can obtain a Physical Abuse Restraining Order against your spouse if you believe there is a genuine physical danger to you or to your children. This is something that should not be taken lightly and should be discussed with us in advance.

4. Residency Requirement. You must have lived in Oregon for six months prior to filing for divorce. In addition, your divorce must be filed in the county in which either you or your spouse live.

5. Filing a Divorce. The first step is the preparation and filing of a Petition for Dissolution of Marriage. The Petition recites the names, ages, and addresses of the husband, wife, and all children born or adopted during the marriage; when and where you married and when you separated; that the residency requirement has been satisfied; and that your marriage should be dissolved. Most clients expect the Petition to set forth specific provisions for support, custody, a parenting plan (visitation), property division, etc. While we can create such a detailed Petition, it is almost always more cost effective to file a more generic document that is drafted with the expectation that the specific details of your divorce will be settled by agreement while the statutory waiting periods are running.

6. Who Should File? The person who files first is the Petitioner. The other party is the Respondent. There is no legal significance in who files first, although there may be procedural and tactical advantages for the Petitioner. Pride is another consideration. Talk it over with us and with your spouse so that we can avoid a race to the courthouse and further hurt feelings over this small item. Filing first is important if child custody will be an issue.

7. Order Freezing Assets. The filing of a divorce Petition puts in place an automatic and immediate order freezing certain accounts, preventing cancellation of policies of insurance, and prohibiting the changing of beneficiaries named in retirement accounts.

8. Service or Acceptance. Your divorce begins when the Petitioner serves the Respondent with a copy of the Petition. There are two ways to deliver this document to your spouse. The first is to have either the sheriff or a private process server hand deliver it. This can cause embarrassment and angry feelings. An alternative is to have your spouse come into our office to pick up a copy and sign an Acceptance of Service that acknowledges receipt. We will use a private process server unless you tell us otherwise.

9. Waiting Period. Oregon has a statutory 90 day waiting period that begins to run on the date service of the Petition is made upon you or your spouse. This is a minimum interval, although it can be waived. In fact, it is possible in Oregon to finalize your divorce the same day that it is filed, as long as your spouse agrees. Uncontested divorces (without waiver of the waiting period) take approximately 100 days to process. A contested divorce may take up to 12 months to finish; the likely duration depends largely upon the issues involved. Our goal is to try to help you work out the details of custody, parenting time (visitation), support and property division during the initial 90 day waiting period.

10. Temporary Relief. A spouse cannot be forced to pay money or to take other desired action unless there is a court case pending. This means that a divorce case must be filed to obtain court ordered temporary relief. We can ask the court to order support for you and/or the children, award you exclusive use of your vehicle and home, or provide various other forms of relief all while the case is pending. Keep in mind that the first step is to ask. Your spouse has an opportunity to object to your requests. A hearing will be held in the event that you and your spouse cannot reach an agreement about how to handle issues while the divorce is pending. The court will then hear your evidence and make its decision on the temporary matters.

Voluntary support payments can set a precedent with both your spouse and the court. Talk to us about what is reasonable in your situation. Do not pay too much or accept too little and by your actions tell the Judge that these temporary amounts are fair.

11. Dating. Casual dating will not legally affect support, the division of property, or the granting of the divorce. However, it may have an impact on other, more psychological, aspects of your case such as custody decisions. Keep our office informed of all developments that may affect your case.

12. Custody. Oregon law directs that the court consider the following factors when deciding which parent will be awarded custody of minor children: (a) the emotional ties between the child and other family members; (b) the interest of the parent in the child and the parent's attitude toward the child; (c) the desirability of continuing an existing relationship; (d) the abuse of one parent by another; (e) the preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and (f) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. In practical terms, this means that the parent who has accepted primary responsibility for bringing up the child in the past will probably be awarded the care and custody of the child in the future provided that they encourage ongoing contact between the child and their former spouse. The non-custodial parent will be allowed reasonable rights of visitation. Oregon law calls this visitation schedule a "parenting plan."

13. Joint Custody vs. Sole Custody. Joint custody is an award of the child's legal custody to both parents with a specific provision made for his or her primary place of residence. It assumes that each parent has an equal say in making major decisions that impact the child's life. Joint custody does not necessarily mean equal parenting time. The court is only allowed to order joint legal custody if both parties agree to the award. In general, joint custody will work only if both parents communicate and cooperate with each other. Joint custody can be terminated at any time simply by the request of either parent.

Conversely, an award of sole custody means that one parent has the sole right to make vital decisions regarding a child's education, religious training, health care, and the like. Sole custody is far more common due to the agreement and cooperation required to make joint custody work and the ease of termination of joint custody. Disagreement over custody and time-sharing is guaranteed to put you right in the middle of a contested and expensive divorce.

14. Parenting Time (Visitation). The court will usually approve any parenting plan (visitation schedule) agreed to by you and your spouse. A typical schedule is to alternate weekends and specify time during the summer and holidays. We encourage liberal time-sharing except in extraordinary circumstances. Every county has a model parenting plan that can be used by those families that do not want to write their own. Contrary to popular belief, the model plan is not a statement of the law, a minimum or a maximum time allowed between the child and the non-custodial parent. It is exactly what it says it is: a model plan that can be adopted or ignored at your own discretion.

15. Mandatory Parenting Class. Oregon requires that both you and your spouse complete a parenting class early in the divorce process. The typical class lasts four hours and covers topics including ways that parents can help their children adjust to divorce and how to make shared parenting time better for the children. The court will not allow your divorce to become final until both parents have completed the class and filed the appropriate certificates with the court. If your case is filed in Washington County, please note that the Mandatory Parenting Class is called "Kid's Turn." and is more extensive and will take longer to complete.

16. Mediation Regarding Children's Issues. You and your spouse will be required to attend mediation once each of you has completed the mandatory parenting class. Mediation is a procedure in which both parents speak with a neutral third-party hired by the court to help you reach an agreement on custody and to set a parenting schedule. The mediator will not discuss financial issues, give advice, or provide therapy. Approximately 80% of our clients that enter mediation leave the process with an agreement regarding the children. Our success rate is high because our clients spend time with us preparing for mediation before entering the process.

17. Child Support. The court uses a strict formula to set the amount of child support to be paid from one parent to the other. That formula must be used unless your case presents exceptional circumstances. The formula is located on the state's website at http://www.dcs.state.or.us/. It may be helpful and informative to run the formula on your own to see the effects of changing the variables. The court generally orders child support to be paid until the child's l8th birthday. Support may be extended to age 2l if the child is attending school. Support for a child attending school is usually paid directly to the child.

18. Spousal Support. Oregon Courts can provide for spousal support (alimony) following a divorce. The criteria considered in an award of spousal support include: the duration of the marriage; the age and health of each spouse; the standard of living established during the marriage; the relative income and earning capacity of the parties; each spouse's training and employment skills; each spouse's work experience; the financial needs and resources of the parties; custodial and child support responsibilities; and any other factors that the court deems appropriate. Spousal support is tax deductible by the paying spouse and treated as taxable income to the recipient spouse under the Internal Revenue Code. This means that there are possible income tax advantages to the individual paying spousal support.

19. Property Division. Oregon is an "equitable" property division state. Equitable does not mean an equal division; rather, it means a fair division in terms of value. As a broad concept, Oregon law treats a marriage as a partnership, and all income earned and property acquired during the marriage is marital and should be fairly divided. Marital property is subject to division between spouses regardless of which spouse holds title. Debts as well as assets will be considered. There is no fixed way to determine how either you or the court should divide your property. Factors that the court considers include the nature and extent of the property, the duration of the marriage, and the economic circumstances of each spouse. In some cases, gross misconduct by a spouse (such as supporting a mistress) can be considered. The court will approve your division if you and your spouse can reach a reasonable agreement. The court will hold a hearing and divide your assets and debts according to its own opinion of "equity" if you and your spouse cannot reach an agreement.

20. Retirement Benefits. Any retirement benefit earned during the marriage can be divided by the court in a divorce case. This includes pensions, profit sharing, individual retirement accounts, or any work-related benefit payable upon or after retirement.

21. "Uncontested Divorce." Your divorce will be contested unless you and your spouse agree to all aspects of custody, parenting time, support, property division, payment of liabilities, attorneys' fees, and court costs. You have a contested divorce, and a trial may be necessary, if your spouse disputes even one of these matters, regardless of whether or not the dispute is eventually settled without having to appear before a judge. Most contested cases are settled by agreement between the parties before either party appears in a courtroom.

22. Court Costs. Court costs refer to charges that the court imposes before you are allowed to submit documents and before any hearing will be held. For example, Marion County charges approximately $290 to each party before accepting the party's papers for filing. Other non-attorney fee expenses include: court reporter fees for depositions, appraisals, investigators, computer research, etc.

23. Our Fees. The exact fee will depend on the services that you require. Our general divorce services include: preparing and filing of the Petition for Dissolution and Summons; preparing an Acceptance of Service to be signed by your spouse or arranging for a process server to serve your spouse with a copy of the Petition; obtaining information from you concerning your assets, liabilities, income and expenses; making recommendations concerning property division and support; preparing or reviewing the General Judgment (Dissolution of Marriage); and preparing forms required by the Oregon Bureau of Vital Statistics.

Additional fees are charged for personal or telephone conferences, sending or receiving letters and e-mail, negotiations with your spouse or your spouse's attorney, tax planning and advice (such as spousal support arrangements), organization of financial records, preparation or review of property division and support agreements, temporary orders of all kinds, and for all court appearances.

The court may order one spouse to pay some of the other spouse's attorney fees if a trial is necessary. The court rarely orders payment of the full amount of the fee. You are responsible for paying our fees. Any sums recovered from your spouse will be either credited to your account or reimbursed to you.

We will not act as your attorney until you have signed the fee agreement and deposited the required retainer into our trust account. Full payment of any outstanding balance is due every month once the retainer fee has been exhausted. We accept cash, checks, Visa or MasterCard. We discussed our fee with you during our first meeting. The fee agreement is a binding contract between us. It is very important that you read it carefully before signing.

24. Reconciliation. Sometimes a divorce seems like the only solution. Often it is not. You may change your mind and try to work things out with your spouse after a divorce action has been filed with the court. Do not be embarrassed by this; our office encourages reconciliation. We charge no fee for dropping a divorce action. Only fees for services performed prior to your instruction to stop will be charged to you. Many times it is better to put the case on hold rather than dismiss it while trying to work things out with your spouse. This saves the expense of refiling the divorce in the event that your reconciliation does not work out.

25. Change of Wife's Name. A wife's former name may be returned to her at any time either during or after the divorce without any court action. We generally suggest that this be limited to the restoration of the maiden name when there are no children involved, or to a former married name when the children are from a prior marriage. Let us know before we prepare the Petition for Dissolution if you want such a change formally incorporated into a court judgment. A husband cannot force a wife to stop using his last name.

26. Confidentiality. It is important that we have all the facts to represent you properly. You will be asked to tell us everything about yourself and about your spouse. This can sometimes be embarrassing. Your spouse's attorney has probably already been told your most intimate secrets. Anything you tell anyone in this office is strictly confidential and will not be disclosed without your permission unless we are required by law to report it, such as in the case of known instances of child abuse.

27. Keeping You Informed. Our office will make every effort to keep you informed regarding your case. We will immediately send you copies of all documents that our office receives or prepares on your behalf. Please call if at any time you have any questions, problems, or concerns about the way that we are handling your case.

28. General Suggestions. Your well meaning friends and relatives may offer you advice about your case. Listen to advice from all sources and gather as much information about the process as you can. However, recognize that such advice is often inaccurate. Be cautious in following it. The facts surrounding your marriage, divorce, children, and property are unique and different from every other case. Be careful about which advice you apply to your own fact situation.

29. Starting the Case: The Next Step. Our initial consultation is structured to answer some of your immediate questions and give you a general idea of your rights and responsibilities in a divorce action. However, we have not accepted your case and will not act as your attorney until you have retained us for that purpose. Call our receptionist and tell her that you need a follow up appointment to retain us as your attorney if you wish this office to represent you. Such a follow up appointment will take about half an hour. You will need to bring to that appointment the signed fee agreement and your retainer fee, any papers with which you may have been served, and (hopefully) the financial documents we discussed in our first meeting.

30. Negotiating the Case. Our firm will attempt to negotiate with your spouse's attorney to reach an agreement as to how to resolve your case. This includes talking about custody issues, parenting time, support, and the division of your assets and debts. Frequently the best result for you will be one in which you and your spouse reach an agreement as to how to resolve these issues. Sometimes such a relationship does not exist and the only way to resolve it is through the attorneys or with the court's assistance.

It is perfectly acceptable for you to discuss support and property division with your spouse. In fact, we encourage you to do so. Just do not finalize anything without clearing it with us first. Remember, always be fair.

Divorce proceedings are very emotional, and parties sometimes use them to seek revenge. Occasionally one parent will use the children in an attempt to punish the other parent. Prepare your children properly without poisoning their minds about your spouse. Obtain professional advice if possible. Attempt to cooperate with your spouse where the children are involved.

31. Finishing the Case. It is common for a divorce case to extend four to six months. That does not necessarily mean that something is happening each day. Many times it is necessary for us to wait for information from other attorneys, the courts, other professionals, or anyone else that may be involved in your case. The judge will sign a General Judgment (Dissolution of Marriage) once you have resolved your issues, reached an agreement, or concluded a trial. You will be legally single in almost all respects and will receive any property or money awarded you by the judgment on the day that it is signed. Once the divorce is over, we will send you a letter outlining and again explaining all of the terms of your Judgment. There may be some follow-up details that will have to be handled either by our firm or by you, depending on the circumstances of your case.

32. Final Divorce. Your divorce will be final on the day that the judge signs the General Judgment (Dissolution of Marriage).

33. Remarriage. You may remarry the day after your judgment is signed.

34. New Wills. The Oregon Probate Code will make certain provisions of your will ineffective once your divorce is finalized. These automatic changes likely require drafting a new will for both you and your ex-spouse.

Glossary of Terms