Things that you need to think about in preparing for a dissolution of marriage.
Property and Debt
All property owned by either spouse is either marital property (owned by either party in a marriage) or a marital asset (property acquired during the marriage). The term "property" is inclusive of real estate (houses, land, lots) and personal property (cars, cash, financial accounts, retirement accounts, pensions, etc.). In a marriage dissolution that property will be equitably divided. Debts will also be divided and the dissolution proceeding will determine who is responsible for paying the debt.
Parenting and Support
If you have minor children you will need to propose a parenting plan that provides for custody and visitation. Custody can be joint if both parties agree, but in the absence of an agreement one party will be the primary custodian and the other party will exercise parenting time according to the schedule set out in the parenting plan. This will be a detailed document that anticipates weekdays, weekends, school schedules, sports, special days, holidays, travel, decisions and interaction between the parties. The parenting plan along with each party's income, child care and other expenses as well as other dependents will determine child support. Spousal support can be transitional, compensatory or maintenance and a Court can order a combination or all three.
Insurance and Extra Expense
Maintaining two households is more expensive than one and you should anticipate additional expense. Upon dissolution of marriage, group health insurance provided to a spouse through the other spouse will end. Although it can be continued for a period of time under COBRA and under Oregon State law, extending that coverage is typically expensive. The division of retirement savings and pensions in a dissolution proceeding leaves less for each spouse to maintain a separate household in retirement. Support obligations will often have to be secured with a life insurance policy.
The steps to obtaining a divorce are:
Meet with a lawyer. An experienced lawyer can guide you through the divorce process. Fees will vary depending upon the complexity of the case and upon your spouse's or domestic partner's ability to agree to some or all of the incidents of divorce. An equitable agreement must be based upon knowledge -- knowledge of what all of the assets and debts are as well as knowledge of how the law applies to the distribution of those debts and assets and what the law provides regarding support.
Gather your papers. You will need certain statistical information such as dates and place of birth, social security numbers and prior marriages. A divorce will distribute property and debt and determine both spousal and child support. So begin locating and gathering documents such as tax returns, pay stubs, loan applications and loan account statements, bank and other financial accounts statements, documents that support your expenses and documents that identify and value property.
Can you agree? If you and your spouse can agree regarding the incidents of a divorce, you will both save a lot of grief and attorney’s fees. However, the agreement must be fair and equitable. An experienced divorce lawyer can advise you whether the agreement you contemplate is fair and equitable. Child support should be based upon a parenting plan and the child support guidelines. In Oregon, the duty to support a child extends until the 21st birthday if the child is in school. Spousal support can be transitional, compensatory, maintenance or all three.
Prepare for additional expenses. Most divorces follow a period of
separation. Maintaining two separate households is more expensive than a single household. If you have health or other insurance through a spouse, upon divorce that coverage will end (subject to COBRA and Oregon State law).
Determine the issues. Even if you can not agree on ALL of the incidents of divorce, can you agree on some of them? If you can agree to a parenting plan, child support is a calculation based on each party’s income along with some other factors. Even an agreement on who gets which items of personal property can narrow the issues down. The major issues in a divorce are the distribution of property and debt, alimony, child custody, visitation and support.
File a petition for dissolution of marriage or domestic partnership. A petition invokes the court’s jurisdiction over your case. Upon the filing of a petition for dissolution, certain statutory temporary injunctions automatically arise upon service of the summons and complaint. You can view a copy of the notice of the statutory restraining order which is served with the petition and summons in a dissolution of marriage action:
Parent educational class. If you have minor children of the marriage, both spouses will be required to attend a parent educational class by local rule in many Oregon counties. In Marion County the petitioner must attend a class within 15 days of filing and the respondent is allowed 30 days after service. The class is mandatory. A county by county list of parent education classes is contained in the link below:
If you are able to agree with your spouse or domestic partner on all of the issues in a divorce -- equitable distribution of real and personal property and debt, including retirement accounts and pensions, parenting plan, child support and spousal support we may incorporate those provisions into a general judgment along with the other required forms and present that judgment for entry. The division of some retirement benefits may require a special order known as a QDRO or Qualified Domestic Relations Order.
Discovery. Before any agreement can be reached, both parties must know the full extent of property and debt of each party and whether acquired before or during the marriage. The current income and future income potential of the parties must be determined. Serving a request for documents with a petition for dissolution of marriage will require both parties to provide documents such as tax returns, W-2s, financial statements, deeds, appraisals, financial accounts and brokerages, retirement plan statements and others. Depositions are also conducted in many cases. At a deposition you and your spouse will be required to answer questions posed by the other party’s attorney under oath and before a court reporter. Subpoenas are available to obtain information from third parties. To the extent that additional documents are necessary to discover assets, specific requests for production of documents can be served on the other spouse.
Mediation and Arbitration. Mediation is non-binding dispute resolution in which the parties appear with their attorneys before an experienced third-party neutral to discuss the resolution of outstanding contested issues. Mediation may be mandatory in some counties for issues regarding custody, visitation and parenting time. Mediation is always available on a voluntary basis and should be utilized for all outstanding issues prior to arbitration or trial. Domestic relations suits are subject to mandatory arbitration if the only issues are the disposition or division of property between the parties.
Motions. Many times, the court’s intervention is required prior to trial. Most commonly, pendente lite motions may be required to determine issues of support (child and spousal), money to prosecute or defend in the dissolution proceeding, use of the marital residence and other issues until the case has matured for a final hearing.
Trial. Depending upon whether you have reached an agreement on any issues, a circuit judge will try your case. A summary trial procedure is available if both parties agree.
Appeal. Either party aggrieved by the decision of the trial judge may appeal that decision by right to the Oregon Court of Appeals. Appeals to the Supreme Court of Oregon are by permission only.