Written by attorney Jay Bodzin

Divorce and Child Custody in Oregon

Divorce can be one of the most stressful times in a person's life. Besides all the emotional and family implications, divorces present a huge range of financial and legal problems to contend with. The information here cannot substitute for your own legal representation, but it can make you aware of some basic issues you will be facing. This applies to dissolutions of both opposite-sex marriages and same-sex domestic partnerships under Oregon law.

Grounds for divorce:

Oregon law permits no-fault divorces. This means that no one needs to demonstrate any specific facts to justify a divorce -- any married person can get divorced by stating to a court that the marriage has broken down. No other reason needs to be given. If you want to get divorced, your spouse cannot stop you - they can only argue over the terms. The typical legal issues that arise in divorces are division of property and debts, spousal support, and (if there the husband and wife have any children together) child custody and child support.

Property division:

The general rule for division of property in a divorce is "equitable distribution." Oregon is not a "community property state." This means that married couples do not automatically own all property together. Rather, when a couple divorces, each retains ownership of any property and debts they had at the start of the marriage. Any property (or debt) obtained during the marriage is divided equitably between the spouses. This can include real estate and retirement accounts. "Equity" is a rather vague standard that considers the fairness of all the circumstances. It can take into account the length of the marriage, the degree that the parties depended on each other, and any contributions, of money or otherwise, that each partner made.

When a divorce case is filed in Oregon, a statutory restraining order automatically goes into effect. This is not a restraining order that prohibits people from talking to or being near each other (see this page for more information about restraining orders used to prevent domestic violence). Rather, this order prohibits either spouse from hiding or disposing of marital assets, including real estate, vehicles, bank accounts, or other property. The law is intended to prevent one party to a divorce from hiding or keeping assets from the other.

Debts, like property, are equitably divided under Oregon law. Any debts that a person had when entering the marriage are normally considered to be theirs alone; debts incurred during the marriage are generally the responsibility of both parties. It is important to remember that a divorce judgment between you and your spouse or ex-spouse does not bind any third-party creditors you may have. Your creditors will retain the right to collect on debts from either spouse named on an account or debt. Division of debts in a divorce only allows one spouse to collect repayment of such a debt from the other spouse.

Oregon law prohibits modification of the property division terms of a divorce judgment. This means that, once a court has entered a judgment, the parties are stuck with it. There may be limited, rare exceptions for cases when property was hidden by one spouse from the other until after the judgment was entered, but in general, it must be done right the first time.

Spousal support:

There are three types of spousal support that can be ordered under Oregon law:

Transitional support: This is ordered on a temporary basis, to allow a spouse who has been supported by the other to find work and become self-sufficient.

Compensatory support: This is ordered on behalf of a spouse who made a significant contribution to the other spouse's earning capacity, typically by helping them pay for school or otherwise advance in their profession. The spouse who was assisted in this way may be asked to compensate the spouse who made sacrifices to help them.

Spousal maintenance: This is ordered for a person who has spent so long supported by their spouse, they are incapable of supporting themselves and divorcing any other way. It is typically ordered only in marriages that have lasted many years.

Spousal support is never automatic, and is ordered at the discretion of the court. You should consult with an attorney if you want to know if spousal support will apply in your case. Spousal support can involve substantial amounts of money over many years, and can have considerable tax implications. A good result on this issue is worth the investment.

Child custody and child support:

Child custody and support laws are the same for married couples and unmarried parents. This section applies to both.

Until a court issues an order, both parents of a child's parents have equal legal custody rights to that child. This also applies to adoptive parents. There are two related issues to child custody: legal custody, and physical custody.

Legal custody refers to decision-making authority over a child. A parent with legal custody decides where a child goes to school and what religion they observe, makes medical decisions for the child, and so on. Parents can agree to joint legal custody, sharing this authority, but a court will not order joint custody unless the parents agree to it. If the parents have agreed to joint custody, then either of them can later ask the court to award one of them sole custody. There is, however, no guarantee that the parent who asks for legal custody will receive it.

Physical custody, or parenting time, refers to where a child lives. Each custody case ends with a parenting plan describing where the child or children stay. These plans can be as specific or general as the parents need. The parents are free to deviate from the plan if they agree to do so, but the plan is there for when they can't agree. The harder it is for two parents to agree on these issues, the more important it is that the plan be clear and specific.

Usually, a parent who has legal custody of a child also has more parenting time, but this is not required. Parents can share equal parenting time while one has legal custody; or parents can share joint legal custody while one of them has physical custody most of the time.

Legal standards:

Under Oregon law, decisions about legal and physical custody are made according to the best interests of the children. The law sets forth a few standards for determining this:

The dominant presumption is that the children should remain with the parent who spent most time with them before - the "primary custodial parent." The law also presumes that it is in the best interests of the children to have an ongoing relationship and continuing contact with both of their parents. If the court must decide which parent is awarded primary legal and physical custody, it is more likely to grant it to the parent who has shown that they will encourage an ongoing relationship between the children and the other parent. Parents should not try to keep their children away from each other, unless one parent has clearly been abusing the children.

Oregon law explicitly does not consider the lifestyle choices of each parent in child custody decisions, except as it affects the welfare of the children. Judges do not want to hear parents attacking each other in court; the focus is on the children, not on each person's faults.

Temporary orders:

One of the most common worries that parents have in a custody dispute is that the other parent will take their children away and refuse to let them keep in contact. The law affords several means to protect parents and children from this kind of interference. If the parent of your children has refused to let you see them or indicated that he or she will take them away from you, you should consult an attorney immediately. The sooner you respond, the greater the chance that we can keep your children safe.

Child support:

Oregon law requires a child support order in any child custody judgment. Child support amounts are calculated according to a complicated formula. The most important variables are the income of each parent, and the amount of parenting time that each child has with each parent, measured in overnight stays each year. Other factors include spousal support, day care costs, and whether a parent provides medical insurance coverage for the children. The link below contains an application for calculating child support figures.

Legal procedure:

A divorce or child custody case is a lawsuit -- one spouse sues the other, asking the court for an order. This means that the normal rules governing lawsuits apply. Each side has the right to request production of documents and other information from the other side, and is obligated to comply with those requests.

If you have been sued for divorce, you should consult with an attorney immediately. Typically, when you are served with a summons and petition in a lawsuit, you have only a limited time (30 days, for divorces in Oregon) to file a response with the court. If you miss this deadline, you can lose your case by default, and the other party will get everything they ask for. You must file a response to preserve your rights.

It is also possible for spouses to file a joint petition with the court for a divorce. You can do this if you and your spouse agree on all the legal terms of the divorce -- division of debts and property. This does not require you to agree on any of the personal, emotional issues that led up to the divorce; just on the outcome you desire. Joint petitions are almost always faster, cheaper, and less stressful than contested cases, but they are only possible if both parties agree on all the terms. It is also possible to settle a contested case that has started out as an adversarial one. Your lawyer can often help you negotiate an equitable settlement that spares your family from unnecessary stress.

Additional resources provided by the author

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