If you are a Oregon resident considering divorce, there are several laws and processes you should know about before taking your first steps.
This guide will take you through how assets get distributed, how child support is calculated, what to do about child custody, and much more.
Oregon is an equitable distribution state and will divide all marital assets in a fair and equitable way. This does not necessarily mean that assets will be divided equally on a 50/50 basis.
Before this happens, the determination must be made as to what constitutes marital property and constitutes separate property. Most assets accumulated during a marriage are considered marital property, but there are exceptions, such as with gifts or an inheritance. Separate property is awarded only to the spouse who owns it.
This could change if the assets are commingled during the marriage. Factors such as one spouse’s economic misconduct may also be considered. Courts have the discretion to also divide assets earned prior to the marriage regardless of which spouse is the title owner
Courts will look at several factors in determining an equitable distribution. This will include the length of the marriage, the contributions of each spouse, tax consequences, if one spouse will be responsible for taking care of minor children, sources of future income and employability of each spouse, and so forth.
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Courts divide debts in Oregon the same way they divide assets. They are split in an equitable manner, although not always on a 50/50 basis.
Creditors are not bound by a divorce decree, so if a debt is assigned to only one spouse, the other person must take action to remove their name and their obligation from repayment. Not doing so could have an adverse impact on their finances and credit score. The card issuer can take collection actions against the other spouse for the entire amount due.
Any premarital debt acquired by one spouse is their debt exclusively, unless the other spouse added to that particular account (such as using a credit card).
If you inherit something, and if you keep that separate and do not commingle it into the family’s finances, you will have a much better chance of keeping that asset to yourself during a divorce in Oregon. However, all divisions of assets are subject to court review and approval to ensure a split is just and fair.
One way to protect a gift or inheritance is to have a spouse sign a pre- or postnuptial agreement agreeing that the asset belongs exclusively to the other spouse, no matter how it is characterized in the marriage.
Pensions and retirement accounts are considered marital property in Oregon and subject to equitable distribution laws. But this applies only to the amounts accumulated during marriage. Any amounts before a marriage or after separation are considered separate property.
Legally splitting pension and retirement accounts is done by executing a qualified domestic relations order, or QDRO. Depending on terms of the settlement, a spouse may get as much as 50% of a retirement account, or it may be bartered away in exchange for receiving other marital assets.
The QDRO must be approved by the courts and then it is submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the account is divided according to the specifics of the QDRO.
Determining the exact value of pensions and retirement accounts can be a complex process, and many times an expert such as an accountant, business appraiser, pension valuator, actuary, or a certified divorce financial analyst is retained to make an accurate assessment.
Before a division of assets can take place, it must be determined which assets are marital assets and which assets are separate assets belonging to only one spouse.
Generally, any property acquired before a marriage or after a date of separation is considered separate property. Separate property may also apply to certain items like gifts or inheritances, regardless of whether or not it was received during the marriage.
This can be invalidated for any separate property that is commingled with marital property during a marriage. For example, depositing inherited money or a gift into a joint bank account may be seen as commingling.
Alimony is officially called spousal support or spousal maintenance in Oregon. It can be requested on a temporary basis as soon as a divorce action is filed.
When a divorce becomes final spousal support can be granted as transitional spousal support, compensatory spousal support, and spousal maintenance.
Transitional support is for a predetermined period of time to allow a spouse to return to school or receive training so that they can earn enough money to become self-supporting.
Compensatory support reimburses a spouse for the financial and personal support they gave to the other spouse so that they could get training or education to enhance his or her earning capacity.
Spousal maintenance provides payments by one spouse to the other for financial support. It can be for a set or open-ended amount of time.
Several factors influence the amount and duration of spousal maintenance in Oregon. They include:
Both parents are responsible for meeting the financial needs of their children in Oregon. This financial responsibility will continue until the child turns 18 or extend beyond that if the child remains in school or a training program.
The amount of support is determined by the parents’ ability to pay and the individual needs of the child.
The Oregon Department of Social Services provides a Child Support Guidelines Calculator and a Child Support Worksheet to help estimate a parent’s fair share of child support.
The state also provides a Parenting Time Calculator to help calculate parenting time percentages.
Modifications to the amount of child support a parent pays can be requested based on if there have been major changes in either parent’s life since the previous child support order was put in place. A change might be the loss of a job, or a new baby or a shift in the amount of time your child spends with you.
Full information regarding child support is available on the Oregon Department of Justice website.
Just as it is all other states, custody and visitation issues in Oregon are driven by the best interests of children in a divorce. Courts do not give preference to a mother or father based on gender and they are reluctant to separate siblings whenever possible.
The court may consider a child’s preference as to where he or she wants to live, but a court does not have to follow the child’s wishes. Most courts are reluctant to consider the wishes of the child because forcing a child to “choose” a parent is often not considered to be in the child’s best interests. A court cannot award joint custody in Oregon unless both parents agree to it.
When custody is established, a court usually also decides the amount of visitation each parent will have with the child.
Many factors may influence how this is determined. This can include a child’s emotional, social and educational needs, the home environment of each spouse, the ability of each spouse to provide care for the child, the relationship a child has with each parent, and several other factors.
Under Oregon law, both parents almost always have the right to access the child’s school, medical, dental, police and counseling records. Both parents can also typically authorize emergency medical care.
Most parenting plans will restrict a parent from moving more than 60 miles from the other parent without first telling the other parent and the court 30 to 60 days before moving. This gives the parent an opportunity to contest the relocation.
When determining child custody and parenting time, usually the court will also decide issues concerning child support, health insurance for the minor children, and payment for uninsured medical expenses for the children.
Even if substance abuse is a contributing factor to the break-up of a marriage, it cannot be cited as a ground for divorce because Oregon is strictly a no-fault state.
Where substance abuse plays a major role is with child custody. If it is determined that a child is at risk due to a parent’s substance abuse problem, it is not likely that a court will grant that parent custody.
Things like casual drinking or recreational marijuana use likely won’t influence a decision much, if at all. Illegal drugs will probably have much more of an impact.
Where abuse is noted, courts often require regular drug or alcohol screenings, and visitation may rest on participation in a treatment program. It’s not uncommon for the court to require a parent to attend Alcoholics Anonymous meetings or undergo similar steps.
Substance abuse factors into the division of property when it directly impacts a couple’s finances. A spouse who spent large amount of money on drugs or alcohol may be impacted in a negative way when assets are divided.
Bifurcation of marital status in Oregon means that both parties can legally divide their divorce into two stages.
The first part satisfies the grounds for the divorce and the second part addresses the financial aspects of the divorce such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Some courts are reluctant to grant bifurcated marriages because it is not judicially efficient due to the need for two court actions or trials. It can also be more expensive and drag out the process for a much longer time period.
As part of the divorce process, each spouse must disclose their what they own and what they owe, what they make and what they spend. This is the only way to ensure that an equitable division of assets can take place.
Full disclosure of assets and income is also important in figuring out child support and alimony issues.
Spouses are sometimes reluctant to release this type of information. When that happens, legal remedies may be employed, such as a subpoena served directly on a financial institution, to get all of the required information.
Keep in mind that if a spouse lies on a financial disclosure document, they may be liable for both criminal and civil penalties. Like it or not, the wisest move is to always be honest and transparent when releasing information.
After a spouse files a petition for divorce in Oregon, the defendant has 30 days after being served to respond to the divorce complaint.
If they do not file a response, the original petitioner can file for a default judgment and ask the judge to grant the divorce even with no response.
A defendant who does not respond forfeits their right to contest terms of the divorce, including child custody and support, alimony a division of assets and debts and other related issues.
It may be possible to seek an extension under some circumstances, such as a health or family emergency, or if a respondent is on active military duty.
Domestic violence includes any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.
In Oregon, domestic violence is not a ground for divorce, but it can have an impact on child custody. Because the best interests of a child always come first, if domestic violence by one parent can be demonstrated, it could place restrictions on custody or visitation privileges.
When domestic violence is present in a marriage, the immediate safety of all family members is the primary concern. At risk members need to take legal actions such as implementing a restraining order and making arrangements to leave the family home as soon as possible.
After taking these actions, you can then focus on the processes involved with an actual divorce.
Overall, most all employers dictate that a spouse may no longer remain on the other’s health insurance plan after a divorce. This means they must get their own healthcare coverage if not covered in a settlement agreement.
Some divorce settlements in Oregon may have provisions that one spouse must continue to provide health insurance for the other. This is especially true when children are involved. Coverage for children is mandatory more often than not and may be split by both spouses.
Ex-spouses can apply for COBRA (Consolidated Omnibus Budget Reconciliation Act) benefits if their spouse was covered by an employer during the marriage.
It allows you to continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums. The major drawback is that this can be very expensive because an employer will no longer cover any portion of the premium.
Instead, many people opt to purchase health insurance on an exchange as part of the Affordable Care Act.
Because it is a no-fault state, infidelity and adultery don’t have a bearing on whether a divorce will be granted or not in Oregon.
Infidelity or adultery may become more of an issue in things such as alimony or a division of assets if it can be shown that these actions had a direct impact on the other spouse’s finances.
In addition, Oregon courts place a primary concern on the well-being of children in a marriage and if it can be shown that adultery has created a negative environment, then custody may be affected to some degree.
Infidelity can shatter your sense of identity and make it hard to move forward. If you’re struggling, be sure to get the support you need. Online therapy sites like BetterHelp can be a great way to find a therapist.
Military divorces follow many of the same procedures as civilian divorces in Oregon, but there are some notable differences as well.
It’s best to file a divorce in the United States even if deployed overseas. The military allows service members and their spouses to file for divorce in the state where the nonmilitary spouse resides, the state where the service member is currently stationed, or the state where the service member claims legal residency.
Under the Servicemembers Civil Relief Act, active military members are protected from default judgements while on active duty. A servicemember may choose to waive delaying the divorce by signing off on paperwork that allows the divorce to proceed uncontested.
A division of assets, child support and spousal support are handled differently than in a civilian case. Federal law dictates that these awards may not exceed 60% of a servicemembers pay and allowances.
The division of retirement benefits is governed by the Uniformed Services Former Spouses’ Protection Act. One provision of this Act is that the former spouse must have been married to the former servicemember for a minimum of 10 years while the military member has served on active duty.
A former spouse who has not remarried can receive medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program. The former spouse must meet requirement of the 20/20/20 rule which states:
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Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
