Divorce/Legal Separation

Oregon is what is known as a no-fault divorce state. What that essentially means is that a petitioning party need not prove that the other spouse engaged in mental cruelty, adultery, or abandonment in order to obtain a divorce. All the petitioning party needs to do is to allege in his or her divorce petition that there are “irreconcilable differences” between the parties which have resulted in the “irremediable breakdown of the marriage.”

The courts’ unwillingness to assign blame in a divorce proceeding is usually a good thing; we all make mistakes and, if given a choice, would prefer not to have our dirty linen aired in a public courtroom. But is can also be very frustrating, too. I often have clients who are angry that they have to pay spousal support to their former spouse, when they don’t even want the divorce in the first place and would have preferred to stay married. I have other cases in which a client is understandably frustrated that he or she is ordered to pay spousal support to a philandering, addicted or abusive spouse; it seems like the other party’s awful behavior is being “rewarded” by the court. But spousal support is awarded regardless of the receiving party’s morally questionable conduct. It is based on numerous statutory factors, including the length of the marriage, the disparity in the parties’ incomes, the age and health of the parties, and their respective earning capacities, among other factors.

In fact, there is only one situation in which evidence of a party’s misconduct can be brought up in court and that is in the context of a contested custody or parenting time case. If you can show that the other spouse’s conduct or lifestyle affects his or her ability to parent the parties’ child(ren), the court will certainly weigh that evidence to determine whether awarding custody to that parent is in the child’s best interests. The misconduct is relevant only if it impairs a party’s ability to parent. For example, some people can function quite well on painkillers or marijuana or alcohol; everyone’s tolerance level is different. To prevail you would have to show that the drug impacts the parent’s ability to take care of the child and/or places the child in harm’s way. Here are some classic examples; the mother who drives drunk with her children in the car endangers their lives. A father who imbibes great quantities of painkillers and spends most of his time sleeping is not taking care of his children; he is letting them fend for themselves, to perhaps catastrophic effect.

Up until January 1, 2012, there was a 90 day waiting period from the date the divorce papers were served until a final judgment could be rendered by the court, unless the parties agreed to waive that ninety day period. Now there is only a thirty day waiting period which commences on the date of service. If one party fails to file a response with the court contesting the divorce petition within that thirty day period after he or she is served the papers, the party who filed the petition can seek a default order and be awarded whatever they requested in their original petition. It is very important to have an attorney review the papers which were served on you to make sure your rights are protected. Property divisions in particular can be extremely complicated; especially when there are pensions and real estate involved.

If you have questions, please don’t hesitate to call Newman Family Law or submit a free case evaluation online.

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