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  • Does It Matter Who Files For Divorce First?

    Key Takeaways:

    • The biggest advantage is the opportunity to develop a strategy and avoid being blindsided.
    • Filing first doesn’t alter the formalities, but there is a need to address temporary issues, such as who stays in the residence, who pays which bills, who takes care of the kids, etc.
    • Where you file determines jurisdiction. Laws can vary from state to state and county to county, and some jurisdictions may be more advantageous to your specific case.
    • On the flip side, if you file first without preparing, you risk leaving a negative impression with the judge.
    • When you file first, you reveal your strategy, and the opposing party tailors a response.

    People often look for any advantage they can find when ending a marriage. This makes sense for a process known to be contentious and full of conflict. In some cases, divorce resembles open warfare. Many maneuvers and strategies can and do provide an edge.

    But does being the first out of the gate put you in the lead?

    As usual, the true answer isn’t black and white. You have much to consider, so let us break it down for you.

    Should You File For Divorce First?

    Many people believe that if you file for divorce first, it gives you an advantage.

    It can in some instances, but not always. But no two divorces are ever identical, and in certain cases, it damages your cause.

    Each case has its own set of circumstances. So what works in one may prove disastrous in another.

    Related Reading: Divorce And Filing Forms: What To Know

    Advantages of Filing First

    Being the one to file for divorce first definitely gets the ball rolling. But that doesn’t always mean it puts you in an advantageous spot.

    It’s important to evaluate your case and make sure it’s the right decision. As with many legal matters, there are potential benefits and detriments.

    Time For Preparation

    When you file for divorce first, the biggest advantage is the opportunity to prepare. By the time you reach this stage, your marriage has probably seen better days. Still, if your spouse files for divorce first, it often comes as quite a shock.

    Being the petitioner doesn’t alter the formalities, but at the outset of divorce, there is a need to address temporary issues like:

      • Who gets to stay in the house?
      • Who do the kids live with?
      • Who pays the mortgage? 

    If you kick things off, surprise won’t be a factor. You define the issues to address. You serve the other party, then the other party gets to respond. Essentially, you get the first word and the last word. However, how much weight it carries varies from case to case.

    You won’t have to scramble to get everything in order and meet deadlines. Ending a marriage comes with a wide array of things to deal with. You have to collect or prepare financial statements, legal documents, and other important papers.

    In many cases, you want to hire a divorce attorney, a process unto itself. You may be able to save money to cover the fees or enlist a financial expert to advise you.

    All of this requires organization. If you file for divorce first, you have the opportunity to arrange everything beforehand.

    Depending on the circumstances, you may also prevent your spouse from hiding assets, emptying accounts, or doing other shady business. Hopefully, that’s not necessary, but it happens.

    In general, this gives you a chance to prepare. But even if you’re getting ready and your spouse files first, the work you’ve already done remains useful. You have to do the same things eventually, so that work isn’t wasted.

    Related Reading: How Long Does Divorce Take In Oregon?

    Setting Jurisdiction

    Divorce and custody laws vary from one state to the next, sometimes even county to county.

    For example, when it comes to the division of property, our neighbors to the North and South, Washington and California, adhere to the community property model.

    In Oregon, however, we practice equitable distribution. This impacts on how courts divide assets and debts in divorce.

    Jurisdiction also influences child custody, spousal support, and more.

    When you file for divorce first, you have more influence on who has jurisdiction. If you and your spouse live in the same place, it may have a minor effect. On the other hand, if you live in different cities or states, jurisdiction can have a major impact.

    Children also drastically impact jurisdiction in divorce and custody cases.

    With the Uniform Child Custody Jurisdiction Act and similar legislation, courts take a child’s best interests to heart.

    Their well-being takes precedence, so in those cases, when you file for divorce first, it may not carry as much weight. Courts take a variety of other factors into account when determining jurisdiction in custody cases.

    Related Reading: The Uniform Child Custody Jurisdiction Act

    Presenting Your Case First

    When you file for divorce first, you usually have the chance to present your case first. While that sounds like an ideal situation, there are, again, positives and negatives to consider.

    Presenting your case first gives you the chance to make a convincing first impression, especially if you have a strong case and compelling evidence.

    Related Reading: Common Divorce Mistakes

    Disadvantages of Filing First

    Possible Negative First Impression

    If you file first but don’t have compelling evidence on your side, or it’s apparent you weren’t prepared, you risk leaving a lingering negative impression. That may color the rest of your case. Judges are, after all, human.

    You show your hand first

    This isn’t a TV courtroom with a jury, surprise witnesses, and big gotcha moments. But by presenting first, you do reveal your strategy. Your spouse and opposing counsel then have time to tailor their response.

    Ideally, you and your divorce lawyer have laid the groundwork for a strong case based on sound legal strategy. If that’s true, when you present shouldn’t be an issue. A sturdy case is sturdy regardless of whether you’re first or second off the blocks.

    Related Reading: How Oregon Divides Property in a Divorce

    So, Should You File For Divorce First?

    As already stated, every case plays out differently, so there’s no one-size-fits-all answer. What’s best varies from case to case. Depending on your circumstances, it can benefit you, have a negative impact, or have little influence at all.

    Taking an (appropriately) aggressive and proactive approach, however, can benefit your case.

    If you’ve done all the groundwork and built a strong foundation, either on your own or with an attorney, by all means, file for divorce whenever you’re ready.

    But don’t rush things if you don’t have a plan in place.

    Don’t file for divorce first just to be first, or do it out of spite. You may want to get things started just so they’ll be over sooner, but that often backfires. If you’re not ready, it costs time, money, and results.

    Take the steps to build a sound, organized case. Gather all of your paperwork and collect important documents. Figure out if you need a divorce lawyer or not. Being prepared only benefits you.

    Related Reading: No-Fault Divorce: What Are Grounds For Divorce In Oregon?

  • How Is Student Loan Debt Divided In Divorce?

    Key Takeaways:

    • The tally of outstanding student loan debt in the U.S. tops $1.8 trillion
    • 12.5% of divorces are attributed primarily to student loan debt.
    • Student loan debt acquired before marriage usually remains separate property.
    • Dividing student loan debt acquired during the marriage varies depending on the types of loans.
    • Federal loans generally stick with the borrower, while private loans can get murky.
    • If one spouse has substantially more debt, it can influence the divorce settlement as the courts attempt to reach an equitable balance.
    • In cases where one spouse helps advance the other’s earning potential, it can affect spousal support.

    Financial strain is a huge source of stress for many people, both individuals and couples. One area where we feel the pinch most is student loan debt.

    The tally of outstanding student loan debt in the U.S. tops $1.8 trillion—that’s trillion with a “T.” That’s an all-time high, and it gets bigger every year. On average, the amount owed is $34,144, up more than 60% over the last ten years. Over the same period, the number of people owing more than $50,000 tripled.

    How Does Student Loan Debt Affect Divorce?

    With such astronomical sums at play, it makes sense that this causes people considerable concern during a divorce.

    Monthly payments top hundreds of dollars, if not thousands. And that’s often just to stay afloat, not even to pay down the principal.

    One recent study uncovers the impact this has on marriage and divorce.

    According to the report, “one-third of borrowers said college loans and other money woes contributed to their divorce.”

    The study surveyed more than 800 adults and found that 12.5% of divorces are attributed primarily to student loan debt.

    Is Student Loan Debt Divided in Divorce?

    Not only does student loan debt often place additional strain on relationships and marriages, but it can also contribute to divorce. Depending on the state where you live and when the loans were taken out, they may factor into the settlement.

    When it comes to property division, Oregon is an equitable distribution state. This means the courts divide all assets and debts in a manner they deem fair. You must determine if a particular item is marital or separate property. This influences how you split things up.

    The definitions are fairly simple on paper. Marital property is generally anything acquired during a marriage. On the other hand, separate property consists of things obtained outside the marriage. This also includes gifts, inheritances, and other items.

    Related Reading: How Do Major Purchases Affect Divorce?

    Acquiring Student Loan Debt Before Marriage

    For the most part, student loan debt acquired before marriage remains separate property.

    It doesn’t necessarily become a shared obligation when you tie the knot. Each spouse takes responsibility for their own loans, and things can be relatively simple. You can even draft a prenuptial agreement saying as much.

    Situations like making payments from commingled funds change things a bit. If one spouse has substantially more debt, that can also influence the divorce settlement as the courts attempt to reach a reasonable balance.

    Acquiring Student Loan Debt During Marriage

    Student loan debt in a divorce becomes a bit more problematic when acquired during the marriage.

    Things also vary depending on the types of loans. With federal loans, for example, the name on the paperwork matters most. If they’re yours, they generally stick with you.

    Private loans usually require a co-signer, which, in the case of married couples, is most often a spouse. This can put both parties on the hook for the money owed.

    Related Reading: Dividing Debt in Divorce

    Other Factors To Consider

    Another thing to consider is who makes the payments. When one spouse goes to school full-time, it’s common that the other takes on the breadwinner role.

    If you support your partner and make payments on their student loans, the court may compensate you in the divorce settlement. This doesn’t just include straight monetary support either.

    Driving them to school, delaying your own work or educational advancement, or even pitching in more around the house or with raising children all can and often do factor into the settlement.

    Generally, student loans stay with the student. But in cases where one spouse helps advance the other’s earning potential, that often plays a part when awarding spousal support.

    Related Reading: Whether or Not to Sell Your Home During Divorce

  • What Is A Divorce Deposition?

    Key Takeaways:

    • Depositions are sworn witness statements, taken out of court, but still under oath. The court can then use written transcripts of these statements in place of in-person testimony.
    • In family law, depositions are most commonly used in contentious custody disputes or complex, high-asset divorces, and are often a key part of the discovery process.
    • Depositions are typically taken in an attorney’s office, with attorneys asking questions and a court reporter present to document the answers.
    • Attorneys may depose anyone with information or insight relevant to the case at hand, including divorcing spouses, co-workers, relatives, neighbors, childcare providers, and others.
    • Depositions can cover a wide range of topics.
    • Because you are under oath, lying during a deposition carries consequences similar to lying in a courtroom.
    • Depositions can heavily influence the outcome of your divorce or custody case, so preparation, honesty, and careful communication are essential.

    Depositions are frequently used legal tools that come into play in all areas of law, including family law cases. Because they’re so common, it’s important to understand what they are, how they are applied, and when they may impact a divorce, custody, or other related matter.

    What Is a Divorce Deposition?

    Depositions are sworn witness statements taken out of court, but still under oath. The courts then use the written transcripts of these statements in place of in-person testimony.

    When Are Depositions Done?

    Primarily employed during the discovery process, divorce depositions are used to obtain information from both parties. In most cases, court personnel, like an attorney or paralegal, conduct the formal interview.

    Where Are They Done?

    Divorce depositions usually take place in an attorney’s office while a court reporter documents the answers. As these interviews are conducted under oath, statements are sworn to be true.

    Lying, falsifying information, or using misleading language compromises a case. Lying under oath can be prosecuted as a felony, which carries jail time and substantial fines if convicted. As always, it’s best to tell the truth and be honest.

    When Are They Used?

    Attorneys often use depositions in pre-trial discovery to document each party’s sworn testimony.

    This process seeks to uncover information about income, assets, debts, the opposing party’s goals, and more.

    Depositions create a permanent written record. These are admissible in court and can be used as evidence.

    This becomes particularly valuable when allegations of abuse or violence are present. Sworn testimony can be useful in uncovering the truth about accusations.

    Related Reading: Does it Matter Who Files for Divorce First?

    What are the Ins and Outs of Divorce Depositions?

    Depositions aren’t limited to just the divorcing spouses.

    Attorneys also often depose other people related to the case. Depending on the circumstances, this may include co-workers, childcare providers, family members, neighbors, and others. If a person has relevant information about the case, they may be called to answer questions under oath.

    Not every case requires depositions. They most commonly occur in custody cases and complex, contentious, high-asset divorces. Anything disclosed during a deposition can be used if a divorce agreement isn’t reached and the divorce goes to trial.

    Because depositions are admissible during trial, it’s crucial to answer questions consistently.

    Opposing counsel can use your sworn statement to cross-examine witnesses. During this time, your ex’s attorney may also try to point out any inconsistencies and undermine witness credibility.

    Depositions are a powerful tool in the discovery process and important pieces of building a case. They provide the opportunity to craft a statement and argument. Often they address allegations and circumstances that influence the outcome.

    Judges review documents and listen to the attorneys’ arguments. Usually, however, the parties never get called to the stand. Because of this, depositions often become your “day in court.”

    Depositions tend to cast a broad net for gathering information. As part of the discovery process, they can address a wide range of topics. This gives you the chance to tell your side of the story in full. It also offers an opportunity for questions that might not be allowed in court.

    Related Reading: Divorce or Legal Separation?

    How Do You Prepare for a Deposition?

    Your legal team may use depositions as part of your offensive strategy during your divorce. On the other side, the opposition may also request this as part of their own. Either way, it’s important to prepare.

    Your attorney will help you prepare by outlining what to expect from the process.

    Tell the Truth

    Though this seems obvious, it bears repeating. Being truthful in your deposition has many benefits.

    You don’t risk perjuring yourself. If you tell the truth, it’s easy to maintain consistency in your answers. You won’t inadvertently undermine your credibility.

    Lying in a deposition is never a good idea. Lying puts you at risk for fines and jail time, as well as potentially damaging your own case. Even if the truth isn’t ideal, it’s the best approach.

    Understand the Questions

    Make sure you understand the question before you answer. Depositions have a huge impact, so take the time to get things right.

    If you don’t understand the question or didn’t hear it all, get clarification. Ask the attorney to repeat, explain, or rephrase it so it makes sense to you.

    Don’t Volunteer Information

    Be honest, but don’t volunteer more information than necessary.

    This happens all the time. If asked a yes-or-no question, respond with a yes or a no. If a question requires additional detail or clarification, the attorney will ask for more.

    Also, don’t go over the top with your answers. Be polite and accurate, but keep it short. Over-explaining or talking too much often makes you come across as untrustworthy or dishonest. Again, if a question requires more, the attorney should ask.

    Don’t Joke Around

    There’s a time and a place for jokes and comedy. That place is not here and that time is not now.

    Sarcastic comments, funny voices, and other attempts at humor rarely translate well to written documents.

    The court reporter only records what words you say, not how you say them. Trying to be funny in person often comes across the wrong way on paper.

    Listen to Your Attorney

    You hired your attorney to guide you through this process. This includes divorce depositions. You’re paying them for a reason, because they’ve done this before and have experience.

    So listen to them.

    If you’re giving a lawyer money for their advice, heed what they say. They know of potential pitfalls in divorce depositions and can guide you through complex topics. Work with your representation to prepare and make this work in your favor.

    Depositions are key parts of many legal proceedings. They commonly play a part in divorce, custody, and other family law cases. It’s important to know how they work, when they are used, and how to behave while giving one.

    Related Reading: What is Summary Dissolution?

  • Equitable Distribution of Property During Divorce

    Key Takeaways:

    • Oregon uses equitable distribution, as do most states, rather than community property, to divide assets and debts during a divorce.
    • Equitable doesn’t mean equal; it aims to divide assets between the parties fairly.
    • The goal is for both to maintain a standard of living similar to what they had when they were married.
    • Separate or premarital property is excluded and remains with the individual who earned it.
    • After assets and debts have been classified as marital or separate property, a value or liability is assigned to each.
    • The court then divvies them up between the two parties in the fairest, most egalitarian way possible.

    Laws and regulations vary a great deal from state to state, so where you live often has a huge impact on your divorce, especially the division of property.

    Though the regions to the north and south of us both take the community property approach, they’re actually in the minority. Only a handful of states—and Alaska by agreement—adhere to community property statutes. The rest practice equitable distribution, and Oregon falls into this category.

    How Is Property Divided In Divorce In Equitable Distribution?

    In community property states, all assets, property, and debts acquired during a marriage are considered to belong equally to both spouses.

    Equitable distribution, on the other hand, views them as belonging to the individual spouse who earned them.

    When it comes to divorce, no set rules for the division of property exist. Instead, the court aims to divide assets between both parties in a fair and equitable manner.

    The two sides sit down, usually with attorneys, judges, or mediators, to determine the division of property. The ultimate goal is for both to maintain a standard of living similar to what they enjoyed during the marriage.

    Related Reading: The Impact of Major Purchases on Divorce

    Separate Versus Joint Property

    Before getting down to the business of the division of property, it’s important to know that there are two kinds of property: separate property and joint property. Oregon treats both types of assets differently.

    Separate /Premarital Property:

    As you probably infer from the name, separate property belongs to one spouse or the other. Though usually something owned before marriage, this category also includes gifts or inheritance. The court can include separate property when dividing assets if fairness dictates, but in general, it remains with the owner.

    In the case of premarital property, it also usually stays with the original owner. For example, if you bought a car and kept it registered in your name, it will likely remain yours. This gets cloudy in longer-term marriages or in cases where assets commingle. In longer marriages, lives become much more intertwined, and the line between separate and marital property blurs.

    Joint /Marital Property:

    Property acquired or earned during a marriage generally constitutes marital property.

    Despite a name on a title, with equitable distribution, Oregon courts presume both spouses contributed to any assets acquired during the marriage, whether true or not. Property equally acquired is subsequently equally distributed in divorce, in a fair, equitable fashion.

    Spouses can work out the division of property on their own. If both sides agree, the court will generally accept it, unless it skews drastically in favor of one party. Even once the courts get involved, you can make a case for ownership.

    You can argue that the other spouse didn’t contribute as much to a certain acquisition. Or the two sides can bargain and haggle. For instance, perhaps you’re willing to cede possession of a car in exchange for the title to a boat.

    Related Reading: Student Loan Debt And Divorce

    What Factors Influence the Division of Property?

    The reality of property division varies from case to case. Things often become tricky when it comes to determining what belongs to whom.

    Equitable distribution doesn’t mean the court divides all assets in half.

    The court attempts to divide the assets fairly. To accomplish this goal, they need a clear picture of who owns what individually and what belongs to the couple as a unit.

    The court looks at many factors:

    • The number of properties.
    • If significant items, such as a house or other property, need to be sold, the court considers the associated costs and expenses.
    • This also includes things like taxes and fees.
    • Pensions and retirement plans.
    • Medical bills.
    • If only one spouse works, the court accounts for the other party’s role and contributions as a homemaker.

    In many cases, the court subsequently distributes these items or assets in a fitting manner.

    During the division of property, however, you can dispute this approach. You can argue your ex didn’t contribute equally to the acquisition, make a case for possession, or barter for ownership.

    Once the assets and debts have been classified as either marital or separate property, a value or liability is assigned to each. The court then divvies them up between the two parties in the fairest, most egalitarian way possible.

    Anticipated costs also figure into the division of property.

    If you have children, the court accounts for their ongoing needs. This includes the ability to pay child support and provide for their care and well-being. For example, the custodial parent may receive the marital home for stability and continuity.

    While a number of considerations factor into the process, one that doesn’t, is fault.

    Oregon is a no-fault divorce state, so who caused the split doesn’t affect how assets are divided. Individual judges also have their own interpretations and applications of the laws and regulations. As a result, no two divorces ever play out identically.

    Related Reading: How Long Does Divorce Take in Oregon?

    Dealing With Major Assets, Like A House

    Major assets can complicate the property division process, but there are multiple ways to approach this.

    Houses offer a prime example.

    For most people, a house is the biggest purchase they ever make and their most valuable possession. Because of this, they’re also usually the most significant piece of the puzzle in the divorce settlements.

    In these situations, you have three common strategies:

    • You sell the home and split the earnings.
    • One spouse buys out the other and refinances in their name.
    • If there are children, the custodial parent continues to live in the home for a period. Most often, this lasts until the youngest child turns 18 or graduates from high school. At that time, they either buy out the other spouse or sell the house and split the proceeds.

    Related Reading: Should You Sell Your Home During Divorce?
    Related Reading: How Is Debt Divided?

  • Ways Moving Out Can Affect The Outcome Of Your Divorce

    Key Takeaways:

    • It’s best to have temporary court orders in place before you go. Without them, what you do now can set precedents that can last for years.
    • Child Custody Claims: Courts try not to drastically change a child’s schedule. The less time you spend with them now, the less likely it is to change after finalizing the divorce.
    • Property Division: Moving out of a home with your name on the title may affect your claim to it down the road. 
    • Bills: Even if you move out, the bills remain. You’ll also have new bills at your new residence. The court may assume paying for both is financially viable, so you might be ordered to continue that financial support.
    • Spousal Support: That financial precedent can also lead to higher spousal support payments if they’re ordered.
    • Loss of Access to Belongings: Losing access to your possessions and important documents.

    Should you move out during a divorce? This question comes up all the time, and the answer isn’t as obvious as most people expect.

    By the time you finally decide to divorce, most couples live apart. That’s just how it usually goes. Especially in high-conflict situations, it seems like a natural choice. After all, if all you do is bicker, this eliminates strife, stress, and frustration.

    How Can Moving Out During a Divorce Negatively Affect You?

    Moving out probably looks like a no-brainer, right? Not so fast. There’s more to consider than you might expect.

    In reality, moving out of a shared home can negatively impact your divorce in various ways.

    Ways Moving Out Can Affect Your Divorce

    From child custody to the division of property, it’s important to know what you’re in for. You may feel like you absolutely have to get out, especially if your safety is in jeopardy, but you should still know the possible consequences if you jump ship too soon.

    You Can Damage Your Child Custody Claim

    One of the most significant ways moving out can affect your divorce is in child custody. If you move out, you won’t spend as much time with your kids. Not only can this harm your relationship, but it can also damage your custody claims.

    Kids pick up on tensions at home, and no children want to watch their parents fight. Maybe moving out helps alleviate this. In the short term, that’s often the effect. Down the road, however, it may hurt your chances of getting custody.

    For the most part, courts try not to drastically change a child’s schedule or living situation if possible. This includes radically altering parenting time. The less time you spend with them now, the less likely that is to change much after finalizing the divorce.

    One option, if you do move out, is to have a parenting plan or custody arrangement already in place. This protects the time you have with your children. It’s also important to make use of the opportunities you do have with them. Make them the priority and maintain a major, active presence in their life.

    This shows the court you have an earnest interest in being a parent. The more involved you stay in regular, daily activities, the more likely that will endure following a divorce.

    Related Reading: Special Needs, Divorce, and Child Custody

    Affect On Your Finances and Property Division

    Another way moving out may significantly impact your divorce is financially, and with the division of property.

    It’s expensive to set up a new home. You need furniture, there’s rent, and maybe you haven’t bought silverware in a while. Then there’s the fact that you often have to pay all the bills from a single paycheck for the first time in years. That’s not cheap.

    It’s important to understand that the actions you take now can set a financial prescedent that you may be expected to continue after your divorce is final.

    For example, if you pay bills in both homes, you might be ordered to continue that financial support.

    In most cases, houses are the biggest things you buy in your lifetime. It’s likely the most valuable thing you own. Because of this, it’s also the most substantial piece on the table when it comes to splitting up assets.

    When you move out of a home with your name on the title, it may weaken your claim. Ultimate ownership is difficult to determine if there’s an argument over who the court should award it to.

    Related Reading: Common Mistakes Men Make In Divorce

    Lack Of Access To Paperwork

    People also often neglect paperwork when moving out of a shared home. Divorce requires all kinds of records:

      • Bank statements.
      • Credit histories.
      • Loan documents.
      • Life insurance policies.
      • Retirement papers.
      • Other financial documents.

    It’s important you don’t move out and leave them behind, but many people do. They’re easy to overlook and probably not your main concern in the moment. And while we do so much online now, you may still receive paper statements at home.

    Collect what you need, change addresses and contact information when necessary, and ensure you retain access to the important papers.

    Much like access to paperwork, moving out also impacts access to other possessions. It’s one thing if you pack up everything you own when you hit the road. But if you don’t, it’s often hard to get back into the house. If things are bad, it’s not unheard of for an ex to damage or get rid of items you left behind.

    Related Reading: How A Major Purchase Can Impact Your Divorce

    Moving Out Can Affect Spousal Support Payments

    When you move out, the bills stay behind. In some cases, temporary orders compel you to continue paying during the divorce. It’s common to have to cover your share month to month, even if you live elsewhere. This also often sets a negative precedent regarding spousal support.

    The court may presume that the amount you pay is financially viable and order you to continue to pay that amount, or something similar. A temporary situation may very well become permanent and sap your finances for years.

    While you crash with friends or relatives, you may inadvertently prove to the court how much your ex needs and how much you can afford, whether that’s accurate or not.

    On occasion, moving out can set a positive precedent for spousal support. If your ex steps up and manages the finances and home maintenance alone, it may indicate less need and lead to smaller payments. It is a risk, however. In addition, paying much less in monthly support can help in future proceedings.

    Related Reading: When to Hire a Divorce Attorney?

    Should You Move Out?

    None of this is to say you can’t move out during a divorce. You may need to, especially if a living situation becomes unsafe. It should be noted, though, that outside of a movie plot, you cannot be kicked out of your home without a court order.

    But in general, unless the court specifically orders you to, or it’s a safety issue, we don’t recommend vacating until temporary orders are in place.

    As long as it’s safe, we strongly urge you to stay at least until you consult an attorney. Since it can have such a huge impact, it’s important to know the consequences of your actions. An experienced professional can help determine a strategy that best protects your interests.

    Related Reading: How is A Business Divided During A Divorce? Can You Protect It?

  • How is Jurisdiction Determined in Custody Disputes?

    Key Takeaways:

    • The Uniform Child Custody Jurisdiction and Enforcement Act and similar laws were established to determine which state has jurisdiction over custody disputes and to prevent parents from taking children across state lines looking for a more favorable court.
    • Determining a child’s “home state” is central to the process of establishing jurisdiction.
    • These acts aim to create clear rules for jurisdiction and enforcement, promote cooperation between states, and to prevent long, damaging custody cases.
    • Ultimately, the UCCJEA aims to protect the child’s well-being.

    During a divorce, things get bitter, nasty, and downright mean. There may be hurt feelings, lingering resentments, and all kinds of acrimony. Too often, kids get caught in the middle.

    When children and custody battles are involved, the situation can become even more heated. This is where the Uniform Child Custody Jurisdiction Act (UCCJA) and its legal descendants come into play. They determine which court has decision-making power over a case.

    What are the UCCJA, PKPA, and the UCCJEA?

    All too often in situations that involved fights over guardianship, one spouse or the other resorted to kidnapping. While not common, it was a looming threat. To address this, the Uniform Law Commissioners created the Uniform Child Custody Jurisdiction Act.

    Uniform Child Custody Jurisdiction Act

    The UCCJA was established in 1968, and by 1981, every state had adopted it. Before taking effect, non-custodial parents could potentially transport children across state lines.

    They hoped to find a sympathetic court to overturn what was, in their mind, an unfair custody ruling. Enough of these cases succeeded that this type of behavior continued.

    Parental Kidnapping Prevention Act

    In 1981, Congress initiated the Parental Kidnapping Prevention Act with a similar goal in mind. For all intents and purposes, the PKPA was an update to the UCCJA.

    Uniform Child Custody Jurisdiction and Enforcement Act

    In 1997, there was yet another revision, the Uniform Child Custody Jurisdiction and Enforcement Act.

    This was adopted by 49 states, Guam, the U.S. Virgin Islands, Puerto Rico, and the District of Columbia. Massachusetts remains the only holdout as of 2026.

    There are significant distinctions among these three statutes, although the UCCJEA largely supersedes the UCCJA.

    The ultimate goal of the UCCJEA is to establish jurisdiction in custody litigation and to determine the “home state” of the child in question.

    Related Reading: What Happens When the Court Appoints a Guardian Ad Litem?

    How Is Jurisdiction Determined?

    When determining the home state, the court considers many factors. First, and most obvious, is where the child lives, specifically where he or she has resided for at least the previous six months.

    In the event that the court is unable to definitively name a home state, one where the child and the parties involved have significant connections is the next option.

    This may include having relatives in a particular place, or having lived there before and still maintaining connections, such as a doctor or daycare in the area.

    If a child’s welfare is threatened, emergency jurisdiction may be declared by a particular state to deal with immediate, pressing issues.

    Finally, if no other home state can be determined, the child’s presence in a particular state may be grounds for jurisdiction. Simply put, if there is no other way to establish dominion, being there may be enough.

    Related Reading: Jurisdiction: How Where You File Impacts Your Case

    Why These Measures Are Necessary?

    As Americans became more transitory, moves from state to state became increasingly common.

    In the case of separations or divorce, it’s not unusual for one spouse to relocate to another state. Perhaps for a new job, or maybe you have family in another location. It may simply be in pursuit of a fresh start.

    This mobility affected custody disputes between parents, and the need for measures such as the UCCJA, PKPA, and UCCJEA arose.

    What Do These Measures Achieve?

    There were no concrete, definitive answers to these questions before these acts. They address this by establishing a clear, concise basis for determining jurisdiction and discouraging multiple competing custody orders.

    The biggest aim is to avoid territorial conflicts and clashes when it comes to child custody cases. This negates any potentially damaging situations for the children.

    By fostering cooperation between states, and establishing jurisdiction, these measures strive to prevent parents from abducting their own offspring in the hopes of getting a more favorable custody ruling in another place.

    When the state with jurisdiction in a case is definitively determined, this avoids the risk of multiple rulings with potentially conflicting results and prevents protracted custody battles across multiple jurisdictions. Such drawn-out proceedings can have a harmful influence on the children involved.

    These acts also clarify any enforcement situations.

    What Does The UCCJEA Mean For You?

    How these acts affect you and your situation varies significantly from case to case. In a general sense, however, they safeguard and protect the health, interests, and overall well-being of your children. Beneath it all, that is the ultimate goal

    Determining which state has jurisdiction in your case can go a long way towards streamlining the custody process and resolving any ongoing issues.

    Related Reading: Enforcing a Parenting Plan

  • Common Child Support Questions Answered

    Key Takeaways:

    • After a divorce, Oregon generally awards child support to the custodial parent.
    • Child support in Oregon covers any factors that contribute to a child’s care.
    • To determine payments, the court considers the children’s needs, as well as each parent’s income and ability to pay.
    • Factors such as debt, regular payments (e.g., union dues or spousal support), and other financial obligations are also relevant.
    • In Oregon, you can request a hearing to present evidence to rebut a proposed amount.
    • While modifications to support orders are possible, they are a difficult and often expensive proposition.
    • The best way to prevent needing a modification later is to dispute the amount before it becomes final.
    • Child support typically continues until the child turns 18 or graduates from high school, whichever occurs last.
    • Child support may continue until age 21 if the child attends post-secondary school. This includes community colleges, four-year universities, and trade schools.

    When it comes to divorce, both parents remain responsible for sustaining any children, and part of this often takes the form of child support.

    These ongoing payments provide for the continuing financial benefit of any minor children. In Oregon, child support is often one of the biggest post-divorce expenses you encounter. With that in mind, here are the answers to the most common and frequently asked child support questions we hear.

    Who Is Entitled To Child Support in Oregon?

    After a divorce, Oregon generally awards child support to the custodial parent. These payments cover the general care and well-being of children under 18. In certain circumstances, these payments may also continue until the child turns 21 or beyond.

    What Does Child Support Cover?

    Wide-ranging, child support covers anything that contributes to a child’s care. These payments entail all the necessities.

    This includes:

    • A safe, secure place to live.
    • Food.
    • Medical coverage.
    • Child care.
    • Educational needs.
    • Clothing.

    If it plays a part in caring for and raising a child, it falls into this category.

    While child support covers the needs, it doesn’t necessarily cover the wants. Extras can factor into the decision, but ultimately, the court considers only the necessities.

    Related Reading: Do Courts Ever Award Split Custody?

    How Do Courts Determine Child Support in Oregon?

    A variety of factors determine the amount of child support payments in Oregon.

    The court considers the children’s needs, as well as each parent’s income and ability to pay. Factors such as debt, regular payments (e.g., union dues or spousal support), and other financial obligations are relevant. There’s a formula for figuring out child support.

    What Constitutes Income?

    When determining child support, the courts look at your gross income. As opposed to your take-home pay, this number is what you earn before any deductions. This includes the monthly salary before taxes. It also accounts for other income sources, like bonuses or commissions.

    Does A New Spouse’s Income Impact Child Support?

    After a divorce, it’s common to establish a new household with a new spouse or partner. One question that arises is whether or not this person’s income impacts your child support payments.

    In general, no, this doesn’t change your child support obligation under Oregon law.

    Only your income and your ex’s income are included in the calculation. That said, it’s rare, but in some situations, the court may consider a household’s overall financial situation. That can include income from a new spouse or partner.

    Related Reading: What is a Status Quo Order?

    Can You Modify Support Payments?

    Child support payments are often substantial and create financial hardship for the payer. The good news is that it is possible to modify a child support agreement. The bad news, however, is that it’s difficult.

    The best way to handle this is to dispute the amount before it becomes final.

    In Oregon, you can request a hearing to present evidence to rebut a proposed amount. This goes both ways. Either parent can use this opportunity to argue that the number should be higher or lower.

    Things become more difficult once the court orders child support. The amount can be adjusted after the fact, but it’s a more time-consuming and complex process. Not to mention expensive.

    If there’s been a significant change in circumstances, you can petition the court to modify.

    Most often, these changes result from job loss, but there are other cases. A new baby is one example, as is a substantial shift in the amount of time your child spends with you. In cases like this, the court may alter the payment amount.

    Though possible, the courts are often reluctant to modify child support orders, even if you prove a dramatic change in income. That’s why it’s so important to take the time to get it right the first time and make sure it is an amount you can live with long-term.

    Related Reading: How Does A Child Support Modification Work?

    When Does Child Support End?

    In general, child support continues until the child turns 18 or graduates from high school, whichever comes later. However, there are situations in which it continues beyond that date.

    Under ORS 107.108, child support in Oregon may continue until age 21 if the child attends school. This covers a broad spectrum of educational possibilities. It includes high school, community college, and four-year universities.

    Professional, vocational, and technical training designed to increase employment prospects also falls under this umbrella. As do GED programs.

    Additionally, if a child has special needs and requires ongoing parental care, the court may order that payments continue indefinitely.

    Child support in Oregon and elsewhere is complex and depends on many factors. These are just a few common questions you may encounter during the process. It is such a substantial expense that it’s vital to know what you’re getting into.

    Related Reading: How Does College Affect Child Support?

  • After The Court Appoints A Guardian Ad Litem

    Key Takeaways:

    • A guardian ad litem is a court-appointed 3rd-party investigator who will impartially evaluate which parent should be granted primary custody.
    • A judge assigns a guardian ad litem to a case where two parents can’t agree on visitation, child support, and custody.
    • GALs are often attorneys, volunteer advocates, or licensed professionals, such as counselors or social workers.
    • They perform scheduled and unscheduled home visits and conduct interviews with anyone relevant to your case, such as teachers, family, friends, and caregivers.
    • They’ll also access personal information, such as school records, medical documents, criminal records, and pay stubs.
    • The court doesn’t have to follow the GAL’s suggestions.
    • In most instances, the court requires the parents to pay the GAL’s fees.

    Custody battles are often an intense and time-consuming process. Even when you feel you’re the best fit for the child, the court may need an outside opinion to help make a final decision. In these instances, they often assign a guardian ad litem (GAL) to assess your case.

    What Is A Guardian Ad Litem?

    A guardian ad litem is an independent investigator, an outside third party appointed by the court to impartially evaluate and propose which parent should be granted primary custody.

    They don’t have guardianship of the children or any power over the parents. Their sole responsibility is to observe and report to the court on anything that may affect the child’s best interests.

    If the court orders a guardian ad litem to look into your case, you probably have questions about what that means moving forward. We aim to answer some of those below.

    Why Is a GAL Appointed?

    A judge assigns a guardian ad litem to a case where two parents can’t agree on visitation, child support, and custody.

    The court may also appoint a GAL because:

    • A parent is suspected of child abuse.
    • A parent abuses a controlled substance or alcohol.
    • The child has a clear preference for one parent over the other.
    • The child exhibits at-risk behavior.

    Related Reading: Enforcing a Parenting Plan

    Who Can Be A GAL?

    GALs are often attorneys, volunteer advocates, or licensed professionals, such as counselors or social workers.

    In some states, one person can serve as both an attorney for one party and the guardian ad litem. However, their recommendation still must remain unbiased and in the best interest of the children.

    In a few situations, the court asks GALs to monitor the case even after it has concluded to ensure all parties comply with the final court orders.

    Related Reading: Child Custody: The Best Interests of the Child

    What Should I Expect from a Guardian Ad Litem?

    The GAL will be present in your life until their investigation is complete. They will be at all court hearings and, if necessary, respond to any motions and appeals that affect their recommendations while the case is pending.

    Will They Come to Your Home?

    During your time with the GAL, you should expect scheduled and unscheduled home visits. They want to make sure you keep things clean and safe for your child at all times.

    Who Does a Guardian ad Litem Interview?

    They will likely talk to anyone relevant to the case. This includes the child, both parents, other caregivers, family members, friends, and teachers. If needed, they will also speak with any counselors and social workers involved.

    In short, they interview anyone who may have insight into the child’s life and situation.

    What Information Will They Request?

    During their evaluation, they may request access to all relevant information.

    They may wish to see:

      • School or daycare records.
      • Medical documents.
      • Child Protective Service records.
      • Pay stubs.
      • Counseling and therapy reports.
      • Criminal records.
      • Records of court cases of anyone living with you.

    They also have the right to request that you undergo psychological evaluations, parental fitness evaluations, and even drug tests.

    Related Reading: Parenting Evaluations in Custody Cases

    What Happens After a GAL Investigation?

    After they conduct all necessary interviews and evaluate all pertinent information, the guardian ad litem prepares a written recommendation for the court. These details their findings and their custody recommendation for the child or children in question.

    It’s important to note that the GAL only submits an opinion based on what they see and hear. However, the parents must be completely transparent so they submit an honest assessment.

    Even after all this time and effort, the judge doesn’t have to follow the GAL’s suggestions. This simply provides the court another tool to use or not use at their discretion.

    The concept of a stranger analyzing your every move and making a judgment on your ability as a parent can be uncomfortable and anxiety-provoking. But think of this as an opportunity to prove your parenting skills and that you’re the best choice for primary custody.

    Be your best self, but not disingenuous. Be prompt when asked to submit information, stay calm when asked questions, and explain why you believe the court should award you custody.

    Related Reading: What Can I Do After The Final Custody Orders?

    What If You Can’t Afford a GAL?

    In most instances, the court requires the parents to pay the GAL’s fees.

    However, the good news is that there are circumstances where those fees can be waived. You can file a motion asking for an order for the following:

    • The other side pays, if they are financially able.
    • Require the county to pay the fee.
    • Order payment of the GAL fee based on the parties’ ability to pay.
    • Request to waive the requirement of a GAL.

    There is also the possibility that you qualify to have the cost waived if you meet one of the following conditions:

    • The court waived your filing fee.
    • You receive any public assistance such as TANF, SSI, SNAP, and/or ABD benefits.
    • Your household income is below 125% of the federal poverty level.
    • You have exceptional financial circumstances.

    You will need the following forms for a motion to waive the GAL fee:

    • Notice of hearing.
    • Motion and Declaration for Waiver of GAL Fee.
    • Order waiving GAL Fee.

    If none of these work for your case, you still have other options.

    You can ask the judge to divide all the GAL costs according to the percentage each party pays for child support or according to each parent’s ability to pay.

    When it’s time to go in front of the judge, you must tell them:

    • Why you cannot afford the GAL fee.
    • You believe you do not have enough income to pay for the GAL.
    • How much and what kind of public assistance you receive.
    • If you did not have to pay a filing fee at the start of your case.

    If you have fee waiver paperwork, make sure to give the judge a copy.

    Once all submitted information is assessed, the judge will ask the other party about their ability to pay the GAL fee. After a similar process, they make a decision.

    As always, it’s likely in your best interest to consult a divorce attorney. An experienced professional has been through this before and can let you know what to expect from a guardian ad litem and beyond.

    Related Reading: Third-Party Custody Rights

  • Can You Get a Divorce If You Can’t Find Your Spouse?

    Key Takeaways:

    • Yes, you can get a divorce even if you can’t find your spouse, though there are additional steps and complications.
    • The process begins by filling out and filing the appropriate forms.
    • You must demonstrate to the court that you made a serious, good-faith effort to locate your spouse. They will need to see documentation proving you put in the legwork.
    • If you fail to track down your spouse, the court allows service by alternate means, including service by publication, service by posting, or service by mail.
    • Once you exhaust all avenues, you can apply for a default judgment that will finalize your divorce.

    Oregon, like most states in the union, practices no-fault divorce. These laws exist so no one is forced to remain married if they don’t want to. This includes cases where you can’t find your spouse. 

    This situation comes up more often than you may think. However, the good news is that you can still get a divorce even if your spouse has dropped off the face of the Earth.

    Not being able to locate your spouse does, understandably, present new obstacles, but there is a path to end your marriage.

    How Can You Divorce When You Can’t Find Your Spouse?

    All divorces are different. How it goes depends entirely on the specifics of your marriage and relationship.

    However, they all start in the same place. This is true whether you and your spouse still live together or they’ve completely vanished from your life. Down the road, the process may become more complicated, but it still begins with the most basic first step.

    Start The Divorce Process

    Like with any other divorce, you need to get the process started.

    First, obtain the appropriate forms, fill them out, and file them with the proper court. You also have a few fees to pay along the way.

    If you can’t find your spouse, the next step is where things get tricky. But for all intents and purposes, the initial move is the same. Get the ball rolling, and go forward from there.

    Attempt to Locate Your Spouse

    The next step to divorce is usually serving your soon-to-be-ex and declaring your intention to dissolve your marriage. Again, this gets tricky when they’re nowhere to be found.

    Before you can move on to the next stage, you have to do the legwork and put in a good-faith effort to locate them.

    The court requires proof of a “diligent search,” so make sure to document the work you put in every step of the way.

    Track who you call, where you search, and any other actions you take.

    The good news is, you have plenty of resources and search tools at your disposal in your quest to track down your spouse.

    • Check their last known address and the most recent employer. Even if they’re not there anymore, landlords or bosses may have an idea where they went.
    • If you still have contact information for family or friends, that’s another place to look.
    • Technology is a valuable ally. Online tools and resources often deliver results, and new ones emerge every day. In some instances, a cursory internet search may provide clues, places to check, or even the jackpot.
    • Dig into phone listings in the area where you know they lived.
    • Examine various databases, public court records, and even the Federal Bureau of Prisons.
    • Look at the DMV, military records, and the Social Security Death Index.
    • Hire a private investigator. What may take you some time may be routine for an experienced professional. They also often have access to databases and resources that the average person doesn’t.

    If you hired a lawyer to represent you, they should be able to help if you can’t find your spouse. If nothing else, they will have suggestions of where to start.

    Again, keep records of all your efforts. It’s important to show the court you did your best. Divorce laws demand you do the work.

    Related Reading: Pro Se Divorce: The DIY Method

    Service By Alternative Means

    If you find your spouse, great, proceed with your divorce as normal.

    But if they’re nowhere to be found, once you exhaust your options, no-fault divorce laws still allow you to move ahead.

    The next step is to serve your spouse by court-approved alternative means.

    It shows that you did the legwork and legitimately tried every possible option. The court must sign off on this measure, which is why it’s vital to document efforts to find your spouse, even if your search ultimately proves unsuccessful.

    There are a few different ways to serve your spouse in these cases:

    Service by Publication

    One of these alternatives is service by publication. More or less what it sounds like, service by publication means you release a public notice via an acceptable source. This most often takes the form of a news outlet, usually a local newspaper in the area where your spouse most likely lives. The summons usually must appear multiple times.

    Service by Posting

    Another common method is service by posting. In these cases, the court authorizes the display of the summons in a public area of the courthouse. Visible to as many people as possible, the goal is to make this document accessible to your spouse. This has an advantage over service by publication, as posting is usually free.

    Service by Mail

    In Oregon, the court may also require you to send a copy of the summons to your spouse’s last known address. If this information is seriously out of date, this may not be an option.

    Related Reading: How To File For Divorce In Oregon

    Motion For Default

    In most cases, alternative forms of service don’t yield significant results. But again, it shows you tried, and that’s the important part to the court. Once you do that, it’s finally time to move on.

    After 30 days, if you can’t find your spouse and they fail to respond to the published summons, you can apply for a Motion and Order Allowing Judgment by Default.

    This declares you did everything you could, but your spouse never materialized. By failing to respond, they are in default, and this document asks the court to grant a judgment in your favor.

    Now, even without your spouse’s direct involvement, the court is free to split any shared assets, rule on custody issues, and decide on any other matters.

    In most cases, if you’ve been apart for so long that you can’t find your spouse, there likely isn’t a ton to deal with. Still, it’s important to make everything official, especially if you’re looking to move on with your life.

    While not being able to find your spouse does complicate the divorce process, it is still possible to end your marriage and move forward.

    Related Reading: Jurisdiction And Divorce: Where You File Does Matter

  • Oregon Custody: The Best Interest Of The Child

    Key Takeaways:

    • The courts follow one overriding principle in custody cases: the best interests of the child.
    • “Best interests” means safety, stability, and well-being.
    • Oregon Statute 107.137 lays out the guidelines for determining the best interests of a child in custody cases.
    • The courts consider any relevant factors when making custody decisions.
    • Who the primary caregiver is carries a great deal of weight.
    • Children do not get to choose which parent they live with.
    • The overall aim is to support a child’s long-term welfare.

    When it comes to child custody, the courts follow one overriding principle: the best interest of the child.

    This phrase is used frequently when kids are involved. But what does it actually mean?

    While the answer may sound simple and obvious, as with most things in the realm, it’s not always straightforward.

    What Is The Best Interest Of The Child?

    At a basic level, the best interests of the child are precisely what the phrase suggests.

    Where is the safest, most stable, healthiest place for the child to live? Which parent has the strongest relationship with the child? Where are they best cared for?

    In some cases, this is easy to determine.

    If one parent has a steady job and a secure home, while the other has a long history of abuse and neglect, the choice is clear.

    In circumstances where both parents are loving, well-adjusted, and able to provide a dependable, wholesome environment, the best interests of the child are more difficult to define and determine.

    How do courts determine the best interests of a child?

    Oregon courts consider many factors when making this decision. In fact, they use just about anything they deem relevant. Because of this, almost everything is on the table. However, there are several common elements.

    These include:

    • The child’s age and gender.
    • Educational options and resources are available to each parent.
    • The stability of each parent’s home.
    • Income and economic resources of each parent.

    Far from an exhaustive list, these factors, or some combination of them, often play the most substantial roles.

    Related Reading: Common Child Support Questions Answered

    Can a Child Choose Where They Want to Live?

    Many people believe the courts allow children to choose where they want to live and with which parent. That’s not the case.

    A child’s direct input rarely sways the court’s decision one way or another.

    The child’s wishes can play a role, but it’s not the norm. Children’s voices can be heard if the court orders a custody evaluation or appoints a guardian ad litem to represent the child’s well-being.

    The older and more mature the child, and the more well-reasoned their argument, the more weight their input will likely carry.

    That said, this input only goes so far.

    Ultimately, the court bases its decision on what’s truly best for the child rather than the child’s preference or parental convenience. If their opinion is to sway things, it needs to be more substantial than “Dad won’t let me stay out late,” or “Mom hassles me to do my homework.” They must present compelling reasons for wanting to live with one parent over the other.

    Related Reading: Oregon Custody: Parenting Evaluations

    How are the Best Interests Of The Child Are Determined?

    As you might imagine, the law specifically lays out the guidelines for determining the best interests of a child in custody cases.

    Oregon Statute 107.137 reads:

    “In determining the best interests and welfare of the child, the court shall consider the following relevant factors:

    (a) The emotional ties between the child and other family members;

    (b) The interest of the parties in and attitude toward the child;

    (c) The desirability of continuing an existing relationship;

    (d) The abuse of one parent by the other;

    (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. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.”

    Related Reading: Fathers’ Rights And Child Custody

    What does this Statute Mean for Custody Cases?

    The statute goes on to examine the process in even closer detail. Under the law, the court won’t focus solely on one of the above factors.

    They can’t consider a parent’s disability unless it endangers the health or safety of the child.

    The court considers income, social environment, marital status, disability, or lifestyle, but “only if it is shown that any of these factors is causing or may cause emotional or physical damage to the child.”

    Custody won’t be awarded if one parent has been convicted of certain classifications of sexual assault. Being denied custody under this subsection does not remove that parent’s obligation to pay child support.

    Beyond these, the statute also clarifies one common misconception. Many believe mothers have a legal advantage, but from a purely letter-of-the-law standpoint, that’s not the case. As written, the law doesn’t favor one parent above the other.

    Child custody cases tend to become contentious as emotions flare and tempers run high. It’s often difficult for parents to navigate these issues while keeping a level head.

    Maintaining composure and control helps you make sound decisions, reach a custody agreement that serves the child’s best interests, and meet the needs of everyone involved, especially the kids.

    Related Reading: How Do Criminal Charges Affect Child Custody?