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Category: Divorce

  • Common Divorce Mediation Questions and Answers

    Key Takeaways:
    • Mediation is a method of Alternative Dispute Resolution (ADR).
    • A neutral third party helps the two parties work toward an optimal solution.
    • Unlike arbitration, the mediation process is not legally binding.
    • Mediation is popular because it’s cheaper, faster, and less stressful than a trial.
    • There are three types of mediation: evaluative, facilitative, and transformative.
    • You don’t have to have an attorney for the process, buts it’s best to have one look at a potential agreement before it becomes legally binding.
    • Mediation is confidential.

    Despite what we see in movies and on TV, divorce and child custody cases don’t always go to court. Those situations certainly make for compelling fictional drama, but in reality, there are a variety of options beyond litigation. Mediation is a popular choice, so we often hear many common questions about it.

    What Is Divorce Mediation?

    Mediation is a method of Alternative Dispute Resolution (ADR). ADR strategies provide an alternative to going to trial. A neutral third party helps the two parties work toward an optimal solution.

    It can be used in various civil matters and has become popular in divorce, custody, and other disputes. You can use this approach to divide property, establish spousal and child support, create a parenting plan, and address most other areas of family law.

    Is Mediation Legally Binding?

    One of the most common mediation questions we hear is whether or not the process is legally binding.

    No, mediation is not legally binding.

    Even though you and your spouse agree to go through the process and settle a dispute this way, no decision is imposed upon anyone.

    There’s no concrete and final decree, and in the end, both parties must accept the terms. The mediator doesn’t pass judgment. He or she only facilitates an arrangement between two people.

    Why Choose Mediation?

    Mediation is popular because it’s cheaper and faster than a long, drawn-out trial. It’s also much less stressful.

    Instead of presenting arguments and having a judge rule, in these cases, it’s usually a handful of people sitting in a room, working towards a common end.

    And if you can truly work together, many people feel better about the result—you’re part of the process, and it’s not just some outsider handing down a decree.

    In some cases, couples try mediation before moving forward with litigation.

    Related Reading: Community Property Vs. Equitable Distribution

    What Types Of Mediation Are There?

    When it comes to mediation, there are three types or styles to choose from. Each has its own peculiarities, and which is best for you depends on the circumstances.

    Evaluative Mediation

    In the evaluative mediation style, the facilitator points out weaknesses or deficiencies in a case and provides a better idea of what you might expect from a trial.

    Facilitative Mediation

    In the facilitative mediation style, the mediator essentially helps both parties understand their options and reach a mutually beneficial resolution.

    Transformative Mediation

    A transformative mediation approach seeks to empower each party and help each side recognize the other’s needs and points of view.

    The mediator supports both sides but allows them to determine the direction and structure of the proceedings. This is most common when both sides want to fix a broken relationship and mend fences.

    Related Reading: Common Financial Mistakes In Divorce

    Should You Hire A Lawyer For Mediation?

    One perk many see in mediation is that it doesn’t require a lawyer and the accompanying legal fees.

    That said, you may still want to consider hiring a divorce attorney, especially if your spouse has representation.

    A professional advises you during the process and steers you in the optimal direction. They also make sure the agreement is fair before anything becomes official.

    Even if you do hire a lawyer, the cost will likely still be much less than if you go to trial.

    Related Reading: How Student Loans Impact Divorce

    How Long Does It Take?

    Another benefit of mediation is that it’s usually a much shorter process. Instead of a lengthy trial, most only last a day or two.

    Mediated cases tend to be less complex than those that go to trial, but the process is also more streamlined.

    It’s often much more convenient, as you can schedule appointments to fit into your calendar rather than wait for the court to set a date.

    Related Reading: How To File For Divorce In Oregon

    Is The Mediation Process Confidential?

    The mediation process is also confidential. Conversations and communication between you and your spouse remain private. Mediators keep any information they receive confidential as part of their professional code of conduct.

    None of the specifics appear on public court or legal documents.

    This is very much a behind-closed-doors proposition. Like most legal matters, however, there are exceptions. For example, incidents of child abuse or potential criminal actions that may harm someone.

    How Do You Choose A Mediator?

    Much like most legal professionals, mediators often specialize in specific areas.

    If yours is a high-asset divorce, look for one with experience in financial matters. When child custody is a major issue, find someone who specializes in it.

    If you hire a divorce attorney, he or she likely has local resources and recommendations for someone to handle your case.

    Related Reading: How Is Property Divided In Divorce?

    How Is Mediation Different From Arbitration?

    Arbitration is another form of alternative dispute resolution. Similar in process to mediation—two sides sit down with a third party instead of going to court—there are key differences.

    While mediation is more collaborative, arbitration more closely mimics a trial. Both sides present evidence and make arguments.

    In arbitration, however the moderator has the power to render a decision.

    Like mediation, family law arbitration is a voluntary process. But in this case, the two sides agree in advance that any judgments are legally binding.

    Litigation in divorce is stressful, hectic, expensive, and presents a variety of other concerns. Fortunately, alternatives to trial do exist. Mediation is one that many couples ending a marriage choose. It may not be the right fit for your situation, but it is worth considering.

    Related Reading: How Is A Business Divided During Divorce?

  • How Is A Business Divided In A Divorce?

    Key Takeaways:

    • In divorce, above everything else, your business is an asset to be divided.
    • If the business pre-dates the marriage and marital funds were not co-mingled, it should remain separate.
    • If you start a business while married, it will likely be considered marital property.
    • That doesn’t mean it will automatically divide the company equally.
    • There are several options available, such as one spouse buying out the other, selling it outright, or using it as a negotiation tool in exchange for another asset.

    If you own your own business, you pour your heart and hard work into it. They not only represent your passions and drives, but there are also practical concerns. Especially when it comes to divorce. Is a business something the courts divide in a divorce? Can you protect your business in a divorce?

    If you’re in this situation, you probably have a lot of questions. We’ll do our best to provide some answers, though they might not always be easy to hear.

    Is a Business A Divisible Asset During Divorce?

    In divorce, above everything else, your business is an asset. It’s also probably one of your most valuable assets.

    The process of ending a marriage is already a snarl of dividing shared assets, property, and debt. When a business factors into the equation, it presents a whole different set of problems and challenges. You must consider many issues and answer a variety of questions.

    • Are you and your spouse business partners?
    • Did you start the business before the marriage?
    • Did you start the business during the marriage?
    • Do you have outside collaborators or investors?

    How this plays out directly impacts your livelihood and quality of life. It’s a tricky road, and with that in mind, here are some considerations to keep in mind when dealing with a business during divorce.

    Related Reading: How Is Property Divided In Oregon?

    Businesses Are Assets In Divorce

    You likely have a deep personal connection to your business. Whether it’s a restaurant, a dog walking service, or you make artisanal hummus, you put years of your life into this venture.

    Since the courts view your business as an asset, in the end, it treats it as such.

    It may have great personal worth, but it also has a specific dollar value, and that’s what the court looks at. It’s one of many things to break down and distribute between you and your spouse during the division of property.

    Related Reading: Common Financial Mistakes in Divorce

    What Are the Business Origins?

    As we said above, when you started a business often has a substantial impact on how the courts divide it during a divorce.

    Businesses Started During a Marriage

    While you can use a prenuptial agreement to shield your business if it exists before your marriage, what can you do if you start a business during your marriage?

    If you start a business while married, it will likely be considered marital property. This means it will probably be vulnerable to division in a divorce. Similar to other assets acquired during a marriage, the courts will view this as belonging to both spouses.

    This unfortunately means you may have limited options when it comes to protecting your business from divorce. That said, you’re not completely without ways to cover yourself.

    Just because the court views a business as the property of both spouses, that doesn’t necessarily mean it will divide the company between the two parties. The court could assign the business to you and award other assets to your spouse to offset any discrepancy.

    You also have other options to protect your business during your marriage:

    Postnuptial Agreement: A postnuptial agreement can help safeguard a business you start after you marry. Similar to a prenup, this contract allows a couple to specify who gets a business, or other assets, in the event of divorce. This offers one way to protect your hard work, helps shield your business, and ensures your financial future.

    A Trust: Another option to protect your business during divorce is to create trust. This strategy comes with a laundry list of complicated legal concerns, but it may work in certain cases. You’ll want to talk to a lawyer if this option interests you.

    Businesses Started Before a Marriage

    Things do change if the business predates your marriage. In this case, the court will likely view it as, at least in part, separate property. But other factors influence and complicate this status.

    If you invest joint funds, that changes things. Commingling marital and business assets further muddy the waters. When your spouse invests sweat equity in the business, that also blurs the lines.

    Related Reading: Creating a Divorce Strategy

    Dividing A Business: Valuation, Division, and Allocation

    Valuation

    One big factor that impacts business during divorce is valuation. If you have an attorney, one major decision to make is whether or not to have the value of a business appraised.

    In the case of many smaller service-oriented businesses, like hair salons or construction companies, they don’t necessarily have substantial “goodwill.” When it comes to accounting, “goodwill” refers to intangible assets that aren’t separately identifiable and quantifiable. Think reputation and position in a particular marketplace, among other variables.

    In situations without goodwill, a business is worth what you can easily measure. It amounts to assets less liabilities. They create an income and are more akin to a traditional job.

    But other businesses have a value beyond that. A company with high standing in its field has a higher value than one with a lower position, even though that’s difficult to put a dollar amount on.

    When it comes to this type of business during divorce, a good appraiser is often critical to determining an accurate value. This, however, is not cheap. It can cost anywhere from $5000 to $15,000 depending on the specific situation.

    Ways to Divide And Allocate

    Much like how you have multiple options to protect your business during divorce, you also have various ways to divide and allocate a business in the settlement. A few potential strategies include:

    • Buy-Out: One common option is for one spouse to buy out the other. This works best when one has more interest in continuing to run the business than the other.
    • Forfeit Other Assets: As stated earlier, couples often work out a split that’s favorable to both parties. For example, in exchange for the business, you may give up any claim to a shared home or other valuable properties.
    • Divide the Business: In some cases, you may have the option of splitting a company into separate businesses. For instance, if you and your spouse run an accounting firm and have distinct clients, this option may work.
    • Sell Out and Move On: If it’s impossible to work out any other arrangement, your best option may be to sell the business, split the proceeds, and move on. This is often easier said than done, however. How much you sell the company for, if you can sell it at all, depends on many factors. Location, industry, competition, and demand all impact the potential dollar amount. Many businesses, especially small businesses, simply don’t sell on the open market.
    • Business as Usual: This one is rare, but it does happen. In some cases, couples divorce but continue to run their shared business as usual. Sometimes marriages don’t last, but a business relationship continues to flourish. In amicable splits, this may be a realistic option.

    When You Have Other Business Partners

    Businesses are often expensive, intricate, and require a great deal of work. As such, they frequently involve multiple partners. Because of this, when one business partner divorces, it impacts all the stakeholders in the company. Any number of things can go wrong.

    Divorce has the potential to expose the business to the scrutiny of outside assessors. Since your stake is an asset, likely one of your biggest, the courts can split it up during the division of property.

    You may even have to liquidate your share in order to meet other financial obligations in the divorce agreement.

    When you have business partners, it’s not only your livelihood on the line, the livelihood of others also hangs in the balance. Protecting your business in the case of divorce also protects your partners.

    Related Reading: Ways to Save Money on a Divorce

    Protecting Your Business Before You Marry

    If you have a pre-existing business, the easiest and most common way to protect it in the case of divorce is with a prenuptial agreement.

    Prenups often carry negative connotations in the public’s perception. People view them as betting on a relationship to fail or that you don’t trust the person you’re marrying. However, the reality is very different. They can be important tools to protect yourself and what you’ve built.

    In business, you strive for success. You hope for the best but also plan for the worst. The same goes for marriage.

    Prenuptial agreements are drafted with the hope they’ll never be needed. But having one in place can make a huge difference. Like a life vest on a boat. Hopefully, you’ll never need it, but you’ll be glad it’s there if you do. Think of it as an insurance policy.

    Related Reading: How Is Debt Divided During Divorce?

  • Can You Make a Major Purchase During Divorce?

    Key Takeaways:

    • Oregon generally views all income as marital funds.
    • Major purchases made with these funds will likely be viewed as such.
    • If you use outside resources to buy it, it should remain yours.
    • If you use shared marital funds, the court may view it as a divisible asset.
    • The court does retain the power to use these items to achieve an equitable split.
    • Divorce doesn’t negate any loans, contracts, or financial deals you and your spouse entered while married.

    The divorce process comes with many expenses. You have court costs, filing fees, an attorney to pay, and even a change in tax status. In many cases, you need to find a new place to live. Perhaps your custody arrangement necessitates buying a new car. As things are ongoing, the question arises: can you make major purchases during a divorce?

    If you buy a car during divorce proceedings, can you lose it when you come to the division of property? Does it make you look bad in the eyes of the court?

    Like most elements of divorce, you have much to consider before going on a spending spree.

    How Do Major Purchases Impact Divorce?

    Oregon’s equitable distribution model influences how courts deal with major purchases made during a divorce. Where the money came from colors how they look at and ultimately classify acquisitions.

    Using shared funds usually results in that item being treated as marital property. On the other hand, if you use outside resources to make a purchase, it may fall under the separate property umbrella.

    Oregon generally views each spouse’s income as marital funds. Major purchases made with these funds will also likely be viewed as such. The courts also retain the power to use these items to achieve an equitable split in the division of property.

    Related Reading: How is Property Divided in Divorce?

    What If You Make a Big Purchase During Divorce?

    There are no specific, hard-and-fast guidelines for splitting assets under Oregon’s equitable distribution laws. The goal is for both parties to emerge on relatively equal footing and maintain a standard of living similar to that during the marriage.

    When it comes to a major purchase made during divorce, many factors come into play. A big one is where the money came from.

    If you use separate money to buy a car, you’re probably good. However, if you use a shared account or similar funds, the court may view it as an asset to divide.

    Spending also influences divorce in other ways. For instance, if you claim you can’t make child support or spousal support payments, but throw around cash with abandon, it reflects poorly on your case.

    It’s one thing to buy a safer, more reliable car to drive the kids around or pick up a couch for a new place. But if you buy a jet ski and claim to be broke, that looks bad.

    Related Reading: Common Mistakes Men Make in Divorce

    What If Your Spouse Makes a Big Purchase?

    Making major purchases during a divorce can impact your case. On the other hand, they also affect your spouse’s situation in similar ways.

    If your soon-to-be ex argues for spousal support but buys a snowmobile or something impractical, it won’t likely help their cause.

    One frequent worry is that the other side will run out and use community funds on big-ticket items. Warring spouses have been known to drain joint accounts. Reckless spending like this can put you in a hole. If you have this concern, there are ways to prevent such behavior.

    You should always keep an eye on your finances. Additionally, depending on the circumstances, it’s possible to convince the court to call for a temporary financial restraining order.

    This action allows for regular purchases, like gas or groceries. But when it comes to major purchases with shared funds, both parties need to approve.

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

    Financing Major Purchases

    Most major purchases are financed. Cars, houses, furniture, electronics, and the like. At times, it may look like your future ex is on a spending jag, but that’s not always the whole truth.

    Whether or not such purchases are game for the division of property varies from one case to the next. Again, if a down payment comes from shared funds, the court will likely account for that.

    However, if that down payment originated from a separate source, the court may declare the item in question, and any future payments, belong to the purchaser.

    Protecting Yourself

    It’s important to know divorce doesn’t negate any loans, contracts, or financial deals you and your spouse entered while married. This fact goes overlooked all too often.

    If you and your ex purchase something together and make regular payments, both names stay on the paperwork. Even after divorce. It’s possible to refinance loans and the like, but ending your marriage doesn’t automatically get you out of pre-existing agreements. The original terms remain in place.

    This is important because it can impact your financial future and continue to do so for a long time.

    Say your spouse winds up responsible for a joint car loan. If your name remains on the records, and any payments get missed, it negatively impacts you. It can ding your credit score and creditors can even come after you.

    It’s best to have your ex refinance any loans and remove your name. You may be able to have a provision like this written into the final divorce agreement, even a deadline.

    Still, follow-through is another matter entirely. Make sure this happens and be aware of the potential impact if it doesn’t.

    Odds are, you’ll have to make at least a few major purchases while handling your divorce. It’s important to understand how these influence the proceedings and know how to reduce the havoc they can cause.

    Stay away from impulse buys. Think through all big-ticket items in a calm, logical manner. If you do have to have to make an expensive purchase, don’t hide it, know where the funds come from, and be aware of how it may influence your situation.

    Related Reading: Student Loan Debt and Divorce

  • Do You Qualify For A Summary Dissolution?

    Key Takeaways:

    • Couples can skip the lengthy divorce process if they qualify for summary dissolution.
    • A marriage must be shorter than ten years.
    • You cannot have any minor children, or children over the age of 18 who still attend school.
    • You cannot own any real property.
    • Total personal assets must be less than $30,000 combined.
    • Total debt must be less than $15,000 combined.
    • Both parties must waive spousal support.
    • You waive any rights to temporary orders.

    Not every marriage works out. At the same time, not every marriage ends in a heated screaming match.

    What Is A Summary Dissolution?

    In certain situations, couples can skip the divorce process if they qualify for summary dissolution. This is different than an uncontested divorce. If you meet the criteria, you can streamline the process with less cost.

    What Are the Requirements For A Summary Dissolution?

    To qualify in Oregon, you must fulfill specific requirements. If you don’t meet the criteria, including marriage length, whether or not there are children, the amount of shared property, and more, you’ll have to go the more traditional route. But if you do check off all the boxes, this often streamlines the process a great deal.

    The law in Oregon lays out specific guidelines for whether or not a marriage qualifies.

    Length of Marriage

    A marriage must be shorter than ten years to qualify for summary dissolution.

    Do you have Children?

    You and your spouse can’t have any minor children and the woman cannot be pregnant. This includes adopted or stepchildren from an earlier relationship.

    If you have children over the age of 18, but who still attend school, that also disqualifies you.

    Real Property

    Owning any land, homes or buildings excludes you from summary dissolution. Even part ownership or a minor interest cuts this off. Whether this property lies within Oregon or not, doesn’t matter.

    Most commonly this is a house or other shared home, but any real estate fits the bill. Mobile homes on rented land, however, do not fall into this category.

    Personal Property

    You may still qualify for summary dissolution if you have limited property or assets, shared or separate. Again, the amount varies from one state to the next.

    In Oregon, the magic number is $30,000. So, if the total assets exceed that amount, you don’t qualify.

    Debt

    Like personal property, having too much debt also puts summary dissolution out of reach.

    You qualify if you and your spouse have less than $15,000 in unpaid debt, individually or together. This includes student loans, credit card debt, medical bills, car loans, and anywhere else you owe money.

    Division of Property

    Since summary dissolution aims to keep the situation as simple as possible, you and your spouse must be on the same page when it comes to the division of property.

    Know in advance how you intend to split both assets and debts. There’s no time to waste bickering back and forth about who gets the car or that box of kitschy mementos from your honeymoon. Such conflict doesn’t fit in this situation.

    Spousal Support

    Neither party can request spousal support. This keeps the summary dissolution process streamlined.

    Related Reading: How Is Property Divided In Divorce?

    Other Divorce Actions

    If you want a summary dissolution, you can’t already have other divorce actions pending. In Oregon or elsewhere. This includes divorce, annulment, or separation proceedings that have been filed but have not yet been decided.

    Basically, you can’t already have a divorce or other end to your marriage in the works.

    Related Reading: Pro Se Divorce: When is DIY the Best Choice?

    Temporary Orders

    By going with summary dissolution, you waive any rights to temporary orders. Obviously, there won’t be any custody orders, but you can’t ask for things like temporary spousal support or exclusive use of marital property either.

    There are, however, exceptions for restraining orders and others that fall under the Family Abuse Prevention Act and the Elderly and Disabled Persons Abuse Prevention Act.

    Residency

    Every divorce has residency requirements, and summary dissolution is no different. Like many other elements, these vary from state to state.

    In Oregon, either you or your spouse must be a resident—it’s not necessary for both of you to be residents—and have lived in the state for six continuous months before filing.

    This primarily comes up for couples who recently relocated. You don’t have much to worry about this if you’re a longtime resident.

    Your situation must meet all these requirements to qualify for summary dissolution in Oregon.

    If you don’t check off every last one of these boxes, you’ll have to take a more traditional route to divorce. Summary dissolution works best in short, simple marriages with few complications. And every one of these categories represents a different complication.

    Related Reading: The Most Common Mediation Questions Answered

  • Writ Of Assistance, Divorce, And Child Custody in Oregon

    Key Takeaways:

    • A Writ of Assistance is a new order that essentially helps enforce an existing one.
    • They instruct law enforcement, such as a sheriff or police officer, to take action to help one party obtain something ordered previously.
    • In cases of restraining orders, they allow the affected to collect their belongings without facing contempt charges.
    • If your divorce decree awards you assets, but your ex refuses to hand them over, a writ of assistance directs law enforcement to accompany you to the house to obtain the property from the settlement.
    • They only apply to one specific location, so if a person has moved the asset to another address, a new writ of assistance will need to be ordered.
    • If a parent refuses court ordered visitation, a writ of assistance gives the local police authority to enforce your parenting time.

    Divorce and child custody cases often become intense and antagonistic undertakings. Just because a judge hands down an order doesn’t mean it will always be followed.

    Oregon law includes numerous writs, which are formal court orders that either require action or grant authority to perform a specific act. When it comes to enforcing divorce orders and child custody plans, a writ of assistance is a document that often comes into play.

    What is a Writ of Assistance?

    On a basic level, a writ of assistance is a written court order that instructs law enforcement, such as a sheriff or police officer, to take action to help one party obtain something specifically ordered in a previous court order.

    That sounds like a lot, but this new order essentially helps enforce an existing one. This manifests in various ways in family law situations.

    Use in Restraining Orders

    Restraining orders are often an unfortunate part of combative, contentious divorces. If one party obtains such a mandate against the other, unwanted contact may result in contempt charges.

    For Example:

    Say an ex-wife gets a restraining order against her ex-husband. In this situation, he can’t return to the house without violating the order, even to collect his things. A writ of assistance helps in these circumstances.

    After obtaining one, an officer accompanies the husband to the marital home to collect clothes, medicine, and other items. He can show up, get what he needs, and vacate the premises without worrying about contempt charges or arrest.

    Called a “Civil Standby,” and short in duration, such visits are limited to personal belongings and last approximately 15 minutes. It allows you to get in, get your things, and get out, nothing more.

    Related Reading: What to Know About Restraining Orders

    Use in Property Division

    The division of property is a big part of the divorce process. The final judgment divides the shared assets and awards specific items to each party.

    This is all well and good, but what if your ex refuses to surrender the property in question?

    If your divorce decree awards you a piece of furniture, an appliance, or other items, but your ex refuses to hand them over, a writ of assistance comes in handy.

    The court can issue an order that directs law enforcement to accompany you to the house to obtain the property from the settlement. If your ex continues to stand in the way, they face legal consequences. Potentially even arrest.

    An important note, a writ of assistance only applies to one specific location.

    Another potential example: If you arrive to pick up a boat awarded to you in the settlement, but it’s now stored at your ex’s parents’, you can’t go there and get it without a new order.

    Related Reading: Enforcing A Parenting Plan

    Use in Child Custody

    A writ of assistance can also be useful in cases involving child custody and visitation. Too often, children become pawns in the struggle between bitter parents.

    If you have blocks of visitation in your divorce settlement, but your ex denies this time, a writ of assistance gives the local police authority to enforce your parenting time.

    This step often becomes necessary in these situations. Otherwise, many law enforcement officers can’t or won’t intervene, viewing an ex not following a parenting plan as a civil matter.

    A judge may also issue a writ of assistance over health and safety concerns.

    If the court finds that a child is in imminent physical danger, it may call for an order to remove the child from a situation and for law enforcement to take physical custody. This is an extreme circumstance, but one that unfortunately does happen.

    Related Reading: Fathers’ Rights and Child Custody: What You Should Know

    How Do You Obtain A Writ of Assistance?

    As discussed, a writ of assistance has multiple uses. The questions of whether you need one, whether to obtain one, or how to get one remain. Like every legal practice, this process involves multiple steps that must be followed.

    To file a motion seeking a writ of assistance, you’ll need a couple of items.

    • First, there must be an existing judgment that explicitly awards you the rights to a specific piece of property. Or, it can entitle you to certain actions, like the visitation of your children.
    • You also need an affidavit that declares you have the right to the property or action. Most of the time, these point back to the previous judgment.

    From there, a judge will consider the claim and decide whether or not to rule in your favor.

    A writ of assistance is one tool to help ensure and enforce your rights in divorce and child custody cases. Similar to most legal undertakings, things often get complicated in short order. As usual, if you want to attempt to walk this path, it’s in your best interest to hire an experienced attorney who can show you the way.

    Related Reading: What Is A Status Quo Order?

  • Pro Se Divorce: When Is DIY The Best Option?

    Key Takeaways:

    • The legal term for representing oneself is “pro se.“
    • Pro se divorce is best for straightforward cases, where it’s an amicable split with no children or property.
    • In these cases, it’s easy to download the forms, pay the fees, and file the paperwork.
    • The biggest benefit of pro se divorce can be the cost.
    • If there are assets and debts to divide or children to plan for, mistakes are expensive.
    • You may agree to a less-than-optimal parenting plan or child support payments.
    • Modifying a decree can cost more than if you had hired an attorney in the first place.

    With the spread of online guides and resources, do-it-yourself divorce has never been more accessible. But when is so-called pro se divorce the best fit? What if your spouse has a divorce lawyer?

    What is “Pro Se Divorce”?

    From a legal perspective, the term for representing oneself is “pro se.“ It comes from Latin and means “for oneself.” While not exclusive to divorce, a pro se approach is common when it comes to dissolving a marriage.

    When is DIY divorce your best option?

    If you’re an experienced divorce attorney, the decision to represent yourself is much easier. Most people, however, haven’t gone to law school, passed the Oregon State bar exam, or practiced law in a professional capacity. So the question remains, when is DIY divorce or representing yourself your best option?

    Generally, pro se divorce is best suited for simple, straightforward cases.

    This usually applies to:

    • Shorter marriages.
    • Marriages with no children.
    • Marriages with little or no shared property to divide.
    • When both spouses agree on most key issues.

    Pro se divorce usually fits best in these or similar situations. It’s possible to download the forms, fill them out, pay the fees, file the paperwork, and be done, all in relatively short order.

    In some cases, representing yourself is the quickest, easiest, cheapest way to proceed. Both parties can walk away and return to their lives with minimal fuss and bother.

    Related Reading: Divorce And Filing Forms: What To Know

    When is Pro Se divorce NOT the best option?

    While pro se divorce works well in simple, straightforward situations, things often get complicated in a hurry. The more moving parts to deal with, the more problems arise.

    • Depending on the length of the marriage, you may be eligible for a portion of your spouse’s retirement benefits. You may even be able to draw Social Security against your ex’s work history.
    • Things get even more tangled when a divorce involves children. You have child custody, visitation, and parenting plans to contend with.
    • You need to know how Oregon calculates child support, who pays what, how long it continues, how it impacts taxes, and much more.
    • Spousal support is another area of concern. Depending on the circumstances, you may be eligible to receive spousal maintenance. On the other hand, you may have to pay. There are multiple types of spousal support in Oregon, and each applies to different, specific criteria.
    • Dividing property and assets also complicates matters. If you jointly own a home, cars, or other high-value property, things get knotted quickly.
    • The same goes for shared debt, whether it be mortgages, loans, or joint credit card balances.
    • If your spouse has an attorney. Going up against someone with experience puts you at a serious disadvantage. Having someone with an intimate knowledge of the laws and the process protects your best interests.

    Related Reading: Dividing Debt in Divorce

    Do You Need An Attorney If Your Spouse Has One?

    Can you represent yourself? Yes. Should you? Probably not. If your spouse hires a divorce lawyer, it’s usually in your best interest to hire an attorney to represent you.

    You don’t want to get through the whole process only to have the court throw everything out because your divorce settlement favors one spouse too much or because you made an easily avoidable error when filing paperwork.

    When dividing property, assets, and debts, if you don’t know what to look for, people often leave potentially valuable assets on the table or agree to an unfair split. You may wind up saddled with unforeseen tax burdens or debts.

    You may agree to a less-than-optimal parenting plan or child support payments because you don’t know any better or that other options exist.

    Unless you have legal experience, you generally don’t want to go against an expert practitioner without help. A lawyer will help you avoid these pitfalls.

    Related Reading: When to Hire a Divorce Lawyer

    What are the benefits of Pro Se Divorce?

    The biggest draw of pro se divorce is obviously the cost. Handling matters yourself usually ends up being exponentially less expensive. Good divorce lawyers aren’t cheap.

    When you use a step-by-step guide or online kit, the damage inflicted on your wallet drops sharply. Instead of potentially thousands of dollars in attorney fees, the cost can be a little more than a few hundred to file the paperwork.

    This strategy also allows both sides to work together towards a common end. It often results in less adversity, and simpler cases tend to resolve much faster.

    Related Reading: What Are Grounds For Divorce In Oregon?

    What are the risks of DIY divorce?

    Though there are definite benefits to representing yourself, pro se divorce also comes with certain risks. Saving money is fantastic, and if both of you are truly willing to work together, it’s a viable option.

    Many couples start the road to divorce with the best intentions. But it’s important to ask yourself whether you and your spouse can truly collaborate because inexperience may bite you in several ways.

    Mistakes often wind up costing more time and money in the long run.

    Court appearances, mediation, evaluations, and other legal appointments take a great deal of time. You may have to take days off work and rearrange your schedule.

    Every step of the process has potential hazards and dangers you may not know to look for. This even goes as far as filling out forms improperly. It’s often in your best interests to have an experienced pro handling these issues or at least looking out for you.

    Related Reading: How Do Major Purchases Affect Divorce?

    Pro se divorce often sounds like the best idea, and in many cases, it fits your needs and provides an effective, less expensive, stripped-down approach to ending a marriage. Though there are potential benefits, potential hazards also exist. Before moving forward, it’s important to be aware of both and closely consider the specific needs of your case.

    Related Reading: Should I Move Out During Divorce? What To Do Before You Leave Home

  • What is a Civil Standby in Oregon?

    Key Takeaways:

    • A civil standby grants the person affected by the restraining order the opportunity to collect personal effects without fear of legal action or arrest.
    • In Oregon, you request a civil standby through your local police department.
    • Officers are dispatched to meet the person restricted by the restraining order.
    • The person restricted by the restraining order has a maximum of 20 minutes to collect their belongings.
    • If item ownership is disputed, further legal action will be necessary to prove ownership and the item must be left at the property.
    • Police on scene will not settle any ownership disputes, they are simple there as a chaperone.

    It’s no secret that divorces often become contentious. Conflict forms a big part of the proceedings. Depending on the circumstances, many involve the use of restraining orders. These court orders can be useful tools to protect people and assets. When discussing restraining orders, it’s also often useful to talk about civil standby orders.

    Restraining orders cover a variety of areas. Most notably, the courts use them to protect a person’s safety and well-being. During divorce proceedings, people commonly use them to prevent an ex from taking money from joint accounts, raiding retirement savings, or running up debt.

    Courts also often employ them to control the behavior of one or both spouses. For example, a restraining order may bar your ex from contacting you or coming to your home.

    This is where civil standbys come into play.

    What is a Civil Standby?

    Simply put, a civil standby gives the person affected by the restraining order the opportunity to collect personal effects without violating the court order.

    If you’re barred from home, this affords you the chance to gather clothes and other belongings without fear of legal action or arrest.

    Regardless of whether you’re the petitioner on a restraining order or the respondent, it’s important to understand how a civil standby works. It’s especially vital to know their limitations.

    Related Reading: Can Mental Illness Impact Divorce and Custody?

    How Does A Civil Standby Work?

    In Oregon, you request a civil standby through your local police department.

    Officers are dispatched to meet the person restricted by the restraining order at a neutral location. They then brief the respondent and accompany this person to the place in question. This person then has a maximum of 20 minutes to collect their belongings.

    If there is a dispute, the item in question remains at the property. The respondent then must take further legal action to establish ownership.

    Related Reading: What are the Grounds for Divorce in Oregon?

    How Are the Police Involved?

    This last point is important as it illustrates one of the key limitations of a civil standby. There are specific things a police officer will and will not do in this process.

    Key among these is that officers will not step in to settle any disputes over who owns an item. Think of the officers as chaperones there to ensure everyone stays safe and plays by the rules.

    • They accompany one party and supervise the removal of undisputed essential property. That is all.
    • They won’t get involved in quarrels. You and your ex must figure that out on your own.
    • If there is a disagreement about ownership, you must settle that at a later date. In this situation, you likely want to talk with your divorce attorney. You may have to pursue an enforceable court order to collect items in dispute.
    • If the time exceeds 20 minutes and the respondent refuses to leave or becomes uncooperative, they can then be arrested for violating the restraining order.
    • A civil standby does not guarantee access to the property.
    • The police can’t require the petitioner of the original order to grant entry.
    • Police are present to ensure no crime is committed and no injury is incurred.

    In cases where restraining orders come into play, a civil standby can be a useful tool. Especially from a practical standpoint, as it can gain you access to items you need that may have been left behind. That said, it’s important to know what they can and can’t do, whichever side you find yourself on.

    Related Reading: Writs of Assistance, Divorce, and Child Custody: What to Know

  • 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?