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Wendell L. Belknap
411 5th Street
Oregon City, OR 97045

Tel: 503-657-8946
Fax: 503-655-2775

Email Wendell
wendell@belknaplaw.com

Website:
www.belknaplaw.com

Annulment, Separation, & Divorce




Frequently Asked Questions


Regardless whether you are going through an annulment, separation, or divorce, it is a very stressful time for most people. Set forth below are answers to the questions I am most-frequently asked. It should be noted that this is a very general outline, and entire books can be and are written about each item. This is intended solely as a general outline and answers to general questions.

  1. What is an “Annulment” and when is it available?
  2. What is a “Legal Separation” and when is it available?
  3. What is a “Dissolution of Marriage”?
  4. What is the difference between a “Divorce” and a “Dissolution of Marriage”?
  5. I want to file a proceeding to dissolve my marriage. What kind of “Grounds” do I need to have?
  6. My spouse has filed for the dissolution of our marriage and alleged we have “irreconcilable differences.” I do not believe our differences are “irreconcilable.” Can I stop the proceeding?
  7. Do either me or my spouse have to live in the state for a specific period of time for the court to decide the status of our marriage?
  8. Can I file in any county in the state of Oregon?
  9. Does it matter who files first?
  10. I want to file. What is my first step?
  11. Should I move out of the family home?
  12. Can I make my spouse move out of the family home?
  13. I hear that there is a Restraining Order in every divorce. Is this true, and what is it?
  14. Are there any alternatives to having the sheriff or a private process server serve my spouse with the initial divorce papers?
  15. I hear that in some cases the children are listed in the case caption, made parties to the divorce, and served with the papers. Is that true and, if so, why?
  16. Can I get some support while my divorce is pending so I do not have to agree to a bad settlement in order to survive?
  17. My spouse and I are separated. Will it hurt my case if I start dating or move in with someone else?
  18. I understand there are different types of custody. What are the different types, and how is custody determined?
  19. What is a reasonable amount of Parenting Time (Visitation) for the non-custodial parent?
  20. Can my ex-spouse and I change Parenting Times from that which is set out in our Judgment?
  21. What are Mandatory Parenting Classes and when are they required?
  22. I understand the amount of child support to be paid is determined by a formula. Is this true, and how does it work?
  23. Is there a formula to determine the appropriate amount of Spousal Support?
  24. Is the support that is paid/received tax deductible?
  25. I was ordered to pay support of $1,000/month for two children. One of these children no longer qualifies for child support. Can I just pay my former spouse $500/month?
  26. My former spouse had a judgment against me for $1,000/month for child support, but five years ago agreed to accept only $600/month, which I have paid on time. My former spouse now says I am $24,000 in arrears representing the balance of $400/month that was unpaid (by our agreement). Do I owe this money?
  27. How does the court determine an appropriate Property Division?
  28. Am I entitled to a share of my spouse’s retirement benefits?
  29. How can I make my case an "Uncontested Divorce”?
  30. I hear there is a Waiting Period before my divorce can become final. My spouse and I have agreed on all terms and want to finalize the divorce now. Can we?
  31. How are attorney’s fees charged?
  32. Can I make my spouse pay my attorney’s fees?
  33. I think I need a divorce, but my spouse and I are still trying to work things out. Can I stop the divorce if we think we can work things out?
  34. How and when can a party change that party’s name as part of the divorce?
  35. How long after the judge signs the Judgment until my divorce is final?
  36. How soon after my divorce is final may I remarry?
  37. Now I am divorced. Do I need a new will?

  1. What is an “Annulment” and when is it available?
  2. Annulment is a court process of legally ending a marriage by "canceling" it and treating it as if it never occurred. Many clients ask if they can have their marriage annulled because it lasted for a very short period of time, such as less than one (1) year. The duration of the marriage is NOT a basis for having a marriage annulled. An annulment is granted only in rare and very specific circumstances, such as where one of the parties was already married, was incapable of consenting to the marriage because they were under-age or lacked sufficient understanding, or if consent was obtained by force or fraud. For the specific grounds under which an annulment is available the reader should review ORS §107.015.

  3. What is a “Legal Separation” and when is it available?
  4. A legal separation divides all of your assets and debts as of the date of the separation while maintaining your status as “married.” It is a court process I rarely recommend because it rarely achieves the result desired by the client. Virtually all issues that could arise in a dissolution of marriage proceeding also could arise in a legal separation proceeding. In addition, the costs, fees, and procedures are usually the same as in a case for the dissolution of your marriage. To go through that entire process and remain married is rarely beneficial. Some clients believe they can obtain a legal separation and remain on their spouse’s health insurance. While this may be true in some cases, most insurance companies preclude the “separated” spouse from being covered by the other spouse’s coverage after the legal separation becomes effective. Of course, whether there continues to be coverage is very specific to the language of the insurance plan under which the client is covered, and that language must be reviewed to determine how it applies to the client.

  5. What is a “Dissolution of Marriage”?
  6. It is the legal process of ending the marriage of two people.

  7. What is the difference between a “Divorce” and a “Dissolution of Marriage”?
  8. None. Divorce is the old term for what Oregon now calls a “Dissolution of Marriage.”

  9. I want to file a proceeding to dissolve my marriage. What kind of “Grounds” do I need to have?
  10. None. Most states, including Oregon, have adopted the concept of "no fault" divorce. It is not necessary to prove fault on the part of either party for the court to grant a marital dissolution. In fact, the court generally will not let you bring in aspects of fault, unless they are relevant to a specific aspect of your divorce. One such example would be such as physical abuse by one spouse in a case involving child custody. Otherwise, a simple statement that you and your spouse have developed "irreconcilable differences" is all that is required, if not all that is allowed. "Irreconcilable differences" is the legal phrase used to say that you and your spouse are no longer getting along. Either party can request a divorce without the other's permission or agreement.

  11. My spouse has filed for the dissolution of our marriage and alleged we have “irreconcilable differences.” I do not believe our differences are “irreconcilable.” Can I stop the proceeding?
  12. No. You can oppose the specific aspects of relief sought by your spouse in the proceeding to dissolve your marriage, but you cannot stop the divorce from happening if your spouse wants one.

  13. Do either me or my spouse have to live in the state for a specific period of time for the court to decide the status of our marriage?
  14. That depends on what relief the party filing the case is seeking from the court. If the filing party is seeking a “Legal Separation,” all that is required is that the party resides in the state of Oregon. “Residency” does not require a specific time frame, but requires only that the filing party lives in the state of Oregon as of the filing date. That means a party can move to Oregon and live here for one day, and then file a proceeding for legal separation. The same is not true in a case to dissolve the marriage of the parties. In such a case, the party filing the case must have lived in the state for at least six (6) months as of the filing date. Even then, in order for the courts of the state of Oregon to decide most issues as to children, assets, and debts, the state must have jurisdiction over the non-filing party, which means that party must have some minimum level of contacts with the state of Oregon, or have been served with the initial filing documents within the state of Oregon.

  15. Can I file in any county in the state of Oregon?
  16. No. Regardless whether it is a case for annulment, separation, or dissolution of marriage, the case must be filed in a county within the state in which one of the parties resides (lives).

  17. Does it matter who files first?
  18. Generally, no. It can be important when matters of custody, parenting time, and/or support are at issue, as it can be important to obtain restrictive orders from the court before the other party undertakes some pre-divorce planning or actions. Otherwise, it generally does not matter which party files as the Petitioner (the filing party), and which party is the “Respondent” (the non-filing party), since fault is not at issue.

  19. I want to file. What is my first step?
  20. Unless your divorce does not involve children or much property, and it is otherwise short in duration, then the first step is to retain an attorney with whom you are comfortable. This means not only an attorney who is competent, but one who you get along with emotionally. This is likely to be a trying time in your life, and you need to be able to communicate with your attorney comfortably. Once you retain an attorney, the case will need to be filed. As far as the initial filing of the case, this involves preparation of many documents, few of which address specific issues in the case important to the client. Most Petitions for Dissolution of Marriage prepared by attorneys are specific as to who should get custody of the children and pay and receive support, but otherwise are fairly vague. As far as property goes, it is common for a Petition for Dissolution of Marriage to say only that the court should award “a fair and equitable distribution of assets and debts.” Of course, it is possible to be more specific. However, the attorney seldom has sufficient information and opportunity to analyze the case to be more specific. Greater specificity is usually achieved as part of the process once the other party has been served, documents have been exchanged, and negotiations are under way.

  21. Should I move out of the family home?
  22. The answer to this question depends on the issues in the particular case. If there are no children involved in the case and the moving party does not wish to remain in the home on a long-term basis, then there is little or no reason not to move from the home. Some parties mistakenly believe that by moving from the home the party has abandoned any interest in the home. That is not the case. The share of the party that moves out will depend upon that party’s interest as determined by the actions of the parties during their marriage, and not by the move from the home by that party at the beginning of or during a divorce proceeding. Before the client moves, however, the client should make copies of any and all documents located in the home which may be important in the divorce proceeding, as the departing spouse risks that re-entry will not be possible, and this information may be difficult to obtain at a later date. The answer to this question is far more complex when custody of minor children is at issue. It is often a substantial factor in a close divorce case which party is in the family home, as awarding custody to that party would not involve a move for the children. Accordingly, a party who moves from the family home in such a case could hurt that party’s custody claim. Of course, if your safety is in jeopardy by remaining in the home, then you should move out temporarily and move back in only after you obtain an order from the court forcing your spouse to move out.

  23. Can I make my spouse move out of the family home?
  24. If your spouse will not move out voluntarily, it will take a court order to force your spouse to move from the family home. Such a court order can be obtained by one of two methods, if at all.

    The first method is by filing a motion in the divorce proceeding seeking exclusive use and possession of the family home. Such a motion is usually brought in conjunction with a motion for custody of children, support, and other temporary matters. This is usually brought by a motion called a “Motion and Order to Show Cause.” If children are involved, the court will usually award custody of the children to one of the parties and require one of the parties to move from the family home (usually the non-custodial parent). If there are no children involved, the court might not require either party to move from the home, unless the health or welfare of one of the parties is at issue.

    The second method by which a court will order your spouse to move from the family home is by a Family Abuse Prevention Act Restraining Order (FAPA). You may obtain a FAPA against your spouse by filing a separate case if you have in fact been harmed, or placed in immediate fear of serious bodily injury, within the last 180 days, and you believe there is a continuing, genuine physical danger to you or to your children. The court has free, pre-printed forms for this. If the FAPA is granted, the police will serve it on your spouse and give your spouse fifteen (15) minutes to remove the limited personal items your spouse will need. Because it is such a quick and complete way to obtain an order requiring your spouse to move, people are overly tempted to use this method. However, it is a method that is often used by parties to gain a tactical advantage at the beginning of a divorce when the party otherwise really does not have the facts to qualify for a FAPA. Courts take a dim view of its overuse and can award attorney’s fees to either party in a FAPA proceeding and, in my experience, will do so if the court believes the FAPA was inappropriate. As such, this is something that should not be taken lightly and should be discussed with me in advance.

  25. I hear that there is a Restraining Order in every divorce. Is this true, and what is it?
  26. The filing of a divorce Petition puts in place an automatic and immediate order freezing certain accounts, prohibiting certain transfers of property, preventing cancellation of policies of insurance, and prohibiting the changing of beneficiaries named in retirement accounts. This Restraining Order is effective on the Petitioner once the divorce petition is filed, and is effective on the Respondent once the Respondent has been served with the initial divorce papers.

  27. Are there any alternatives to having the sheriff or a private process server serve my spouse with the initial divorce papers?
  28. Yes. While the initial divorce papers can be served on your spouse by the sheriff or a private process server, unless there are critical time deadlines which must be met, I always recommend that you give your spouse the opportunity to come in to my office to pick up the initial divorce papers and sign an Acceptance of Service. This allows your spouse to avoid the embarrassment of “being served” and to otherwise maintain dignity, and often sets the tone for friendlier negotiations. If you make this offer, however, set a short time frame for your spouse to make arrangements to pick up the initial papers. Otherwise, you may keep hearing that your spouse intends to come get the papers “soon,” which may never occur. If your spouse does not come in within the deadline and is then served, your spouse cannot later complain about “being served.”

  29. I hear that in some cases the children are listed in the case caption, made parties to the divorce, and served with the papers. Is that true and, if so, why?
  30. Sadly, it is true. If there are children of the marriage who are at least 18 years of age, but under the age of 21, they must be made parties to the divorce, which means they must be listed in the case caption. They also must be served with the divorce papers (or accept service). Most of the time these “children” (they really are young adults) accept service of the divorce papers, but then sign a document waiving the requirement that they be sent any further papers and agreeing that the divorce may proceed without their further input or involvement. The legal reasoning behind this requirement is that the child support for these “children attending school” really belongs to the children, as opposed to the custodial parent. Since the right to receive payment belongs to the children, they must be included in the case. While I understand the legal reasoning behind this requirement, it is a requirement I strongly disagree with. Many of these children have only recently learned their parents are ending their marriage, and these children are already fragile. To find themselves in the case caption of the their parents’ divorce as parties, not to mention in a lawyer’s office accepting service of the divorce papers, is often very difficult for the children. I would prefer to avoid this circumstance. However, the court will not sign divorce papers for the parents unless you provide proof that you have complied with this requirement.

  31. Can I get some support while my divorce is pending so I do not have to agree to a bad settlement in order to survive?
  32. You cannot force your spouse to support you or the children unless there is a case pending. This means that a divorce case must be filed to obtain court-ordered temporary relief. I can file a motion with the court asking the court to order support for you and/or the children, award you exclusive use of your vehicle and/or home, or provide various other forms of relief all while the case is pending. However, to obtain this you must file the appropriate papers with the court. Your spouse has an opportunity to object to your request. A hearing will be held in the event that you and your spouse cannot reach an agreement about how to handle issues while the divorce is pending. The court will then hear your evidence and make its decision on the temporary matters. Be sure you do not agree to accept or pay too much at the early stages of the case, as voluntary support payments can set a precedent with both your spouse and the court. Talk to your attorney about what is reasonable in your situation. Do not pay too much or accept too little and by your actions tell the Judge that these temporary amounts are fair.

  33. My spouse and I are separated. Will it hurt my case if I start dating or move in with someone else?
  34. That depends on the issues in your case. If your case involves only asset and debt distribution, but not issues regarding spousal support and/or children, then dating is not a problem. While you should be sensitive to the feelings of your spouse, dating under these facts is unlikely to affect your case and you should feel free to move on with this aspect of your life. If your case involves spousal support issues, dating possibly could have a slight effect on the court. Generally, however, dating is unlikely to influence the court much under these facts. Where the court is most likely to be influenced negatively by the dating of a party in a divorce proceeding is a case in which custody and/or parenting time is at issue. It is my experience that most children’s counselors, and many courts, believe that involvement of new, third persons too early in the lives of the children is not in the best interests of the children. The children need time to adjust to the fact their parents are no longer together, much less to adjust to the fact one or both is now seeing someone else. Particularly in the case of parenting time disputes, a court might be less generous with the parenting time of the non-custodial spouse if that spouse is involving a new, third person in a substantial capacity. As a rule, dating third persons when issues regarding children are involved should be done on a limited basis, and with the utmost discretion. As a general rule, I recommend against either party moving in with a third person until the dissolution of the marriage is complete, regardless as to which issues are involved.

  35. I understand there are different types of custody. What are the different types, and how is custody determined?
  36. Oregon courts will award custody based on what the courts determine to be in the “best interests of the child.” Oregon law requires that the court consider the following factors when deciding what is in the best interests of the child, which determines which parent will be awarded custody of a minor child:

    • the emotional ties between the child and other family members;
    • the interest of the parent in the child and the parent's attitude toward the child;
    • the desirability of continuing an existing relationship;
    • the abuse of one parent by another;
    • the preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
    • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

    The parent who has been the primary caretaker of the child in the past will probably be awarded the care and custody of the child in the future, provided that they encourage ongoing contact between the child and their former spouse. The non-custodial parent will be allowed reasonable rights of parenting time. Oregon law calls this visitation schedule a "parenting plan." Except in extremely unusual circumstances, the court will approve custody arrangements agreed to by the parties. The court will award custody to one party. There are two types of custody. They are “joint custody” and “sole custody."

    Joint Custody is an award of the child's legal custody to both parents with a specific provision made for the child’s primary place of residence. It assumes that each parent has an equal say in making major decisions that impact the child's life. Joint custody does not necessarily mean equal parenting time. The court can order joint legal custody only if both parties agree to the award. Joint custody can be terminated by the court at any time simply by the request of either parent. At that time, the court will be required to determine which parent should be awarded sole custody. The court will also be required to determine the non-custodial parent's parenting time schedule.

    Sole Custody is an award of custody to one parent which grants to that parent the right to make vital decisions regarding a child's education, religious training, health care, and the like. Sole custody is far more common.

    In the end, however, both parties should keep in mind that these are just labels, and what is important is the amount of time each party has with the child. In the end, the child does not know or care whether time is being spent with mom or dad under a “sole custody” or “joint custody” label. What is important to the child is that the child gets to spend time with mom or dad. I encourage the parties to be more concerned with the nature and extent of the time with the child, rather than the labels attorneys or courts may attach to this time.

  37. What is a reasonable amount of Parenting Time (Visitation) for the non-custodial parent?
  38. The court will usually approve any parenting plan (visitation schedule) agreed to by you and your spouse. In the absence of an agreement between the parties, the court will award such parenting time as is in the “best interests of the child.” A typical schedule is to alternate weekends and specific extra times during the summer and holidays. I encourage liberal time-sharing except in extraordinary circumstances. Many counties have a model parenting plan that can be used by those families that do not want to write their own. Just because a particular county has a model plan does not mean that is what your plan has to be. That county’s model plan is exactly what the name implies: a model plan that can be adopted or ignored at your own discretion.

  39. Can my ex-spouse and I change Parenting Times from that which is set out in our Judgment?
  40. Absolutely. I encourage all parties to be prepared for some give and take. The Parenting Plan set out in the judgment sets forth times each of you can count on and make plans around. However, a Parenting Plan is mechanical, and it does not account for variations in the schedules of you or your ex-spouse. Each of you should be prepared for, and willing to give and take from this schedule, both to accommodate each other’s schedules, as well as the child’s. The tendency of recently-divorced couples is to be possessive as to their rights, including their times with the child. Both parties and the child will be happier and your lives will be easier if you avoid this tendency and try to be flexible to adapt to schedule changes, which you are otherwise free to do.

  41. What are Mandatory Parenting Classes and when are they required?
  42. Oregon requires that both you and your spouse complete a parenting class as part of the divorce process. The length of the class varies greatly from county to county, but the classes in all counties cover topics including ways that parents can help their children adjust to divorce and how to make shared parenting time better for the children. The court will not allow your divorce to become final until both parents have completed the class and filed the appropriate certificates with the court.

  43. I understand the amount of child support to be paid is determined by a formula. Is this true, and how does it work?
  44. It is true. The state of Oregon has established a formula to determine an amount the court will presume to be appropriate for child support. This is known as the Child Support Guidelines. The amount of child support presumed by application of the Child Support Guidelines must be the amount ordered by the court, unless the parties meet one of the limited exceptions to deviate from the amount determined by the Child Support Guidelines. If you do, then the court can, and will order a different amount. The formula is located on the state's website at www.dcs.state.or.us. The formula takes into account many factors, which are primarily:

    • Number of joint children;
    • Number of non-joint children for each parent;
    • Spousal support paid and spousal support received;
    • Gross monthly income of each party;
    • Social Security and Veteran's benefits received for the benefit of joint children;
    • Number of overnight visits each child spends with each parent;
    • Cost of providing health insurance for the benefit of joint children;
    • Uninsured and recurring medical expenses for joint children that exceed $250 per year; and
    • Cost of providing child care for the benefit of joint children.

    It may be difficult for a non-lawyer to run the calculation correctly. At the same time, it may be helpful and informative to run the formula on your own to see the effects of changing the variables. Ultimately, it is advisable to have an attorney confirm the support calculation.

  45. Is there a formula to determine the appropriate amount of Spousal Support?
  46. No, there is not. While Oregon Courts can award spousal support (alimony) as part of a divorce, there is no formula to determine when spousal support is appropriate, and in what amount. The criteria considered in an award of spousal support include: the duration of the marriage; the age and health of each spouse; the standard of living established during the marriage; the relative income and earning capacity of the parties; each spouse's training and employment skills; each spouse's work experience; the financial needs and resources of the parties; custodial and child support responsibilities; and any other factors that the court deems appropriate. Spousal support is required only in some cases, regardless as to the existence of these factors. It is important to discuss with an attorney whether your case is an appropriate case for spousal support to be paid and/or received.

  47. Is the support that is paid/received tax deductible?
  48. That depends on the type of support. Child support is not tax deductible to the paying party, and the party receiving it does not have to include it as income. On the other hand, spousal support is tax deductible by the paying spouse and treated as taxable income to the recipient spouse under the Internal Revenue Code. This means that there are tax consequences to each of the parties that must be factored in to any analysis involving spousal support.

  49. I was ordered to pay support of $1,000.00 per month for two children. One of these children no longer qualifies for child support. Can I just pay my former spouse $500.00 per month?
  50. No. Most judgments for child support are drafted as "class orders," meaning that they set an amount of support for the "class" of children, but do not break it down per child. As such, unless you modify the support judgment, the amount owed would still be $1,000.00 per month. Of course, you could do so if your judgment sets forth a separate amount for each child. Again, most do not.

  51. My former spouse had a judgment against me for $1,000.00 per month for child support, but five years ago agreed to accept only $600.00 per month, which I have paid on time. My former spouse now says I am $24,000.00 in arrears representing the balance of $400.00 per month that was unpaid (by our agreement). Do I owe this money?
  52. Yes. The only way you can modify a court judgment is by another court judgment. Your agreement is ineffective and the money is owed.

  53. How does the court determine an appropriate Property Division?
  54. Oregon is an "equitable" property division state. While this frequently means equal, “equitable” does not necessarily mean “equal.” Rather, "equitable" means a fair division in terms of value under all the circumstances. As a broad concept, Oregon law treats a marriage as a partnership. The court starts with a presumption that all income earned and property acquired during the marriage is marital and should be evenly divided. If a party believes this presumption to be inappropriate, that party must put on evidence why the court should not evenly divided the property between the parties. Marital property is subject to division between spouses regardless of which spouse holds title. Debts as well as assets will be considered. There is no fixed way to determine how either you or the court should divide your property. Factors that the court considers include the nature and extent of the property, the duration of the marriage, and the economic circumstances of each spouse. In some cases, gross misconduct by a spouse (such as wasting money by gambling) will be considered. The court will approve your division if you and your spouse can reach a reasonable agreement. The court will hold a hearing and divide your assets and debts according to its own opinion of "equity" if you and your spouse cannot reach an agreement. Once property has been divided and your divorce is final, you cannot modify property and debt division.

  55. Am I entitled to a share of my spouse’s retirement benefits?
  56. Most retirement benefits earned or accruing during the marriage can and generally will be factored in by the court as an asset in a divorce case. This includes both contributions made by the owner of the retirement benefit, as well as passive growth (such as interest) in most pensions, profit sharing, individual retirement accounts, or any work-related benefit payable upon or after retirement. While most retirement benefits do not require the marriage to have lasted for a particular length of time for the retirement benefit to be dividable by the court, there are several that do. Two such examples are military and railroad retirement benefits, both of which require that the marriage lasted at least ten (10) years, and that the retirement was being contributed to for at least ten (10) years of the marriage. This is what is known as the 10-10 rule. Unless you fulfill both requirements, the court lacks the jurisdiction to divide the retirement benefit. That is not to say, however, that the retirement benefit could not be valued and awarded to the participant, while the non-participant spouse is awarded some other asset to offset the retirement benefit.

  57. How can I make my case an "Uncontested Divorce”?
  58. If there are any issues at any time during your case that have not been resolved by agreement of the parties, then your case is contested. The fact that the parties do not have a trial does not mean their divorce is uncontested. A divorce is “contested” unless the parties agree as to all terms of the divorce from the outset. The only way to make your case uncontested is to reach an agreement with your spouse on all issues. Often this simply is not possible, particularly at the outset.

  59. I hear there is a Waiting Period before my divorce can become final. My spouse and I have agreed on all terms and want to finalize the divorce now. Can we?
  60. Yes. On January 1, 2012, Oregon's statutory 90-day waiting period was abolished. There is now no required waiting period before a divorce can become final.

  61. How are attorney’s fees charged?
  62. My time is billed in six (6) minute increments, or one-tenth (1/10) of an hour. Of course, larger projects or parts of the case involve more time being billed. I send out bills at the end of each month, so that you will know the status of your account.

  63. Can I make my spouse pay my attorney’s fees?
  64. Most divorce cases I file include a request that the other spouse be ordered to pay my client’s attorney’s fees. If the case goes to trial, the court has discretion to award attorney’s fees, but does not always do so, and seldom orders that one party pay all of the other party’s attorney’s fees. Either way, the client is always responsible for the attorney’s fees charged by the attorney they hire. To the extent you are awarded attorney’s fees, you will be granted a judgment by the court. This is the client’s judgment, not the attorney’s, and it is not the attorney’s responsibility to pursue collection of the fees from the other party. I can and will pursue collection of those fees from the other party, should the client request, but collecting on that judgment is a separate legal matter and all attorneys charge for that additional work.

  65. I think I need a divorce, but my spouse and I are still trying to work things out. Can I stop the divorce if we think we can work things out?
  66. Yes! To me, the best divorce cases are the ones I do not finish because the parties decide they can and will work out their differences. You can stop the divorce case any time you and your spouse agree to. Do not be embarrassed by this. Most people respect your efforts to resolve your differences. Sometimes, however, I have clients who want to try to work things out, but do not want to dismiss their case while they do so, because they do not want to have to start over if the reconciliation does not work out. Under these facts, I can “put the case on hold,” so as to allow the parties a chance to work out their differences. However, the court will not allow the case to be “on hold” indefinitely, and at some point the court will insist either that the case be dismissed or set for trial. As such, at some point you will have to decide whether to proceed with the divorce or dismiss your case. Until then, you should always work to save your marriage, if you think there is chance of doing so.

  67. How and when can a party change that party’s name as part of the divorce?
  68. As part of the divorce, either party can take back a prior legal name of that party. All that is required is a sentence in the Judgment of Dissolution of Marriage specifying what that party’s name will be as a result of the divorce. A name change to a new name is not allowed. My experience is that many women who have not had children with their current spouse take back a prior legal name of that woman, while most women keep their married name when they have minor children with their current spouse. Whether to take back a prior legal name of the party is the exclusive decision of that party. Neither party can force the other to stop using the married name.

  69. How long after the judge signs the Judgment until my divorce is final?
  70. Your divorce will be final on the day that the judge signs the General Judgment of Dissolution of Marriage.

  71. How soon after my divorce is final may I remarry?
  72. While I recommend that clients take it slow in entering into a new relationship, you may remarry the day after your judgment is signed.

  73. Now I am divorced. Do I need a new will?
  74. I believe that you should prepare a new will after a divorce. Oregon law provides that once you are divorced, your ex-spouse will be treated as having died before you, unless your will evidences a contrary intent (I have never seen or written one expressing a contrary intent). This means that the person listed in your will as taking if your spouse predeceases you will receive the property, even if your ex-spouse is still living. Still, most attorneys believe it is cleanest to write a new will that addresses your changed marital status and to make new gifts accordingly. I share in that belief.