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Divorce, Separation and Domestic Partnerships

First Things First -- Should I Leave?

Leaving your family home is a serious decision. If you are the victim of physical abuse, you may be eligible for a restraining order under the Family Abuse Prevention Act which will require your abuser to leave the family home and, on a temporary basis, may award you custody of any joint children.

Even without a restraining order, you can be awarded temporary possession of a family home and/or temporary custody of children and temporary child and spousal support. Such temporary orders can be obtained after filing for divorce or separation, and after notice and a hearing before a judge.

In some situations, you may have to leave your family home without a restraining order or temporary order. You should consider the following precautions: First, make an inventory of personal and joint property. Any property taken from the family home should be noted. Second, make an inventory of joint checking or savings accounts. If possible, divide the accounts fairly before leaving. A person who withdraws funds from a joint account may be subject to an accounting or reimbursement in later proceedings. Third, consider canceling any joint credit cards or credit lines, because after you leave, your spouse may incur debt for which you may be responsible.

If you leave with your children, the other parent is generally entitled to reasonable parenting time, also known as visitation, and contact with the children. If you do not have a temporary custody or protective order, the other parent will have equal custodial rights until a court determines otherwise.

Leaving your family home is a serious decision with significant consequences. It is important to obtain professional legal advice, preferably before and certainly after you leave.

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Oregon Divorce and Separation - Know Your Rights

A divorce is a legal proceeding that formally ends a marriage. A legal separation will also determine custody, support and visitation issues, but the parties will remain formally married. A filing fee is required and at least one party must be an Oregon resident for at least six months. After filing, a petition must be served on the other spouse, who must file a response within 30 days of service. The divorce will be granted if irreconcilable differences between the spouses have caused a permanent breakdown of the marriage. For a separation, the breakdown can be temporary or permanent and the separation may also be temporary or for an unlimited time. Oregon is a no fault state. This means that it is not necessary for either spouse to show fault in the breakdown of the marriage and, generally, evidence of specific acts of misconduct are not considered by the court unless they are relevant to custody or visitation issues. Depending on the issues involved and the extent of disagreement, the process can be as short as a few months or could require one year or longer.

After filing and service, parties to a divorce proceeding are barred from disposing or transferring assets or incurring new debt except to maintain themselves, their children, pay attorney fees and for other limited exceptions - except by consent of both parties or court order.

People going through either process may be faced with a number of major issues, including the division of property and debt, retirement assets, spousal support, also known as alimony, child custody and visitation, child support, and attorney's fees. The court may address these issues while the case is ongoing, so the parties have temporary ground rules to follow, and as terms of the final judgment. Alimony, or spousal support, may be awarded to either spouse on a temporary or permanent basis, and may be awarded in a lump sum or by scheduled payments.

Family law can be complex and may require the services of not only an attorney, but also experts in other areas, including evaluation of assets, taxation, and child custody.

The spouses may agree on the terms of the divorce or separation, and if they cannot, the court will determine these issues at trial. People who disagree on issues in their divorce may use a mediator to help reach agreement on some or all issues. Mediation is often mandatory for custody and visitation issues. Whether the issues are mediated or litigated, it is always a good idea to obtain professional legal advice.

Legal Separation

Like a divorce, a legal separation will decide custody, support, and visitation issues, and divide property and debts. Unlike a divorce, the parties remain formally married. This means that during a legal separation, you cannot remarry, and you are considered married for inheritance, insurance, tax, and other purposes. However, separated spouses may file taxes separately and specifically change their inheritance, insurance and estate plans.

You may be interested in a separation for religious reasons, or when their appears to be a possibility of a future reconciliation. A separation may be temporary, or for an unlimited period. In either situation, a separation may be dismissed if you reconcile with your spouse, or modified to become a divorce.

To obtain a separation, it is not necessary for either party to show fault in the marriage relationship and, generally, evidence of specific acts of misconduct are not considered by the court unless they are relevant to custody or visitation issues.

Like a divorce, separation issues can be complex and may require the services of not only an attorney, but also experts in other areas, including evaluation of assets, taxation, and child custody. A legal separation results in significant and often permanent changes in your life. For that reason, it is important to obtain professional legal advice before proceeding.

Dividing Marital Property and Debts

As a general rule, all property and debts of both or either of the parties are divided in a divorce or separation in an equitable manner that is just and proper. Property acquired during the marriage is considered marital assets, which the law presumes resulted from the equal contributions of both parties. The contributions of one spouse may be in the form of homemaking, contribution to the career or education of the other spouse, or other intangible or indirect contributions. Property acquired before marriage, by inheritance and during separation may also be subject to division by the court. The ultimate division of property need not be equal. Important factors include the contributions of the parties, the duration of the marriage, the financial condition of the parties, and the age, health, and earning capacity of each of the parties.

Debts incurred during the marriage are considered "marital debts." Debts include credit cards, liabilities to third parties for loans, the purchase of real or personal property, living expenses, taxes, and the like. A court order in a divorce or separation that establishes the responsibility of one party to pay a joint debt does not relieve the other party from responsibility for payment. If the responsible party does not pay the obligation, the creditor may attempt to collect the debt from the other party. Sometimes a party who has been ordered to pay a debt may attempt to discharge this obligation in bankruptcy.

Property issues can be complex and may require the services of not only an attorney but also experts in one or more areas, including the valuation of assets, such as real or personal property, pensions or other retirement assets, business interests, and tax ramifications of the property division.

An attorney can help in protecting a spouse against the unfair discharge or nonpayment of debts to be paid by the other spouse. For example, it may help to secure a debt with real property or spousal support.

Generally, each party is responsible for their own debts incurred during a separation, except for debts incurred for the support and education of the parties' minor children or to preserve marital assets. However, extreme care should be exercised during a separation period to avoid situations where a creditor may try to hold one party liable for the other party's separation debts.

Unlike custody, visitation and support matters, property and debt divisions, once ordered, are not modifiable.

If you have questions about this issues or about your particular situation, contact a family law attorney.

Dividing Retirement Benefits

As a general rule, all pension and retirement benefits and investments earned or accrued during a marriage are considered marital property and must be divided in an equitable manner. Generally, such benefits earned or accrued during the marriage will be shared equally. Because dividing a retirement plan is complicated, a court usually prefers to award one spouse the full retirement asset and the other spouse equivalent non-retirement assets if this can be done in a way that results in a fair or equal balance. When appropriate, a court will divide a retirement plan but, in most cases, the spouse awarded such benefits will not be eligible to receive them until the other spouse is formally eligible. This is usually a retirement age set by the plan. Other accounts such as IRAs or 401(k)s may be divided by the court and distributed immediately. In many cases, early distribution penalties are waived. However, a party receiving a retirement benefit will be subject to tax on any money actually received.

Valuing a retirement asset can be a complicated process and often an actuary should be hired. It is important to not simply rely on the account value or balance in deciding the value of a retirement benefit.

A divorce or separation judgment is usually not enough to divide a retirement asset. If a retirement benefit is divided, a formal document called a Qualified Domestic Relations Order is often required. This can be done by an experienced attorney or competent financial advisor. The order should include provisions for the survivor benefits in the event of the death of the retirement plan member, both before and after benefits begin. Unless and until the retirement plan administrator accepts a formal order, the benefit cannot be divided.

Retirement benefits are often earned before and during a marriage. In such cases, it may be necessary to determine a spouse's share of the benefit in proportion to the benefit accrued during the marriage. Determining a proper distribution in such circumstances may require the use of an attorney or actuary.

Valuing retirement benefits and distributing them fairly is an important matter. You should obtain professional legal advice to determine your rights.

Domestic Partnerships

If you have lived with someone intimately for a substantial period of time, you may have rights which can be enforced in a court of law. In a divorce of a married couple, the division of assets and debts is presumed to be equal. In a domestic partnership, the court tries to divide assets and debts based on the intent of the two people involved and other equitable considerations. Determining intent can be difficult. The court will look to an written agreements and if there are none, then to the couples' oral statements and conduct over time. If a court can establish that you and your partner intended to share property, the court can divide property to reflect the intended division. Each case is different and decided upon its own facts. Oregon courts have applied these principles, whether or not the parties were of the same or opposite sex. No alimony or spousal support is allowed in domestic partnerships unless specifically provided for in a written agreement.

If you and your partner are living together on an intimate or prolonged basis, and if you share your assets, you can put your agreement in writing. A domestic partnership agreement allows you to define how your assets will be shared during your relationship, and how your assets will be divided if the relationship ends or if one of you dies. You can agree to mix your assets in any way you choose. Your agreement is governed by general contract law. You can hold all of your property and assets jointly, separately, or any combination of jointly and separately. You can make provisions for support and what will happen if your relationship ends.

A domestic partnership agreement may involve significant property issues and may have serious tax consequences. Additionally, the laws on domestic partnership vary significantly from state to state. You and your partner are encouraged to obtain professional legal advice if you intend to enter into a domestic partnership agreement.

To determine your rights in a cohabitation or domestic partnership situation, you should obtain professional legal advice.

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Kramer & Associates
520 SW Sixth Avenue
Cascade Building #1010
Portland, Oregon 97204
503-243-2733