Help! My Spouse Filed for Divorce and I Don’t Know What To Do!

Did you get served with divorce papers or see your spouse’s divorce notice in the newspaper? Don’t panic. Whether it was something you and your spouse had been discussing or it came as a surprise, seeing those divorce papers can be upsetting and overwhelming. Here’s what you need to know and do next.

Divorce: The Big Picture

First, keep in mind that it does not matter whether you are the petitioner (the person who filed for divorce) or the respondent (the other party) — your title in the case will not affect your legal rights. In other words, your spouse is not in a better position because he or she is the one who filed for divorce. Our clients sometimes have a hard time believing this, but it’s true!

Oregon has “no-fault divorce,” meaning one spouse does not need to prove the other cheated or is otherwise at fault for breaking up the marriage. The reason for your divorce, or “dissolution of marriage” in legalese, will be listed on your spouse’s Petition as due to irreconcilable differences. You will not be seen as in the wrong because your spouse filed for divorce, not you.

Once you are served with divorce papers, the court enjoins you from making any major purchases or other expenditures, canceling or changing the terms of your family insurance (including life, health, auto, or homeowner/rental), or disposing of any property in which your spouse may have an interest. Your finances and other official records and documentation will come under scrutiny, so don’t make any big moves or do anything that might be viewed as suspicious.

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Divorce Fees & Timeline

Once you are served divorce papers, you have 30 days to file a response with the court, and this deadline is firm. Contact a divorce lawyer in Portland within the first 10 days, if at all possible. Our consultations are completely confidential.

Depending on your and your spouse’s circumstances, the Petition for Dissolution of Marriage will cover such things as custody of minor children, child support, spousal support, division of debts, and division of property. Your response will simply set out what you agree with and disagree with in your spouse’s Petition–you do not need to get into the nitty gritty details of any of these topics or propose a resolution.  If you neglect to file a response within the 30-day window, your spouse could have his or her demands met on day 31 by filing for a default order and a default judgment against you.  Setting aside a default judgment is not impossible, but it is an avoidable hassle, so it’s best to respond within the 30-day deadline.

In addition to a response, you will have to pay an initial filing fee for your “first appearance” in the case.  As of August 2014, this fee is $273 for all Oregon counties. Check how much your county’s divorce fees are here.  If you feel that you cannot pay this fee, you can request a fee waiver form at the courthouse.

Going to Court

From here, a court date will be set. In the meantime, look out for any hearings on temporary issues or other matters that might occur before the court date–your spouse should have served this paperwork on you as well. Other events that may take place after your response is filed but before the case is resolved might include mediation, involving a custody evaluator, or taking a parenting class.  Each case is very different.

In the event that you and your spouse disagree on who should have custody of your minor children or what each parent’s time with the children should be, courts in many counties will require you to participate in mediation.  This is a free session with a professional mediator to help you and your spouse come to an agreement on these issues. Remember that you do not have to agree with the mediator or your spouse. You will not be penalized if you and your spouse are unable to come to a resolution in mediation.

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Finalizing the Divorce

At the end of the case, a judge will sign a document that finalizes everything, including custody and parenting time issues, division of property, division of debt, child or spousal support, insurance, and any other issues in the case.  This document is called a Judgment of Dissolution of Marriage. At this point, the judge may also restore your legal name before you got married, if you so desire.

An excellent Portland divorce lawyer, like those at Holtey Law, can help you navigate the confusing and often painful process of dissolving a marriage, both with expert legal insight and sensitivity to your needs. Divorce is almost always difficult, but with knowledgeable legal counsel, the process will go a lot more smoothly.


Have you been served divorce papers and need help? Learn more about Holtey Law’s divorce attorneys and contact us to get started with a consultation.

Related Reading:

Photos: Sharyn Morrow, John Moore

Divorce vs. Separation: Understanding the Difference

When you and your spouse begin to drift apart, you might start to consider steps you need to take to either reconcile or end the relationship.  In particular, you may wonder what is most appropriate for your situation: divorce or legal separation?

Definitions

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A divorce cuts all legal ties between spouses that arise out of the marriage.  It has the effect of ending the accumulation of “marital assets” (a classification given to property acquired during the marriage, of which equitable division between the spouses can be made) and causing an automatic revocation of certain beneficiary designations and estate planning documents that benefit your spouse, among other things.

In contrast, a legal separation merely suspends the effect of the marriage with regard to cohabitation.  In other words, the parties’ obligation to live together as husband and wife is suspended, but the marriage itself remains legally intact.  The legal separation process is nearly identical to that for obtaining a divorce.  Even though a judgment of legal separation may include such topics as property division, spousal and child support, and custody of children, the parties will continue to accumulate marital assets and will not have the same breadth of protection from each other’s poor financial decisions after separation.  This is because even with a judgment of legal separation, the law allows either party to seek a divorce down the road, and at that time the judge has the authority to rearrange awards of property and change the responsibility among the parties for who pays what debts.  Whether a judge will do so depends on a number of factors, including how the legal separation judgment was written in the first place and what, if any, unexpected events have occurred since then.

When is Legal Separation Appropriate?

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Many people attempt to use separation as a way to keep open the possibility of reconciling with their spouse.  However, it rarely accomplishes this goal.  If you are not sure about ending your relationship, the best thing you can do for you and your spouse is to pursue professional couples counseling.  This will help you decide whether you truly want to walk away from the relationship.  However, there are a few good reasons to opt for a legal separation instead of a divorce.

Religious Beliefs

One of these situations is when spouses want a divorce in everything but name due to their religious beliefs.  If these spouses understand the legal differences between a legal separation and a divorce, legal separation may be the answer to accomplish their most important goals.

Failure to Meet Statutory Residency Requirements

To file for divorce, a party must have lived in Oregon for at least 6 months.  However, this is not the case in filing for legal separation.  Therefore, another limited circumstance in which legal separation is appropriate is when a spouse needs a support or custody order in a relatively short amount of time but hasn’t lived in Oregon long enough to meet the residency requirements for a divorce.  In this instance, the spouse can file for and obtain legal separation, including custody or support orders.  They can then convert the case into a divorce fairly inexpensively when the residency requirement has been met (within two years of entry of the legal separation judgment).

A Note About Health Insurance and Income Tax

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There are also some circumstances in which a legal separation may seem beneficial, but this may not be the case.  One of these involves health insurance.  Sometimes, a spouse chooses to seek a legal separation in the hope that he or she will be able to remain covered by the other spouse’s medical insurance.  In fact, many medical, automobile, and life insurance policies treat legal separation the same as divorce; be sure to check policy rules before assuming you will still be protected.  The same may be true of income tax laws.  It is advisable to consult with your CPA or tax preparer to learn the consequences of a legal separation as compared to a divorce.

Seek the Advice of Legal Counsel

The legal professionals at Holtey Law, LLC have years of experience navigating the murky waters of both divorce and legal separation.  They can give you the advice and emotional support you need to decide for yourself what course of action is best for your situation. Contact them today!

You may also want to check out our other blog posts on Children and Divorce , The Emotional Ride in Divorce, and What to do When Your Spouse Files for Divorce.

Further Reading:

http://www.psychologytoday.com/basics/divorce

http://www.huffingtonpost.com/divorce/

http://www.divorcesupport.com/

http://www.apa.org/topics/divorce/

Looking at the Emotional Ride in a Divorce

Going through a divorce can be as emotionally challenging as other life-changing events, such as the birth of a first child or serious illness or death of a loved one. Expect to experience many emotions as you move through the divorce process. We can offer general guidance, as well as advice for your specific situation.

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Don’t Isolate Yourself

Resist the temptation to isolate yourself during this difficult time. The stress and turmoil of divorce is a time when you need support–from friends, family and often a professional counselor. Even if you have been emotionally healthy in the past, we recommend seeking help to stay healthy. This can mean traditional counseling, a divorce support group, or regular emotional support from a trusted friend who has been there. The knowledge alone of what others experience during the divorce process can mitigate feelings of self-doubt.

It is also important that you get a checkup from your doctor. Think of it as a way to symbolize moving into a new phase of your life.  Take time to nurture and care for yourself; divorce is the end of a marriage, but the beginning of a new life for you. You deserve to take good care of yourself.

Keeping the Bigger Picture in Mind

We recognize how challenging and stressful communicating with your spouse can be. We can help you develop new ways of communicating with your spouse, and we can step in for you when you prefer or the situation calls for it. We encourage you to keep the bigger picture in mind. As difficult as it may be, acting respectfully toward your spouse is often the best way to ensure a smoother emotional ride for yourself in the process. You may relish the thought of letting him or her have a piece of your mind for the first time in years, but you may be caught off guard and find yourself reeling as the other side responds in kind or even takes the conflict to a level you regret. We will help you determine when it’s appropriate to call your spouse on the carpet for some bad deed and when it’s advisable to let it slide, for your own good.

children in a divorceIf children are involved, take extra care to avoid venting to them about your spouse. Children face more stress and pain when subjected to conflict between parents. They often cannot help but feel personally attacked when their parent is being criticized, even when the criticism is warranted. You will want to look back on this time and know that you did your best to set a good example for your children.

Holtey Law has the expertise to handle complicated legal proceedings and fight for your best interests. We will guide you on every aspect of your case, whether it is how to interpret nasty letters from the opposing counsel or how to mentally prepare for court or a big mediation. You can help the divorce process by being mentally and emotionally prepared for each step.

Other Articles of Interest:

How do Legal Custody, Physical Custody and Parenting Time Differ?

I Have Been Served Divorce Papers. What Now?

How do Legal Custody, Physical Custody and Parenting Time Differ?

The term “custody” has many different meanings in our world.  It can be used to refer to whose home is the children’s primary residence, which parent has the most parenting time, or which parent has decision making authority. In the legal world, however, “custody” has a specific meaning. Most often when one hears an Oregon lawyer or judge use the term “custody,” he or she is referring to legal custody.

Joint versus Sole Legal Custody

Legal custody denotes how the major decision-making authority is shared between the parents.  In Oregon, the parents either share joint legal custody, or one of the parents is awarded sole legal custody. Oregon law prohibits a court from ordering joint legal custody unless both parents agree.

Powers or Rights Granted With Legal Custody

The two major categories of authority granted with legal custody are healthcare and education.

With regard to healthcare decisions, examples include whether a child sees a therapist and which therapist, what age a child will get braces, and whether to follow a traditional vaccination schedule or skip them altogether. The parent with legal custody is the parent who takes the child to routine doctor appointments.

Major education decisions can include whether to hold a child back a grade, whether to have a child tested for a learning disability, and which school to attend (including a private school, though the other parent cannot be forced to pay for private school).

Legal custody also traditionally includes decisions concerning religion, though with some exceptions, these days we rarely see a non-custodial parent restricted in practicing his or her religion with the children. Finally, traditionally we have also talked about legal custody including the right to choose the child’s residence, but with more and more restrictions on a custodial parent’s right to move a considerable distance from the other parent, this “right” is limited.

Physical Custody: Seldom Seen in Court Orders

Physical custody is more confusing because there is not a precise definition in the law and yet, still, on a rare occasion it will appear in a parenting plan. It can be used to highlight which parent has more than 50 percent of the parenting time. Sometimes even with parties who share 50/50 parenting time, one parent still wants a label to denote some privilege concerning rights for the children, though again, there is no clear legal right that follows with the label.

Parenting Time Refers to the Schedule

Parenting time refers to how much time and when each parent will be in charge of caring for the children. It is independent of the legal custody determination. If the parents cannot agree, a court will determine the parenting schedule by considering the “best interests of the children.” Keep in mind that legal custody is different than parenting time. Regardless of who has legal custody, each parent has equal rights to access information from therapist, doctors, teachers and the like. Both parents can attend public performances, sports practices, and school events. Now more than ever, the courts are looking for ways to maximize both parents’ involvement in a child’s life, provided both parents are good, capable parents.

Parents who share joint legal custody also have the choice to split parenting time 50/50 or have one parent take care of the child the vast majority of the time. No matter what the parenting time schedule or who has legal custody of the children, each parent is responsible for the day-to-day decisions concerning the children while they are in that parent’s care.

An attorney specializing in custody matters can advise what custody and parenting time awards are most likely if you and the other party end up in court. A consultation with such a lawyer is a good starting point before you agree to any arrangement with the other parent. Your lawyer can also offer some pointers in how to discuss these issues with the other parent and negotiate the most favorable outcome for you and your children.

If you’re looking for representation in the Oregon courts, please visit the Child Custody, Support and Visitation attorney page.

I Have Been Served Divorce Papers. What Now?

What do I do if I have been served divorce paperwork by my spouse, or I know he or she has filed or will file for divorce?

You have only 30 days to Respond

Once you have been served, you have 30 days to file a Response with the court. In a divorce action, this deadline is more important than ever. While not so long ago, there was a 90-day waiting period in divorce cases, which has been done away with. What this means is that if you fail to file a Response, your spouse could proceed with having the divorce finalized, obtaining all his or her requested relief on that 31st day.

It is highly recommended that within the first 10 days of being served that you consult with an experienced attorney specializing in family law.

Initial Prep Work

Begin gathering basic financial information, including

  • last couple years’ tax returns
  • current paystubs
  • recent statements for retirement and investment accounts
  • credit card statements

If you have access to it, gather this information for your spouse’s accounts as well. Bring whatever you have had time to gather to that first appointment with your attorney, along with all of the documents you were served with.

Property Restraining Order

Once you have been served with divorce papers, an automatic property restraining order goes into place (ORS 107.089). Some of the rules are straightforward: do not remove your spouse as a beneficiary on any life insurance accounts, for instance. Others are more complicated, such as whether you are restrained from buying a new car or transferring money from a joint savings account. You will want to ask your attorney about what you are permitted to do.

Joint Accounts

If you share joint financial accounts with your spouse, watch them carefully. If your spouse were to suddenly withdraw a large amount of funds, for instance, you may be advised to obtain a specific property restraining order. If you have joint accounts online, print off the last two years’ of account activity. We recommend this in case your spouse later cuts off your online access.

Telling the Children

“Above all, put your child first. Remember: you can love your kids or hate your spouse… but you cannot do both.”
-Natalie Gregg

In cases of divorce, speak with your spouse about how to share the news of the divorce with the children if you haven’t already.  Make promises to each other about not bad-talking the other parent to the children or trying to manipulate them in the process.

Status Quo Hearings

What are the courts doing with Temporary Protective order of Restraint and Post Judgment Status Quo Orders? The answer is: whatever they want. Pursuant to ORS 107.139, entry of the TPOR and Status Quo are discretionary, and may be entered by the court if they so choose.
So are they in effect from the date of the filing or for what has been going on for the 90 prior to the date of filing? Again, with no case law to guide attorneys, the answer is typically whatever the court thinks is in the best interest of the child.