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Oregon: Family Law

Contents

  1. Divorce
  2. Child Custody

  1. Divorce

    1. Introduction

      1. Divorce/Dissolution

        A divorce, in Oregon, is called a “dissolution of marriage.” Both parties can file a joint petition, or one or the other may file. The petitioner must file a certificate of residency that says that one or both parties live in the county where the petition is filed, and one or both parties must have lived in Oregon for at least six months before filing. Oregon is a no-fault state, which means the only basis for a divorce is “irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.” No judge permits or requires proof of blame, fault, or acts of misconduct. A marriage is officially ended when the judge signs a judgment of dissolution.

      2. Legal Separation

        In Oregon, a legal separation is also available where irreconcilable differences between the parties have caused the temporary or unlimited breakdown of the marriage, but the parties remain married.1

      3. Annulment

        A marriage may be annulled when a party was incapable of entering into or consenting to marriage because he or she was of legal age or lacked sufficient understanding or a party’s consent to the marriage was obtained by force or fraud. A marriage that has been annulled for one of these reasons is void as of the time the judgment is signed. In a few cases, such as when a party to a marriage was married to someone else at the time of the marriage, the marriage is treated as if it never happened.

    2. Text of the Statute(s)

      1. Or. Rev. Stat. § 107.015 – Grounds for annulment or dissolution of marriage

        (1) Except as provided in subsection (2) of this section, a judgment for the annulment or dissolution of a marriage may be rendered:

        (a) When either party to the marriage was incapable of making the marriage contract or consenting to the marriage for want of legal age or sufficient understanding; or

        (b) When the consent of either party was obtained by force or fraud.

        (2) A judgment for the annulment or dissolution of a marriage may not be rendered for a reason described in subsection (1) of this section if the marriage contract was afterward ratified.

      2. Or. Rev. Stat. § 107.025 – Irreconcilable differences as grounds for dissolution or separation

        (1) A judgment for the dissolution of a marriage or a permanent or unlimited separation may be rendered when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.

        (2) A judgment for separation may be rendered when:

        (a) Irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage;

        (b) The parties make and file with the court an agreement suspending for a period not less than one year their obligation to live together as husband and wife, and the court finds such agreement to be just and equitable; or

        (c) Irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest.

      3. Or. Rev. Stat. § 107.036 – Doctrines of fault and in pari delicto abolished

        (1) The doctrine of fault and of in pari delicto are abolished in suits for annulment of dissolution of a marriage or for separation.

        (2) The court shall not receive evidence of specific acts of misconduct, excepting where child custody is an issue and such evidence is relevant to that issue, or excepting at a hearing when the court finds such evidence as necessary to prove irreconcilable differences,”

        (3) In dividing, awarding and distributing the real and personal property (or both) of the parties (or either of them) between the parties, or in making such property or any of it subject to a trust, and in fixing the amount and duration of the contribution one party is to make to the support of the other, the court shall not consider the fault, if any, of either of the parties in causing grounds for the annulment or dissolution of the marriage or for separation.

        (4) Where satisfactory proof of grounds for the annulment or dissolution of a marriage or for separation has been made, the court shall render a judgment for the annulment or dissolution of the marriage or for separation. A judgment of separation shall state the duration of the separation.

      4. Or. Rev. Stat. § 107.455 – Effect of separation statutes or judgments on subsequent dissolution proceedings

        The provisions of law pertaining to separation are not intended to and shall not repeat or affect any existing law pertaining to the granting of a judgment of dissolution of marriage. The entry of a judgment of separation under ORS 107.475 (Court to determine duration of separation) shall not be a bar to a suit for dissolution by either party. A decree or judgment of dissolution of marriage granted by a court of this or any other state upon constructive service of summons does not affect an award of support or maintenance in a judgment of separation made pursuant to ORS 107.095 (Provisions of judgment).

      5. Or. Rev. Stat. § 107.465 – Conversion of judgment of separation into judgment of dissolution

        (1) Upon motion of a party for an order to show cause why a judgment of separation should not be converted to a judgment of dissolution and after service of notice to the other party at least 30 days before the scheduled hearing, the court may, within two years after the entry of a judgment of separation, convert a judgment of separation into a judgment of dissolution of the marriage. The other party may file a written consent to conversion and waiver of the hearing at any time before the hearing. A supplemental judgment of dissolution entered under this section does not set aside, alter, or modify any part of the judgment of separation that has created or granted rights that have vested.

        (2) Nothing in this section is intended to prevent either party to a judgment of separation from commencing at any time in the manner required by law a suit for dissolution of marriage.

      6. Or. Rev. Stat. § 107.485 – Conditions for summary dissolution procedure

        A marriage may be dissolved by the summary dissolution procedure specified in this section and ORS 107.490 (Commencement of proceeding) when all of the following conditions exist at the time the proceeding is commenced:

        (1) The jurisdictional requirements of ORS 107.025 (Irreconcilable differences as grounds for dissolution or separation) and 107.075 (Residence requirements) are met.

        (2) (a) There are no minor children born to the parties or adopted by the parties during the marriage;

        (b) There are no children over age 18 attending school, as described in ORS 107.108 (Support or maintenance for child attending school), either born to the parties or adopted by the parties during the marriage;

        (c) There are no minor children over age 18 attending school, as described in ORS 107.108 (Support or maintenance for child attending school), either born to the parties or adopted by the parties during the marriage;

        (d) The wife is not now pregnant.

        (3) The marriage is not more than 10 years in duration.

        (4) Neither party has any interest in real property wherever situated.

        (5) There are no unpaid obligations in excess of $15,000 incurred by either or both of the parties from the date of the marriage.

        (6) The total aggregate fair market value of personal property assets in which either of the parties has any interest, excluding all encumbrances is less than $30,000.

        (7) The petitioner waives any right to spousal support.

        (8) The petitioner waives any rights to pendent lite orders except those pursuant to ORS 107.700 (Short title) to 107.735 (Duties of state court administrator) or 124.005 (Definitions for ORS 124.005 to 124.040) to 124.040 (Short title).

        (9) The petitioner knows of no other pending domestic relations suits involving the marriage in this or any other state.

    3. Cases

      1. Goodness v. Beckham, 224 Or. App. 565, 198 P.3d 980 (Or. Ct. App. 2008)

        • Procedural Posture: On appeal from lower court’s decision granting plaintiff ex-wife an SPO against former husband based on ex-husband’s conduct in email and in-person contact.

        • Law: Or. Stat. §§ 163.730 & 163.732 (issuance of SPO)

        • Facts: The parties had an abusive marriage, which led to a contentious divorce. They had a son, and they shared custody. The wife petitioned for an SPO against her ex-husband based on “three contacts” occurring in 2007. She asserted that the defendant had given false reports to authorities that she was molesting and harming their son, had given false reports to the authorities that they needed to come to the home to do a safety check, and had come to her home without her permission and threatened her. He had also repeatedly sent her threatening emails stating things with inflammatory language threatening her with statements such as “you[’re] going to pay.” However, there was no imminent threat of violence in his correspondence.

        • Outcome: The court held that the lower court erred in granting the SPO and reversed the order and the award of attorney fees to the ex-wife. The court explained that there was only one crime against the petitioner, which was insufficient to establish the single physical contact required by ORS 163.730(3)(G).2 More importantly, however, the court found that the series of threatening emails sent by respondent to petitioner did not suffice to warrant an SPO because they were not sufficiently “threatening” under the law. Although the emails stated things like “you fucking whore, you fucking bitch, I’m going to get you back,” and he regularly sent such messages, the court explained that “[i]n light of the parties’ abusive past, it was objectively reasonable for petitioner to be alarmed by respondent’s threat that ‘I’m going to get you back’ and ‘you’re going to pay.] However, those statements do not unequivocally threaten violence and appear to be the ‘kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee.”3 The court also explained that the fact that the respondent resided out of state and did not know the petitioner’s address was further evidence that respondent was not imminently threatening. Accordingly, the court overturned the SPO and the award of attorneys’ fees.

        • Special Notes: The case is an example of an extreme situation in which repeated violent language and behavior between a divorced couple did not amount to stalking under the law: “Although there certainly is ample evidence of repeated and unwanted expressive contact by respondent that caused petitioner alarm, ‘the fact remains that there is a complete absence of evidence of an ‘unequivocal’ threat that instilled in petitioner an objectively reasonable fear of imminent and serious personal violence.’”4

    4. Practice Pointers

      In a divorce case, courts have seemed very careful about whether the alleged threats to the plaintiff were actionable.

    1. Or. Rev. Stat. § 107.015. ↩
    2. Goodness v. Beckham, 224 Or. App. 565, 198 P.3d 980, 987 (Or. Ct. App. 2008) (“Even if we assume, however, that the respondent committed a trespass when he went to petitioner’s home, that does not count as a second contact, because it is the same contact that petitioner claims qualifies as a physical contact. A single contact cannot become multiple contacts even if it could count as a contact under more than one section of ORS 163.730(3).”). ↩
    3. Id. at 988. ↩
    4. Id. at 988 (citing Michieli v. Morgan, 192 Or. App. 550, 555, 86 P.3d 688 (Or. Ct. App. 2004)). ↩
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  2. Child Custody

    1. Introduction

      In Oregon, “joint custody” means the parents share decision-making responsibility for a child. Joint custody does not mean that the child lives with each parent for one-half the time. In fact, parents may have joint custody, even though the child lives exclusively with the other parent. A judge in Oregon cannot award joint custody unless both parents agree to it. Courts may consider a child’s preference about where he or she prefers to live, but a judge need not follow the child’s wishes. The judge considers the following factors to determine what is in “the best interests of the child”: (1) emotional ties between the child and the other family members; (2) the interest of the parents in and attitude toward the child; (3) the desirability of continuing an existing relationship; (4) the abuse of one parent by another; (5) The preference for the primary caregiver of the child, if a court deems the caregiver fit; and (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.”1 If either parent objects to sole custody, the judge must consider/decide which parent has sole custody.

    2. Text of the Statute(s)

      1. Or. Rev. Stat. § 107.169 – Joint custody of child

        (1) As used in this chapter, joint custody means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training. An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.

        (2) The existence of an order of joint custody shall not, by itself, determine the responsibility of each parent to provide for the support of the child.

        (3) The court shall not order joint custody, unless both parents agree to the terms and conditions of the order.

        (4) When parents have agreed to joint custody in an order or a judgment, the court may not overrule that agreement by ordering sole custody to one parent.

        (5) Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order.

        (6) (a) The inability of a parent to comply with the terms and conditions of a joint custody order due to the parents’ temporary absence does not constitute a change of circumstances if the parents’ temporary absence is caused by the parent being:

        (A) Called into active state duty as defined in ORS 398.002 . . .; or

        (B) Called into active federal service under Title 10 of the United States Code as a member of the Oregon National Guard.

        (b) As used in this subsection, temporary absences means a period not exceeding 30 consecutive months.

      2. Or. Rev. Stat. § 107.102 – Parenting Plan

        (1) In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under ORS 107.700 (Short title) to 107.735 (Duties of State Court Administrator), there shall be developed and filed with the court a parenting plan to be included in the judgment. A parenting plan may be either general or detailed.

        (2) A general parenting plan may include a general outline of how parental responsibilities and parenting time will be shared and may allow the parents to develop a more detailed agreement on an informal basis. However, a general parenting plan must set forth the minimum amount of parenting time and access a non-custodial parent is entitled to have.

        (3) A detailed parenting plan may include, but need not be limited to provisions relating to:

        (a) Residential schedule;

        (b) Holidays, birthday and vacation planning;

        (c) Weekends, including holidays, and school in-service days preceding or following weekends;

        (d) Decision-making and responsibility;

        (e) Information sharing and access;

        (f) Relocation of parents;

        (g) Telephone access;

        (h) Transportation; and

        (i) Methods for resolving disputes.

        (4) (a) The court shall develop a detailed parenting plan when:

        (A) So requested by either parent; or

        (B) The parent or parents are unable to develop a parenting plan.

        (b) In developing a parenting plan, the court may consider only the best interests of the child and the safety of the parties.

      3. Or. Rev. Stat. § 107.101 – Policy regarding parenting

        It is the policy of this state to:

        (1) Assure minor children of frequent and continuing contact with parents who have shown

        the ability to act in the best interests of the child;

        (2) Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

        (3) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, if necessary.

        (4) Grant parents and courts the widest discretion in developing a parenting plan; and

        (5) Consider the best interests of the child and the safety of the parties in developing a parenting plan.

      4. Cases

        1. Hetfeld v. Bostwick, 136 Or. App. 305, 901 P.2d 986 (Or. Ct. App. 1995)

          • Procedural Posture: Appeal from lower court’s dismissal of plaintiff’s claim for IIED filed against his former wife, and her present husband.

          • Law: IIED.

          • Facts: The plaintiff, ex-husband of defendant and her new husband, alleged that defendant unlawfully withheld visitation by making his children unavailable, disparaged his character to his children, assaulted plaintiff in the presence of his children, caused the children to use another surname, and encouraged the children to identify with defendant’s new husband as their father. The complaint also alleged that defendant ex-wife stalked and harassed a female friend of plaintiff with the intention of intimidating her and preventing her from testifying in court on plaintiff’s behalf, soliciting and fermenting discord in plaintiff’s relationship with his second wife, and hiring a lawyer for his children and making them privy to correspondence and proceedings relevant to her effort to terminate and limit plaintiff’s visitation with the children.

          • Outcome: The court affirmed the lower court’s dismissal of plaintiff’s claim for IIED because defendant’s conduct did not transgress the bounds of socially tolerable conduct. Although the defendants’ behavior was not cordial, the behavior was common between individuals involved in a contested divorce. “Although the parties’ open hostility certainly increases the likelihood that they might cause one another emotional harm, there is nothing inherent in their relationship as former spouses that requires a greater degree of care. . . [and] the sad truth is that when a relationship breaks down, the children of the relationship often become the instruments of the parties’ pursuit to cause each other pain.”2

          • Special Notes: The dissent held that the jury should have been permitted to determine whether defendants’ conduct exceeded the bounds of socially tolerable under the circumstances, regardless of the fact that the parties’ were in the midst of a contentious custody battle.3

      5. Practice Pointers

        • In order to modify a court’s custody judgment, a party must first show that there has been a “substantial change of circumstances. . . The court does not reach the best interests of the child if there is no showing of a change of circumstances. The . . . rule serves to discourage repeated litigation of custody issues, and thereby protect the stability of children, while allowing an undesirable custody situation to be remedied.”4

        • Both parents have a duty to support their minor children.5 Courts consider a specific formula in deriving applicable child support.

        • Although Oregon judges do not permit or require proof of blame, fault, or acts of misconduct in considering a petition for divorce, such issues may be considered regarding granting/denying child custody.6

    1. Oregon Judicial Department, “Child Custody and Parenting, available at http://courts.oregon.gov/OJD/OSCA/cpsd/courtimprovement/familylaw/pages/fl_custody.aspx (last visited May 13, 2013). ↩
    2. Hetfeld v. Bostwick, 136 Or. App. 305, 901 P.2d 986, 988-89 (Or. Ct. App. 1995) (noting that the statutory procedures relevant to divorce and custody proceedings are designed to deal with the conduct alleged by plaintiff). ↩
    3. Id. at 989 (Leeson, J., dissenting). ↩
    4. In re Matter of Marriage of Teel-King, 149 Or. App. 426, 429-430, 944 P.2d 323, 325-26 (Or. Ct. App. 1997) (citing Kellogg v. Kellogg, 187 Or. 617, 621, 213 P.2d 172 (Or. 1949) (“Before any change of custody is made, it must be shown that, since the entry of the decree there has been a change in conditions affecting the welfare of the child, and that the proposed change in custody would be for the child's best interest.”) (emphasis in original)). ↩
    5. In the Matter of Marriage of Mota, 66 Or. App. 439, 441, 674 P.2d 90 (Or. Ct. App. 1984). ↩
    6. See DivorceNet.com, available at http://www.divorcenet.com/states/oregon/or_faq01(last visited May 13, 2013). ↩
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