What is Separation in Oregon?
In Oregon, legal separation provides an alternative process to divorce and allows spouses to legally divide their property and debts, make custody arrangements for their children, and more. Just like in divorce, married couples must complete multiple documents when initiating a legal separation. However, some family law attorneys believe that for the purposes of the courts, these documents are nearly identical in appearance. While the documents and processes are meant to be as similar as possible, there are still differences.
When a couple goes through a legal separation in Oregon, the end result is not divorce. Instead, the couple is still legally married, but the court will determine how property will be divided, what the child custody arrangements will be, how child support will be paid and received, and whether alimony will be paid or awarded to either spouse . All these issues are nearly identical to those of the divorce process worth mentioning and are separated out as needed.
Some legal separations begin with one spouse filing a petition on their own (though it is not mandatory) and others are filed jointly by both spouses. Separations may actually be the first step toward divorce or reconciliation. For the time being, the couple separates throughout the court process and if reconciliation occurs, the court process can be ended before completion. Once a legal separation is ordered by the court, the couple cannot remarry for 6 months. A divorce is required before an individual can remarry in Oregon.
How Do You Get a Legal Separation in Oregon?
The first step in initiating the process for legal separation in Oregon is to file a petition for separation with the court. The petition must include all relevant information, including the names and addresses of the parties, the children, and basic information about the marriage such as the date of marriage. The petition also needs to detail the nature of the request for the court to legally separate the parties. The petitioner should also file relevant certificates such as a certificate of residency and certificate of domestic relations. After these documents are filed with the court, the court will issue a summons. The second part of this step is serving the petition on the other spouse. This must be accomplished by delivering the petition and summons to the other spouse in person or through certified mail. Alternatively, if the two spouses are in agreement, the other spouse could sign and file a voluntary appearance and consent to the legal separation. If the other spouse has been served or signs voluntary papers, the court will then set a hearing for the matter. At the hearing, the court will determine any issues that need to be ordered such as spousal or child support and distribution of property. If there was not an agreement between the parties on these issues, the court will determine the details based on what it finds reasonable and based on the circumstances. It is critical that you understand your rights before agreeing to any requests for support or property division of assets. Once the judge makes a decision in the hearing, the court will enter a judgment of legal separation. The judgment will include provisions to address child custody, visitation and parenting time, child and spousal support, property and debt division, and any other relevant issues.
Legal Separation or Divorce – What’s the Difference in Oregon?
Legal separation and divorce are legally distinct concepts in Oregon, but many people may not fully understand the differences between the two. For starters, a legal separation does not end the marriage. Therefore, you would still be legally married to your spouse, even if you are living separately and pursuing the case in court. Alternatively, a divorce would likely result in the termination of your marriage.
Both phrases can be used informally within various contexts to refer to the types of agreements that separate married couples. They can even be used interchangeably in terms of how they operate, but technically speaking, they are simply two different ways to construct a visitation, child custody or estate settlement agreement.
For example, you and your spouse could draft a legal separation agreement and have it validated by a judge, but retain the rights and responsibilities of a married couple within the terms of the agreement. You could then file a subsequent divorce case calling for the same exact terms, and have it validated by a judge on that basis.
An actual legal separation has all the rights of a divorce, but nothing changes with respect to the validity of a marriage. It could, however, serve as a precursor to a divorce.
If you have a signed legal separation agreement that identifies the equitable distribution of property, retirement funds and other important assets, but you later decide to get a divorce, that agreement could be recognized by the court and validated as the final settlement. That would avoid a second negotiation and validation process.
If you and your spouse go through the legal separation process, it does have the potential to serve as a temporary break that allows you time to work through your issues. It’s possible that after a year or so, you could reach an agreement on certain issues that had previously caused you to separate.
At the same time, a legal separation is an important step in the divorce process so that the documents required by the state of Oregon can be prepared and validated.
For example, the only way to get a "no fault" divorce in Oregon is to file a legal separation that cites an irreconcilable difference within the marriage and list the date of dissolution and the proposed settlement.
From an emotional standpoint, a legal separation typically has a softer acceptance than a divorce, which for some people is an unnecessary label.
If you and your spouse are able to navigate the legal separation and either work through your issues or amicably separate thereafter, you could truly save money in the long run.
Financial and Custody Issues
Legal separation, like divorce, involves important financial and custodial considerations. In Oregon, spousal support (also referred to as alimony) may be awarded to either spouse. It is usually based on factors including the spouses’ earnings, employability, how long you were married, the health of the parties and other relevant factors. The court will look at the parties’ standard of living not only at the time of separation, but also how it has been affected by the six months or more prior to separation that one of the parties may have moved out. The circumstances of each spouse will be considered. If you are the one at fault for the separation, it may reduce your chances of getting spousal support. Like assets, debts will be divided. Then, the family home will be freed from the mortgage lien using equity as determined by the court and the resulting check will be paid out to the spouse receiving the asset. An itemized financial statement must be completed and filed with the court. This document lists the assets and debts of each spouse. It includes an inventory of all household goods and personal property , such as bank accounts, investment accounts, stocks and bonds, cars, trucks, RV’s, boats, trailers and real property. Once this financial statement is completed, but before it is signed, either spouse can file a "motion for contempt" in case a spouse conceals an asset, habitually fails to pay bills or withdraws money from an account, for example. If so, the judge may order the atruity spouse to return the asset. All debts are divided as a group, whether they are in one name or the joint name of both parties. Mediation – or providing alternative dispute resolution services – is often required, as is a parenting plan and/or a child custody visitation plan. A judge will sign the court document and each spouse will receive a copy for their records.
Reversing or Converting a Separation
When two parties are legally separated in Oregon, they have the ability to reverse the separation and resume their marriage without the need for a full-blown divorce. Alternatively, some couples may decide to convert their legal separation to a divorce if they believe it is in their best interests.
The process of getting a court to reverse a legal separation is called a motion to set aside a judgment of separation. If both parties agree to the judgment being set aside, the process will typically flow smoothly.
First, a motion to set aside judgment must be filed with the court in which the separation agreement was issued. The motion should include the names of both individuals, referencing the separation agreement by its case number. The motion should state that the parties both stipulate to the motion being granted because they desire to tell their legal separation to be set aside.
Note that even if one party has moved out of town since the separation, the motion can still be filed in the original state of separation. Legal separation and divorce are both handled as civil cases in state court.
If both parties agree to the motion, it is likely the court will set a hearing about it. Nevertheless, if both parties reside in different states, that might not be possible. Even so, the less litigious the situation is, the more likely it will be that the motion will be granted.
It’s important to understand that a motion to set aside a judgment of separation does not affect any other judgments, such as spousal support. Certain terms of support may still require disclosure to the IRS.
Getting Help for a Separation in Oregon
Given the complexities involved in legal separation, you can expect a host of difficult decisions to make if you choose this route rather than divorce. A knowledgeable family law attorney can be invaluable, as can advice about how best to prepare for the process ahead. In many ways, seeking legal counsel before you start to separate may save you time, money , and stress down the road. Your attorney will be able to save you incommensurable hours by helping you understand what information and assets you should gather so that you can begin the process of separating on the right foot. Family law attorneys in Oregon have extensive experience helping clients navigate separation agreements and can work closely with you and your spouse (if you are still on good terms) to spare you the stress of courtroom appearances and other legal requirements.
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