Legal Separation in Oregon Explained
In Oregon, legal separation is an official process in which a couple decides to separate while remaining married. This differs from a divorce in that all assets and debts remain shared by both spouses. A separation agreement is created that outlines how the couple intends to manage their lives separately. This includes custody agreements, child support, spousal support, division of assets and debts, and debt obligations, as well as any other relevant issues, such as what will happen with the family home. Your legal separation must be filed with the local court office. The paperwork includes a petition detailing all of the issues to be finalized and a divorce decree that is similar to a divorce ruling , except that you remain married.
While the end goal of both legal separation and divorce is the same — an end to the marriage — some people feel more comfortable choosing legal separation first before pursuing a divorce. Sometimes, legal separation makes sense for some people. Common reasons for legal separation instead of divorce include:
Even though the couple is legally separated, they are still married. This means that they have the advantages of being legally married for tax and benefits purposes, although they are no longer living together, legally, as a couple.
Who Can Get a Legal Separation
Filing for legal separation in Oregon is not something that can be filed automatically. Individuals filing for legal separation must meet eligibility criteria, much like that of filing for divorce. The biggest difference to keep in mind is that a couple does not have to be legally separated to file for divorce in Oregon, but they must have been legally separated for 12 months before a divorce may be granted.
You are eligible to file for legal separation in Oregon if you meet all of the following criteria:
- You or your spouse has been a resident of Oregon for six consecutive months immediately prior to filing for legal separation.
- You or your spouse has resided in the county in which you are filing for legal separation for the past 90 days.
- Your marriage has been irreparably broken and is beyond repair or restoration with no hope of reconciliation.
Legal separations can be used as a positive means for staying married, but living apart for a period of time gives both you and your spouse a chance to breathe and regroup. A legal separation provides protection and structure under the laws of Oregon, but does not affect possible future divorce after the year is up. A legal separation is very similar to marriage, but you and your spouse live apart in separate residences.
Legal Separation 101
Steps to Filings for Legal Separation
First, prepare the necessary forms. In Oregon, couples seeking legal separation need to file a "Petition for Dissolution of Marriage" form. This form essentially specifies the reason for separation and requests the court to enter various orders regarding the couple’s property, debts, and children. In addition to the Petition for Dissolution of Marriage, you will need to prepare a "Certificate of Dissolution". Lastly, if you have minor children, as well as a "Motion and Affidavit for Temporary Relief", you must complete and file an "Order to Show Cause" form.
Second, submit the forms with the court. You must file your separation forms with the appropriate county court in Oregon. When filing, you must include payment of a filing fee. If you are unable to pay the fee because of financial hardship, you can also request a waiver of this fee. Some delays in processing may occur depending on the court’s timeline.
Third, serve your spouse. The next step is to formally serve copies of the filed separation paperwork to your spouse. This can be done by a private process server or by mail using the "Certificate of Mailing" attached to the forms you filed (note: the Certificate of Mailing does not apply if the parties do not agree). After serving the paperwork, both parties must return to court for a hearing before a judge to finalize and approve the separation. If the parties fail to provide proper notice to the other party, the court will delay any hearing on the separation at issue.
Submitting Your Legal Separation Papers
Completing the legal separation forms is the next step in the Oregon process. There are many divorce forms available from certified websites online. You can also pick up legal separation forms at your local courthouse for free; however, most of the current legal separation forms are available online and easy to fill out. A few basics for how to complete the legal separation forms in Oregon are as follows:
Filling out the legal form correctly is very important. If you make a mistake when completing a form, admitting that errored document in to the file can be tricky. The court may charge you the fee to file the corrected form. If you forget to include information in the form or do not initial the document where you are supposed to, the court might send the form back to you. You again, could be charged a fee for returning the poorly completed form.
It is a good idea to go over your completed separation forms and make sure everything is correct. The Oregon judge will be reading these documents when it comes time to finalize the legal separation. If there are errors in the documents or if there are questions about what is being asked of the ties to property or money, the judge may deny the ability to file the legal separation. So, make sure to double and triple check the completed forms for the legal separation before filing.
Answering Court Questions on a Separation
Once you file the legal separation forms, the process goes into the court system. Fortunately, in Oregon, filing for legal separation and divorce involves similar steps. First, a hearing date on your matter is scheduled. This hearing may take a few months to take place. If the parties have contested issues, it is common for the courts to schedule a mediation early in the case. Mediation is where a third party mediator investigates with the parties the contested issues and then helps the parties negotiate a solution. If no solution can be reached, the mediator will issue a recommendation to the court regarding how to resolve the contested issues . Arbitration is similar to a court proceeding, but with a third-party neutral arbitrator making the decision on any matter(s) in dispute. Arbitration and mediation are generally less expensive than court proceedings, and therefore give the parties and court a means of expediting any contested issues.
It is only after the hearing (where circumstances are taken into consideration by the judge) that the court will either issue a decision on any contested issues or, if none remain, enter a decree dissolving the marriage.
Separation Agreement
At this point, you have already filed for legal separation and received an answer to your petition from your spouse in Oregon. After the response, you may also participate in mediation with your spouse trying to resolve issues. If you do not have the answers you need, you may also submit discovery requests. At this point, you will be able to create a legal separation agreement that embodies the provisions you and your spouse agree upon. It is important to note that what you decide now could be legally binding later.
The legal separation agreement spells out exactly what you and your spouse want as part of the legal separation. Often, it follows the same outlines as divorce and includes the following:
• Division of assets
• How debts will be paid
• Child custody issues
• Child support
• Property distribution
• Alimony, also known as spousal support
• Insurance issues
• Tax considerations
By taking the time to negotiate these matters with your spouse, you can often avoid the need for ongoing divorce proceedings even if you knew from the beginning that the marriage was over. Determining the division early can also be less stressful for children who might otherwise spend years hearing you and your spouse argue about these issues.
If you know divorce is the right option for you, you can usually take the legal separation agreement to your attorney to be turned into the more formal legal documents that are required for a divorce.
Legal & Financial Consequences
Legal and financial implications of separation versus divorce in Oregon
While similar to divorce under certain aspects (such as division of property, child support, and spousal support), separation can be less disruptive. However, it is important to understand how separation differs from a divorce so that you can make the right decision for your personal situation. Property division. Similar to divorce, property acquired during the marriage will be subject to a just and equitable division before either spouse can file. A legal separation that is not converted to a divorce within two years effectively ends the marriage in the eyes of the law. Thus, any property acquired after the petition for separation is filed becomes separate property. Be aware, property that is given as a gift or inheritance to either spouse during the period of separation is not divided. Instead, it belongs to the spouse who received the gift or inheritance. Taxes and support. While the taxes and support rules are similar in both separations and divorces, the exact tax treatment will depend on the specifics of each situation. For example, a person paying alimony does not report the amount as income, so the amount is considered tax deductible. In the event that a separation is instituted and later changed to a divorce, the tax treatment will most likely stay the same, unless there are other factors involved in the process. Spousal support obligations. When a legal separation is issued, it is noted that spousal support may or may not be issued as part of the process. When spousal support payment structures such as amounts and payment schedules are agreed upon by the couple, they are submitted to the court for approval. Actually receiving the agreed-upon amount of spousal support, though, is subject to state income tax, making it much more similar to child support. One major difference between separation and divorce concerning spousal support is that spousal support cannot be modified by the court, unless otherwise specified by the judge.
Obtaining Legal Assistance
It’s tempting to try and handle your divorce on your own, particularly if you consider yourself to be relatively knowledgeable about the law. But as a divorce involves important aspects of your life like your home, your business, your children, your finances, etc., retaining an attorney is always advisable. A knowledgeable and experienced family lawyer, in addition to knowing the law very well, generally has a much greater understanding of what to realistically expect and can act as a guide in the process. Beyond that, an attorney has negotiation skills, conflict resolution skills, trial skills (if the case gets to that point) , the ability to work with the other side’s counsel (and themselves) on legal issues and to make sure all relevant issues are handled properly. A client handling their own divorce will likely take longer to reach resolution and probably won’t have a good sense of the things they’ll need to deal with in the future.
If you choose to hire a family law attorney, make sure to do your research. Try to get a referral from someone you trust. While you can search for a qualified Oregon attorney through the Oregon State Bar Association, you should also consider other referral sources. Once you’ve narrowed down the list to a few candidates, make sure to interview them and ask lots of questions. You should feel comfortable working with your attorney and trust them. They are going to be helping you out with what is one of the most difficult times in your life and you want to make sure you have a professional who can assist you through the process.