Oregon Uncontested Divorce
This information is an overview of the uncontested Oregon divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Oregon.
Oregon is a No-Fault state. Grounds for divorce are "[i]reconcilable differences between the spouses which have caused the irremediable breakdown of the marriage." Oregon also permits divorce under general grounds when 1) the consent to the marriage was obtained by fraud, duress or force; 2) a minor married without lawful consent; and 3) when on spouse lacked mental capacity as a result of impairment, including temporary incapacity.
In Oregon, a divorce is called a dissolution. The person initiating the action is called the Petitioner; the party responding is called the Respondent. When both spouses file jointly, they are called Co-Petitioners.
To divorce in Oregon, at least one party must be a resident of Oregon for at least six months prior to the commencement of the action if the marriage did not happen in the state. If the divorcing couple were married in Oregon, there is no residency requirement as long as at least one spouse is a resident. Normally, divorce actions are filed in the county where either the Petitioner or the Respondent is a resident.
Oregon offers a summary dissolution called the simplified or special dissolution of marriage. A couple may end their marriage this way when
> either or both are Oregon residents and have been continuously for the past six months;
A summary dissolution is the easiest route to a divorce in Oregon. The forms required are available in each county courthouse in the state, and some counties now have facilitators to assist in the completion of the paperwork.
When a couple for one reason or another are not eligible for a summary dissolution but nevertheless agree about the terms and conditions of their divorce, the couple may follow a special, simpler procedure for Co-Petitioners. This is an uncontested divorce because both spouses have agreed to everything.
In this routine, the couple file a Co-Petition for Dissolution of Marriage. When this form is signed by both the husband and wife, the Petitioner and the Respondent become joined as Co-Petitioners. The form asks the court to approve the terms and conditions that the spouses have agree to. With the Co-Petition, the parties also complete a Certificate of Residency, which states the county where one or both of them reside, and a Certificate of Document Preparation, which names the person who assisted in preparation the papers when that person is not an attorney.
In addition, depending upon the circumstances, the couple may have to complete a Certificate Re: Pending Child Support Proceedings and/or Existing Child Support Orders/Judgment, which informs the court of any child support proceedings that are already outstanding.
The couple must also file an Affidavit, Request to Segregate Protected Personal Information from Concurrently Filed Document and Segregated Information Sheet, which are forms to reduce the possibility of identity theft (since most court files are available to the public).
When the Petition has been filed, a restraint on the disposal of marital assets takes effect. The Petitioner is restrained as soon as the petition is filed, and the Respondent is restrained as soon as he or she receives the Notice of Statutory Restraining Order Preventing the Dissipation of Assets.
At the same time, the spouses co-file for divorce, they can have prepared the other necessary forms. These include the following:
> Motion and Order Waiving 90-day Waiting Period; An Affidavit, which waives the 90-day statutory waiting period;According to Oregon law, Co-Petitioners need not wait the 90 days from the date of filing until the court enters a judgment of divorce; however, some but not all judges require them to do so.
When one spouse files for divorce by himself or herself, the course of action is different and requires additional steps and forms.
This route may be a preliminary to contested action, and the contest -- disagreement over the terms and conditions of property division and distribution, alimony, child support and visitation -- may end in a divorce trial. Frequently, however, when one party files alone, the couple nevertheless continue to negotiate, and a divorce that starts contested ends uncontested and, most important, without a trial.
This route begins with the Petition for Dissolution of Marriage, Certificate of Residency, Certificate of Document Preparation, (depending on the situation) Certificate Re: Pending Child Support Proceedings and/or Existing Child Support Orders/Judgment, Affidavit, Request to Segregate Protected Personal Information.
When one party files the petition, a Summons informs the other party that the action has started. The Summons give the Respondent 30 days to answer the Petition. If he or she does not, the Respondent has defaulted, and the action may proceed without an input from that party.
The Summons also carries with it the Notice of Statutory Restraining Order Preventing the Dissipation of Assets, which is provided by the court clerk when the petition is filed.
Summons may be delivered to the Respondent in one of three ways: 1) by the sheriff in the county in which the Respondent resides; 2) by a process server; or 3) by an person who is older than 18 when the recipient is served in Oregon. The Petitioner cannot serve the process. Whoever serves the divorce papers -- the Petition, the Summons, the Notice of Statutory Restraining Order -- returns to the Petitioner the Proof of Service or Affidavit of Service.
After 90-days have passed, the Petitioner must submit the forms to the court:
> Motion for Judgment with Hearing; Affidavit of the Petitioner, which, when approved, eliminates the need for a divorce hearing;
If between the time of filing and the end of 90 days, the couples achieve agreement, a Motion and Order Waiving 90-day Waiting period can be filed. This can also be filed after 30 days if the Respondent defaults.
If, during the 30-day period, the Respondent files an Answer, it is likely that he or she is preparing to contest the action. At this point, no one can draw a map of the course of the divorce because in contested actions the parties maneuver strategically, each for his or her own advantage.
If either party contests anything, the wait for a hearing will be much longer. During this time, many cases require temporary measures, such as child support or alimony, protective orders concerning children, orders for the use or preservation of assets, etc. Morever, it the action heads for trial, both sides may engage in discovery of necessary financial information.
Normally, a party needs one or more certified copies of his or her divorce decree if:
> he or she was awarded custody of the children;Divorcing a spouse who cannot or will not be located requires that the Petitioner serve notice by publication. This means that Petitioner must make a good faith search that demonstrates "due diligence" to locate the missing spouse. If this search is fruitless, he or she can petition the court for a Motion and Order Allowing Publication of Summons. This is an affidavit that specifies what the Petitioner did to locate the missing spouse before filing it. Very likely the Petitioner will have to appear in court for a short hearing to answer the judge’s questions about the missing spouse’s whereabouts and the efforts made at locating him or her. Subsequent to the court approval, the Petitioner publishes the Summons of the action in a newspaper. The publication is repeated four times. After that, the newspaper certifies the publication happened, and this certification becomes part of the record of the case.
Under Oregon law, in addition to the service by publication, a copy of the Summons must be mailed to the missing spouse’s last known address. This step may be omitted, however, when the Petitioner does not know the last known address of the missing spouse.
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