Basic Summary of the Divorce Process

Overview of Divorce Process
Overview of Divorce Process

Every divorce is different. Some are simple and inexpensive. Some divorces involve complex financial situations with lots of assets and debts. Some cases become contentious because of issues involving child custody and parenting time, spousal support, property valuations, and other issues.

Because each divorce is different, this page summarizes the steps that may take place in your case. This summary is not intended to be all inclusive or to deal with every situation that may arise. You should speak with your attorney for legal advice specific to your situation.

Click/Tap on the “+” sign to see details of each step.

Step 1. Initial Consultation

We will have an initial meeting to discuss your case. Our communications are confidential and may not be disclosed without your consent. The selection of a lawyer is a highly personal matter. I encourage you to ask me any questions about my experience as a Hearings Referee / Judge, questions about my 35 years of experience as an attorney, or specific questions about the way in which I represent my clients.

After we discuss the facts, law, and issues in your case, I will encourage you to carefully consider whether I would be a good fit for your needs. I want to be sure that we can work as effective partners in resolving your case.

Please understand that the entire time we are discussing your matter, I will be carefully evaluating whether or not I want to be your attorney. Just as you want to be sure that you are hiring the right attorney for your case, I want to be sure that I can really help you and that we can communicate effectively with one another.

Step 2. Retaining an Attorney

Before my firm begins to represent you, I will ask that you sign a contract. This is known as a fee agreement and which will set forth my responsibilities to you, and your responsibilities to me.

I will also ask that you pay a retainer fee (deposit) to the firm. This money is deposited into my Lawyer Trust Account. I will use your retainer to pay costs associated with your divorce, and to pay for the time we spend working on your case.

It may be that later you will be asked to provide an additional retainer, particularly if there is a trial scheduled for your case. The funds that are deposited into the Lawyer Trust Account belong to the client who deposited them. I have no right to the funds until I have earned them. There are strict rules established by the Oregon State Bar regarding safeguarding clients’ funds within the Lawyer Trust Account.

Step 3. Initial Information Gathering and Decision Making

Within a few days of our first meeting, assuming you have signed the retainer agreement and provided the retainer fee, I will likely send you a questionnaire regarding your case. Through this questionnaire and other documents, I will attempt to gather as much important information as possible so that we can make major decisions about our overall strategy for your case. This stage of the case can be crucial, and your proactive involvement is very important.

When you complete the initial questionnaire, it is important that you be accurate with names, spellings, and dates. Later, you may be asked to provide more detailed information and complete more forms, such as a Uniform Support Declaration, which summarizes your income and expenses. It is critical that these documents be completed accurately, as I will rely upon them, and so will the Judge.

We may also provide you with a list of documents that you will be required to gather. Opposing counsel may also request documents. If you or I receive such a request, we will discuss that as well.

It is very important to me that within the first few weeks of our association that I have sufficient information and documents to help you make major decisions as to how your case should proceed. In other words, if it becomes possible to resolve your case quickly and efficiently, on terms that are acceptable to you, I want to be in a position to make that happen for you. Of course, as the case proceeds it may be that your goals change and our strategy to achieve those goals changes as well.

Step 4. Petitioning or Responding in a Dissolution of Marriage Proceeding

A divorce case is considered a Domestic Relations or Family Law matter and is heard and determined in the Circuit Courts of the State of Oregon. Here in Jackson County we have approximately 3 Judges who regularly hear many different Family Law and Civil matters.

The divorce case is initiated by filing several different documents with the Court including: Summons, Petition for Dissolution of Marriage, Notice of Filing Confidential Information Forms, two Confidential Information Forms (CIFs) (one for each party), and a Vital Statistics form required by the State of Oregon.

In a Dissolution of Marriage case (divorce), the person who begins the case by filing the petition is called the Petitioner, and the other party is known as the Respondent. The Summons is the document that puts the other side on notice that he or she will have 30 days in which to file a Response with the Court.

To be effective in beginning the Dissolution of Marriage case, the other side must normally be personally served with a true copy of the Petition for Dissolution of Marriage and the Summons. It is not permitted for one party to personally serve the other party.

I normally employ a professional Process Server who locates and physically hands true copies of the necessary documents to the other party. After he or she has done this, they will prepare and file with the Court a document known as Proof of Service. This is what starts the clock ticking for the 30-day time period to file a Response.

It may be that you have discussed things with your spouse and you are not comfortable with having your spouse served with divorce documents. If that is the case, we can discuss various alternatives to the process server approach.

The “Petition” sets forth the factual and legal basis for your claims as the Petitioner, and in the “Response” the Respondent will respond to those allegations. Sometimes, as part of the Response filed, the Respondent may also Counter-Petition for certain things (for example, joint legal custody of the minor children, or a request for Spousal support).  We would need to further respond to these items by way of an additional pleading known as the “Reply”.

If you are the Petitioner, I will draft the necessary initial documents (described above) and review them with you prior to filing them with the Court. At that time, after you have approved the content of the Petition, I will cause it to be electronically filed with the Court and will also pay the required filing fee to the Court from your client trust account. Currently the cost to file a Petition for Dissolution of Marriage here in Jackson County is $301, the cost to have the other side personally served is approximately $45.

When the Petition is accepted by the Court, we are given a case number for your case. That number is utilized on all other pleadings and documents filed with the Court.

If your spouse or his or her lawyer has already prepared the Summons and Petition for Dissolution of Marriage and you have been personally served, we will likely quickly prepare a Response and/or Counter Petition. After you have approved the Response and/or Counter Petition, we will file it with the Court on your behalf.  Again, a filing fee, or “first appearance” fee is required, and this is normally $301 as well.

Both parties to a divorce are subject to a “mutual order of financial restraint,” which generally prohibits each party from (1) canceling or altering most kinds of insurance; (2) changing beneficiaries or covered parties on most kinds of insurance; (3) transferring, encumbering, hiding, or disposing of property in which either party has an interest, except to pay ordinary expenses and attorney fees; and (4) making extraordinary expenditures without the agreement of both parties. Either party may request a hearing to modify or revoke the order of financial restraint.

In addition to the Summons, Petition, Response and Counter Petition, other Motions may be filed from time to time.

Some examples may include:

  1. Motion to Dismiss: A Motion to Dismiss is generally addressed to a Petition or Response and Counter Petition. It challenges the legal sufficiency of those pleadings. In other words, even if the facts set forth in the particular pleadings are true, a Motion to Dismiss generally contends that the relief requested cannot be granted for one legal reason or another.
  2. Motion to Make More Definite and Certain: Although rare, sometimes I may file a Motion to Make More Definite and Certain in order to determine specifically what form of relief the other side is seeking. For example, if the Petition asks for spousal support without specifying the type of spousal support, I may file a Motion to Make More Definite and Certain to ask which form of spousal support is being sought – transitional, maintenance, or compensatory. The ultimate purpose of a Motion to Make More Definite and Certain is to enable me to better prepare your case. Before I would file such a motion, I would likely first give the other attorney a quick call to see if he or she would amend the Petition to more specifically describe the type of spousal support being sought.
  3. Motion for Temporary Protective Order of Restraint (TPOR): The main purpose of this Order is to stabilize things for the children. Once signed by the Judge, both parents are prohibited (restrained) from changing the child’s usual place of residence, from interfering with the child’s current placement and daily schedule, from hiding or secreting the child from the other party, from interfering with the other party’s usual contact and parenting time with the child, from leaving the state with the child without the written permission of the other party or permission of the Court, and from disturbing the child’s current schedule and daily routine until custody or parenting time has been determined. Please note that a TPOR does not award legal of a custody of the child to either parent.
  4. Motion for a Custody and Parenting Time Evaluation: Sometimes, when parties have serious disputes about legal custody and parenting time, either party may file a motion with the Court for an order seeking the appointment of a qualified professional to evaluate the family and make recommendations regarding legal custody and parenting time. The evaluation process usually involves interviews with the parties, contact with the children, psychological testing, and the gathering of other information, including interviews of collateral individuals such as extended family and friends. These evaluations can be daunting and are very expensive. If such an evaluation is going to occur, I will work with you to prepare for an evaluation, so that you can be the best possible advocate for your children’s best interests.
  5. Motion for Appointment of Attorney for Minor Children: In addition to asking for a custody and parenting evaluation, an attorney may be appointed for any minor children. As minors, (less than 18 years of age) children cannot make legal decisions themselves. During the case, the children’s attorney makes decisions for the children, may testify on behalf of the children, and may ask questions of you, your spouse and the witnesses, in and outside of the courtroom. The children’s attorney may also make recommendations on issues such as custody, visitation, and child support. The children’s attorney’s role can be very important and could be instrumental in determining the outcome of your custody case.

There are other motions we may file on your behalf, such as a motion for temporary relief (for things like exclusive use of the marital residence, for suit money, and for temporary child and spousal support), or, if necessary, a motion to compel the other party to produce certain financial documents. These and other motions will be discussed in more detail later in this summary.

Step 5. Parenting Education Requirement Completed

Under Oregon law, if you have minor children, both parents are required to attend a parenting class before the divorce can be finalized. Usually there are in-person and on-line options for completing this requirement.

If child custody and parenting time will be issues in the case, I think it’s a good idea for the parties to attend the class early in the divorce process. The class can provide good information about how to get through the divorce process with as little negative impact on the children as possible.

Also, it’s good to complete this requirement early because the Judge will not normally sign the General Judgment (final papers) if both parties have not completed the parent education requirement.

Step 6. Getting Experts Involved

In many instances, it is practically impossible to settle or litigate a Dissolution case without the assistance of an expert witness. If your case warrants the engagement of an expert, we will generally advise you to do so.

If there are significant financial issues at stake, it can be a good idea to hire a financial expert who has experience with divorce cases. Experts are sometimes used in dissolution of marriage cases to value businesses and professional practices, to ascertain and determine incomes and cash flows, to trace property and investments, to give tax advice, and to otherwise assist with the financial aspects of the case.

Where there is a real dispute as to property values, it is often good to hire a real estate appraiser, and sometimes a personal property appraiser can be very helpful. If that needs to be done, I prefer to hire an appraiser who has experience in court and whose opinion is respected by the Judges. The case law governing family law matters requires that competent evidence be presented to the court. In the absence of adequate proof from you, the judge is at liberty to accept the values put forth by the other side, which most likely will not be to your benefit.

Step 7. Temporary Relief Evidentiary Hearing

Sometimes it is necessary at the beginning of the case to ask the court to make orders for temporary relief while the case is pending, that is, until the final trial or hearing. Such relief may include, among other things, temporary spousal or child support, temporary exclusive use of the family home, temporary custody of minor children, payment of monthly bills, and payment of attorney fees and “suit money, ” to assist you in retaining an attorney and experts to help with your case.

As with any other issues in the case, if at all possible, it is generally best to attempt to resolve these temporary matters without a hearing. Many times this is as simple as having your attorney make a call to the other lawyer and discussing the problems that need to be resolved. If this doesn’t work, then it will be necessary to bring the matters before the Court via an Evidentiary Motion.

Step 8. Discovery

The exchange of information in a divorce, including documents that are related to income and assets, and liabilities, is called “discovery.” The purpose of discovery is to find out the key points and elements of your spouse’s case and to help you and the court reach a fair and equitable result in your divorce. Further, under Oregon law, if a party fails to disclose a significant asset that existed at the time of the divorce, the divorce case may be reopened. Moreover, many discovery responses are admissible in evidence at hearings in your case. Therefore, the discovery process should be taken very seriously.

Discovery is generally necessary whether the case is settled or litigated. In order to properly settle the case, we must have a general awareness of the facts involved in your case, particularly the financial facts. If the case is to be litigated, discovery is necessary in order to properly prepare and present the case at a final hearing. Dissolution cases are not necessarily won by who is right but, rather, are oftentimes won by the party who is better prepared.

Formal discovery under the Oregon Rules of Civil Procedure (ORCP) generally consists of the following:

  1. Depositions on Oral Examination: Depositions on oral examination are typically taken at one of the attorney’s offices in the presence of a court reporter and while the deponent is under oath. You and your spouse have the right to be present. We prefer you to be present. The attorneys will ask questions at the deposition and the witness will give answers under oath. Depositions may be taken of you, your spouse, and any other parties involved in the case. Depositions are usually expensive because both parties are represented by attorneys, and the court reporter will take down and transcribe all of what is said. Court reporters generally charge by the page, plus an appearance fee. It is not unusual for a deposition to run more than a hundred pages. Here in Jackson county, it is not that common for one lawyer to take the other party’s deposition, although it can be very helpful.
  2. Requests for Production: These written requests enable us to require the production of documents and other tangible things that are pertinent to your case. This would typically involve tax returns, appraisals, financial statements, bank records, medical records, and other such documents.
  3. Subpoenas: Sometimes we issue subpoenas to banks or other financial institutions to gain access to records that are relevant to the case but that are not easily available to either party.
  4. Motion to Compel: If your spouse does not produce documents we request that are in his or her possession or control, the Oregon Rules of Civil Procedure (ORCP) allow us to seek a court order requiring your spouse to produce the documents.
  5. Requests for Admissions: The ORCPs allow for us to present statements of fact and law to your opponent, and request that they either admit or deny those statements. If admitted, that eliminates the need for further proof on that issue. This discovery tool can be very helpful in narrowing the issues involved in the case.
Step 9. Motions to Compel and Contempt Hearings

Once the case is filed in the Circuit Court, there will typically be motions as have been discussed above. Motions for contempt or motions to compel discovery are also frequently filed.

Contempt matters generally involve enforcement of prior court-approved agreements or orders, such as an order for payment of temporary child or spousal support. Circuit Court judgments and orders should be treated very seriously. The penalties involved in failure to comply with these documents can be substantial and may even include jail time.

As previously noted, motions to compel discovery are brought when information has been requested but not provided, or when a party refuses to cooperate with attempts to gain information.

Step 10. Settlement and Mediation

The disputes that you have with your spouse will either be concluded by a written agreement or by the court making the decisions for you and your spouse regarding: among other things, child custody, parenting time, child support, spousal support, property and debt division, tax matters, and attorney fees.

Under Oregon law, marital differences can be resolved by a written Marital Settlement Agreement or a Stipulated General Judgment of Dissolution of Marriage. These documents generally describe the details of the settlement or agreement. For such an agreement to be valid, it must be signed by both parties, each of whom should be represented by separate counsel, entered into freely and voluntarily, after full financial disclosure, and without duress or coercion. Parties can also agree to settle their disputes “on the record,” before a Judge.

This can occur, for example, when the parties appear at the Court for an evidentiary hearing, but while they are waiting for their time with the Judge, the attorneys and clients come to an agreement regarding the issue the Judge was going to decide. Then it is simply a matter of briefly describing the agreement for the Judge, who then asks each party if they understand and agree to the settlement just described. Assuming both parties agree and understand, then one of the attorneys would prepare a judgment or order that conforms to the agreement, which would then be presented to the Judge for signature the next day.

If you and your spouse are not able to resolve issues, sometimes mediation can be a very efficient and fair way to resolve those issues without litigation. Mediators are impartial persons, who specialize in helping parties reach an agreement and resolve all or some issues of their case. Mediators cannot force people to reach a settlement or impose terms of settlement. In mediation, you will have a degree of control over the outcome that you will not have in court. As part of my practice, I am often requested by other lawyers to serve as the mediator for their cases.

In order to reach a global settlement, there must be an open exchange of financial information so that both parties are sufficiently aware of all income, debts, and assets involved in the case. Settlement is preferred over litigated results as a settlement is generally less expensive to achieve from a fee and cost standpoint, and it also provides certainty. It has been said that you and your spouse may be able to resolve your differences with surgical precision, but a judge will likely use a meat cleaver.

Step 11. Status, Pretrial and Final Hearings

Depending on the county in which you case is filed, the court may schedule a status conference or pretrial hearing. The purpose of the status conference or pretrial hearing is to make sure that the case is ready for trial and that all reasonable efforts have been exhausted to settle the issues that are otherwise to be determined by the court. A status conference is more informal than a pretrial hearing and may even be conducted by telephone.

Some final hearings last only two to three hours. Others can last a full day or more. Typically, a fully contested dissolution case will take at least a full day of trial time to complete. A normal day of trial begins at 9 am and ends at 5 pm. Usually the judge will take a recess around 12 noon for approximately an hour. When the issues of child custody, parenting time, or spousal support are also contested, that generally will enlarge the time of trial by at least a day.

Once the court’s decision has been rendered, one of the lawyers will be requested to draft a General Judgment for the judge’s signature. The judgment will set forth the court’s findings and rulings on the issues. Often there is a dispute over some part of the language set forth in the General Judgment. As with other disputes, there is always an effort made to resolve the issue without involving the Court.

Step 12. Appeals

Within 30 days of the entry of the General Judgment in the matter, you have the right to appeal. That appeal is initially made to the Oregon Court of Appeals in Salem, Oregon. The appeal process involves securing transcripts of all of the proceedings in the Circuit Court and copies of the exhibits and having all of the pertinent portions of the lower court records presented to the appellate court. That becomes the Record on Appeal.

Once the Record on Appeal is completed, the spouse who appeals must present a written Opening Brief. The opposing spouse then can present what is called an Answering Brief, to which the appealing spouse has the right to respond to via a Reply Brief. These Briefs set forth your legal position on the facts and law as they apply to your case.

After the Record on Appeal and Briefs have been completed, the appellate court will then typically set the case for oral argument. In the Court of Appeals, oral argument takes place before a three judge panel.

The appellate court then issues its decision, which it may do by published or unpublished opinion. Typically, with regard to the Court Court Judge’s decision, that opinion will affirm, reverse, or reverse in part and affirm in part. A party may then petition for Supreme Court review of the Court of Appeals’ decision. Supreme Court review is at the discretion of that court and very few cases are taken by the Supreme Court for review.

If the case is affirmed on appeal, then the trial court judgment will become the final judgment in this case and will be implemented.

If the trial court judgment is reversed or modified, the appellate court can direct specifically how the judgment is to be modified, or it may remand the case back to the trial court for further proceedings consistent with the appellate court’s opinion.

Appeals are generally considered very expensive for many reasons. You must order and pay for transcripts of the lower court proceedings, which must then be assembled and duplicated in order to become the Record on Appeal. The briefs involved in appeal are labor intensive and take many lawyer hours to complete.

Appeals should be taken only when you are truly aggrieved by the lower court’s decision and the economics of the situation justify the cost. In addition, in Oregon it may take many months, at times even years, for a decision on appeal to be made.

As a general rule, I do not handle appeals in Family Law cases.

Step 13. Wrapping up and Implementation

When your case has been settled by agreement or litigated to a conclusion through the Court, the next step will be to wrap up any remaining matters so as to bring closure to the case.

Sometimes there’s a need to write letters to the other side making sure that appropriate deeds for any real estate have been completed and recorded, Qualified Domestic Relations Orders (which are required to divide certain kinds of retirement accounts) are appropriately transmitted dividing retirement plans or pensions, and important discovery papers are returned to you.

There will also likely be issues regarding obtaining any remaining personal property, perhaps exchanging family photographs or obtaining copies of photos or other important documents.

Step 14. Enforcement

After the case is completed, there may come a time when your spouse does not do what has been ordered by the Court. If that is the case, we generally will request compliance on your behalf, if you ask us to do so.  If we’re unable to secure compliance through polite request, then we will bring an appropriate contempt action in the Circuit Court, as discussed above.

Step 15. Modification

In certain instances, the Circuit Court can modify prior orders and judgments that involve spousal support, child support and related issues, such custody, and parenting time. Generally speaking, other matters relating to the dissolution, such as property division, are not subject to modification.

It is our advice to do what you want to do the first time around. It is much easier to get the job done in the first instance, rather than to come back later and attempt to change a prior agreement or judgment.