Custody and Parenting Time
When you file your dissolution petition with the court, the divorce process begins. If you have children, you and your spouse must have a custody and parenting time arrangement in place before the court can finalize the divorce and issue a divorce decree. Oregon recognizes both legal and physical custody, and may award legal or physical custody to one or both parents. Legal custody represents a parent's right to make decisions concerning a child's welfare, such as education, health care and religion. Physical custody represents where a child lives. If the court awards one parent primary physical custody, the court usually awards the other parent parenting time, known as visitation, in other states. In Oregon, divorcing spouses are encouraged to come up with their own custody and parenting time agreements, placing the terms into a parenting plan that they later submit to the court.
If you and your spouse are unable to resolve custody and parenting time issues on your own, the court will order you both to attend mediation, unless there is a history of domestic violence or child abuse. Divorcing spouses also have the option of requesting mediation on their own. Mediation is a form of alternative dispute resolution in which a trained, neutral third party helps you and your spouse negotiate the terms of custody and parenting time. She will inform you of the risks of going to trial and having the court decide these matters, and will advise you of the strengths and weaknesses of your respective positions. Typically, the mediator is an experienced family law attorney or retired family law judge. Attorneys for both sides may also attend these sessions. If mediation is successful, the mediator will submit to the court the parenting plan that you and your spouse created. If the court finds the terms fair and in the best interests of your child, it will approve your agreement. If mediation is unsuccessful, however, and contested issues remain, the matter will proceed to trial.
Oregon is an equitable distribution state. This means the court will divide marital property between divorcing spouses in a manner that is fair and just, although not necessarily equal. In general, marital property is anything you and your spouse acquired during the marriage, which Oregon law considers jointly owned by you and your spouse. Certain exceptions exist. Any property you acquired before the marriage or by inheritance or gift the court considers your separate property. Although courts usually do not divide separate property in divorce, Oregon law permits courts to do so if it is necessary to achieve a fair result under the circumstances. As with custody and parenting time, the court encourages you and your spouse to come up with your own property settlement agreement. By doing so, you are free to divide your property in any manner you choose, or not divide it at all.
If you and your spouse are unable to reach a consensus on property division and this is the only contested issue in your case, the court will order you to attend arbitration. Although less formal than a court proceeding, arbitration is binding. During arbitration, you and your spouse will present your case to the arbitrator, who is usually an active or retired attorney in good standing with the Oregon State Bar. Afterward, the arbitrator renders a decision, which is considered final, unless you or your spouse appeals the arbitrator's decision with the court. Typically, divorcing spouses choose the arbitrator and pay the arbitrator's fee. The court, in its discretion, can waive arbitration on its own motion or upon the motion of either party. In Oregon, couples can also choose non-binding arbitration. In non-binding arbitration, both parties agree to have an arbitrator hear their dispute, as opposed to the court ordering arbitration. However, the arbitrator's decision is not binding on the parties, which means that the decision is not admitted in court and cannot be legally enforced.