a

Facebook

Linkedin

Copyright 2021 NWVL.
All Rights Reserved.

0730 - 1630

Opening Hours: Mon-Fri

503-660-VETS (8387)

Contact us for a consultation

Facebook

LinkedIn

Search
Menu
 

Family Law FAQ’s

JURISDICTION AND DIVORCE GENERALLY

1. Can Northwest Veterans Law represent me if I live outside of Oregon?

Our family law attorneys are licensed to practice only in Oregon. However, we are able to represent clients living outside of Oregon if the family law case is filed in Oregon. We have integrated technology that allows us to seamlessly represent remote clients without issue. Our VA appeals attorneys, however, are licensed to represent veterans throughout the United States. Please see our Veteran Appeals FAQs for more information.

2. How long do I have to live in Oregon to get divorced here?

Generally, to file for divorce in Oregon, one party must have lived within the state for six months or longer. However, if the marriage occurred in Oregon, there is no minimum time requirement so long as you currently reside in Oregon. If you have children, there are specific rules that determine whether the Court can make decisions about custody and parenting time.

3. Does the Court care that my spouse cheated on me?

Generally, no. Oregon is a no-fault divorce state. This means that the Court does not consider the reason for the divorce when making decisions about the couple’s property, children, or awarding support.

4. Does domestic abuse affect custody and parenting time?

Yes. Past abuse by one parent toward the other parent or a child is a factor the Court considers in determining custody and parenting time. (See, What does a Court look at to decide custody and parenting time?). In fact, if the Court finds that one parent abused the other parent or a child, the Court presumes that the abusive parent should not be given custody of the children. ORS 107.137(2).

5. What is the difference between divorce and legal separation?

In a divorce, the marital relationship is terminated and the parties lose the rights and benefits of marriage such as rights to inheritance, health insurance, and tax benefits. In a legal separation, the parties remain married and retain these benefits. If you are in the military and get a legal separation, the general rule is that your spouse continues earning half of your retirement points until you get divorced. In both a divorce and legal separation, the Court can decide custody and parenting time, child and spousal support, and divide your property. A divorce is final while a legal separation must identify a duration, up to unlimited.

6. I’m deployed / deploying and my spouse filed for divorce. Am I protected?

Both State and Federal laws provide financial and legal protections for active duty Servicemembers, including National Guard and Reserves called to active duty. The Oregon Legislature has passed laws to protect your rights during deployments, such as:Right to halt the proceeding while military duties prevent adequate defense; Right to reopen the case if a “default judgment” is taken against you; Right to modify parenting time ahead of deployment; Right to have an expedited hearing; Right to appear remotely.

CHILDREN

7. What is the difference between custody and parenting time?

Custody refers to the power to make major decisions concerning the child, such as the child’s residence, education, health care, and religious upbringing. Custody can be either joint or sole. (See, What is the difference between joint custody and sole custody?). Parenting time is the amount of time each parent is entitled to spend with the child according to the parenting schedule (also called a “parenting plan”). A parenting plan can be developed by the parties or the Court if the parties cannot agree on a schedule.

8. What is the difference between joint custody and sole custody?

In general, joint custody means that both parents share rights and responsibilities for major decisions concerning the child, such as the child’s residence, education, health care, and religious upbringing. A parent with sole custody makes all major decisions about the child. Joint custody does not mean that the child spends equal time with each parent. Custody is a distinctly different issue than parenting time. The parties must agree to joint custody, a Court cannot impose if either party objects.

9. What does a Court look at to decide custody and parenting time?

The Court’s primary consideration in determining custody and parenting time is the “best interest and welfare of the children” as determined by weighing the factors outlined in ORS 107.137. The statute prohibits the Court form giving a preference to the mother based on gender. However, the Court does give a preference to the parent that has acted as the child’s “primary caregiver”. Other factors the Court considers include the willingness and ability of each parent to facilitate a relationship between the child and the other parent and the nature of the relationship between the children and each parent’s extended family.

10. Can my spouse use my VA disabilities against me for custody or parenting time?

The Court is prohibited from considering a party’s disability in determining custody or parenting time “unless the Court finds that behaviors or limitations of the party that are related to the party’s disability are endangering or will likely endanger the health, safety or welfare of the child.” ORS 107.137(3). However, the social stigma, negative stereotypes, and assumptions about veterans with PTSD exist in the Courts as well as the public.The majority of Northwest Veterans Law clients have service-connected disabilities. Our office has substantial experience preventing opposing parties and counsel from exploiting our clients’ disabilities.

11. Can my spouse use my military duties against me for custody or parenting time?

Court gives a custodial preference to the parent who has acted as the child’s “primary caregiver”. ORS 107.137(1)(e). Often, this preference goes to the civilian parent where the servicemember parent spent less time with the children because of their military duties. Even if the servicemember has not yet deployed, the potential for deployment weighs in favor of giving primary control of the children to the civilian parent. Although the servicemember parent may have been the parent providing the majority of the children’s financial support, the Courtdoes not give significant weight to this contribution in determining custody or parenting time because the children can continue to benefit from the soldier’s financial contributions through an award of child support to the civilian parent.

ASSET DIVISION

12. Do I have to give my spouse my military retirement?

It is possible, but not required, that your spouse will receive part of your military retirement. The Court presumes that each spouse contributed equally to all assets acquired during the marriage. The presumption of equal contribution is very difficult to overcome. Generally, a spouse will be awarded half of the military retirement points earned during the marriage. Even if you are currently serving and are not eligible to collect retirement yet, the Court considers the retirement points earned during the marriage to be an asset. If you are currently drawing military retired pay, the Court will also consider the amount you of retirement you receive each month as income in calculating child and spousal support.

13. What is the Frozen Benefits Rule?

Since December 2016, the Frozen Benefits Rule has “frozen” the former spouse’s share of disposable military retired pay as of the divorce date. In our example we will use an E-4 with five years of service and five years of marriage that overlaps military service at the time of divorce. Let’s assume that the Court awards the former spouse 50% of disposable retired pay. When our E-4 retires fifteen years later as an O-4, the former spouse’s share of the retirement will be based on the High-3 pay of the Veteran at the time of divorce, not at the time of retirement. High-3 refers to the highest average basic pay a member earned during any 3 consecutive years of service. Division of military retired pay made before December 2016 calculated High-3 as of the date of retirement.

14. What is the Survivor Benefits Plan and how does Oregon treat it?

Military retired pay is considered marital property and may be divided during divorce. Courts can order Survivor Benefit Plan (SBP) enrolment on retirement to ensure that a former spouse continues receiving an income stream after military retired pay ends whenthe member dies. Monthly premiums are required to purchase the SBP. The Court has authority to order that one of the parties pay the SBP premiums, or that that both parties contribute.

15. Can my spouse take my VA benefits?

No. VA disability compensation is not considered property like military retired pay is. VA disability compensation is considered income, which is not a divisible asset. TheCourt will, however, consider your VA disability compensation as income for purposes of calculating child support and spousal support.Even though the IRS does not consider VA disability compensation to be income, Oregon law clearly establishes that it is for support purposes in divorce proceedings. Keep in mind that you will lose one dependent on divorce and your monthly compensation will decrease accordingly.

16. Can my spouse use my VA medical records against me in Court?

Not generally. Courts may accept any relevant evidence in divorce and custody litigation. The question is whether your VA medical records are relevant? Because Oregon is a “no fault” divorce state, the records are rarely relevant in a divorce without children. If child custody or parenting time are at issue, the Court will weigh the best interests of the children. It is unlikely that a Court would allow your medical records into evidence unless they could be used to prove that your disability somehow poses a threat to the children while under your care. Although attorneys often seek VA medical records, NWVL has successfully defended against those attempts many times.

MONEY MATTERS

17. How does the Court calculate child support?

Child support is calculated under the Oregon Child Support Guidelines. The three principal factors that impact the amount of child support are: (1) the gross income of each party; (2) the number of joint and non-joint children; and (3) the amount of parenting time awarded to each parent. Generally, custody does not impact the amount of child support awarded in a case. The Court will also consider expenses such as health insurance and child care.

18. Will I have to pay child support if my Social Security or VA benefits go to my child?

Maybe. Social Security and VA disability benefits that are paid directly to your ex-spouse should count dollar-for-dollar against your child support obligation. If the payments do not cover the full child support obligation,then you will need to make up the difference.

19. Do I have to pay child support after my child turns 18?

Sometimes.Oregon law provides that a Court may order child support to continue between the ages of 18 and 21 when a child is attending school. ORS 107.108. It is common for child support orders to include this obligation, but it is not required.At age 18 the support payment goes directly to the child. Parents may receive a credit against their support obligation for money paid to the child’s college from the parent’s college savings account, VA, GI Bill or other benefits.

20. How does the Court calculate spousal support?

Unlike child support, there is no calculator for determining the amount of spousal support one party should pay to other. Instead, the Court considers a number of factors in determining the type, amount, and duration of support. Courts consider the duration of the marriage, training and employment skills, work histories, financial needs, the relative earning capacities of the parties, custodial and child support responsibilities, and any other factors the Court deems just and equitable. ORS 107.105(1)(d). Spousal support rarely ends automatically when a former spouse remarries. It may be possible, however, to modify the original judgment to end support based upon a substantial change of economic circumstances.

21. How much will my case cost?

It depends. Just like the battlefield, the required weapons, avenues of approach, defenses and strategies are difficult to predict until there is a clear picture of the opposing force and the terrain. Our office understands the financial and emotional difficulty of getting divorced and we do everything possible to keep expenses to a minimum. Generally, the more fighting the more expensive. During your consultation we will discuss a broad range of issues to understand your circumstances and provide our best cost estimate.

22. Does Northwest Veterans Law offer a Veteran Discount?

Absolutely. Our initial, one-hour attorney consultation is offered at a 75% hourly rate discount. If you retain our services, eachmonthly invoice will provide a 25% discount on all legal fees.

DISCLAIMER: The information contained in these FAQ’s is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained on this website should be construed as legal advice from Northwest Veterans Law, its attorneys or staff nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking appropriate legal or other professional advice that take into consideration the particular facts and circumstances at issue.