What is a Legal Separation in Oregon?
A legal separation is a legal proceeding that ends the marriage between the parties. A Divorce is much different than a legal separation and it is important to understand the differences between the two. The primary reason that we have found that people pursue separation over divorce is the concept of a legal separation helps the people involved to stay married – usually in a religious setting. ORS 107.015 provides that a legal separation only changes the formal marital status of the parties who are seeking the separation, but the status of husband and wife still continues. Unlike a divorce, legal separation will not terminate the marital status of the parties. A marriage has to be formally voided or dissolved by a court in order to be formally ended.
In Oregon an expansive statute provides for legal separation where the parties have been married no less than one year. ORS 107 . 095 gives the specific reasons for which a court can grant a legal separation. They include:
The reason you need to have become separated at least a year prior to filing a form for a legal separation is because an awareness of this provision will help to keep the process honest as well as realistic. More often than not there is no simple reason as to why a couple wants to get separated. Rather, there is some significant issue regarding the matrimonial relationship that has caused it to become strained or even hostile. Without this clause, the marriage would have very little chance to survive.
Finally, ORS 107.105 provides that a legal separation can be granted without regard for the fault of either party. But, it is important to know that any eventual divorce will be based on the reason that there is a dissolution. But, when it’s a divorce it will be a no-fault divorce.
How Does a Legal Separation Work in Oregon?
Legal separation, unlike divorce, is not a status granted by the Oregon Court. It is actually a court order that addresses specific issues of the marriage. After a legal separation, you and your spouse can live apart while still being legally married. However, in many cases, legal separation is not recommended due to the lack of benefits gained over divorce.
After filing for legal separation you and the court are bound to it until the court grants a set of Interlocutory Decree. This is a temporary order issued by the court that appoints a guardian. When that is done you can proceed with divorce formation. The process of legal separation is similar to divorce. You submit a petition for separation, attend a hearing, and the court provides a legal separation decree.
o Ten-day waiting period after petition filing is required
o Declaration regarding service must be filed at least 10 days before any court action takes place.
o Filing of response with the court by the other spouse (respondent) within 30 days. Failure to do so will cause a default judgment.
o If no objection is made by the respondent, the court can issue the decree.
o If one of the spouses makes a motion to move forward with the divorce process, using the transition from legal separation, it passes under the same conditions as those for divorce as noted above. While legal separation may seem like a choice as opposed to divorce at this point, it is important to note that if spouses decide to proceed with divorce, they will have to go through similar steps as those of legal separation. There are no filing fee differences between legal separation and divorce. As such, for many, getting a divorce would be a better option.
Pros of Legal Separation in Oregon
A legal separation is a less common scenario in which two spouses or domestic partners agree to live apart but are not yet ready for divorce. However, there are several beneficial reasons to consider this alternative before filing for a divorce.
Spousal Benefits
When spouses divorce, they lose the legal status of married and thus lose eligibility for certain spousal benefits offered by employers such as health insurance, pension plans and Social Security. By remaining legally separated, couples are able to retain those benefits.
Separation Period
Jane Wiley with the Medford-based Wiley Law Group PC recommends legal separation for couples seeking to have a period of separation with their spouse or partner without deciding on a divorce. "Legal separations offer the opportunity to retain the status quo, pre-separation, while you explore your future options."
Reconciliation
If there is a hope that the couple will reconcile, legal separation would allow them to maintain their married status as a trial period. Wiley advises her clients of this option, "Sometimes we find that the separation gives them time to really discover if this is the right step for them."
Spousal Support
Legal separation also provides some level of protection for the lower-earning spouse. Because spousal support is awarded upon a divorce, and not a legal separation, separating partners may be able to maintain control over their finances, at least for a period of time. Wiley comments on the benefit of a legal separation for her clients. "We often explore the decision to go through a legal separation so that the lower-earning spouse can keep the family home while they transition from living together as spouses to living apart."
The process to become legally separated in Oregon is similar to the process for obtaining a divorce. Couples must file for a legal separation and petition to a judge. If there are minor children, the couple will propose a parenting plan as one would in a divorce and submit all the required financial statements. Wylie recalls an example where she was able to help her client maintain the family home.
Legal Separation vs. Divorce in Oregon
In Oregon, both legal separation and divorce are court proceedings that terminate the legal marital status of a married couple. However, there are key differences between the processes, and the legal result of both. A legal separation does not legally terminate the marriage and allows the couple to remain married. However, this typically involves dividing the parties property just like a divorce would. A divorce, on the other hand, legally terminates a marriage, allowing both parties the freedom to remarry.
Other aspects of legal separation are similar to divorce in that the spouses can request for the court to divide debts and assets, make spousal support awards, and resolve child support and custody matters. A legal separation will be granted if the court believes it is necessary to deal with issues of support or custody.
On the other hand, divorce generally involves the court issuing a Judgment of Dissolution of Marriage, which makes the legal divorce effective as of the date at the time of filing. Legal separations, on the other hand, convert to a divorce when a motion or petition for divorce is filed with the court under Oregon law.
Money Matters: Legal Separation in Oregon
A legal separation does not end the marriage between spouses. However, it can create a court order outlining how assets and debts will be divided, and how spousal and child support will be paid. This order can be used by a judge if one or both parties file for divorce in the future.
Spousal Support
The court may award spousal support to one spouse, although payments typically stop if the spouses decide to divorce. When awarded, the length and amount is based on a number of factors, including:
Prior to awarding support, the court may request a Disclosure Statement from both parties. This document lays out the income and expenses of both spouses on a 12-month basis. The court may then adjust support amounts to fit the particular circumstances .
Property Division
The Court decides how to divide real and personal property based on many factors in the law, such as the duration of the marriage or domestic partnership, custody of children, health insurance benefits, and other factors.
Child Support
The amount of child support can be increased or decreased after review of the economic circumstances, or after a hardship is shown either in earning capacity or lifestyle situation.
Note that all of these financial issues can be resolved with an informal settlement, however, structuring an agreement in the form of a court order provides a clearer legal path should one or both spouses decide to file for divorce.
Modifying or Terminating a Legal Separation
Generally, a married couple can be legally separated for up to two years under Oregon law. If the legal separation remains in place after the two-year period, the couple is deemed to be legally divorced. Thus, legal separations are final after two years if they have not been modified or ended by the Court at an earlier time. A legal separation may be modified due to changed circumstances by agreement of the parties or through a request filed with the court requesting a modification to change or eliminate the previously ordered terms of the separation. A legal separation may be ended or converted into a divorce of the parties based on the agreement of the parties and filing with the court a Motion requesting that the Court terminate the prior separation and enter a divorce judgment. A hearing on the request is typically held and the court enters a judgment of dissolution terminating the prior separation decree and setting forth the terms of the divorce. In addition to the terms of the legal separation which are now part of your permanent divorce decree in general, the legal separation may have specifically enumerated terms in it directing that spousal support may not be requested or awarded during the term of the separation. If so, the parties agree that the spousal support order shall not be modified for the duration of the prior separation decree.
Get Legal Help in Oregon
In Oregon, individuals seeking legal separation have various options for finding representation or accessing resources to help guide them through the process. One of the key starting points in this process is reaching out to a qualified family law attorney, who can help assess your unique situation and offer appropriate legal guidance. Attorneys specializing in family law are trained to deal with the complexities of legal separation and can provide you with a comprehensive understanding of your rights and responsibilities during the proceeding.
One useful online resource for finding family law attorneys is the Oregon State Bar’s Lawyer Referral Service. This directory allows individuals to search for lawyers by practice area and location, providing a list of qualified attorneys who may be able to assist you with your legal separation. It’s important to prepare a list of questions and to review each attorney’s background and experience before making a selection.
Another option in Oregon is the Oregon Judicial Department’s Self-Help Center . The Self-Help Center is designed specifically for those representing themselves in court, but it also provides useful information and resources for parties seeking legal separation. Here, you can find information about court processes, a list of appropriate forms, and other resources that may be helpful in preparing you and your attorney for representing yourself in a legal separation.
In addition, if you cannot afford an attorney, consider contacting the Oregon State Bar’s Economic Impact Advisory Committee, which aims to provide information on low-cost legal services for low- and middle-income people. Finally, non-profit organizations such as Legal Aid Services of Oregon may be able to provide assistance or referrals to low-income residents who require legal help.
Regardless of which resource you choose, the most important thing is to ensure you have professional legal help. Legal separation can have far-reaching implications, and incompetent representation can lead to an unfavorable outcome. So when it comes to the statutes and regulations in Oregon, do your homework and choose your representation wisely.