Stages of Divorce
Your Oregon divorce may include a combination of any of the following:
- Litigation
- Mediation
- Arbitration
- Collaborative Divorce
- Cooperative Divorce
- Summary Dissolution or Divorce
- Settlement
- Trial
LITIGATION
Litigation is the discovery of facts and documents, presentation of evidence and expert options, and legal argument (in writing or orally) to the court. Your attorney should provide a strategy for this process. There are considerable rules governing the litigation process in Oregon. Divorce litigation is focused on deciding what areas of disagreement may exist between you and your spouse, and then presenting your plan for resolving these disagreements with the best evidence and argument so that the court is more likely to decide in your favor. Litigation ends when the court enters a judgment of divorce.
DIVORCE MEDIATION
In Oregon, if you have minor children, mediation of custody and parenting plan issues is required in most counties. Mediation can also be useful in resolving other issues in your divorce case.
Mediation is a form of Alternative Dispute Resolution (ADR) used in family law to resolve disputes and reach a settlement. An Oregon family law judge can order mediation of custody and parenting plan issues in your divorce. Mediation sessions are confidential, and the sessions themselves cannot be used as evidence in your case. A judge is not present at mediation. Mediation can usually occur sooner than trial and it is almost always cheaper.
Mediation sessions are led by a mediator. A mediator is a neutral third party who facilitates the negotiation process and may provide insight as to the risks each party might face at trial. For Oregon divorce cases, the best mediator is typically an experienced family law attorney or retired family law judge who has training in mediation techniques and who also knows the intricacies of divorce law in Oregon. Mediation may also be offered as a free or low cost service through the court system.
Divorce mediation relating to issues regarding the division of debts and assets is usually attempted by spouses after they have exchanged necessary documents and obtained expert opinions, but before the Oregon family law judge has made any final determinations. Mediation can usually occur much sooner than trial, and spouses sometimes feel that a divorce judgment that they have agreed to through mediation is fairer than one issued by a judge without the spouses’ agreement.
Mediation works best when both sides are willing to participate. If both parties and their lawyers are not willing to negotiate in good faith, the process may not be successful. Your attorney can be included or excluded from the mediation sessions, but parties are often more successful at both negotiating and reaching sound agreements when each is represented by their own family law attorney. If mediation is successful, your attorney will present the court with the written, negotiated mediation agreement. If the settlement appears fair to the family law court, it will be approved. If any disagreements still remain, then a judge will make the final decision, although some lawyers will not settle part of a case without settling the entire case.
The intention of mediation is to come to a resolution, but it doesn’t always happen. If no settlement is reached, the case will eventually proceed to trial.
DIVORCE ARBITRATION
Arbitration is a form of ADR used in family law where a third party, an arbitrator, is selected to hear and decide the case issues. The arbitration process closely resembles that of a court hearing, with the arbitrator acting as the judge. Arbitrations are normally held in a less formal place than courtrooms, such as the office of your attorney or the arbitrator’s office. Unlike mediation, the aim is not agreement.
There are many reasons why arbitration is used in Oregon divorce cases. Like mediation, arbitration can occur much sooner than a trial, especially in instances where there is a long waiting period due to court schedules or where adversarial litigation is drawn out for a long time. Arbitration is governed by specific rules that are more flexible and less formal than those at trial.
Arbitration can also be used to resolve specific, contentious issues in a case where other issues are agreed upon. Your attorney will likely advise to not settle a divorce case unless every issue is settled. So, if a mediation or negotiation gets stuck on a particular issue, that issue may be resolved with arbitration. Once a final decision is made on that issue, further settlement negotiations on other issues may continue.
In binding arbitration, the decision made by the arbitrator, called the “award,” is final unless one spouse appeals to the family law court. There is also a type of arbitration called “non-binding arbitration.” This process is similar, except that the arbitrator’s decision isn’t enforceable by law or admissible in court (as it is in binding arbitration). Non-binding arbitration is typically used as a tool for negotiating a settlement.
COLLABORATIVE DIVORCE
Collaborative divorce is a method of ADR where each spouse is represented by a divorce attorney who has been trained in a practice known as “collaborative law.” The lawyers also bring in other team members (financial specialists, appraisers, child development experts, etc.) who assist the process by providing expert opinions and analysis for specific issues.
The parties then work together to gather the necessary information, brainstorm possible solutions, evaluate the options available to them, and collaborate on a decision they feel will work best for all members of the family. The collaborative divorce process can feel more respectful than a traditional divorce.
Because the emotional nature of divorce can easily result in conflict, collaborative divorce isn’t the best choice for every couple. This process can be a good method, however, for low-conflict Oregon divorce cases where both parties wish to compromise and communicate openly in a manner designed for spouses who want the best for one another. They must be willing to commit to voluntary full disclosure, as there are no “sides” in a collaborative divorce. This process is also a serious commitment in itself: if one of the spouses decides to withdraw from the process to pursue protection of his/her rights and interests in court, he/she will need to start over, and each spouse will require a new, different attorney. Your attorney and other team members must withdraw completely from the case, and any work completed during the collaborative divorce process is generally inadmissible in family law court.
Collaborative divorce continues until the parties reach a settlement or until they end the process and go back to court. If you and your spouse are considering collaborative divorce, you should fully research the pros and cons of the process and select a collaborative law attorney who has demonstrated success in this type of divorce.
To ensure you get the most objective and accurate advice, it is best to consult with a collaborative attorney who does not limit their practice to collaborative law. Unlike many firms, McKinley Irvin’s collaborative lawyers practice in all areas of family law.
COOPERATIVE LAW AND COOPERATIVE DIVORCE
Cooperative divorce is a process similar to collaborative divorce, but does not require the parties to waive their right to go to court, nor to terminate their attorney if they eventually return to court.
Cooperative law is essentially an organized negotiation process with the goal of settling issues with minimal conflict and avoiding litigation. Like collaborative divorce, the goal of cooperative divorce is to minimize court contention, hearings and trials by focusing on the facts of the case.
SETTLEMENT
Most Oregon divorce cases are settled (often during mediation) without going to trial. Each spouse and their attorney negotiate an agreement and present it to the family law court. If the court finds that all issues have been fairly addressed regarding child custody, parenting time, spousal support, and division of property and debts, the court will enter the divorce according to the terms of the settlement agreement.
TRIAL
If you and your spouse are unable to agree about all of the issues in your divorce, then the family law court must decide the unresolved issues at trial, after you and your attorney present your case.
Trials can be costly and stressful. But in some cases, trial is the best way to protect your rights, children or property when dealing with a highly contentious spouse or highly divisive issues. In a trial, your attorney presents your case and a judge makes all of the decisions based on the evidence. The court’s decision is legally enforceable and there is no guarantee that the ruling will be in your favor.
An experienced divorce attorney will advise you whether a favorable outcome is likely before you go to trial. This assessment from your attorney will help you determine how willing you are to compromise on important issues and how many risks you are willing to take, before you make the decision to go to court.
WHAT DOES A DIVORCE JUDGMENT DECIDE?
When you get a divorce in Oregon, the court’s judgment includes the following:
- A declaration that your marriage is dissolved (because the legal term for divorce in Oregon is “dissolution of marriage”
- The date your divorce is final (the date your marriage will legally end);
- If you have minor children, a parenting plan stating each parent’s extent of custody of your children and the details of parenting time (previously called visitation) and decision-making;
- If you have minor children or a qualifying adult child attending school, a child support order detailing you and your spouse’s obligations to financially support your children;
- A property division covering your cash, real estate, investments, retirement, business interests, vehicles and other assets;
- A debt division; and
- A list of any future obligations you may have to each other, including any spousal support or requirements to maintain health insurance or life insurance coverage.
