Fillable Printable Responding to Petition for Divorce with Children - Oregon

Responding to Petition for Divorce with Children - Oregon

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Responding to Petition for Dissolution (Divorce), Cases with Children

Instructions for Packet 1D

Notice about these instructions and forms.

These instructions are not a complete statement of the law. They cover basic procedure for uncomplicated

divorce cases. For legal information, please talk to a lawyer or visit your local law library. Each court has local rules,

programs and procedures that may not be explained in these instructions. Information about how to contact your local

court may be found at the Oregon Judicial Department website: http://www.courts.oregon.gov.

This set of forms and instructions explain how to file a response to a petition for dissolution. When filling out

the forms, follow these directions:

•The case heading is the same as listed on the petition you were served.

•Some forms have to be notarized or signed in the presence of a court clerk. You will need your picture ID for

this. Many banks provide notary services.

•Some forms say on the bottom, “I certify that this is a true copy,” and provide a place to sign. Don’t sign this

line on the original form or on your own copy. You need to sign this line only on the copies for your

spouse/partner.

•Make yourself a copy of any document you are filing with the court. File the original with the court clerk.

•Keep the court informed of your current address so you get notice of all court dates. You are not required to

use your residential address on any court form. You may use a contact address where you regularly check

in.If you use a contact address, the court will assume that you will receive all notices sent to that address.

STEP 1:FILING YOUR RESPONSE

You have 30 days following the date you were served with the petition to file a written response with the court

clerk and pay the filing fee. If you feel you can’t afford to pay the fee, you may ask the clerk for a Motion and Affidavit

for Waiver or Deferral of Filing Fee or use Packet #10. You may fill out this form and file it with the court requesting

that your filing fee be waived or deferred. If the fee is waived, you don’t have to pay the fee back. If the fee is deferred,

most courts will require that you pay the fee at a later date.

In the response, space is provided for you to state that you disagree with certain items asked for in the petition.

You may also write in items that you would like the court to order that were not included in the petition. These are called

“counterclaims.” If you agree with everything asked for in the petition, you are not required to file a response. The

court will enter judgment based on what was asked for in the petition.

Legal Issues to Consider.

Oregon law requires a number of issues be addressed in the final divorce judgment. Before you fill out your

response, you should review what your spouse/partner asked for in the petition, and think about how you want to handle

these issues.

Also, if you were not served with the petition in Oregon, or if you haven’t lived in Oregon for a long period of

time, you may be entitled to respond by objecting to service or jurisdiction. However, these are complicated legal

determinations and you should talk to an attorney about what kind of response to file if either of these situations apply to

you.

Parenting Plan. A parenting plan is required for cases involving a minor child. The plan sets out the schedule

and rules for each parent’s time with the child. The parenting plan may include safety provisions for the child if domestic

violence, substance abuse, child abuse or other circumstances are involved in your case.

A mediator can help parents create a parenting plan. Information about parenting plans may also be available

through your court’s parent education program, the courthouse facilitator, or your local law library. The Oregon

Judicial Department and the State Family Law Advisory Committee have created a “Basic Parenting Plan Guide

for Parents” with information about how to develop a plan, information about alternative schedules, and ages and

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stages of your child/ren which should be considered in creating a plan. A sample parenting plan form is included

in the Guide. The Guide may be downloaded from the OJD Family Law Website at

//www.courts.oregon.gov/familylaw. There is also a “Safety Focused Parenting Plan Guide” on this website to

help you develop a parenting plan where there are safety concerns for your children. If the parents don’t agree on a

parenting plan, a judge will order a parenting plan for you.

Oregon law (ORS 107.159) prevents either parent from moving more than 60 additional miles away from the

other parent without giving him or her and the court notice of the move. You may ask the judge to waive this

requirement by checking the last box in the parenting plan section of the petition.

For information about child custody, you may call Tel-Law (1-800-452-4776) tape 902, or visit www.osbar.org.

Child Support. In most cases, the court will order child support if the parties have a child and no child support

order already exists. The amount of support, if ordered, will be determined by the Child Support Guidelines. The

Guidelines have worksheets to help you figure out who should pay support and how much it should be. Support is

typically withheld from wages unless an exception is allowed for direct deposit to the other parent’s checking or

savings account, or, if support enforcement services are being provided to eitherparent, as an “electronic

payment withdrawal (EPW) or electronic funds transfer (EFT)” to a Department of Justice account. (EPW and

EFT are procedures whereby funds are automatically withdrawn from a checking/savings account as authorized by the

account holder.) Information about child support, including the Guidelines and Worksheets, is on the Internet at:

//www.dcs.state.or.us/oregon_admin_rules/guidelines.htm.

This website also has a Child Support Calculator which may help you to calculate the amount of child support which

should be paid: http://www.dcs.state.or.us/calculator. Your local court facilitator, legal aid office or child support

program may also be able to help you calculate the amount of support.

Cash Medical Support and Health Care Coverage. You may request that you be reimbursed for out-of-pocket

medical expenses that exceed $250.00 PER CHILD per year or to reimburse for public health care coverage. Even if you

do not request the payment of cash medical support, the judge may order that either you or the other party pay it. NOTE:

The judge cannot order you or the other party to pay cash medical support or to pay for health care coverage if you or the

other party has income that is equal to or less than Oregon minimum wage for full-time employment. The court can order

a party making minimum wage or less to provide health coverage if it is available at no cost.

Insurance. Oregon law requires that the judgment address the issue of health insurance for any minor child

involved in your case, and for payment of uninsured medical expenses. It also must provide for security for the payment

of support, such as life insurance.

Spousal Support. Oregon law provides for three different categories of spousal support: transitional,

compensatory and spousal maintenance. Transitional support may be ordered for a spouse/partner to get work related

education and training. Compensatory spousal support may be ordered if one party has significantly contributed to the

education, training, vocational skills, career or earning capacity of the other spouse/partner. Spousal maintenance may be

ordered for the support of one spouse/partner. The judge will consider a number of factors when making the award. For

more information on what the judge will consider, please refer to ORS 107.105 (to view, visit your local law library or

www.leg.state.or.us/ors/).

Property and Debts– Statutory Restraining Order. Oregon law requires both Petitioner and Respondent to

obey a restraining order preventing either party from dissipating (selling, destroying, removing, disposing of) real or

personal property, making unilateral (without the agreement of the other party) changes to insurance policies, and making

extraordinary expenditures. Expenditures that are necessary for the safety or welfare of the children or the parties are not

prohibited. The order is effective on both you and the petitioner once you have been served with the “Notice of Statutory

Restraining Order Preventing the Dissipation of Assets in Domestic Relations Actions.” You may request a hearing if

you object to the terms of the Statutory Restraining Order (see Packet 1BC for a Request for Hearing Form). If you

violate the order, you may be subject to sanctions.

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For information about these issues, talk to a lawyer and/or go to the Oregon State Bar’s web site

(www.osbar.org),“Legal Links” and read under “Oregon’s Laws” the sections on “Bankruptcy and Credit,” “Real

Estate,” and “Taxes.” If either spouse has a retirement plan, you should talk to an attorney before filling out the

response. The attorney can advise you if this packet will work for your situation. If the parties own real estate located in

Oregon, a “lis pendens” notice (notice of pending suit) may be filed with the county clerk as provided in ORS 93.740 (to

view, visit your local law library or www.leg.state.or.us/ors).

Social Security numbers and other confidential personal information.

There is certain personal information that can only be listed in a Confidential Information Form (CIF) and may

not be listed in any of the other papers you file with the court. See the CIF information sheet that is part of this packet.

Have your documents reviewed.

You may have your documents reviewed by a lawyer or a courthouse facilitator (if your court has one) before you

file. For information about how to find a lawyer, call the Oregon State Bar Lawyer Referral Service. If you are low

income, you may get your documents reviewed for a smaller fee through the Oregon State Bar’s Modest Means program,

or you may call your local Legal Aid officeand in the “Local Family Law Practices and Procedures” for your court

attached to these instructions.

Filing the Response.

After you have filled out the Response, make two copies. One copy is for your records, and the second copy is

for your spouse/partner. If your spouse/partner does not have an attorney, mail your spouse’s/partner’s copy to your

spouse’s/partner’s address and fill out the Certificate of Mailing form, and file it with the court. If your

spouse/partner is represented by an attorney, you must insteadmail the copy to your spouse’s/partner’s attorney and

provide the attorney’s address in the Certificate of Mailing form.

File the original Response, Certificate of Mailing and Acknowledgment about Dissolution form with the court

clerk along with the required filing fee (unless your fee has been waived or deferred by a judge).

Parenting Classes.

Many courts require that parents of minor children go to a parent education class. If your court has this program,

you will need to sign up for the class right away. Some courts will not allow you to finalize your divorce until you have

completed the class and filed a certificate of completion with the court.

STEP 2:WAITING 90DAYS–APPLIES ONLY TO CASES FILED BEFORE JANUARY 1,2012

Oregon law requires a 90 day waiting period for dissolution cases filed before January 1, 2012. The waiting

period extends from the time you are served and the time the court can hold a final hearing or sign the judgment. If your

case was filed before January 1, 2012, and 90 days have not passed since you were served, you, or your spouse/partner,

may ask the court to waive this period if the situation involves an emergency or necessity. The court must find that

immediate action is needed to protect your rights or interests, or those of your spouse/partner, or of a person who might

be affected by the terms of the judgment. The court can also waive the period if you and your spouse/partner have agreed

to the terms of your divorce, and have filled out a “stipulated” (agreed to) judgment completely. Note: If you do not

respond to the petition served upon you (i.e., if you “default”), your spouse/partner may ask the court to waive this

period without further notice to you or the serving of additional documents upon you. To ask the court to waive the 90

day period, you may use packet 1F, Request for Waiver of 90 Day Waiting Period.

STEP 3:BEFORE YOUR DIVORCE IS FINALIZED

Temporary Orders.

You may ask the court to make temporary orders. Temporary orders are in effect once signed by the judge

and last until changed or until the judgment is signed by a judge or the case is dismissed. For example, either

spouse/partner may ask for an order for spousal or child support, an order preventing one or both spouses/partners from

getting rid of property owned by both spouses/partners, an order requiring one spouse/partner to move out of the family

home or an order preventing either spouse/partner from interfering with the child/ren’s regular living arrangement and

schedule. To make any of these requests, you will need to file a “motion” (request) asking the court to do what you want.

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You may need the assistance of an attorney to file these requests.

Unless your court requires you to use a different form, you may use Packet 6B, Status Quo Order Application

Packet to ask the court to order that neither parent change the child/ren’s usual place of residence, change the child/ren’s

regular routine, or interfere with the other parent’s usual contact with the child.

All courts have restraining order forms for cases involving domestic violence. A restraining order can usually be

obtained within a day or two of filing if there has been abuse in the last 180 days, and if there is further danger of abuse.

Check with your local court about forms and filing instructions.

Conferences with the Judge.

Many courts will schedule a “status”, “pretrial”, or “settlement” conference if a response has been filed. These

meetings usually take place with a judge with both spouses/partners present, along with their attorneys if they are

represented. You must go to any conferences that are scheduled unless you have received permission from the judge not

to attend.

At the conference, the judge will probably talk to you about how the case is going to be resolved, may consider

requests for temporary orders and will probably set future court dates.

Working Toward Agreement.

The court wants to help you resolve the issues about which you and your spouse/partner disagree. You may

discuss these issues with your spouse/partner directly if it is safe for you to do so and if no court order prohibits this

contact. You may also discuss them with your spouse’s/partner’s attorney. If you filed a response, and later decide that

what your spouse/partner asked for in the petition is okay with you, you may fill out and file a Waiver of Further

Appearance and Consent to Entry of Judgment form. The court will then enter judgment based on what was requested in

the petition. Ask your local courthouse facilitator for help with this step. If you can’t resolve the issues on your own, the

court may provide a number of options to help you, including mediation, arbitration and custody evaluation.

Mediation. A mediator is a person trained to help people resolve disagreements. You and your spouse/partner

may be required to meet with a mediator if you don’t agree on a “parenting plan” (who has custody and parenting time

(visitation) with the child/ren and how decisions about the child/ren will be made). There is usually no fee for mediation.

If mediation has not yet been ordered in your case and you would like to request it, you may file a Request for Mediation

form, see Form #6H or use your local court’s form. You may ask that the mediation requirement be waived if you have a

good reason by filing a Motion and Affidavit for Waiver of Mediation, see form #6I. For example, if there has been

domestic violence, the court will consider a request to waive the mediation requirement.

You may also meet with a mediator to resolve the financial issues in your case. Many courts have a list of

mediators qualified to mediate these cases. Check with your local court clerk to see if there is a fee for this service.

Arbitration. Some courts refer spouses/partners who disagree on how to divide their property to an arbitrator.

The court may also ask the arbitrator to resolve spousal/partner support issues. An arbitrator is a lawyer who meets with

both spouses/partners and their lawyers, if they are represented, and makes a decision about how the property should be

divided. Both spouses/partners are required to pay for this service unless the court has specifically waived or deferred the

arbitrator’s fee. If either spouse/partnerdisagrees with the arbitrator’s decision, he or she can ask the court for a trial. If

s trial is not requested, the arbitrator’s decision is final unless both spouses/partners agree on another resolution.

Custody/Parenting Time Evaluation.If parents can’t agree on a parenting plan, sometimes the court refers the

case to a custody/parenting time evaluator. After interviewing each parent and doing other research, the evaluator will

make a recommendation to the court about what the parenting plan should be. The evaluator will consider factors that

might affect a child’s safety, such as domestic violence, substance abuse, child abuse or other circumstances. Many

courts require that the parties pay for part of the evaluation.

STEP 4:FINALIZING YOUR DIVORCE

A divorce is “final” the date the judgment is signed by a judge. The judgment contains all of the issues decided

in mediation, arbitration, hearing or through your agreement. If both spouses/partners agree on all issues, it may be

prepared by either spouse/partners as long as it is reviewed and signed by both spouses/partners. If there are still items

that you don’t agree on, the court will probably set a date for a “final hearing” or trial. The judge may direct one

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spouse/partnerto prepare the judgment after the hearing. Some judges may want you to attend a “settlement conference”

(a meeting between the parties to discuss settlement, usually led by a different judge than your trial judge) to help you

come to agreement.

If you are responsible for filling out the judgment, make a copy for yourself and one for your spouse/partner, and

file the original with the courtIf your case involves child or spousal support, file an extra copy of the proposed

judgment with the court.

You may also have to file the forms listed below, depending on your circumstances.

Parenting Class Certificate of Completion. If your local court requires parents of minor children to attend a

parent education class, a certificate of completion must be filed with the court unless this requirement has been waived by

order of the court.

Child Support Worksheets. If child support is ordered, child support worksheets need to be filled out and

attached to the final judgment.

Parenting Plan. Your parenting plan may be completely covered in the final judgment (see page two of the

judgment). If there are additional pages, please attach them.

Uniform Support Declaration. This form is only required if you and your spouse/partnerdon’t agree on child

or spousal support. You aren’t required to complete the schedules on the form, unless one spouse/partner asks for

spousal support or a “deviation” (different from the amount calculated under the child support guidelines) from the child

support guidelines.

Waiver of Personal Service. After the final judgment is signed, if one spouse/partner doesn’t follow what it

says to do, the other spouse/partner may ask the judge to enforce the judgment. The spouse/partner asking for

enforcement is required to personally serve (deliver) the other spouse/partner with notice of this request. If you would

like to waive the requirement of personal service, you may use Form #6D – Waiver of Personal Service or a form

required by your court, if different. You are responsible for making sure you get all papers delivered to the address that

you list.