Modifying Your Oregon Divorce Judgment

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A divorce (or custody case) is a major life event which is based on the circumstances that exist at the time your judgment is finalized. What happens if things change several months or even several years after your judgment has been signed? Here is a basic guide to modifying your divorce or custody judgment in Oregon. This is only an overview and is not intended to be legal advice – you should discuss the specifics of your situation with your mediator or attorney.

Overview. Generally speaking, child related issues and spousal support are subject to modification. Property division, on the other hand, is final. A property division can only be reopened if you discover that an asset or liability was omitted (either accidentally or intentionally) from your original judgment. ORS 107.452 is the statute that applies if an asset was overlooked in the original divorce.

Child Support. Child support can be modified when 1) there has been a substantial change of financial circumstances; 2) every three years even if there is no change of circumstances; or 3) if both parents agree to the change. It is important to note that a change to child support must be put into a new judgment which gets signed by a judge. It is not sufficient to have a “handshake” deal regarding child support.

In Oregon child support can be paid up until age 21 if the child qualifies as a “child attending school” under ORS 107.108. What this means (oddly enough) is that your child is a party to your divorce between the ages of 18 and 21 and that he or she can file a motion to modify your divorce judgment to seek child support from either or both parents.
Parenting Plan. The legal standard for modifying a parenting plan is simply a “best interest of the child” standard. In other words, if someone thinks it is in the child’s best interest to change the plan, they can make a formal request to change it either by filing a motion with the court or proposing to go through the mediation process.

Like child support, a parenting plan can be modified anytime both parents agree. One-time change do not need to be put into a new parenting plan. However, if you are going to make a permanent change to the parenting plan then you should submit a new parenting plan to the court (using a Stipulated Supplemental Judgment) and get it signed by a judge. You should be aware that a new parenting plan is not enforceable unless it is in a new judgment that is signed by a judge.

There is a common misconception in Oregon that there is a certain age at which children are allowed to pick where they live. That is not true. However, based on the circumstances of your situation (e.g., child’s age, maturity level, etc.), a child’s preference may be taken into account in developing the parenting plan. In certain situations parents will sometimes include their teenage children in the mediation process when developing a parenting plan so that the children’s preference can be considered.

Decision Making (Custody). The decision-making provision of your judgment (i.e., legal custody) is subject to modification as long as your children are under 18. Joint custody can essentially be modified whenever one parent decides that joint custody is no longer working well and files a motion to sever joint custody. At that point the court has to award sole custody to one parent or the other since there can be no joint custody in Oregon unless both parents agree. Sole custody can only be modified when there has been a substantial and unanticipated change of circumstances that goes to the ability of one parent or the other to care for the children.

Spousal Support. Spousal support (alimony) can be modified any time that both parties agree to it. If there is no agreement, then applicable legal standard is that there must be an “unanticipated and substantial change of circumstances” to change support, i.e., a major life event. Just because there has been a major life change does not necessarily mean that support will be modified; it only means that someone can request a modification. Whether or not there is a modification will depend on the facts and circumstances at the time that the request is made.

Common reasons for modifying spousal support include retirement of the payor, the payor losing his or her job, the recipient getting remarried or the recipient changing careers and significant increasing his or her own earnings. Again, just because one of these things happens does not automatically mean that a spousal support modification will be granted.

As with child support, a new spousal support agreement must be put into a new judgment which gets signed by a judge. Failure to put the modified support arrangement into new judgment will make the agreement ineffective and can lead to some very serious negative consequences for one or both parties.

Spousal support can only be modified as long as there is a spousal support order in place. Additionally, spousal support cannot be ordered later on if there was never a spousal support order in the first place. Lastly, if your spousal support order has ended it cannot be reinstated. There is an exception to this rule which is that if spousal support had been terminated early and the reason for termination has ended the spousal support can be reinstated if you are still within the timeframe of the original support award.

Misc. Issues. There are a number of other smaller issues that are subject to modification, although they are typically only addressed if one of the major issues above is also being modified.

Some of those smaller issues include:
• Who will provide health insurance for the children;
• How the children’s unreimbursed medical expenses will be paid;
• How non-medical expenses for the children will be paid;
• The amount of life insurance that needs to be maintained; and
• Who will claim the children on their taxes.

Mediation tends to be a very efficient process for dealing with modifications. Usually a modification can be mediated in just one or two mediation appointments. Once an agreement is reached, Forrest can prepare all of the necessary documents and file them on your behalf. There is a $150 filing fee that gets paid directly to the court each time you file a modification.

Inviting Someone Into Mediation or Collaborative Law

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Mediation and Collaborative Law are both voluntary processes. This means that in order to proceed with one of these approaches, both people need to be willing to participate. You don’t need to be excited about the process (nobody is), but you do need to be willing to actively participate in your own case. One of the most common questions that people have is, “How do I get the other person involved?” Here are a few ideas for getting the other person involved in mediation or a Collaborative Law process:

Talk to them.

Most people who end up in either mediation or Collaborative Law talked between themselves and selected the process they felt would work best. If you have to go through a divorce or custody case, chances are that things are tense between you and your partner. Even if things are difficult, the two of you can probably agree that you would prefer to have a less expensive, more respectful process rather than an expensive, unpleasant legal battle. Educate yourself about the available options and then share the information with the other person.

Share online resources.

This website is a good resource for information about mediation and Collaborative Law. Other good online resources include Mediate.com, CollaborativePractice.com, CollaborativePraticeOregon.com and the Oregon Mediation Association. Consider emailing the other person a link to one or more of these websites. Give them some time to do their own research.

Talk to Forrest.

Forrest is always happy to talk to both people. If you have already talked to Forrest, we suggest that you invite the other person to call the office and Forrest will give the other person all of the same information he has given you. If you haven’t talked to Forrest but would like to, you can schedule a free 15-minute phone call to discuss your situation.

Talk to a friend.

Do you have a mutual friend who has gone through mediation or a Collaborative Divorce? Ask that person to talk to your spouse (or vice versa). Someone who is going through the divorce process is often skeptical, if not distrusting. A trusted friend can be a good way to inform your spouse about the available options. If you don’t have a friend who has gone through one of these processes, you probably have a friend who has gone through the traditional divorce process. Anyone who has gone through the traditional divorce process is likely to tell anyone who will listen that it is very unpleasant process to go through.

Joint consultation.

A joint consultation is probably the best way to get someone involved in the mediation or Collaborative Law process. Joint consultations are effective because both people get the same information at the same time. Further, both people have an opportunity to ask whatever questions they may have. A consultation is a great opportunity to figure out whether mediation or Collaborative Law is a better fit for your particular situation.

Give it some time.

Tensions are always highest immediately after the separation. If you wait for a few weeks or even a few months, it is likely that tensions will have subsided at least somewhat. This is particularly true because people tend to fall into a routine after the separation. New routines tend to have a calming effect on the divorce process. You might talk to your spouse and agree to give it a month before either of you takes any action regarding the divorce.

In conclusion.

There is no “right” way to get someone involved in mediation or a Collaborative Law process. This article contains a few ideas about getting the other person involved in one of these processes. In reality, the right way to get the other person involved is whatever way that person responds to. If you aren’t sure about which approach to take, feel free to give Forrest a call and he will be glad to talk things through with you to help you figure out which approach will work best.

Mediating Prenuptial Agreements

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Let’s face it – prenuptial agreements are not the most romantic things in the world.  The reality is that you probably don’t want to be thinking about a possible divorce while planning the happiest day of your life.  However, this does not need to be a depressing topic.

The traditional approach to prenuptial agreements focuses on what will happen if something goes wrong.  It puts spouses-to-be in an awkward situation of planning their divorce before they’re even married.  At worst, it forces people into a contentious discussion while they are supposed to be planning their future.  Rather than focusing on what happens if you divorce, mediating your prenuptial agreement can be an opportunity to explore what is important to both of you as you start your new lives together.

A traditional prenup review goes something like: A client will bring in a very one-sided document which completely favors the partner asking for the prenup.  When asked how they feel about it, most of the time the client responds, “I don’t like it, but I don’t want to get into a big argument right before the wedding.”  When the client is asked what their spouse-to-be says about the prenup, the answer is usually the same: “He (or she) said that the lawyer said he had to do this.  The lawyer just gave him this form and said this is a standard prenup and that I needed to sign it.”  This conversation usually happens a week or two before the wedding.

The above exchange is problematic for a number of reasons.  First, a prenuptial agreement needs to be entered into freely, voluntarily and without any type of undue stress or influence.  In other words, this conversation should not take place a week or two before the wedding.  This is an important discussion that needs to be thought through and considered well in advance of the wedding.  Second, there should be some discussion about the terms of the prenup, not just “here, sign this.”  This should be a dignified discussion, not a take-it-or-leave-it proposition.  Third, your life is not based on some form – your prenup shouldn’t just be some form.  It should be a thoughtful document which reflects the goals and interests of the spouses.  Fourth, and most significant, the traditional approach to a prenuptial agreement is inherently adversarial.  Weddings are stressful enough – the last thing you want is to create an adversarial situation with your bride-to-be.

Is this the experience you want to have when entering into a prenuptial agreement?  Probably not.  Here’s how a mediated prenuptial agreement might look:

Both clients will come in to discuss the prenuptial agreement.  Instead of secretive discussions with separate lawyers, both clients get to share their hopes, thoughts, concerns and feelings about their new lives together and about the prenuptial agreement.  Importantly, this is an opportunity to talk about your shared and separate interests as you start your lives together.  This is especially true in second marriages.  If you have been married previously, you probably know what works – and doesn’t work – for you.  Take this opportunity to have an honest conversation with your new partner.  Have you built a business or other significant assets prior to the marriage?  Take this opportunity to talk about how the two of you will build your financial lives together going forward while potentially keeping premarital property separate.  Is there a significant earnings disparity between you?  Take this opportunity to discuss what that means to each of you in the context of your new lives together.

Marriage is a big decision and a prenuptial agreement is a big decision.  Although there may be a temptation to just “get through it”, you will likely have a more satisfying agreement if you have more than one meeting.  The first mediation appointment is an opportunity to share interests and consider various topics.  The second (or possibly third) meeting is to make decisions about the terms of the agreement.  In between meetings there will be items of homework.  For example, clients may be asked to consider whether a “sunset clause” is appropriate (a sunset clause is a clause that terminates the prenuptial agreement or certain portions of it after some period of time, e.g., ten years).

In between mediation appointments – and definitely before you sign any agreement – you should meet with a mediation-friendly attorney to review and discuss the agreement.  An attorney who is supportive of mediation can help you consider the agreement in light of your interests.  Rather than trying to convince you to get as much as possible, the lawyer should help you figure out whether the agreement meets your interests and those of your partner.  That feedback can then be shared with your spouse-to-be in the structured environment of the mediation process.

Ideally your prenuptial agreement will be signed at least two months in advance of your wedding.  This timeframe insures that everyone has sufficient opportunity to review and consider the agreement.  If there is a snag, it leaves you plenty of time to work through it.  More importantly, getting this accomplished and out of the way will allow you to focus on what’s important – your new lives together!