Divorce vs Separation in Oregon: Everything You Need to Know

What is a Legal Separation in Oregon

In Oregon, a legal separation is not much different than filing for divorce. In fact, it is almost exactly the same as filing a divorce petition. There are a few key differences that are worth noting even though they may seem somewhat obvious. For one, when a person petitions to separate they are often times petitioning to permanently separate. A temporary separation is not a legal separation. So, in general, a legal separation is when a couple stays married but legally lives apart. It is a divorce that concludes in a marital separation agreement as opposed to dissolving the marriage entirely. Legal separations are not permanent and can lead to divorces and in nearly all cases some type of marital settlement agreement is entered into the court’s records. This is agreed upon by the parties to a marriage and in many cases becomes the basis for a divorce later on. Either way , the terms of the divorce or legal separation proceed in the same fashion because they often will have almost if not the same terms. Legal separation paperwork in Oregon is like paperwork for divorce. Only divorce paperwork is filed with the court. Legal separations typically involve similar issues as divorces including distribution of property, division of debt, custody and parenting time for minor children, child support and spousal support. The terms may be specific to a legal separation such as spousal support payments which can end at the time the Legal Separation ends or expire as a result of a court order. With respect to the fair distribution of property there is even a rule -Oregon statute 107.105(1)(h)- that basically empowers the circuit court the authority to issue procedures to equitably divide the property between the parties to a legal separation.

Divorce in Oregon

An Oregon divorce is the formal end of a marriage through the family law courts. As with legal separation, you or your spouse can initiate for divorce. You should spend some time with an attorney discussing it before you decide. Sometimes you do not want to continue a marriage but want to stay married for a time for various reasons. Some of those reasons might involve finances or pending retirement or other personal matters. There are some factors to know before initiating an Oregon divorce with the family law courts.
Before you file for your divorce, you need to know the residency requirements in your state. In Oregon, you or your spouse must reside in Oregon for at least six months prior to filing for divorce. Some states have waiting periods that can be a year or even longer. If you or your spouse do not meet the residency requirement, the court will have no jurisdiction over the divorce. However, there may be exceptions if you or your spouse are military members and were stationed in Oregon for six months. In some cases, a request can be made to waive the residency requirement.
For you to get a divorce in Oregon, you must determine the grounds for divorce. Grounds for divorce are the reasons couples seek a divorce. Many people file under no-fault grounds. This applies when there has been an irreconcilable breakdown of the marriage. It does not matter who caused the problems in your marriage. However, if your spouse committed adultery, there are other willful bad deeds or other conditions are present, other options are available. If you file grounds for divorce under any of the fault categories, and your spouse does not agree with you, you will have to prove your claims. The court can deny your petition for divorce if the specific grounds are lacking. This type of divorce can also take longer because you have to collect evidence and hire a private investigator.
Oregon law allows either spouse the option of requesting supplemental relief while waiting for the divorce to finalize in the family law courts. Supplemental relief is additional provided to both spouses while waiting for a complete divorce. The court can award temporary alimony, spousal maintenance, child support and domestic relations orders.

Legal Separation versus Divorce: Key Issues

One of the primary differences between the two relationships is the legal status of the marriage. While a legal separation affidavit terminates financial liabilities and responsibilities, it does not necessarily spell the end of a marriage. It merely illuminates the path to a divorce should one spouse pursue that course in the future. Also, with a divorce, you have the opportunity to gain closure from the termination of a marriage, while a legal separation can leave grim roadblocks along the way. Once filed in court, the legal separation process looks much like a regular divorce filing. Legal aspects pertaining to children, such as custody and child support, are still viable in the separation process. If you have minor children, you are required to submit a Parenting Plan with either divorce or legal separation proceedings, which defines custody and visitation. However, in a legal separation, both parents remain legally responsible for the health and welfare of the children, where divorce terminates those responsibilities except under certain circumstances. From a financial perspective, a legal separation does not terminate government benefits and retirement plans. Thus, legal separation is sometimes recommended for those who worry about the loss of essential retirement and other benefits. In addition, it often replaces the process of annulment of a marriage for those who are unable to afford a divorce filing—a legal separation provides legal dissolution of accounts and liabilities thereafter without the expensive procedure of a divorce. However, if a party wishes to terminate the marriage, only a divorce will accomplish that feat.

Advantages of a Legal Separation

Many couples consider legal separation in lieu of divorce for a number of reasons. From a legal perspective, there are many advantages to choosing separation before divorce. Legal separation allows a couple to remain married for purposes of specific benefits without the complications of a divorce. Some examples of the primary reasons why people choose a legal separation tithe vs. divorce include:
Health insurance. One major factor for choosing legal separation instead of divorce is health care coverage. In some cases, keeping your spouse on your health insurance plan can save money. Because of the Affordable Care Act, individuals cannot be denied coverage due to pre-existing conditions as well as the age to which children may be covered on a parent’s plan. However, the cost of insurance in Oregon, even with subsidies, can be high. If one spouse earns significantly more than the other, the possibility of losing affordable insurance may outweigh the benefits of a divorce and an insurance plan in their own name.
Divorce is not a right. Some people have a misconception that they can simply decide to get a divorce and everything will happen on their timeline. Unfortunately, Oregon law does not allow this to happen. In some cases, such as where there are children, the court must decide what is in the best interest of the children even if the parents do not agree.
Financial benefits. In the past, many companies offered financial benefits to married couples. Some still do, including pensions, loans, 401k matching funds, vacations, discounted memberships, etc. Retaining a certain status for financial reasons may be required before obtaining a divorce. If the couple separates but does not file for divorce, they may remain eligible for certain programs and benefits.
Religious reasons. Although laws govern many factors of marriage, religious considerations still have the value they did when a marriage was first conceptualized by religion. Many churches and denominations require a couple to receive a church annulment before they can remarry. Until a couple separates for the purpose of divorce, they will have the opportunity to remain members of their community.

When a Divorce Is Your Best Option

While some couples genuinely find that legal separation is preferable to divorce or find that legal separation is the best step toward reconciliation, for many others, divorce offers more clarity than legal separation can provide. If you are wondering whether divorce may be a more suitable path for you, please consider the following.
Absoluteness
Even though legal separation is often seen as a "trial run" of what divorce could entail, the simple fact is that legally separated couples are still not divorced – and a legal separation is not final. Sometimes, all parties involved come to terms with the circumstances and even agree on a potential path forward, but in other situations, some heart-wrenching realizations become clear. In addition, couples who legally separate before reconciling often find that they are repeating old patterns, with the same problems surfacing over and over again. In some situations, spouses find themselves stuck in a legal limbo – or an eternal holding pattern – that essentially keeps them from moving forward at all. Under these circumstances, it only makes sense that the less permanent, stop-gap measure known as legal separation would result in comparatively less closure. Divorce, by nature, represents a more decisive alternative – i.e., moving on and moving forward.
Possibility of Future Union
Under Oregon law, if you file for legal separation, you wed yourself to the prospect of possibly reconciling. In fact, one reason that legal separation exists (legally speaking) is to provide couples with the option of getting back together. Consequently, the state requires legally separated couples to provide an explanation for their decision to remain separate, but not divorced, upon filing for legal separation – and to wait 90 days before finalizing the separation. For couples who truly need room to breathe, divorce provides the necessary breathing space without imposing a set timetable or conditions. A temporary separation in Oregon could turn into a long-term separation, especially if the couple in question doesn’t follow through with the required horse-and-ponys show just to finalize their legally separated status. Once again, it’s easy to see how lengthy involvement in a legal limbo can lead to complicated emotional responses that make moving on increasingly unlikely.
Closure
In general, often a legal separation morphs into a divorce. In time, what seems like a "trial run" becomes a long-term arrangement that cuts to the chase and results in conversion to divorce. For the couple in question, legal separation was a way to ease into the realities of a fractured relationship, and eventually, they simply found themselves in the same position as divorced couples; now, they’re just separated. In fact, the legal conversion from separation to divorce is so consistent in Oregon that most people opt to go directly to divorce rather than taking the extra step of first filing for separation. A legal divorce represents an opportunity to move on, actively or passively. In other words, some divorcees rebound with a new partner, while others never date again – but they have the option. Similarly, some divorced couples remain friends or even business partners, while others avoid one another at every turn. However, with divorce, each party knows where he or she stands and can choose the path that’s right for him or her. While some people people believe that "keeping options open" implies a greater freedom in life, many of our clients at Williams Family Law find that the ultimate freedom comes from being able to close the door on one chapter in order to open a new one.

Filing a Legal Separation or Divorce

A legal separation in Oregon is filed in essentially the same way as a divorce. The parties inform the Court that they are separating from one another, and they must then decide how they want to divide up their debts and property, and how they will address issues concerning children. If you and your spouse are able to amicably and cooperatively work together to decide these things, the process is rather simple. If you are unable to do so, you may need actually need to consider filing a contested dissolution (read: divorce), and then a judge will ultimately make the decision for you.
Filing a legal separation is no different than filing for divorce, and this is because there is no specific legal procedure for a separation. Civil law generally recognizes only divorce , and the parties are free to separate in any way they choose. It is recommended to go through the divorce process, and the separation aspect is just something that will be mentioned in the documents/court filings.
A word of caution: a separation does not end your marriage, and tax law treats separate spouses as still married. A divorce decree is the only option that gives an individuals more tax benefits. For example, you can’t file your taxes separately, and one person’s social security credit won’t work for the other spouse. Of course, the amount of time it takes to finalize a divorce is often the many reason people file for a legal separation in the first place.

Economic and Parenting Considerations

When it comes to the financial and custodial implications of both legal separation and divorce, there are many similarities that can cause some nuance for the unprepared. Both of these situations will require a formal disposition of assets, debts, and parenting time.
Of course a legal separation also requires a formal disposition of assets and debts. You may choose to keep everything separate, however this is not advisable while living together. Child Custody (also referred to as parenting time) is very similar in form and function for both. In Oregon, parents are presumed to have joint legal custody. Additionally in Oregon, the general touchstone for parenting time is which parent can best facilitate the relationship with the other parent and where the children have lived for most of their life. This is not to say that crime or domestic violence does not have an effect, but the basic standards have been expanded in Oregon. This may even mean that parenting time is ordered with a step-parent and/or a parent’s new girlfriend/boyfriend and their children. It can be rather complicated and not perfect, but with the best interests of the children in mind, it can work out if both parents do their best to cooperate.
Some tips for a smoother transition into either legal separation or divorce would be to confine the kids to a "home base" and then you as parents rotate. Or keep all items of great emotional value at the home base where the kids sleep, and rotate the parents. Depending on your home situation, state laws, and the personalities involved, be prepared for the potential positives or negatives of parenting time.

When to Consider a Lawyer

Whatever path you choose, having an experienced attorney to guide you through the process will make it far easier. They will be able to organize all of the assets and debts to be divided and help the parties reach an agreement. There are many potential pitfalls for someone who attempts to represent themselves. It’s important to have a legal advocate that can help with the drafting of the appropriate documents to properly address each issue.

Summary: Tips on Choosing

In conclusion, both legal separation and divorce offer distinct advantages and considerations in Oregon. Legal separation can be a great option for couples who may have religious or personal reasons for not wanting to end their marriage yet but still need to resolve issues like spousal support and debt division. It is also a strategic option for couples who may want to maintain certain benefits of being married, such as health insurance or tax benefits.
On the other hand, divorce is often necessary when the marriage has broken down completely, and the couple cannot agree on crucial issues regarding their future . Divorce may be the better option if a couple does not see a path forward in their relationship and instead needs to create a clear legal framework for their new lives.
Ultimately, the decision to pursue legal separation or divorce in Oregon depends on many factors. It is essential to consider your personal circumstances, the nature of your relationship with your spouse, and what you envision for your future. Discussing your options with a compassionate, experienced family law attorney is a critical step in making an informed decision.