Chapter 107 — Marital
Dissolution, Annulment and Separation; Mediation and Conciliation Services;
Family Abuse Prevention
2011 EDITION
DISSOLUTION, ANNULMENT AND SEPARATION
DOMESTIC RELATIONS
DISSOLUTION, ANNULMENT AND SEPARATION
107.005 Annulment
of void marriage; declaration of validity; effect of declaration
107.015 Grounds
for annulment or dissolution of marriage
107.025 Irreconcilable
differences as grounds for dissolution or separation
107.036 Doctrines
of fault and in pari delicto
abolished; evidence and consideration of fault
107.046 Appearance
by public official
107.055 Appearance
by respondent; affirmative defenses abolished
107.075 Residence
requirements
107.085 Petition;
title; content
107.086 Where
to file petition
107.087 When
petition to be served on Division of Child Support
107.088 Clerk
of court to furnish certain information when petition is filed
107.089 Documents
parties must furnish to each other; effect of failure to furnish
107.092 Notice
that spouse may continue health insurance coverage; liability of clerk
107.093 Restraining
order; request for hearing
107.094 Forms
for restraining order and request for hearing
107.095 Provisions
court may make after commencement of suit and before judgment
107.097 Ex
parte temporary custody or parenting time orders; temporary protective order of
restraint; hearing
107.101 Policy
regarding parenting
107.102 Parenting
plan; content
107.104 Policy
regarding settlement; enforcement of settlement terms; remedies
107.105 Provisions
of judgment
107.106 Provisions
of order or judgment providing for custody, parenting time, visitation or
support of child
107.108 Support
or maintenance for child attending school; rules
107.111 When
parents equally responsible for funeral expenses of child
107.115 Effect
of judgment; effective date; appeal pending upon death of party
107.118 Definitions
for ORS 107.118 to 107.131
107.121 Revocation
of designation of beneficiary upon entry of judgment
107.124 Effect
of revocation
107.127 Notice
of revocation; payments made under governing instrument
107.131 Conveyance
or release of contingent or expectant interests
107.135 Vacation
or modification of judgment; policy regarding settlement; enforcement of
settlement terms; remedies
107.136 Reinstatement
of terminated spousal support
107.137 Factors
considered in determining custody of child
107.138 Temporary
status quo order regarding child custody
107.139 Post-judgment
ex parte temporary custody or parenting time order; hearing
107.145 Vacation
or modification of judgment for deployed parent; temporary order; service;
absence of child from state
107.146 Expedited
hearing upon motion by deployed parent; provision for alternate testimony when
deployed parent cannot personally appear
107.149 Policy
regarding parents and their children
107.154 Authority
of parent when other parent granted sole custody of child
107.159 Notice
of change of residence
107.164 Parents’
duty to provide information to each other
107.169 Joint
custody of child; modification
107.174 Modification
of order for parenting time; stipulation; exception for nonresident child
107.179 Request
for joint custody of children; mediation
107.400 Amendment
of pleadings in dissolution, annulment or separation proceedings to change relief
sought
107.405 Powers
of court in dissolution, annulment or separation proceedings
107.406 Finding;
policy regarding spousal support
107.407 Petition
to set aside spousal support provisions of judgment
107.412 Procedure
applicable to ORS 107.407; matters considered; attorney fees
107.415 Notice
of change of status of child; effect of failure to give notice
107.425 Investigation
of parties in domestic relations suit involving children; physical,
psychological, psychiatric or mental health examinations; parenting plan
services; counsel for children
107.431 Modification
of portion of judgment regarding parenting time or child support; procedure
107.434 Expedited
parenting time enforcement procedure; remedies
107.437 Order
of assistance to obtain custody of child held in violation of custody order
107.445 Attorney
fees in certain domestic relations proceedings
107.449 Transfer
of proceeding under ORS 107.135 to auxiliary circuit court
107.452 Reopening
case if assets discovered after entry of judgment
SEPARATION
107.455 Effect
of separation statutes or judgments on subsequent dissolution proceedings
107.465 Conversion
of judgment of separation into judgment of dissolution
107.475 Court
to determine duration of separation; modification or vacation of judgment
SUMMARY DISSOLUTION PROCEDURE
107.485 Conditions
for summary dissolution procedure
107.490 Commencement
of proceeding; petition content; court authority
107.500 Forms
CONCILIATION SERVICES
107.510 Definitions
for ORS 107.510 to 107.610
107.520 Establishment
of conciliation jurisdiction
107.530 Source
of conciliation services; county to pay expenses
107.540 Conciliation
jurisdiction by court; effect
107.550 Petition
for conciliation jurisdiction; content; rules
107.560 Effect
of petition; waiver
107.570 Notice;
attendance at hearings
107.580 Restriction
of services; priority when children involved; rules
107.590 Court
orders; reconciliation agreements
107.600 Privacy
of proceedings; confidentiality of communications; records
107.610 Qualifications
of conciliation counselors
107.615 Fees
to support services; contracts for service; eligibility rules
FAMILY ABUSE PREVENTION ACT
107.700 Short
title
107.705 Definitions
for ORS 107.700 to 107.735
107.707 Application
of Uniform Child Custody Jurisdiction and Enforcement Act
107.710 Petition
to circuit court for relief; burden of proof
107.716 Hearing;
order; certificate of compliance; effect on title to real property; no
undertaking required
107.717 Appearance
by telephone or two-way electronic communication device
107.718 Restraining
order; service of order; request for hearing
107.719 Removal
of personal effects; party accompanied by peace officer
107.720 Enforcement
of restraining orders; sheriff’s proceedings; security; termination order
107.721 Petitioner’s
change of residence
107.722 Effect
of dissolution, annulment or separation judgment or modification order on abuse
prevention order; modification of preexisting order or judgment
107.723 Service
of restraining order; transmission by electronic communication device
107.725 Renewal
of order entered under ORS 107.716 or 107.718
107.726 Standing
to petition for relief of person under 18 years of age
107.728 Where
to file petition; contempt proceedings
107.730 Modification
of order entered under ORS 107.700 to 107.735; service; attorney fees
107.732 Recovering
custody of child
107.735 Duties
of State Court Administrator
MEDIATION PROCEDURES
107.755 Court-ordered
mediation; rules
107.765 When
referral to mediation permitted; scope of mediation; report to court of outcome
of mediation
107.775 Methods
of providing mediation services; qualifications; costs
107.785 Privacy
of proceedings; confidentiality of communications; records
107.795 Availability
of other remedies
LIFE INSURANCE ON OBLIGOR
107.810 Policy
107.820 Support
order as insurable interest; order to obtain, renew or continue insurance;
right of beneficiary to purchase insurance or pay premiums
107.830 Physical
examination may be ordered; responsibility for premiums
MISCELLANEOUS
107.835 Waiver
of personal service in subsequent contempt proceeding
107.837 Attorney
fees; effect of authorization to party
107.840 Confidentiality
of Social Security numbers
107.843 Supplemental
judgments
Note:
Definitions in 25.010 and 25.011 apply to ORS chapter 107.
DISSOLUTION, ANNULMENT AND SEPARATION
107.005 Annulment of void marriage;
declaration of validity; effect of declaration.
(1) A marriage may be declared void from the beginning for any of the causes
specified in ORS 106.020; and, whether so declared or not, shall be deemed and
held to be void in any action, suit or proceeding in which it may come into
question.
(2)
When either husband or wife claims or pretends that the marriage is void or
voidable under the provisions of ORS 106.020, it may at the suit of the other
be declared valid or that it was void from the beginning or that it is void
from the time of the judgment.
(3)
A marriage once declared valid by the judgment of a court having jurisdiction
thereof, in a suit for that purpose, cannot afterward be questioned for the
same cause directly or otherwise. [1971 c.280 §7;
2003 c.576 §102]
107.010
[Repealed by 1971 c.280 §28]
107.015 Grounds for annulment or
dissolution of marriage. (1) Except as provided in
subsection (2) of this section, a judgment for the annulment or dissolution of
a marriage may be rendered:
(a)
When either party to the marriage was incapable of making the marriage contract
or consenting to the marriage for want of legal age or sufficient
understanding; or
(b)
When the consent of either party was obtained by force or fraud.
(2)
A judgment for the annulment or dissolution of a marriage may not be rendered
for a reason described in subsection (1) of this section if the marriage contract
was afterward ratified. [1971 c.280 §8; 2003 c.576 §103; 2007 c.22 §2]
107.020
[Repealed by 1971 c.280 §28]
107.025 Irreconcilable differences as
grounds for dissolution or separation. (1) A
judgment for the dissolution of a marriage or a permanent or unlimited
separation may be rendered when irreconcilable differences between the parties
have caused the irremediable breakdown of the marriage.
(2)
A judgment for separation may be rendered when:
(a)
Irreconcilable differences between the parties have caused a temporary or
unlimited breakdown of the marriage;
(b)
The parties make and file with the court an agreement suspending for a period
not less than one year their obligation to live together as husband and wife,
and the court finds such agreement to be just and equitable; or
(c)
Irreconcilable differences exist between the parties and the continuation of
their status as married persons preserves or protects legal, financial, social
or religious interest. [1971 c.280 §9; 1973 c.502 §1; 2003 c.576 §104]
107.030
[Amended by 1953 c.439 §2; 1965 c.311
§1; repealed by 1971 c.280 §28]
107.035 [1969 c.264 §2; repealed by 1971 c.280 §28]
107.036 Doctrines of fault and in pari delicto abolished; evidence
and consideration of fault. (1) The doctrines of fault and
of in pari delicto are
abolished in suits for the annulment or dissolution of a marriage or for
separation.
(2)
The court shall not receive evidence of specific acts of misconduct, excepting
where child custody is an issue and such evidence is relevant to that issue, or
excepting at a hearing when the court finds such evidence necessary to prove
irreconcilable differences.
(3)
In dividing, awarding and distributing the real and personal property (or both)
of the parties (or either of them) between the parties, or in making such
property or any of it subject to a trust, and in fixing the amount and duration
of the contribution one party is to make to the support of the other, the court
shall not consider the fault, if any, of either of the parties in causing
grounds for the annulment or dissolution of the marriage or for separation.
(4)
Where satisfactory proof of grounds for the annulment or dissolution of a
marriage or for separation has been made, the court shall render a judgment for
the annulment or dissolution of the marriage or for separation. A judgment of
separation shall state the duration of the separation. [1971 c.280 §10; 1973 c.502 §2; 2003 c.576 §105]
107.040
[Amended by 1965 c.388 §1; repealed by 1971 c.280 §28]
107.045 [1957 c.444 §1; 1965 c.603 §1; repealed
by 1971 c.280 §28]
107.046 Appearance by public official.
The district attorney, or in appropriate cases the Division of Child Support,
shall appear in any suit for the annulment or dissolution of a marriage or for
separation when requested by the court. [1971 c.280 §4;
1973 c.502 §3; 1979 c.482 §1]
107.050
[Amended by 1965 c.603 §2; repealed by 1971 c.280 §28]
107.055 Appearance by respondent; affirmative
defenses abolished. The respondent shall not be
required to answer a petition for annulment or dissolution of a marriage or for
separation except by filing a general appearance or a general appearance with
counterclaims relating to matters other than the grounds for annulment,
dissolution or separation. Affirmative defenses are abolished. [1971 c.280 §11; 1973 c.502 §4]
107.060
[Amended by 1965 c.603 §3; repealed by 1971 c.280 §28]
107.065 [1971 c.280 §6; 1979 c.284 §99; 1999 c.569 §1; 2003 c.576 §243;
repealed by 2011 c.114 §1]
107.070
[Repealed by 1971 c.280 §28]
107.075 Residence requirements.
(1) If the marriage was solemnized in this state and either party is a resident
of or domiciled in the state at the time the suit is commenced, a suit for its
annulment or dissolution may be maintained where the ground alleged is one set
forth in ORS 106.020 or 107.015.
(2)
When the marriage was not solemnized in this state or when any ground other
than set forth in ORS 106.020 or 107.015 is alleged, at least one party must be
a resident of or be domiciled in this state at the time the suit is commenced
and continuously for a period of six months prior thereto.
(3)
In a suit for separation, one of the parties must be a resident of or domiciled
in this state at the time the suit is commenced.
(4)
Residence or domicile under subsection (2) or (3) of this section is sufficient
to give the court jurisdiction without regard to the place where the marriage
was solemnized or where the cause of suit arose. [1971 c.280
§5; 1973 c.502 §5]
107.080
[Repealed by 1971 c.280 §28]
107.085 Petition; title; content.
(1) A suit for marital annulment, dissolution or separation shall be entitled: “IN
THE MATTER OF THE MARRIAGE OF (names of parties): PETITION FOR (ultimate relief
sought).” The moving party shall be designated as the “Petitioner” and the
other party the “Respondent.” Nothing in this section shall preclude both
parties from acting as “Copetitioners.”
(2)
The petitioner shall state the following in the petition:
(a)
The names and dates of birth of all of the children born or adopted during the
marriage, and a reference to and expected date of birth of any children
conceived during the marriage but not yet born;
(b)
The names and dates of birth of all children born to the parties prior to the
marriage;
(c)
To the extent known:
(A)
Whether there is pending in this state or any other jurisdiction a domestic
relations suit, as defined in ORS 107.510;
(B)
Whether there is pending in this state or any other jurisdiction any type of
support proceeding involving dependents of the same marriage, including one
brought under this section or ORS 108.110, 109.100, 125.025, 416.400 to
416.465, 419B.400 or 419C.590
or ORS chapter 110; and
(C)
Whether there exists in this state or any other jurisdiction a support order,
as defined in ORS 110.303, involving dependents of the same marriage; and
(d)
That the petitioner acknowledges that by filing the petition the petitioner is
bound by the terms of the restraining order issued under ORS 107.093.
(3)
The petitioner shall include with the petition a certificate regarding any
pending support proceeding and any existing support order. The petitioner shall
use a certificate that is in a form established by court rule and include
information required by court rule and subsection (2)(c)(B) and (C) of this
section.
(4)
At or prior to the hearing of a suit for marital annulment, dissolution or
separation, the moving party or the party attending the hearing shall file with
the court a written statement setting forth the full names and any former names
of the parties, the residence, mailing or contact addresses of the parties, the
ages of both parties, the date and place of the marriage of the parties, and
the names and ages of the children born to or adopted by the parties. This
information shall be incorporated in and made a part of the judgment.
(5)
If real property is involved, the petitioner may have a notice of pendency of
the action recorded at the time the petition is filed, as provided in ORS
93.740.
(6)
The Social Security numbers of the parties and of the children born or adopted
during the marriage and children born to the parties prior to the marriage
shall be provided as established in ORS 107.840. [1971 c.280
§2; 1973 c.502 §6; 1979 c.144
§1; 1979 c.421 §14; 1983 c.728
§1; 1987 c.586 §25; 1993 c.448
§4; 2003 c.116 §3; 2003 c.380
§3; 2003 c.414 §4; 2003 c.576
§106]
107.086 Where to file petition.
A petition for marital annulment, dissolution or separation may be filed only
in a county in which the petitioner or respondent resides. [2003 c.289 §6]
107.087 When petition to be served on Division
of Child Support. Whenever a suit for dissolution,
separation or annulment is initiated under ORS 107.085 and the child support
rights of one of the parties or of a child of both of the parties have been
assigned to the state, a true copy of the petition shall be served by mail or
personal delivery on the Administrator of the Division of Child Support of the
Department of Justice or on the branch office providing support services to the
county in which the suit is filed. [1979 c.90 §6;
2001 c.334 §3]
107.088 Clerk of court to furnish certain
information when petition is filed. (1) At the
time a suit for legal separation or for dissolution is filed, the clerk of the
court shall furnish to the petitioner a copy of ORS 107.089. The petitioner may
serve a copy of ORS 107.089 upon the respondent and shall provide proof of
service to the court in accordance with ORCP 9.
(2)
Regardless of whether the petitioner serves the respondent with a copy of ORS
107.089, the respondent may serve the petitioner with a copy of ORS 107.089 at
any time and provide proof of service in accordance with ORCP
9. [1995 c.800 §4; 1997 c.707
§32]
107.089 Documents parties must furnish to
each other; effect of failure to furnish. (1) If
served with a copy of this section as provided in ORS 107.088, each party in a
suit for legal separation or for dissolution shall provide to the other party
copies of the following documents in their possession or control:
(a)
All federal and state income tax returns filed by either party for the last
three calendar years;
(b)
If income tax returns for the last calendar year have not been filed, all W-2
statements, year-end payroll statements, interest and dividend statements and
all other records of income earned or received by either party during the last
calendar year;
(c)
All records showing any income earned or received by either party for the
current calendar year;
(d)
All financial statements, statements of net worth and credit card and loan
applications prepared by or for either party during the last two calendar
years;
(e)
All documents such as deeds, real estate contracts, appraisals and most recent
statements of assessed value relating to real property in which either party has
any interest;
(f)
All documents showing debts of either party, including the most recent
statement of any loan, credit line or charge card balance due;
(g)
Certificates of title or registrations of all automobiles, motor vehicles,
boats or other personal property registered in either party’s name or in which
either party has any interest;
(h)
Documents showing stocks, bonds, secured notes, mutual funds and other
investments in which either party has any interest;
(i) The most recent statement describing any retirement
plan, IRA pension plan, profit-sharing plan, stock option plan or deferred
compensation plan in which either party has any interest; and
(j)
All financial institution or brokerage account records on any account in which
either party has had any interest or signing privileges in the past year,
whether or not the account is currently open or closed.
(2)(a)
Except as otherwise provided in paragraph (b) of this subsection, the party
shall provide the information listed in subsection (1) of this section to the
other party no later than 30 days after service of a copy of this section.
(b)
If a support hearing is pending fewer than 30 days after service of a copy of
this section on either party, the party upon whom a copy of this section is served
shall provide the information listed in subsection (1)(a) to (d) of this
section no later than three judicial days before the hearing.
(3)(a)
If a party does not provide information as required by subsections (1) and (2)
of this section, the other party may apply for a motion to compel as provided
in ORCP 46.
(b)
Notwithstanding ORCP 46 A(4), if the motion is
granted and the court finds that there was willful noncompliance with the
requirements of subsections (1) and (2) of this section, the court shall
require the party whose conduct necessitated the motion or the party or
attorney advising the action, or both, to pay to the moving party the
reasonable expenses incurred in obtaining the order, including attorney fees.
(4)
If a date for a support hearing has been set and the information listed in
subsection (1)(a) to (d) of this section has not been provided as required by
subsection (2) of this section:
(a)
By the obligor, the judge shall postpone the hearing, if requested to do so by
the obligee, and provide in any future order for
support that the support obligation is retroactive to the date of the original
hearing; or
(b)
By the obligee, the judge shall postpone the hearing,
if requested to do so by the obligor, and provide that any support ordered in a
future hearing may be prospective only.
(5)
The provisions of this section do not limit in any way the discovery provisions
of the Oregon Rules of Civil Procedure or any other discovery provision of
Oregon law. [1995 c.800 §5; 1997 c.631
§402; 1997 c.707 §33]
107.090
[Amended by 1953 c.602 §2; 1955 c.648
§4; 1959 c.572 §1; 1969 c.221
§1; repealed by 1971 c.280 §28]
107.092 Notice that spouse may continue
health insurance coverage; liability of clerk.
(1) The clerk of the court shall furnish to both parties in a suit for legal
separation or for dissolution, at the time the suit is filed, a notice of ORS
743.600, 743.601, 743.602 and 743.610 entitling a spouse to continue health
insurance coverage.
(2)
The notice shall be prepared by the Director of the Department of Consumer and
Business Services and also shall include a summary of the provisions of ORS
743.600.
(3)
A clerk of the court is not liable for damages arising from information
contained in or omitted from a notice furnished under this section. [1981 c.752 §16; 1987 c.505 §6; 1995 c.603 §31]
107.093 Restraining order; request for
hearing. (1) After a petition for marital
annulment, separation or dissolution is filed and upon service of summons and
petition upon the respondent as provided in ORCP 7, a
restraining order is in effect against the petitioner and the respondent until
a final judgment is issued, until the petition for marital annulment,
separation or dissolution is dismissed, or until further order of the court.
(2)
The restraining order issued under this section shall restrain the petitioner
and respondent from:
(a)
Canceling, modifying, terminating or allowing to lapse for nonpayment of
premiums any policy of health insurance, homeowner or renter insurance or
automobile insurance that one party maintains to provide coverage for the other
party or a minor child of the parties, or any life insurance policy that names
either of the parties or a minor child of the parties as a beneficiary.
(b)
Changing beneficiaries or covered parties under any policy of health insurance,
homeowner or renter insurance or automobile insurance that one party maintains
to provide coverage for the other party or a minor child of the parties, or any
life insurance policy.
(c)
Transferring, encumbering, concealing or disposing of property in which the
other party has an interest, in any manner, without written consent of the
other party or an order of the court, except in the usual course of business or
for necessities of life. This paragraph does not apply to payment by either
party of:
(A)
Attorney fees in the existing action;
(B)
Real estate and income taxes;
(C)
Mental health therapy expenses for either party or a minor child of the
parties; or
(D)
Expenses necessary to provide for the safety and welfare of a party or a minor
child of the parties.
(d)
Making extraordinary expenditures without providing written notice and an
accounting of the extraordinary expenditures to the other party. This paragraph
does not apply to payment by either party of expenses necessary to provide for
the safety and welfare of a party or a minor child of the parties.
(3)
Either party restrained under this section may apply to the court for further
temporary orders, including modification or revocation of the restraining order
issued under this section.
(4)
The restraining order issued under this section shall also include a notice
that either party may request a hearing on the restraining order by filing a
request for hearing with the court.
(5)
A copy of the restraining order issued under this section shall be attached to
the summons.
(6)
A party who violates a term of a restraining order issued under this section is
subject to imposition of remedial sanctions under ORS 33.055 based on the
violation, but is not subject to:
(a)
Criminal prosecution based on the violation; or
(b)
Imposition of punitive sanctions under ORS 33.065 based on the violation. [2003
c.414 §2; 2007 c.22 §3]
107.094 Forms for restraining order and
request for hearing. (1) Forms shall be established
by court rule for:
(a)
The restraining order issued under ORS 107.093; and
(b)
The request for hearing under ORS 107.093.
(2)
The forms established under subsection (1) of this section must include the
terms of the restraining order described in ORS 107.093. [2003 c.414 §3]
107.095 Provisions court may make after
commencement of suit and before judgment. (1)
After the commencement of a suit for marital annulment, dissolution or
separation and until a general judgment therein, the court may provide as
follows:
(a)
That a party pay to the other party such amount of money as may be necessary to
enable the other party to prosecute or defend the suit, including costs of
expert witnesses, and also such amount of money to the other party as may be necessary
to support and maintain the other party.
(b)
For the care, custody, support and maintenance, by one party or jointly, of the
minor children as described in ORS 107.105 (1)(a) and for the parenting time
rights as described in ORS 107.105 (1)(b) of the parent not having custody of
such children.
(c)
For the restraint of a party from molesting or interfering in any manner with
the other party or the minor children.
(d)
That if minor children reside in the family home and the court considers it
necessary for their best interest to do so, the court may require either party
to move out of the home for such period of time and under such conditions as
the court may determine, whether the home is rented, owned or being purchased
by one party or both parties.
(e)
Restraining and enjoining either party or both from encumbering or disposing of
any of the real or personal property of either or both of the parties, except
as ordered by the court.
(f)
For the temporary use, possession and control of the real or personal property
of the parties or either of them and the payment of installment liens and
encumbrances thereon.
(g)
That even if no minor children reside in the family home, the court may require
one party to move out of the home for such period of time and under such
conditions as the court determines, whether the home is rented, owned or being
purchased by one party or both parties if that party assaults or threatens to
assault the other.
(2)
A limited judgment under ORS chapter 18 may be entered in an action for
dissolution or annulment of a marriage providing for a support award, as
defined by ORS 18.005, or other money award, as defined by ORS 18.005.
Notwithstanding ORS 19.255, a limited judgment entered under this subsection
may not be appealed. Any decision of the court in a limited judgment subject to
this subsection may be appealed as otherwise provided by law upon entry of a
general judgment.
(3)
The court shall not require an undertaking in case of the issuance of an order
under subsection (1)(c), (d), (e), (f) or (g) of this section.
(4)
In a suit for annulment or dissolution of marriage or for separation, wherein
the parties are copetitioners or the respondent is
found by the court to be in default or the respondent having appeared has waived
further appearance or the parties stipulate to the entry of a judgment, the
court may, when the cause is otherwise ready for hearing on the merits, in lieu
of such hearing, enter a judgment of annulment or dissolution or for separation
based upon a current affidavit of the petitioner or copetitioners,
setting forth a prima facie case, and covering such additional matters as the
court may require. If child support or custody of minor children is involved,
then the affidavit also shall include:
(a)
The gross monthly income of each party, to the best of the affiant’s knowledge;
and
(b)
The name of the party with whom the children currently reside and the length of
time they have so resided.
(5)
When a court orders relief under subsection (1)(c) or (d) of this section, the
court may include in its order an expiration date for the order to allow entry
of the order into the Law Enforcement Data System and the databases of the
National Crime Information Center of the United States Department of Justice as
provided in ORS 107.720. If the person being restrained was provided notice and
an opportunity to be heard, the court shall also include in the order, when
appropriate, terms and findings sufficient under 18 U.S.C.
922 (d)(8) or (g)(8) to affect the person’s ability to possess firearms and
ammunition or engage in activities involving firearms. [1971 c.280 §12; 1973 c.502 §7; 1977 c.205 §1; 1977 c.847 §1; 1977 c.878 §1a; 1979 c.86 §1; 1981 c.668 §1; 1987 c.873 §27; 1987 c.885 §1; 1991 c.82 §1; 1993 c.223 §4; 1993 c.716 §2; 1997 c.704 §41; 1997 c.707 §5; 1999 c.569 §2; 1999 c.1052 §5; 2001 c.286 §1; 2003 c.576 §107; 2011 c.115 §1]
107.097 Ex parte temporary custody or
parenting time orders; temporary protective order of restraint; hearing.
(1) Except as otherwise provided in subsection (3) of this section, a court may
not enter ex parte a temporary order under ORS 107.095, 109.103 or 109.119
providing for the custody of, or parenting time with, a child.
(2)(a)
A party may apply to a court for a temporary protective order of restraint by
filing with the court an affidavit conforming to the requirements of ORS
109.767.
(b)
Upon receipt of an application under this subsection, the court may issue a
temporary protective order of restraint restraining and enjoining each party
from:
(A)
Changing the child’s usual place of residence;
(B)
Interfering with the present placement and daily schedule of the child;
(C)
Hiding or secreting the child from the other party;
(D)
Interfering with the other party’s usual contact and parenting time with the
child;
(E)
Leaving the state with the child without the written permission of the other
party or the permission of the court; or
(F)
In any manner disturbing the current schedule and daily routine of the child
until custody or parenting time has been determined.
(c)
A copy of the order and the supporting affidavit must be served on the other
party in the manner of service of a summons under ORCP
7. The order must include the following statement:
______________________________________________________________________________
Notice:
You may request a hearing on this order as long as it remains in effect by
filing with the court a request for a hearing. In the request you must tell the
court and the other party that you object to the order and specifically why you
disagree with the representation of the status quo described in the order. In
the request you must also inform the court of your telephone number or contact
number and your current residence, mailing or contact address.
______________________________________________________________________________
(3)(a)
A court may enter ex parte a temporary order providing for the custody of, or
parenting time with, a child if:
(A)
The party requesting an order is present in court and presents an affidavit
alleging that the child is in immediate danger; and
(B)
The court finds, based on the facts presented in the party’s testimony and
affidavit and in the testimony of the other party, if the other party is
present, that the child is in immediate danger.
(b)
The party requesting an order under this subsection shall provide the court
with telephone numbers where the party can be reached at any time during the
day and a contact address.
(c)
A copy of the order and the supporting affidavit must be served on the other
party in the manner of service of a summons under ORCP
7. The order must include the following statement:
______________________________________________________________________________
Notice:
You may request a hearing on this order as long as it remains in effect by
filing with the court a request for a hearing. In the request you must tell the
court and the other party that you object to the order on the ground that the
child was not in immediate danger at the time the order was issued. In the
request you must also inform the court of your telephone number or contact
number and your current residence, mailing or contact address.
______________________________________________________________________________
(4)(a)
A party against whom an order is entered under subsection (2) or (3) of this
section may request a hearing by filing with the court a hearing request
described in subsection (2) or (3) of this section at any time while the order
is in effect.
(b)
The court shall make reasonable efforts to hold a hearing within 14 days and
shall hold a hearing no later than 21 days after receipt of the request for the
hearing. The court shall notify each party of the time, date and place of the
hearing.
(c)
An order issued under subsection (2) or (3) of this section remains in effect
through the date of the hearing. If the party against whom the order was
entered fails to appear at the hearing without good cause, the court shall
continue the order in effect. If the party who obtained the order fails to
appear at the hearing without good cause, the court shall vacate the order.
(d)
The issue at a hearing to contest:
(A)
A temporary protective order of restraint is limited to a determination of the
status quo at the time the order was issued. If the child’s usual place of
residence cannot be determined, the court may make any further order the court
finds appropriate in the best interests of the child.
(B)
A temporary order for the custody of, or parenting time with, a child is limited
to whether the child was in immediate danger at the time the order was issued.
(5)
The State Court Administrator shall prescribe the content and form of a request
for a hearing described in subsections (2) and (3) of this section.
(6)
As used in this section:
(a)
“Child’s usual place of residence” has the meaning given that term in ORS
107.138.
(b)
“Party’s usual contact and parenting time,” “present placement and daily
schedule of the child” and “current schedule and daily routine of the child”
have the meanings given “parent’s usual contact and parenting time,” “present
placement and daily schedule of the child” and “current schedule and daily
routine of the child” in ORS 107.138. [1995 c.792 §1;
1997 c.136 §1; 1997 c.386 §3;
1997 c.707 §6; 1999 c.59 §19;
1999 c.649 §44; 2007 c.11 §1]
107.100
[Amended by 1953 c.553 §2; 1953 c.635
§2; 1961 c.540 §1; 1963 c.476
§1; 1965 c.603 §6; 1969 c.198
§53; 1969 c.591 §283; repealed by 1971 c.280 §28]
107.101 Policy regarding parenting.
It is the policy of this state to:
(1)
Assure minor children of frequent and continuing contact with parents who have
shown the ability to act in the best interests of the child;
(2)
Encourage such parents to share in the rights and responsibilities of raising
their children after the parents have separated or dissolved their marriage;
(3)
Encourage parents to develop their own parenting plan with the assistance of
legal and mediation professionals, if necessary;
(4)
Grant parents and courts the widest discretion in developing a parenting plan;
and
(5)
Consider the best interests of the child and the safety of the parties in
developing a parenting plan. [1997 c.707 §1]
107.102 Parenting plan; content.
(1) In any proceeding to establish or modify a judgment providing for parenting
time with a child, except for matters filed under ORS 107.700 to 107.735, there
shall be developed and filed with the court a parenting plan to be included in
the judgment. A parenting plan may be either general or detailed.
(2)
A general parenting plan may include a general outline of how parental
responsibilities and parenting time will be shared and may allow the parents to
develop a more detailed agreement on an informal basis. However, a general
parenting plan must set forth the minimum amount of parenting time and access a
noncustodial parent is entitled to have.
(3)
A detailed parenting plan may include, but need not be limited to, provisions
relating to:
(a)
Residential schedule;
(b)
Holiday, birthday and vacation planning;
(c)
Weekends, including holidays, and school in-service days preceding or following
weekends;
(d)
Decision-making and responsibility;
(e)
Information sharing and access;
(f)
Relocation of parents;
(g)
Telephone access;
(h)
Transportation; and
(i) Methods for resolving disputes.
(4)(a)
The court shall develop a detailed parenting plan when:
(A)
So requested by either parent; or
(B)
The parent or parents are unable to develop a parenting plan.
(b)
In developing a parenting plan under this subsection, the court may consider
only the best interests of the child and the safety of the parties. [1997 c.707 §2]
107.104 Policy regarding settlement;
enforcement of settlement terms; remedies. (1) It
is the policy of this state:
(a)
To encourage the settlement of suits for marital annulment, dissolution or
separation; and
(b)
For courts to enforce the terms of settlements described in subsection (2) of
this section to the fullest extent possible, except when to do so would violate
the law or would clearly contravene public policy.
(2)
In a suit for marital annulment, dissolution or separation, the court may
enforce the terms set forth in a stipulated judgment signed by the parties, a
judgment resulting from a settlement on the record or a judgment incorporating
a marital settlement agreement:
(a)
As contract terms using contract remedies;
(b)
By imposing any remedy available to enforce a judgment, including but not
limited to contempt; or
(c)
By any combination of the provisions of paragraphs (a) and (b) of this subsection.
(3)
A party may seek to enforce an agreement and obtain remedies described in
subsection (2) of this section by filing a motion, serving notice on the other
party in the manner provided by ORCP 7 and, if a
remedy under subsection (2)(b) of this section is sought, complying with the
statutory requirements for that remedy. All claims for relief arising out of
the same acts or omissions must be joined in the same proceeding.
(4)
Nothing in subsection (2) or (3) of this section limits a party’s ability, in a
separate proceeding, to file a motion to set aside, alter or modify a judgment
under ORS 107.135 or to seek enforcement of an ancillary agreement to the
judgment. [2001 c.203 §2; 2003 c.576
§108]
107.105 Provisions of judgment.
(1) Whenever the court renders a judgment of marital annulment, dissolution or
separation, the court may provide in the judgment:
(a)
For the future care and custody, by one party or jointly, of all minor children
of the parties born, adopted or conceived during the marriage and for minor
children born to the parties prior to the marriage, as the court may deem just
and proper under ORS 107.137. The court may hold a hearing to decide the
custody issue prior to any other issues. When appropriate, the court shall
recognize the value of close contact with both parents and encourage joint
parental custody and joint responsibility for the welfare of the children.
(b)
For parenting time rights of the parent not having custody of such children and
for visitation rights pursuant to a petition filed under ORS 109.119. When a
parenting plan has been developed as required by ORS 107.102, the court shall
review the parenting plan and, if approved, incorporate the parenting plan into
the court’s final order. When incorporated into a final order, the parenting
plan is determinative of parenting time rights. If the parents have been unable
to develop a parenting plan or if either of the parents requests the court to
develop a detailed parenting plan, the court shall develop the parenting plan
in the best interest of the child, ensuring the noncustodial parent sufficient
access to the child to provide for appropriate quality parenting time and
ensuring the safety of the parties, if implicated. The court shall deny
parenting time to a parent under this paragraph if the court finds that the
parent has been convicted of rape under ORS 163.365 or 163.375 or other
comparable law of another jurisdiction and the rape resulted in the conception
of the child. Otherwise, the court may deny parenting time to the noncustodial
parent under this subsection only if the court finds that parenting time would
endanger the health or safety of the child. The court shall recognize the value
of close contact with both parents and encourage, when practicable, joint
responsibility for the welfare of such children and extensive contact between
the minor children of the divided marriage and the parties. If the court awards
parenting time to a noncustodial parent who has committed abuse, other than
being convicted for rape as described in this paragraph, the court shall make
adequate provision for the safety of the child and the other parent in
accordance with the provisions of ORS 107.718 (6).
(c)
For the support of the children of the marriage by the parties. In ordering
child support, the formula established under ORS 25.275 shall apply. The court
may at any time require an accounting from the custodial parent with reference
to the use of the money received as child support. The court is not required to
order support for any minor child who has become self-supporting, emancipated
or married or for any child who has ceased to attend school after becoming 18
years of age. A general judgment entered under this section may include an
amount for support as requested in a petition filed under ORS 107.085 or under
a motion for relief made pursuant to ORS 107.095 (1)(b) for which a limited
judgment was not entered, payment of which commences no earlier than the date
the petition or motion was served on the nonrequesting
party, and the amount shall be considered a request for relief that has been
decided by the general judgment for purposes of ORS 18.082 (3).
(d)
For spousal support, an amount of money for a period of time as may be just and
equitable for one party to contribute to the other, in gross or in installments
or both. The court may approve an agreement for the entry of an order for the
support of a party. A general judgment entered under this section may include
an amount for support as requested in a petition filed under ORS 107.085 or
under a motion for relief made pursuant to ORS 107.095 (1)(b) for which a
limited judgment was not entered, payment of which commences no earlier than
the date the petition or motion was served on the nonrequesting
party, and the amount shall be considered a request for relief that has been
decided by the general judgment for purposes of ORS 18.082 (3). In making the
spousal support order, the court shall designate one or more categories of
spousal support and shall make findings of the relevant factors in the
decision. The court may order:
(A)
Transitional spousal support as needed for a party to attain education and
training necessary to allow the party to prepare for reentry into the job
market or for advancement therein. The factors to be considered by the court in
awarding transitional spousal support include but are not limited to:
(i) The duration of the marriage;
(ii)
A party’s training and employment skills;
(iii)
A party’s work experience;
(iv)
The financial needs and resources of each party;
(v)
The tax consequences to each party;
(vi)
A party’s custodial and child support responsibilities; and
(vii)
Any other factors the court deems just and equitable.
(B)
Compensatory spousal support when there has been a significant financial or
other contribution by one party to the education, training, vocational skills,
career or earning capacity of the other party and when an order for
compensatory spousal support is otherwise just and equitable in all of the
circumstances. The factors to be considered by the court in awarding
compensatory spousal support include but are not limited to:
(i) The amount, duration and nature of the contribution;
(ii)
The duration of the marriage;
(iii)
The relative earning capacity of the parties;
(iv)
The extent to which the marital estate has already benefited from the
contribution;
(v)
The tax consequences to each party; and
(vi)
Any other factors the court deems just and equitable.
(C)
Spousal maintenance as a contribution by one spouse to the support of the other
for either a specified or an indefinite period. The factors to be considered by
the court in awarding spousal maintenance include but are not limited to:
(i) The duration of the marriage;
(ii)
The age of the parties;
(iii)
The health of the parties, including their physical, mental and emotional
condition;
(iv)
The standard of living established during the marriage;
(v)
The relative income and earning capacity of the parties, recognizing that the
wage earner’s continuing income may be a basis for
support distinct from the income that the supported spouse may receive from the
distribution of marital property;
(vi)
A party’s training and employment skills;
(vii)
A party’s work experience;
(viii)
The financial needs and resources of each party;
(ix)
The tax consequences to each party;
(x)
A party’s custodial and child support responsibilities; and
(xi)
Any other factors the court deems just and equitable.
(e)
For the delivery to one party of such party’s personal property in the
possession or control of the other at the time of the giving of the judgment.
(f)
For the division or other disposition between the parties of the real or
personal property, or both, of either or both of the parties as may be just and
proper in all the circumstances. In determining the division of property under
this paragraph, the following apply:
(A)
A retirement plan or pension or an interest therein shall be considered as
property.
(B)
The court shall consider the contribution of a party as a homemaker as a
contribution to the acquisition of marital assets.
(C)
Except as provided in subparagraph (D) of this paragraph, there is a rebuttable
presumption that both parties have contributed equally to the acquisition of
property during the marriage, whether such property is jointly or separately
held.
(D)(i) Property acquired by gift to one party during the
marriage and separately held by that party on a continuing basis from the time
of receipt is not subject to a presumption of equal contribution under
subparagraph (C) of this paragraph.
(ii)
For purposes of this subparagraph, “property acquired by gift” means property
acquired by one party through gift, devise, bequest, operation of law,
beneficiary designation or inheritance.
(E)
Subsequent to the filing of a petition for annulment or dissolution of marriage
or separation, the rights of the parties in the marital assets shall be
considered a species of co-ownership, and a transfer of marital assets under a
judgment of annulment or dissolution of marriage or of separation entered on or
after October 4, 1977, shall be considered a partitioning of jointly owned
property.
(F)
The court shall require full disclosure of all assets by the parties in
arriving at a just property division.
(G)
In arriving at a just and proper division of property, the court shall consider
reasonable costs of sale of assets, taxes and any other costs reasonably
anticipated by the parties.
(H)(i) If a party has been awarded spousal support in lieu of a
share of property, the court shall so state on the record and shall order the
obligor to provide for and maintain life insurance in an amount commensurate
with the obligation and designating the obligee as
beneficiary for the duration of the obligation.
(ii)
If the obligor dies prior to the termination of spousal support and life
insurance is not in force as provided in sub-subparagraph (i)
of this subparagraph, the court may modify the method of payment of spousal
support under the judgment or order of support from installments to a lump sum
payment to the obligee from the estate of the obligor
in an amount commensurate with the present value of the spousal support at the
time of death.
(iii)
The obligee or attorney of the obligee
shall cause a certified copy of the judgment to be delivered to the life
insurance company or companies.
(iv)
If the obligee or the attorney of the obligee delivers a true copy of the judgment to the life
insurance company or companies, identifying the policies involved and
requesting such notification under this section, the company or companies shall
notify the obligee, as beneficiary of the insurance
policy, whenever the policyholder takes any action that will change the
beneficiary or reduce the benefits of the policy. Either party may request
notification by the insurer when premium payments have not been made. If the
obligor is ordered to provide for and maintain life insurance, the obligor
shall provide to the obligee a true copy of the
policy. The obligor shall also provide to the obligee
written notice of any action that will reduce the benefits or change the
designation of the beneficiaries under the policy.
(g)
For the creation of trusts as follows:
(A)
For the appointment of one or more trustees to hold, control and manage for the
benefit of the children of the parties, of the marriage or otherwise such of
the real or personal property of either or both of the parties, as the court
may order to be allocated or appropriated to their support and welfare, and to
collect, receive, expend, manage or invest any sum of money awarded for the
support and welfare of minor children of the parties.
(B)
For the appointment of one or more trustees to hold, manage and control such
amount of money or such real or personal property of either or both of the parties,
as may be set aside, allocated or appropriated for the support of a party.
(C)
For the establishment of the terms of the trust and provisions for the
disposition or distribution of such money or property to or between the
parties, their successors, heirs and assigns after the purpose of the trust has
been accomplished. Upon petition of a party or a person having an interest in
the trust showing a change of circumstances warranting a change in the terms of
the trust, the court may make and direct reasonable modifications in its terms.
(h)
To change the name of either spouse to a name the spouse held before the
marriage. The court shall order a change if it is requested by the affected
party.
(i) For a money award for any sums of money found to be then
remaining unpaid upon any order or limited judgment entered under ORS 107.095.
If a limited judgment was entered under ORS 107.095, the limited judgment shall
continue to be enforceable for any amounts not paid under the limited judgment
unless those amounts are included in the money award made by the general
judgment.
(j)
For an award of reasonable attorney fees and costs and expenses reasonably
incurred in the action in favor of a party or in favor of a party’s attorney.
(2)
In determining the proper amount of support and the proper division of property
under subsection (1)(c), (d) and (f) of this section, the court may consider
evidence of the tax consequences on the parties of its proposed judgment.
(3)
Upon the filing of the judgment, the property division ordered shall be deemed
effective for all purposes. This transfer by judgment, which shall affect
solely owned property transferred to the other spouse as well as commonly owned
property in the same manner as would a declaration of a resulting trust in
favor of the spouse to whom the property is awarded, is not a taxable sale or
exchange.
(4)
If an appeal is taken from a judgment of annulment or dissolution of marriage
or of separation or from any part of a judgment rendered in pursuance of the provisions
of ORS 107.005 to 107.086, 107.095, 107.105, 107.115 to 107.174, 107.405,
107.425, 107.445 to 107.520, 107.540 and 107.610, the court rendering the
judgment may provide in a supplemental judgment for any relief provided for in
ORS 107.095 and shall provide that the relief granted in the judgment is to be
in effect only during the pendency of the appeal. A supplemental judgment under
this subsection may be enforced as provided in ORS 33.015 to 33.155 and ORS
chapter 18. A supplemental judgment under this subsection may be appealed in
the same manner as provided for supplemental judgments modifying a domestic
relations judgment under ORS 19.275.
(5)
If an appeal is taken from the judgment or other appealable order in a suit for
annulment or dissolution of a marriage or for separation and the appellate
court awards costs and disbursements to a party, the court may also award to
that party, as part of the costs, such additional sum of money as it may
adjudge reasonable as an attorney fee on the appeal.
(6)
If, as a result of a suit for the annulment or dissolution of a marriage or for
separation, the parties to such suit become owners of an undivided interest in
any real or personal property, or both, either party may maintain supplemental
proceedings by filing a petition in such suit for the partition of such real or
personal property, or both, within two years from the entry of the judgment,
showing among other things that the original parties to the judgment and their
joint or several creditors having a lien upon any such real or personal
property, if any there be, constitute the sole and only necessary parties to
such supplemental proceedings. The procedure in the supplemental proceedings,
so far as applicable, shall be the procedure provided in ORS 105.405 for the
partition of real property, and the court granting the judgment shall have in
the first instance and retain jurisdiction in equity therefor.
[1971 c.280 §13; 1973 c.502
§8; 1975 c.722 §1; 1975 c.733
§2; 1977 c.205 §2; 1977 c.847
§2; 1977 c.878 §2a; 1979 c.144 §2; 1981 c.775 §1; 1983 c.728 §2; 1987 c.795 §9; 1987 c.885 §2; 1989 c.811 §6; 1993 c.315 §1; 1993 c.716 §3; 1995 c.22 §1; 1995 c.608 §3; 1997 c.22 §1; 1997 c.71 §19; 1997 c.707 §7; 1999 c.587 §1; 1999 c.762 §1; 2001 c.873 §5; 2003 c.576 §109; 2005 c.536 §7; 2005 c.568 §29; 2007 c.71 §27; 2011 c.115 §2; 2011 c.306 §1; 2011 c.438 §4]
107.106 Provisions of order or judgment
providing for custody, parenting time, visitation or support of child.
(1) An order or judgment providing for the custody, parenting time, visitation
or support of a child under ORS chapter 25, 107, 108, 109 or 110 or ORS 419B.400 or 419C.590 shall
include:
(a)
Provisions addressing the issues of:
(A)
Payment of uninsured medical expenses of the child;
(B)
Maintenance of insurance or other security for support; and
(C)
Medical support for the child under ORS 25.321 to 25.343.
(b)
A statement in substantially the following form:
______________________________________________________________________________
The
terms of child support and parenting time (visitation) are designed for the
child’s benefit and not the parents’ benefit. You must pay support even if you
are not receiving visitation. You must comply with visitation orders even if
you are not receiving child support.
Violation
of child support orders and visitation orders is punishable by fine,
imprisonment or other penalties.
Publicly
funded help is available to establish, enforce and modify child support orders.
Paternity establishment services are also available. Contact your local
district attorney or the Department of Justice at (503) 373-7300 for
information.
Publicly
funded help may be available to establish, enforce and modify visitation
orders. Forms are available to enforce visitation orders. Contact the domestic
relations court clerk or civil court clerk for information.
______________________________________________________________________________
(2)
The court or administrative law judge shall ensure the creation and filing of
an order or judgment that complies with this section.
(3)
This section does not apply to an action undertaken by the Division of Child
Support of the Department of Justice or a district attorney under ORS 25.080. [1995
c.800 §9; 1997 c.249 §36;
1997 c.707 §8; 2003 c.73 §49a; 2003 c.75 §83; 2003 c.637 §17; 2009 c.351 §8]
107.107 [1981 c.775 §4; repealed by 1983 c.728 §9]
107.108 Support or maintenance for child
attending school; rules. (1) As used in this section:
(a)
“Child attending school” means a child of the parties who:
(A)
Is unmarried;
(B)
Is 18 years of age or older and under 21 years of age;
(C)
Is making satisfactory academic progress as defined by the school that the
child attends; and
(D)
Has a course load that is no less than one-half of the load that is determined
by the school to constitute full-time enrollment.
(b)
“Regularly scheduled break” means:
(A)
A summer semester or term;
(B)
A period of time not exceeding four months between graduation from or
completion of school and the beginning of the next regularly scheduled term,
semester or course of study at school;
(C)
A period of time between the end and beginning of regularly scheduled
consecutive school semesters, terms or courses of study; or
(D)
Any other scheduled break between courses of study that is defined by the
school as a regularly scheduled break.
(c)
“School” means:
(A)
An educational facility such as a high school, community college, four-year
college or university;
(B)
A course of professional, vocational or technical training, including the Job
Corps, designed to fit the child for gainful employment; or
(C)
A high school equivalency course, including but not limited to a General
Educational Development (GED) program, an educational
program for grade 12 or below and home schooling.
(2)
A support order entered or modified under this chapter or under ORS chapter 25,
108, 109, 110, 125, 416, 419B or 419C
may require either parent, or both of them, to provide for the support or
maintenance of a child attending school.
(3)
Notwithstanding ORS 416.407, a child attending school is a party to any legal
proceeding related to the support order. A child attending school may:
(a)
Apply for services under ORS 25.080:
(A)
If a support order provides for the support or maintenance of the child
attending school; or
(B)
In accordance with rules adopted by the Department of Justice;
(b)
Request a judicial or administrative modification of the child support amount
or may receive notice of and participate in any modification proceeding; and
(c)
Agree, in the same manner as an obligee under ORS
25.020 (12), that payments not made to the Department of Justice should be
credited for amounts that would have been paid to the child attending school if
the payments had been made to the department.
(4)
Regardless of whether the child is a child attending school, an unmarried child
who is 18 years of age or older and under 21 years of age:
(a)
Is a necessary party to a judicial proceeding under ORS 107.085, 107.135,
107.431, 108.110, 109.103 or 109.165 in which the child’s parents are parties
and the court has authority to order or modify support for a child attending
school; and
(b)
May request notice of any proceeding initiated by the administrator to modify a
support order that may affect the child’s rights as a child attending school.
To receive notice, the child shall provide an address to the administrator, and
the administrator shall notify the child of any modification proceeding by
first class mail. To be a party to a proceeding, the child must send a written
request to the administrator within 30 days after the date of the notice of the
proceeding.
(5)(a)
If a support order provides for the support or maintenance of a child attending
school and the child qualifies as a child attending school, unless good cause
is found for the distribution of the payment to be made in some other manner,
support shall be distributed to the child if services are being provided under
ORS 25.080 or shall be paid directly to the child if those services are not being
provided.
(b)
Unless otherwise ordered by the court, administrator or administrative law
judge, when there are multiple children for whom support is ordered, the amount
distributed or paid directly to a child attending school is a prorated share
based on the number of children for whom support is ordered. However, if, due
to a parenting time or split custody arrangement, support was not paid to the
parent having primary physical custody of the child before the child turned 18
years of age, support may not be distributed or paid directly to the child
attending school unless the support order is modified.
(c)
The Department of Justice shall adopt rules to define good cause and
circumstances under which the administrator or administrative law judge may
allocate support by other than a prorated share and to determine how support is
to be allocated in those circumstances.
(6)(a)
For support payments to continue to be distributed or paid directly to the
child attending school, the child shall provide to each parent ordered to pay
support and, if services are being provided under ORS 25.080, to the
department:
(A)
Written notice of the child’s intent to attend or continue to attend school.
The child shall provide the notice before reaching 18 years of age. The notice
must include the name of the school and the expected graduation date or date
when the child will stop attending classes. If the child changes schools, the
child shall provide the information required by this subsection concerning the
subsequent school before the expected graduation date or date when the child
will stop attending classes at the previous school.
(B)
Written consent that:
(i) Is directed to the child’s school and is in a form
consistent with state and federal requirements that restrict disclosure of
student records;
(ii)
Gives the school authority to disclose to each parent ordered to pay support
the child’s enrollment status, whether the child is maintaining satisfactory
academic progress, a list of courses in which the child is enrolled and the
child’s grades; and
(iii)
States that the disclosure is for the purpose of permitting each parent to
verify the child’s compliance with the requirements of this section.
(b)
The child shall provide the written consent form described in paragraph (a)(B)
of this subsection within 30 days after the beginning of the first term or
semester after the child reaches 18 years of age, at the beginning of each
academic year thereafter and as otherwise required by the school to disclose
the information under this section.
(c)
If an order of nondisclosure of information has been entered concerning the
child under ORS 25.020, the child may provide the information described in
paragraph (a)(B) of this subsection in the manner established by the department
by rule.
(7)
Each parent ordered to pay support shall continue to make support payments, to
be distributed or paid directly, to the child during regularly scheduled breaks
as long as the child intends to continue attending school the next scheduled
term or semester.
(8)
A parent’s obligation to pay support to a child attending school is suspended
when:
(a)
The child has reached 18 years of age and has not provided written notice of
the child’s intent to attend or continue to attend school, or the child has
graduated or reached the date to stop attending classes, as provided under
subsection (6)(a)(A) of this section;
(b)(A)
Services are not being provided under ORS 25.080;
(B)
The parent has provided the child with a written notice of the parent’s intent
to stop paying support directly to the child because the child is no longer a
child attending school or the child has not provided the written consent
required by subsection (6)(a)(B) of this section; and
(C)
Thirty days have passed since the parent provided the notice to the child and
the parent has not received:
(i) Written confirmation from the school that the child is
enrolled in the school and is a child attending school; or
(ii)
The written consent from the child as required by subsection (6)(a)(B) of this
section;
(c)(A)
Services are being provided under ORS 25.080;
(B)
A parent ordered to pay support has provided the department with written notice
that the child is no longer a child attending school or that the child has not
provided the written consent required by subsection (6)(a)(B) of this section;
(C)
The department has provided written notice to the child requiring:
(i) Written confirmation, on a form developed by the
department, from the school that the child is enrolled in the school and is a
child attending school; and
(ii)
Proof that the written consent required by subsection (6)(a)(B) of this section
has been provided to the parent ordered to pay support; and
(D)
Thirty days have passed since the department provided the notice to the child
and the department has not received:
(i) Written confirmation from the school that the child is
enrolled in the school and is a child attending school; or
(ii)
Proof that the written consent required by subsection (6)(a)(B) of this section
has been provided to the parent ordered to pay support.
(9)
When a parent’s support obligation has been suspended under subsection (8) of
this section, the obligation is reinstated:
(a)
If services are not being provided under ORS 25.080, effective on the date the
parent receives written confirmation from the school that the child is enrolled
in the school and is a child attending school and receives the written consent
from the child as required by subsection (6)(a)(B) of this section; or
(b)
If services are being provided under ORS 25.080, effective on the date the
department receives written confirmation from the school that the child is
enrolled in the school and is a child attending school and receives proof that
the written consent required by subsection (6)(a)(B) of this section has been
provided to the parent ordered to pay support.
(10)
If a parent ordered to pay support is paying a prorated share under subsection
(5) of this section and that obligation is suspended under subsection (8) of
this section, the parent shall pay to the obligee the
amount previously paid to the child attending school until such time as the
support order is modified. The suspension of a parent’s obligation to pay
support to a child attending school is a substantial change of circumstances
for purposes of modifying a support order. In a proceeding to modify a support
order, the court, administrator or administrative law judge may order a
modified amount of support and may order an amount of support to be paid in the
event that a support obligation is reinstated under subsection (9) of this
section.
(11)(a)
If services are being provided under ORS 25.080 and the department has
suspended a support obligation under subsection (8) of this section or
reinstated a support obligation under subsection (9) of this section, a party
may request administrative review of the action within 30 days after the date
of the notice that the department has suspended or reinstated the support
obligation.
(b)
The department may adopt rules specifying the issues that may be considered on
review.
(c)
A party may appeal the department’s decision on review under ORS 183.484.
(12)(a)
Notwithstanding any other provision of this section, if a parent who is
required to provide for the support or maintenance of a child attending school
has established a higher education savings plan for the child’s continued
education, the court may order payment in accordance with the plan instead of
ordering support that would otherwise be distributed or paid directly to the
child under this section.
(b)
If the court orders payment in accordance with the plan, the court may not
order compliance with or payment of that provision of the order through the
department.
(c)
As used in this subsection, “higher education savings plan” means a
tax-advantaged account established by a parent on behalf of a child for the
purpose of paying qualified higher education expenses of the child at eligible
educational institutions.
(13)
A support order that provides for the support or maintenance of a child
attending school is subject to this section regardless of when the support
order was entered.
(14)
A support order that provides for the support or maintenance of a child
attending school is intended to recognize the importance of continuing
education for a child over 18 years of age who does not benefit from an intact
family or who has been removed from the household. While support may serve to
supplement the resources available to the child attending school, it is not
intended to replace other resources or meet all of the financial needs of a
child attending school. [1973 c.827 §12b; 1981 c.669 §1; 1989 c.518 §1; 1995 c.343 §21; 1997 c.704 §51; 2003 c.73 §50a; 2003 c.75 §84; 2003 c.576 §110; 2005 c.591 §1]
107.110
[Amended by 1965 c.603 §4; 1969 c.179
§1; 1969 c.198 §54; 1969 c.591
§284; repealed by 1971 c.280 §28]
107.111 When parents equally responsible
for funeral expenses of child. Whenever a
court imposes upon the parents of a person under 18 years of age a shared
obligation to support the person financially, the parents, unless the order
creating the obligation of support specifically provides otherwise, shall be
equally responsible financially for funeral expenses resulting from the death
of the person before reaching the age of 18 years. [1983 c.728
§8]
107.115 Effect of judgment; effective
date; appeal pending upon death of party. (1) A
judgment of annulment or dissolution of a marriage restores the parties to the
status of unmarried persons, unless a party is married to another person. The
judgment gives the court jurisdiction to award, to be effective immediately,
the relief provided by ORS 107.105. The judgment shall revoke:
(a)
A will pursuant to ORS 112.315.
(b)
A transfer on death deed pursuant to ORS 93.981.
(2)
The marriage relationship is terminated when the court signs the judgment of
dissolution of marriage.
(3)(a)
The Court of Appeals or Supreme Court shall continue to have jurisdiction of an
appeal pending at the time of the death of either party. The appeal may be
continued by the personal representative of the deceased party. The attorney of
record on the appeal, for the deceased party, may be allowed a reasonable
attorney fee, to be paid from the decedent’s estate. However, costs on appeal
may not be awarded to either party.
(b)
The Court of Appeals or Supreme Court shall have the power to determine finally
all matters presented on such appeal. Before making final disposition, the
Court of Appeals or Supreme Court may refer the proceeding back to the trial
court for such additional findings of fact as are required. [1971 c.280 §14; 1981 c.537 §2; 1987 c.586 §26; 1993 c.149 §1; 1999 c.569 §3; 2003 c.576 §111; 2011 c.212 §25]
Note:
Section 31, chapter 212, Oregon Laws 2011, provides:
Sec. 31.
Sections 19 to 21 of this 2011 Act [93.981 to 93.985] and the amendments to ORS
86.740, 93.030, 93.040, 107.115, 112.465, 112.570 and 125.440 by sections 22 to
28 of this 2011 Act apply to a transfer on death deed made before, on or after
the effective date of this 2011 Act [January 1, 2012] by a transferor dying on
or after the effective date of this 2011 Act. [2011 c.212
§31]
107.118 Definitions for ORS 107.118 to
107.131. As used in ORS 107.118 to 107.131:
(1)
“Designation of beneficiary” means the naming of a person in a governing
instrument for the purpose of a transfer of moneys or other benefits upon the
death of the principal.
(2)
“Governing instrument” means a policy of life insurance executed by a principal
before a suit for marital dissolution, separation or annulment or a document
executed by the principal before a suit for marital dissolution, separation or
annulment for the purpose of designating a beneficiary under:
(a)
An employee pension benefit plan, as defined in 29 U.S.C. 1002
(2) for the purposes of the Employee Retirement Income Security Act of 1974;
(b)
A public retirement system of a public body, as defined in ORS 174.109, or of
any other state or local government;
(c)
A federal retirement system created by the federal government for any officer or
employee of the United States, including any person retired from service in the
United States Civil Service, the Armed Forces of the United States or any
agency or subdivision thereof;
(d)
A deferred compensation plan under section 457 of the Internal Revenue Code;
(e)
An individual retirement account, annuity or trust or simplified employee
pension under section 408 or 408A of the Internal
Revenue Code;
(f)
An employee annuity, including custodial accounts treated as annuities, under
section 403(a) or (b) of the Internal Revenue Code; or
(g)
A retirement account, stock certificate, mutual fund account, bank account or
other financial account that is not jointly owned by the principal and the
principal’s spouse and that is payable or transferable upon the death of the
principal.
(3)
“Principal” means the person who designates a beneficiary in a governing
instrument and who is a party to a suit for marital dissolution, separation or
annulment.
(4)
“Relative of the spouse” means a person who is related to a spouse by blood,
adoption or marriage and who is not related to the principal by blood, adoption
or marriage.
(5)
“Spouse” means a person who is or was married to the principal. [2005 c.285 §2]
Note:
107.118 to 107.131 were added to and made a part of ORS chapter 107 by
legislative action but were not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.
107.120
[Repealed by 1971 c.280 §28]
107.121 Revocation of designation of
beneficiary upon entry of judgment. (1) A
judgment of dissolution, separation or annulment may revoke a designation of
beneficiary made by a principal in favor of a spouse or a relative of the
spouse if the designation of beneficiary is revocable as described in
subsection (2) of this section.
(2)
A designation of beneficiary is revocable for the purposes of this section if
the principal at the time of the judgment may, by law or under the terms of the
instrument, cancel or change the designation of beneficiary.
(3)
A designation of beneficiary is revocable for the purposes of this section
without regard to whether the principal is:
(a)
Competent at the time of the entry of judgment; or
(b)
Able to designate the principal in place of the spouse or in place of the
relative of the spouse.
(4)
The revocation of a designation of beneficiary under this section becomes
effective upon entry of the judgment. [2005 c.285 §3]
Note: See
note under 107.118.
107.124 Effect of revocation.
If a designation of beneficiary is revoked under ORS 107.121, the designation
of beneficiary must be given effect as if the spouse or the relative of the
spouse had predeceased the principal. [2005 c.285 §4]
Note: See
note under 107.118.
107.125 [1965 c.386 §3; repealed by 1971 c.280 §28]
107.126 [1971 c.280 §15; 1993 c.716 §4; 1993 c.763 §7; 1997 c.801 §148;
repealed by 2003 c.576 §580]
107.127 Notice of revocation; payments
made under governing instrument. (1) A person
is not liable for having made a payment to a beneficiary designated in a governing
instrument, or for having taken any other action in good-faith reliance on the
governing instrument, unless the person has received written notice of the
revocation of designation of beneficiary under ORS 107.121.
(2)
Written notice of the revocation under this section shall be mailed to the home
or office of the person by regular United States mail or be given by a means
designed to provide the person with notice of the revocation.
(3)
Upon receipt of written notice of the revocation under this section, a person
may pay the amount owed under a governing instrument to any court in which
probate proceedings for the estate of the principal are pending. If probate
proceedings for the estate of the principal have not been commenced, the person
may pay the amount to the circuit court for the county in which the principal
resided at the time of death. The court shall hold the funds and shall order
disbursement in accordance with the court’s determination of the effect on the
judgment of dissolution, separation or annulment. Payments made to the court
under this section discharge the person making the payment from all claims for
the amount paid to the court. [2005 c.285 §5]
Note: See
note under 107.118.
107.130
[Amended by 1961 c.429 §1; repealed by 1971 c.280 §28]
107.131 Conveyance or release of contingent
or expectant interests. In addition to the revocation of
designation of beneficiary under ORS 107.121, a judgment of dissolution,
separation or annulment may require conveyance or release of contingent or
expectant interests, including right of survivorship, that are necessary to
effectuate a division of assets between the principal and the spouse in the
marital dissolution, separation or annulment. [2005 c.285
§6]
Note: See
note under 107.118.
107.135 Vacation or modification of
judgment; policy regarding settlement; enforcement of settlement terms;
remedies. (1) The court may at any time after a
judgment of annulment or dissolution of marriage or of separation is granted,
upon the motion of either party and after service of notice on the other party
in the manner provided by ORCP 7, and after notice to
the Division of Child Support when required under subsection (9) of this
section:
(a)
Set aside, alter or modify any portion of the judgment that provides for the
appointment and duties of trustees, for the custody, parenting time,
visitation, support and welfare of the minor children and the children
attending school, as defined in ORS 107.108, including any health or life
insurance provisions, for the support of a party or for life insurance under
ORS 107.820 or 107.830;
(b)
Make an order, after service of notice to the other party, providing for the
future custody, support and welfare of minor children residing in the state,
who, at the time the judgment was given, were not residents of the state, or
were unknown to the court or were erroneously omitted from the judgment;
(c)
Terminate a duty of support toward any minor child who has become
self-supporting, emancipated or married;
(d)
After service of notice on the child in the manner provided by law for service
of a summons, suspend future support for any child who has ceased to be a child
attending school as defined in ORS 107.108; and
(e)
Set aside, alter or modify any portion of the judgment that provides for a
property award based on the enhanced earning capacity of a party that was
awarded before October 23, 1999. A property award may be set aside, altered or
modified under this paragraph:
(A)
When the person with the enhanced earning capacity makes a good faith career
change that results in less income;
(B)
When the income of the person with the enhanced earning capacity decreases due
to circumstances beyond the person’s control; or
(C)
Under such other circumstances as the court deems just and proper.
(2)
When a party moves to set aside, alter or modify the child support provisions
of the judgment:
(a)
The party shall state in the motion, to the extent known:
(A)
Whether there is pending in this state or any other jurisdiction any type of
support proceeding involving children of the marriage, including one brought
under ORS 25.287, 107.431, 109.100, 125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS
chapter 110; and
(B)
Whether there exists in this state or any other jurisdiction a support order,
as defined in ORS 110.303, involving children of the marriage, other than the
judgment the party is moving to set aside, alter or modify.
(b)
The party shall include with the motion a certificate regarding any pending
support proceeding and any existing support order other than the judgment the
party is moving to set aside, alter or modify. The party shall use a
certificate that is in a form established by court rule and include information
required by court rule and paragraph (a) of this subsection.
(3)
In a proceeding under this section to reconsider the spousal or child support
provisions of the judgment, the following provisions apply:
(a)
A substantial change in economic circumstances of a party, which may include,
but is not limited to, a substantial change in the cost of reasonable and
necessary expenses to either party, is sufficient for the court to reconsider
its order of support, except that an order of compensatory spousal support may
only be modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning capacity of the
paying spouse.
(b)
If the judgment provided for a termination or reduction of spousal support at a
designated age in anticipation of the commencement of pension, Social Security
or other entitlement payments, and if the obligee is
unable to obtain the anticipated entitlement payments, that inability is
sufficient change in circumstances for the court to reconsider its order of
support.
(c)
If Social Security is considered in lieu of spousal support or partial spousal
support, the court shall determine the amount of Social Security the party is
eligible to collect. The court shall take into consideration any pension,
retirement or other funds available to either party to effect an equitable
distribution between the parties and shall also take into consideration any
reduction of entitlement caused by taking early retirement.
(4)
In considering under this section whether a change in circumstances exists
sufficient for the court to reconsider spousal or child support provisions of a
judgment, the following provisions apply:
(a)
The court or administrator, as defined in ORS 25.010, shall consider income
opportunities and benefits of the respective parties from all sources,
including but not limited to:
(A)
The reasonable opportunity of each party, the obligor and obligee
respectively, to acquire future income and assets.
(B)
Retirement benefits available to the obligor and to the obligee.
(C)
Other benefits to which the obligor is entitled, such as travel benefits,
recreational benefits and medical benefits, contrasted with benefits to which
the obligee is similarly entitled.
(D)
Social Security benefits paid to a child, or to a representative payee administering
the funds for the child’s use and benefit, as a result of the obligor’s
disability or retirement if the benefits:
(i) Were not previously considered in the child support
order; or
(ii)
Were considered in an action initiated before May 12, 2003.
(E)
Apportioned Veterans’ benefits or Survivors’ and Dependents’ Educational
Assistance under 38 U.S.C. chapter 35 paid to a
child, or to a representative payee administering the funds for the child’s use
and benefit, as a result of the obligor’s disability or retirement if the
benefits:
(i) Were not previously considered in the child support
order; or
(ii)
Were considered in an action initiated before May 12, 2003.
(b)
If the motion for modification is one made by the obligor to reduce or
terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances sufficient for
reconsideration of support provisions, if the motion is based upon a reduction
of the obligor’s financial status resulting from the obligor’s taking voluntary
retirement, partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is shown that
such action of the obligor was not taken in good faith but was for the primary
purpose of avoiding the support obligation. In any subsequent motion for
modification, the court shall deny the motion if the sole basis of the motion
for modification is the termination of voluntarily taken retirement benefits
and the obligor previously has been found not to have acted in good faith.
(c)
The court shall consider the following factors in deciding whether the actions
of the obligor were not in “good faith”:
(A)
Timing of the voluntary retirement or other reduction in financial status to
coincide with court action in which the obligee seeks
or is granted an increase in spousal support.
(B)
Whether all or most of the income producing assets and property were awarded to
the obligor, and spousal support in lieu of such property was awarded to the obligee.
(C)
Extent of the obligor’s dissipation of funds and assets prior to the voluntary
retirement or soon after filing for the change of circumstances based on
retirement.
(D)
If earned income is reduced and absent dissipation of funds or large gifts, whether
the obligor has funds and assets from which the spousal support could have been
paid.
(E)
Whether the obligor has given gifts of substantial value to others, including a
current spouse, to the detriment of the obligor’s ability to meet the preexisting
obligation of spousal support.
(5)
Upon terminating a duty of spousal support, a court shall make specific
findings of the basis for the termination and shall include the findings in the
judgment.
(6)
Any modification of child or spousal support granted because of a change of
circumstances may be ordered effective retroactive to the date the motion for
modification was served or to any date thereafter.
(7)
The judgment is final as to any installment or payment of money that has
accrued up to the time the nonmoving party, other than the state, is served
with a motion to set aside, alter or modify the judgment. The court may not set
aside, alter or modify any portion of the judgment that provides for any
payment of money, either for minor children or for the support of a party, that
has accrued before the motion is served. However:
(a)
The court may allow a credit against child support arrearages for periods of
time, excluding reasonable parenting time unless otherwise provided by order or
judgment, during which the obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of
the child; and
(b)
The court may allow, as provided in the rules of the Child Support Program, a
dollar-for-dollar credit against child support arrearages for any Social
Security or Veterans’ benefits paid retroactively to the child, or to a
representative payee administering the funds for the child’s use and benefit,
as a result of an obligor’s disability or retirement.
(8)
In a proceeding under subsection (1) of this section, the court may assess
against either party a reasonable attorney fee and costs for the benefit of the
other party. If a party is found to have acted in bad faith, the court shall
order that party to pay a reasonable attorney fee and costs of the defending
party.
(9)
Whenever a motion to establish, modify or terminate child support or satisfy or
alter support arrearages is filed and the child support rights of one of the
parties or of a child of both of the parties have been assigned to the state, a
true copy of the motion shall be served by mail or personal delivery on the
Administrator of the Division of Child Support of the Department of Justice or
on the branch office providing support services to the county in which the
motion is filed.
(10)(a)
Except as provided in ORS 109.701 to 109.834, the courts of Oregon, having once
acquired personal and subject matter jurisdiction in a domestic relations
action, retain such jurisdiction regardless of any change of domicile.
(b)
The courts of Oregon, in a proceeding to establish, enforce or modify a child
support order, shall recognize the provisions of the federal Full Faith and
Credit for Child Support Orders Act (28 U.S.C. 1738B).
(11)
In a proceeding under this section to reconsider provisions in a judgment
relating to custody or parenting time, the court may consider repeated and
unreasonable denial of, or interference with, parenting time to be a
substantial change of circumstances.
(12)
In a proceeding under this section to reconsider provisions in a judgment
relating to parenting time, the court may suspend or terminate a parent’s
parenting time with a child if the court finds that the parent has abused a
controlled substance and that the parenting time is not in the best interests
of the child. If a court has suspended or terminated a parent’s parenting time
with a child for reasons described in this subsection, the court may not grant
the parent future parenting time until the parent has shown that the reasons for
the suspension or termination are resolved and that reinstated parenting time
is in the best interests of the child. Nothing in this subsection limits the
court’s authority under subsection (1)(a) of this section.
(13)
In a proceeding under this section to reconsider provisions in a judgment
relating to custody, temporary placement of the child by the custodial parent
pursuant to ORS 109.056 (3) with the noncustodial parent as a result of
military deployment of the custodial parent is not, by itself, a change of
circumstances. Any fact relating to the child and the parties occurring
subsequent to the last custody judgment, other than the custodial parent’s
temporary placement of the child pursuant to ORS 109.056 (3) with the
noncustodial parent, may be considered by the court when making a change of
circumstances determination.
(14)
Within 30 days after service of notice under subsection (1) of this section,
the party served shall file a written response with the court.
(15)(a)
It is the policy of this state:
(A)
To encourage the settlement of cases brought under this section; and
(B)
For courts to enforce the terms of settlements described in paragraph (b) of
this subsection to the fullest extent possible, except when to do so would
violate the law or would clearly contravene public policy.
(b)
In a proceeding under subsection (1) of this section, the court may enforce the
terms set forth in a stipulated order or judgment signed by the parties, an
order or judgment resulting from a settlement on the record or an order or
judgment incorporating a settlement agreement:
(A)
As contract terms using contract remedies;
(B)
By imposing any remedy available to enforce an order or judgment, including but
not limited to contempt; or
(C)
By any combination of the provisions of subparagraphs (A) and (B) of this
paragraph.
(c)
A party may seek to enforce an agreement and obtain remedies described in
paragraph (b) of this subsection by filing a motion, serving notice on the
other party in the manner provided by ORCP 7 and, if
a remedy under paragraph (b)(B) of this subsection is sought, complying with
the statutory requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same proceeding.
(d)
Nothing in paragraph (b) or (c) of this subsection limits a party’s ability, in
a separate proceeding, to file a motion to modify an order or judgment under
subsection (1) of this section or to seek enforcement of an ancillary agreement
to the order or judgment. [1971 c.280 §16; 1973 c.502 §9; 1981 c.775 §2a; 1981 c.855 §1; 1983 c.728 §3; 1983 c.761 §9; 1987 c.795 §10; 1987 c.885 §3; 1989 c.545 §1; 1991 c.888 §2; 1993 c.315 §2; 1995 c.22 §2; 1997 c.91 §1; 1997 c.475 §6; 1997 c.704 §52; 1997 c.707 §9; 1999 c.80 §65; 1999 c.587 §2; 1999 c.1030 §2; 2001 c.104 §32; 2001 c.203 §4; 2001 c.334 §4; 2003 c.14 §41; 2003 c.116 §4; 2003 c.419 §1; 2003 c.572 §13a; 2003 c.576 §§112,112a,112b; 2005 c.708 §6;
2007 c.611 §11; 2009 c.80 §5]
107.136 Reinstatement of terminated
spousal support. (1) When a court has terminated
the duty of spousal support under ORS 107.135, the court may reinstate the
remaining duration and remaining amount of the support award if the moving
party alleges and proves that:
(a)
The basis for the termination has ceased to exist; and
(b)
The reinstatement is just and equitable under all the circumstances.
(2)
For the purposes of this section:
(a)
The remaining duration of a support award is the term of the award remaining as
if the award had not been terminated and support had been paid from the date of
termination to the date of reinstatement. For example, if the applicable
judgment required payment of spousal support for 10 years, the award was
terminated in year three and reinstatement of the award was sought at the end
of year seven, the maximum remaining duration of the support award that could
be reinstated would be three years.
(b)
The remaining amount of a support award is the amount of support owed as if the
award had not been terminated and support had been paid from the date of
termination to the date of reinstatement. For example, if the applicable
judgment required support payments of $1,000 per month for five years and $500
per month for the next five years, the award was terminated in year three and
reinstatement of the award was sought at the end of year seven, the maximum
remaining amount of the support award that could be reinstated would be $500
per month.
(3)
A motion for reinstatement of a spousal support award under this section must
be brought within the remaining duration of the award or within 10 years after
the entry of the judgment terminating the award, whichever is sooner.
(4)
In exercising the discretion granted under subsection (1) of this section, the
court shall consider the basis for the spousal support award, the basis for the
termination of the award and the totality of the circumstances of each party
existing since the termination of the award.
(5)
Either party may file a motion to modify spousal support under ORS 107.135 in a
proceeding to reinstate the spousal support award. In addition to considering
the factors under ORS 107.135 (3) and (4), the court shall consider the factors
described in subsection (4) of this section.
(6)
At any time, the parties may waive their rights under this section in writing,
signed by both parties and referencing this section.
(7)
Any reinstatement of a spousal support award may be ordered effective
retroactive to the date the motion was served or to any date thereafter. [1991 c.888 §1; 2007 c.430 §1]
107.137 Factors considered in determining
custody of child. (1) Except as provided in
subsection (5) of this section, in determining custody of a minor child under
ORS 107.105 or 107.135, the court shall give primary consideration to the best
interests and welfare of the child. In determining the best interests and
welfare of the child, the court shall consider the following relevant factors:
(a)
The emotional ties between the child and other family members;
(b)
The interest of the parties in and attitude toward the child;
(c)
The desirability of continuing an existing relationship;
(d)
The abuse of one parent by the other;
(e)
The preference for the primary caregiver of the child, if the caregiver is
deemed fit by the court; and
(f)
The willingness and ability of each parent to facilitate and encourage a close
and continuing relationship between the other parent and the child. However,
the court may not consider such willingness and ability if one parent shows
that the other parent has sexually assaulted or engaged in a pattern of
behavior of abuse against the parent or a child and that a continuing
relationship with the other parent will endanger the health or safety of either
parent or the child.
(2)
The best interests and welfare of the child in a custody matter shall not be
determined by isolating any one of the relevant factors referred to in
subsection (1) of this section, or any other relevant factor, and relying on it
to the exclusion of other factors. However, if a parent has committed abuse as
defined in ORS 107.705, other than as described in subsection (5) of this
section, there is a rebuttable presumption that it is not in the best interests
and welfare of the child to award sole or joint custody of the child to the
parent who committed the abuse.
(3)
In determining custody of a minor child under ORS 107.105 or 107.135, the court
shall consider the conduct, marital status, income, social environment or life
style of either party only if it is shown that any of these factors are causing
or may cause emotional or physical damage to the child.
(4)
No preference in custody shall be given to the mother over the father for the
sole reason that she is the mother, nor shall any preference be given to the
father over the mother for the sole reason that he is the father.
(5)(a)
The court determining custody of a minor child under ORS 107.105 or 107.135
shall not award sole or joint custody of the child to a parent if:
(A)
The court finds that the parent has been convicted of rape under ORS 163.365 or
163.375 or other comparable law of another jurisdiction; and
(B)
The rape resulted in the conception of the child.
(b)
A denial of custody under this subsection does not relieve the parent of any
obligation to pay child support. [1975 c.722 §2; 1987
c.795 §14; 1997 c.707 §35;
1999 c.762 §2; 2011 c.438 §3]
107.138 Temporary status quo order
regarding child custody. (1)(a) A court, upon the motion
of a party, may enter a temporary status quo order to either party in a
proceeding to modify a judgment that awards custody of a child after:
(A)
Notifying the other party; and
(B)
Giving the other party an opportunity to contest issuance of the order.
(b)
The motion for a temporary status quo order must be supported by an affidavit
setting forth with specificity the information required by ORS 109.767 and the
person with whom the child has lived during the preceding year and the child’s
current schedule, daily routine and usual place of residence.
(c)
Notice to the party against whom the motion for the order is sought must be
served at least 21 days before the date set for the hearing. The issue at the
hearing is limited to a determination of the status quo at the time the motion
for the order was filed.
(2)
A temporary status quo order restrains and enjoins each parent from:
(a)
Changing the child’s usual place of residence;
(b)
Interfering with the present placement and daily schedule of the child;
(c)
Hiding or secreting the child from the other parent;
(d)
Interfering with the other parent’s usual contact and parenting time with the
child;
(e)
Leaving the state with the child without the written permission of the other
parent or the permission of the court; or
(f)
In any manner disturbing the current schedule and daily routine of the child
until the motion for modification has been granted or denied.
(3)
For purposes of this section:
(a)
“Child’s usual place of residence” means the place where the child is living at
the time the motion for the temporary order is filed and has lived continuously
for a period of three consecutive months, excluding any periods of time during
which the noncustodial parent did exercise, or would otherwise have exercised,
parenting time.
(b)
“Parent’s usual contact and parenting time,” “present placement and daily
schedule of the child” and “current schedule and daily routine of the child”
mean the contact, parenting time, placement, schedule and routine at the time
the motion for the temporary order is filed. [1995 c.792
§2; 1997 c.136 §2; 1997 c.386
§1; 1997 c.707 §§10,10a;
1999 c.649 §47]
107.139 Post-judgment ex parte temporary
custody or parenting time order; hearing. (1)(a)
Following entry of a judgment, a court may enter ex parte a temporary order
providing for the custody of, or parenting time with, a child if:
(A)
A parent of the child is present in court and presents an affidavit alleging
that the child is in immediate danger;
(B)
The parent has made a good faith effort to confer with the other party
regarding the purpose and time of this court appearance; and
(C)
The court finds by clear and convincing evidence, based on the facts presented
in the parent’s testimony and affidavit and in the testimony of the other
party, if the other party is present, that the child is in immediate danger.
(b)
The party requesting an order under this subsection shall provide the court
with telephone numbers where the party can be reached at any time during the
day and a contact address.
(c)
A copy of the order and the supporting affidavit must be served on the other
party in the manner of service of a summons under ORCP
7. The order must include the following statement:
______________________________________________________________________________
Notice:
You may request a hearing on this order as long as it remains in effect by
filing with the court a request for a hearing. In the request you must tell the
court and the other party that you object to the order on the ground that the
child was not in immediate danger at the time the order was issued. In the
request you must also inform the court of your telephone number or contact
number and your current residence, mailing or contact address.
______________________________________________________________________________
(2)(a)
A party against whom an order is entered under subsection (1) of this section
may request a hearing by filing with the court a hearing request described in
subsection (1) of this section at any time while the order is in effect.
(b)
The court shall hold a hearing within 14 days after receipt of the request for
the hearing. The court shall notify each party of the time, date and place of
the hearing.
(c)
An order issued under subsection (1) of this section remains in effect through
the date of the hearing. If the party against whom the order was entered fails
to appear at the hearing without good cause, the court shall continue the order
in effect. If the party who obtained the order fails to appear at the hearing
without good cause, the court shall vacate the order.
(d)
The issue at a hearing to contest a temporary order for the custody of, or
parenting time with, a child is limited to whether the child was in immediate
danger at the time the order was issued.
(3)
The State Court Administrator shall prescribe the content and form of a request
for a hearing described in this section.
(4)
A party seeking relief under this section shall concurrently file, or have
pending, a motion under ORS 107.135 to set aside, alter or modify any portion
of the judgment that provides for custody, parenting time or visitation. [1997 c.386 §2; 1997 c.707 §6a; 2007 c.11 §2; 2011 c.114 §3]
107.140
[Paragraph (f) of subsection (1) of 1959 Replacement Part enacted as 1955 c.72 §1; repealed by 1961 c.551 §2]
107.141 [1961 c.551 §1; repealed by 1971 c.280 §28]
107.142 [1971 c.280 §17; 1973 c.530 §1; 1981 c.537 §1; repealed by 2003 c.576 §580]
107.145 Vacation or modification of
judgment for deployed parent; temporary order; service; absence of child from
state. (1) As used in this section and ORS
107.146:
(a)
“Deployed parent” means a parent of a minor child whose parental rights have
not been terminated who is deployed with the Armed Forces of the United States,
National Guard or other reserve component.
(b)
“Deployment” or “deployed”:
(A)
Means military service in compliance with written orders received by an active
duty or reserve member of the Armed Forces of the United States, National Guard
or other reserve component to report for combat operations, contingency
operations, peacekeeping operations, temporary duty, a remote tour of duty or
other active military service;
(B)
Includes the period of time from which the deployed parent receives and is
subject to written orders to deploy to the actual date of deployment; and
(C)
Includes any period of time in which the deployed parent is awaiting travel to
or from a deployment destination or remains deployed because of sickness,
wounds, leave or other lawful cause.
(2)
Notwithstanding ORS 107.135 and except as provided in subsection (3) of this
section, a court may not set aside, alter or modify any portion of a judgment
of annulment, separation or dissolution of marriage that provides for the
custody, parenting time, visitation, support and welfare of a minor child of a
deployed parent until 90 days after the completion of the deployed parent’s
deployment unless a motion to set aside, alter or modify was filed with, heard
by and decided by the court before the commencement of the deployed parent’s
deployment.
(3)(a)
Notwithstanding ORS 107.138 and 107.139, a court may enter a temporary order
modifying the terms of a preexisting judgment of annulment, separation or
dissolution of marriage that provides for the custody, parenting time,
visitation, support and welfare of a minor child of a deployed parent to reasonably
accommodate the circumstances of the deployed parent’s deployment in the best
interests of the child, upon motion filed by either party and after service of
notice on the other party in the manner provided by ORCP
7, and after notice to the Administrator of the Division of Child Support of
the Department of Justice or the branch office providing support services when
required by subsection (4) of this section. The nondeployed
parent bears the burden of proof that the provisions of a temporary order made
under this subsection are not in the best interests of the child.
(b)
A temporary order entered under this subsection must include the following
provisions:
(A)
Parenting time for the deployed parent during periods of approved leave in the
best interests of the child;
(B)
Parenting time for the deployed parent during periods of deployment in the best
interests of the child including but not limited to contact by telephone,
electronic mail and other electronic means such as video and visual imaging;
(C)
Modification of the child support provisions of the preexisting judgment to
reflect the changed circumstances of the parents and the child during the
period of deployment;
(D)
A requirement that the nondeployed parent provide the
court and the deployed parent with written notice 30 days prior to a change of
address or telephone number during the period of deployment;
(E)
That the temporary order entered under this subsection terminates by operation
of law upon completion of deployment and that the provisions of the preexisting
judgment that have been modified by the temporary order are automatically
reinstated unless a request is made and granted under subsection (5) of this
section;
(F)
That all other provisions of the preexisting judgment not modified by the
temporary order remain in effect; and
(G)
That deployment is considered completed for purposes of reinstating the
provisions of the preexisting judgment that have been modified by the temporary
order 10 days after the date on which the deployed parent serves the nondeployed parent and provides to the court and to the
Administrator of the Division of Child Support of the Department of Justice or
the branch office providing support services to the county in which the motion
is filed copies of written orders or other official notification that the
deployed parent is no longer deployed or in active military service.
(4)
A true copy of a motion under subsection (3) of this section shall be served by
the moving party by mail or personal delivery on the Administrator of the
Division of Child Support of the Department of Justice or on the branch office
providing support services to the county in which the motion is filed.
(5)
Prior to reinstatement of the provisions of a preexisting judgment, a parent
may request ex parte a temporary order alleging that the child will be
irreparably harmed or placed in immediate danger if the provisions of the
preexisting judgment are automatically reinstated upon completion of
deployment.
(6)
When a court has entered a temporary order under subsection (3) of this
section, the absence of a child from this state during a deployed parent’s
deployment is considered a temporary absence for purposes of the Uniform Child
Custody Jurisdiction and Enforcement Act and this state shall retain exclusive
continuing jurisdiction in accordance with ORS 109.701 to 109.834.
(7)
The court may award attorney fees and costs reasonably incurred in a proceeding
under this section if the court finds that a party caused unreasonable delays,
failed to provide information as required by this section or acted to
unreasonably interfere with or frustrate contact between a deployed parent and
a minor child. [2011 c.64 §2]
Note:
107.145 and 107.146 were added to and made a part of 107.093 to 107.449 by
legislative action but were not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.
107.146 Expedited hearing upon motion by
deployed parent; provision for alternate testimony when deployed parent cannot
personally appear. (1) Upon motion filed by a
deployed parent or a parent whose deployment is imminent, the court shall hold
an expedited hearing in:
(a)
Any proceeding in a suit for marital annulment, dissolution or separation where
a deployed parent or a parent whose deployment is imminent is a party;
(b)
In any proceeding under ORS 107.135, 107.138 and 107.139 where a deployed
parent or a parent whose deployment is imminent is a party; and
(c)
A proceeding under ORS 107.145 (3).
(2)
In any proceeding listed under subsection (1) of this section, whether or not a
motion to expedite a hearing has been filed, the court shall make reasonable
accommodations to allow a deployed parent, or a parent whose deployment is
imminent, to provide video, electronic or Internet testimony if the proceeding
involves the custody, parenting time, visitation, support and welfare of the
parent’s child and where the deployed parent or the parent whose deployment is
imminent cannot personally appear. [2011 c.64 §3]
Note: See
note under 107.145.
107.149 Policy regarding parents and their
children. It is the policy of this state to
assure minor children of frequent and continuing contact with parents who have
shown the ability to act in the best interest of the child and to encourage
parents to share in the rights and responsibilities of raising their children
after the parents have separated or dissolved their marriage. [1987 c.795 §2]
107.150
[Subsection (5) enacted as 1953 c.491 §1; 1959 c.228 §1; subsection (6) enacted as 1965 c.603 §7; subsection (7) enacted as 1965 c.386 §4; repealed by 1971 c.280 §28]
107.154 Authority of parent when other
parent granted sole custody of child. Unless
otherwise ordered by the court, an order of sole custody to one parent shall
not deprive the other parent of the following authority:
(1)
To inspect and receive school records and to consult with school staff
concerning the child’s welfare and education, to the same extent as the
custodial parent may inspect and receive such records and consult with such
staff;
(2)
To inspect and receive governmental agency and law enforcement records
concerning the child to the same extent as the custodial parent may inspect and
receive such records;
(3)
To consult with any person who may provide care or treatment for the child and
to inspect and receive the child’s medical, dental and psychological records,
to the same extent as the custodial parent may consult with such person and
inspect and receive such records;
(4)
To authorize emergency medical, dental, psychological, psychiatric or other
health care for the child if the custodial parent is, for practical purposes,
unavailable; or
(5)
To apply to be the child’s conservator, guardian ad litem
or both. [1987 c.795 §3]
107.159 Notice of change of residence.
(1) In any court order or judgment granting custody of a minor child and
parenting time or visitation rights relating to the child, except for an order
under ORS 107.700 to 107.735, the court shall include in its order a provision
requiring that neither parent may move to a residence more than 60 miles
further distant from the other parent without giving the other parent
reasonable notice of the change of residence and providing a copy of such
notice to the court.
(2)
Notwithstanding subsection (1) of this section, a parent is not required to
give notice of a change of residence if the court, upon ex parte or other
motion of the parent and for good cause, enters an order suspending the
requirement. [1987 c.795 §4; 1997 c.707
§11; 2003 c.576 §113]
107.160
[Amended by 1963 c.497 §4; repealed by 1971 c.280 §28]
107.164 Parents’ duty to provide
information to each other. Unless otherwise ordered by the
court, both parents shall have a continuing responsibility, once a custody or
protective order concerning the child is issued, to provide addresses and
contact telephone numbers to the other parent and to immediately notify the
other parent of any emergency circumstances or substantial changes in the
health of the child. [1987 c.795 §5]
107.169 Joint custody of child;
modification. (1) As used in this chapter, “joint
custody” means an arrangement by which parents share rights and
responsibilities for major decisions concerning the child, including, but not
limited to, the child’s residence, education, health care and religious
training. An order providing for joint custody may specify one home as the
primary residence of the child and designate one parent to have sole power to
make decisions about specific matters while both parents retain equal rights
and responsibilities for other decisions.
(2)
The existence of an order of joint custody shall not, by itself, determine the
responsibility of each parent to provide for the support of the child.
(3)
The court shall not order joint custody, unless both parents agree to the terms
and conditions of the order.
(4)
When parents have agreed to joint custody in an order or a judgment, the court
may not overrule that agreement by ordering sole custody to one parent.
(5)
Modification of a joint custody order shall require showing of changed
circumstances and a showing that the modification is in the best interests of
the child such as would support modification of a sole custody order. Inability
or unwillingness to continue to cooperate shall constitute a change of
circumstances sufficient to modify a joint custody order.
(6)(a)
The inability of a parent to comply with the terms and conditions of a joint
custody order due to the parent’s temporary absence does not constitute a
change of circumstances if the parent’s temporary absence is caused by the
parent being:
(A)
Called into active state duty as defined in ORS 398.002; or
(B)
Called into active federal service under Title 10 of the United States Code as
a member of the Oregon National Guard.
(b)
As used in this subsection, “temporary absence” means a period not exceeding 30
consecutive months. [1987 c.795 §6; 2003 c.576 §114; 2005 c.79 §3]
107.170 [1955 c.648 §1; repealed by 1961 c.210 §6]
107.174 Modification of order for
parenting time; stipulation; exception for nonresident child.
(1) Except as otherwise provided in this subsection, the court shall order
modification under ORS 107.135 of so much of a judgment as relates to the
parenting time with a minor child, if the parents submit to the court a
notarized stipulation signed by both of the parents and requesting such
modification together with a form of order. The content and form of such
stipulation and order shall be as prescribed by the State Court Administrator.
At its discretion, the court may order the matter set for a hearing and require
the parties to appear personally before the court.
(2)
This section shall not apply when the child to whom a duty of support is owed
is in another state which has enacted the Uniform Child Custody Jurisdiction
Act or the Uniform Child Custody Jurisdiction and Enforcement Act and a court
in that state would have subject matter and personal jurisdiction under that
Act to determine custody and parenting time rights. [1987 c.795
§12; 1997 c.707 §12; 1999 c.649
§48; 2003 c.576 §115]
107.179 Request for joint custody of
children; mediation. (1) When either party to a child
custody issue, other than one involving temporary custody, whether the issue
arises from a case of marital annulment, dissolution or separation, or from a
determination of paternity, requests the court to grant joint custody of the
minor children of the parties under ORS 107.105, the court, if the other party
objects to the request for joint custody, shall proceed under this section. The
request under this subsection must be made, in the petition or the response, or
otherwise not less than 30 days before the date of trial in the case, except
for good cause shown. The court in such circumstances, except as provided in
subsection (3) of this section, shall direct the parties to participate in
mediation in an effort to resolve their differences concerning custody. The
court may order such participation in mediation within a mediation program
established by the court or as conducted by any mediator approved by the court.
Unless the court or the county provides a mediation service available to the
parties, the court may order that the costs of the mediation be paid by one or
both of the parties, as the court finds equitable upon consideration of the relative
ability of the parties to pay those costs. If, after 90 days, the parties do
not arrive at a resolution of their differences, the court shall proceed to
determine custody.
(2)
At its discretion, the court may:
(a)
Order mediation under this section prior to trial and postpone trial of the
case pending the outcome of the mediation, in which case the issue of custody
shall be tried only upon failure to resolve the issue of custody by mediation;
(b)
Order mediation under this section prior to trial and proceed to try the case
as to issues other than custody while the parties are at the same time engaged
in the mediation, in which case the issue of custody shall be tried separately
upon failure to resolve the issue of custody by mediation; or
(c)
Complete the trial of the case on all issues and order mediation under this
section upon the conclusion of the trial, postponing entry of the judgment
pending outcome of the mediation, in which case the court may enter a limited
judgment as to issues other than custody upon completion of the trial or may
postpone entry of any judgment until the expiration of the mediation period or
agreement of the parties as to custody.
(3)
If either party objects to mediation on the grounds that to participate in
mediation would subject the party to severe emotional distress and moves the
court to waive mediation, the court shall hold a hearing on the motion. If the
court finds it likely that participation in mediation will subject the party to
severe emotional distress, the court may waive the requirement of mediation.
(4)
Communications made by or to a mediator or between parties as a part of
mediation ordered under this section are privileged and are not admissible as
evidence in any civil or criminal proceeding. [1987 c.795
§13; 2003 c.576 §116]
107.180 [1959 c.534 §1; renumbered 107.430]
107.210
[Repealed by 1973 c.502 §18]
107.220
[Repealed by 1973 c.502 §18]
107.230
[Repealed by 1973 c.502 §18]
107.240
[Repealed by 1973 c.502 §18]
107.250
[Amended by 1955 c.648 §5; 1959 c.572
§2; 1969 c.221 §2; 1969 c.313
§1; repealed by 1973 c.502 §18]
107.260
[Repealed by 1973 c.502 §18]
107.270
[Amended by 1969 c.198 §55; repealed by 1973 c.502 §18]
107.280
[Amended by 1959 c.572 §3; 1969 c.591
§285; repealed by 1973 c.502 §18]
107.290
[Amended by 1971 c.314 §2; repealed by 1973 c.502 §18]
107.300
[Amended by 1971 c.280 §23; repealed by 1973 c.502 §18]
107.310
[Amended by 1973 c.502 §10; renumbered 107.455]
107.320
[Repealed by 1973 c.502 §18]
107.400 Amendment of pleadings in
dissolution, annulment or separation proceedings to change relief sought.
At any time prior to the entry of a judgment, upon motion of a party and due
notice to the other party in the manner provided by law for service of summons,
the court may allow an amendment of pleadings to change the relief sought from
annulment to dissolution or separation, from dissolution to annulment or
separation, or from separation to annulment or dissolution. [1973 c.502 §15(2); 2003 c.576 §117]
107.405 Powers of court in dissolution,
annulment or separation proceedings. When a court
is sitting in proceedings for annulment or dissolution of a marriage, or for
separation, it shall have full equity powers. [1971 c.280
§1]
107.406 Finding; policy regarding spousal
support. (1) The Legislative Assembly finds that
it is in the best interests of a former spouse for whom a court has awarded
spousal support, as well as the people of this state, that the spousal support
obligations be fulfilled.
(2)
It is the policy of this state that a former spouse for whom a court has
awarded spousal support must be supported by the other former spouse in
accordance with the court’s judgment. [2005 c.265 §3]
Note:
107.406 was added to and made a part of ORS chapter 107 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
107.407 Petition to set aside spousal
support provisions of judgment. If an
individual has paid an amount of money in installments for more than 10 years
for the support of a former spouse under a judgment of annulment or dissolution
of marriage that ordered such payment, and when the former spouse has not made
a reasonable effort during that period of time to become financially self-supporting
and independent of the support provided under the judgment, the individual
paying the support may petition the court that issued the judgment to set aside
so much of the judgment as may provide for the support of the former spouse.
The petition shall not be granted if spousal support was granted in the
judgment in lieu of a share of property in order to provide the other spouse
with a tax benefit. [1975 c.500 §2; 1983 c.728 §7; 2003 c.576 §118]
107.410 [1961 c.418 §1; repealed by 1971 c.280 §28]
107.412 Procedure applicable to ORS
107.407; matters considered; attorney fees. (1)
Upon petition of an individual and after service of notice on the other party
in the manner provided by law for service of a summons, the court shall conduct
a proceeding to determine whether so much of its judgment as provides for the
support of a party shall be set aside.
(2)
Except as provided in subsections (3) and (4) of this section, if the court
finds that the party receiving support has not made a reasonable effort during
the previous 10 years to become financially self-supporting and independent of
the support provided under the judgment, the court shall order that support
terminated. In making its finding under this subsection, the court shall
consider the following matters:
(a)
The age of the party receiving support;
(b)
The health, work experience and earning capacity of the party;
(c)
The ages, health and dependency conditions of the minor children of the party;
and
(d)
Efforts made by the party during the previous 10 years to improve opportunities
for gainful or improved employment including, but not limited to, attendance at
any school, community college or university or attendance at courses of
professional or technical training.
(3)
A court does not have power under ORS 107.407 and this section to set aside any
payment of money for the support of a party that has accrued prior to the
filing of the petition under subsection (1) of this section.
(4)
ORS 107.407 and this section do not affect a judgment, or any portion of it,
that provides for the payment of money for the support of minor children or for
the support of a party who is 60 years of age or older when the proceeding
under subsection (1) of this section is held.
(5)
In a proceeding held under subsection (1) of this section, the court may assess
against either party a reasonable attorney fee for the benefit of the other
party. [1975 c.500 §3; 1995 c.343
§22; 2003 c.576 §119]
107.415 Notice of change of status of
child; effect of failure to give notice. (1) If a
party is required by a judgment of a court in a domestic relations suit, as
defined in ORS 107.510, to contribute to the support, nurture or education of a
minor child while the other party has custody thereof, the custodial parent shall
notify the party contributing such money when the minor child receives income
from the gainful employment of the child, or is married or enters the military
service.
(2)
Any custodial parent who does not provide notice, as required by subsection (1)
of this section may be required by the court to make restitution to the
contributing party of any money paid, as required by the judgment. The court
may enter a supplemental judgment or satisfy all or part of the support award
to accomplish the restitution. [1971 c.314 §1; 2003 c.576 §120]
107.420 [1961 c.340 §1; repealed by 1971 c.280 §28]
107.425 Investigation of parties in
domestic relations suit involving children; physical, psychological,
psychiatric or mental health examinations; parenting plan services; counsel for
children. (1) In suits or proceedings described
in subsection (4) of this section in which there are minor children involved,
the court may cause an investigation to be made as to the character, family
relations, past conduct, earning ability and financial worth of the parties for
the purpose of protecting the children’s future interest. The court may defer
the entry of a general judgment until the court is satisfied that its judgment
in such suit or proceeding will properly protect the welfare of such children.
The investigative findings shall be offered as and subject to all rules of
evidence. Costs of the investigation may be charged against one or more of the
parties or as a cost in the proceedings but shall not be charged against funds
appropriated for public defense services.
(2)
The court, on its own motion or on the motion of a party, may order an
independent physical, psychological, psychiatric or mental health examination
of a party or the children and may require any party and the children to be
interviewed, evaluated and tested by an expert or panel of experts. The court
may also authorize the expert or panel of experts to interview other persons
and to request other persons to make available to the expert or panel of
experts records deemed by the court or the expert or panel of experts to be
relevant to the evaluation. The court may order the parties to authorize the
disclosure of such records. In the event the parties are unable to stipulate to
the selection of an expert or panel of experts to conduct the examination or
evaluation, the court shall appoint a qualified expert or panel of experts. The
court shall direct one or more of the parties to pay for the examination or
evaluation in the absence of an agreement between the parties as to the
responsibility for payment but shall not direct that the expenses be charged
against funds appropriated for public defense services. If more than one party
is directed to pay, the court may determine the amount that each party will pay
based on financial ability.
(3)(a)
In addition to an investigation, examination or evaluation under subsections
(1) and (2) of this section, the court may appoint an individual or a panel or
may designate a program to assist the court in creating parenting plans or
resolving disputes regarding parenting time and to assist parents in creating
and implementing parenting plans. The services provided to the court and to
parents under this section may include:
(A)
Gathering information;
(B)
Monitoring compliance with court orders;
(C)
Providing the parents, their attorneys, if any, and the court with
recommendations for new or modified parenting time provisions; and
(D)
Providing parents with problem solving, conflict management and parenting time
coordination services or other services approved by the court.
(b)
Services provided under this section may require the provider to possess and
utilize mediation skills, but the services are not comprised exclusively of
mediation services under ORS 107.755 to 107.795. If only mediation services are
provided, the provisions of ORS 107.755 to 107.795 apply.
(c)
The court may order one or more of the parties to pay for services provided
under this subsection, if the parties are unable to agree on their respective
responsibilities for payment. The court may not order that expenses be charged
against funds appropriated for public defense services.
(d)
The presiding judge of each judicial district shall establish qualifications
for the appointment and training of individuals and panels and the designation
of programs under this section. In establishing qualifications, a presiding
judge shall take into consideration any guidelines recommended by the statewide
family law advisory committee.
(4)
The provisions of this section apply when:
(a)
A person files a domestic relations suit, as defined in ORS 107.510;
(b)
A motion to modify an existing judgment in a domestic relations suit is before
the court;
(c)
A parent of a child born to an unmarried woman initiates a civil proceeding to
determine custody or support under ORS 109.103;
(d)
A person petitions or files a motion for intervention under ORS 109.119;
(e)
A person or the administrator files a petition under ORS 109.125 to establish
paternity and paternity is established; or
(f)
A habeas corpus proceeding is before the court.
(5)
Application of the provisions of subsection (1), (2) or (3) of this section to
the proceedings under subsection (4) of this section does not prevent
initiation, entry or enforcement of an order of support.
(6)
The court, on its own motion or on the motion of a party, may appoint counsel
for the children. However, if requested to do so by one or more of the
children, the court shall appoint counsel for the child or children. A
reasonable fee for an attorney so appointed may be charged against one or more
of the parties or as a cost in the proceedings but shall not be charged against
funds appropriated for public defense services.
(7)
Prior to the entry of an order, the court on its own motion or on the motion of
a party may take testimony from or confer with the child or children of the
marriage and may exclude from the conference the parents and other persons if
the court finds that such action would be likely to be in the best interests of
the child or children. However, the court shall permit an attorney for each
party to attend the conference and question the child, and the conference shall
be reported. [1971 c.280 §3; 1973 c.502
§11; 1981 c.775 §5; 1981 s.s.
c.3 §34; 1983 c.369 §1;
1983 c.386 §1; 1989 c.188 §1;
1989 c.1084 §1; 1999 c.569 §4;
2001 c.873 §§6,6a,6c; 2003 c.73 §§51,52; 2003 c.576 §§121,122;
2007 c.454 §12]
107.430
[Formerly 107.180; 1963 c.223 §1; repealed by 1971 c.280 §28]
107.431 Modification of portion of
judgment regarding parenting time or child support; procedure.
(1) At any time after a judgment of annulment or dissolution of a marriage or a
separation is granted, the court may set aside, alter or modify so much of the
judgment relating to parenting time with a minor child as it deems just and
proper or may terminate or modify that part of the order or judgment requiring
payment of money for the support of the minor child with whom parenting time is
being denied after:
(a)
Motion to set aside, alter or modify is made by the parent having parenting
time rights;
(b)
Service of notice on the parent or other person having custody of the minor
child is made in the manner provided by law for service of a summons;
(c)
Service of notice on the Administrator of the Division of Child Support of the
Department of Justice when the child support rights of one of the parties or of
a child of both of the parties have been assigned to the state. As an
alternative to the service of notice on the administrator, service may be made
upon the branch office of the division which provides service to the county in
which the motion was filed. Service may be accomplished by personal delivery or
first class mail; and
(d)
A showing that the parent or other person having custody of the child or a person
acting in that parent or other person’s behalf has interfered with or denied
without good cause the exercise of the parent’s parenting time rights.
(2)
When a party moves to set aside, alter or modify the child support provisions
of the judgment:
(a)
The party shall state in the motion, to the extent known:
(A)
Whether there is pending in this state or any other jurisdiction any type of
support proceeding involving the child, including a proceeding brought under
ORS 25.287, 107.135, 109.100, 125.025, 416.400 to 416.465, 419B.400
or 419C.590 or ORS chapter 110; and
(B)
Whether there exists in this state or any other jurisdiction a support order,
as defined in ORS 110.303, involving the child, other than the judgment the
party is moving to set aside, alter or modify.
(b)
The party shall include with the motion a certificate regarding any pending
support proceeding and any existing support order other than the judgment the
party is moving to set aside, alter or modify. The party shall use a certificate
that is in a form established by court rule and include information required by
court rule and paragraph (a) of this subsection.
(3)
The court may request the appearance of the administrator in any proceeding
under this section in which it finds that the child support rights of one of
the parties or of a child of both of the parties have been assigned to the
state.
(4)
This section does not apply when the child to whom a duty of support is owed is
in another state that has enacted the Uniform Child Custody Jurisdiction Act or
the Uniform Child Custody Jurisdiction and Enforcement Act and a court in that
state would have subject matter and personal jurisdiction under that Act to
determine custody and parenting time rights. [1977 c.878
§4; 1979 c.482 §2; 1997 c.707
§13; 1999 c.649 §49; 2001 c.334
§5; 2003 c.116 §5; 2003 c.576
§123]
107.434 Expedited parenting time enforcement
procedure; remedies. (1) The presiding judge of each
judicial district shall establish an expedited parenting time enforcement procedure
that may or may not include a requirement for mediation. The procedure must be
easy to understand and initiate. Unless the parties otherwise agree, the court
shall conduct a hearing no later than 45 days after the filing of a motion
seeking enforcement of a parenting time order. The court shall provide forms
for:
(a)
A motion filed by either party alleging a violation of parenting time or
substantial violations of the parenting plan. When a person files this form,
the person must include a copy of the order establishing the parenting time.
(b)
An order requiring the parties to appear and show cause why parenting time
should not be enforced in a specified manner. The party filing the motion shall
serve a copy of the motion and the order on the other party. The order must
include:
(A)
A notice of the remedies imposable under subsection (2) of this section and the
availability of a waiver of any mediation requirement; and
(B)
A notice in substantially the following form:
______________________________________________________________________________
When
pleaded and shown in a separate legal action, violation of court orders,
including visitation and parenting time orders, may also result in a finding of
contempt, which can lead to fines, imprisonment or other penalties, including
compulsory community service.
______________________________________________________________________________
(c)
A motion, affidavit and order that may be filed by either party and providing
for waiver of any mediation requirement on a showing of good cause.
(2)
In addition to any other remedy the court may impose to enforce the provisions
of a judgment relating to the parenting plan, the court may:
(a)
Modify the provisions relating to the parenting plan by:
(A)
Specifying a detailed parenting time schedule;
(B)
Imposing additional terms and conditions on the existing parenting time
schedule; or
(C)
Ordering additional parenting time, in the best interests of the child, to
compensate for wrongful deprivation of parenting time;
(b)
Order the party who is violating the parenting plan provisions to post bond or
security;
(c)
Order either or both parties to attend counseling or educational sessions that
focus on the impact of violation of the parenting plan on children;
(d)
Award the prevailing party expenses, including, but not limited to, attorney
fees, filing fees and court costs, incurred in enforcing the party’s parenting
plan;
(e)
Terminate, suspend or modify spousal support;
(f)
Terminate, suspend or modify child support as provided in ORS 107.431; or
(g)
Schedule a hearing for modification of custody as provided in ORS 107.135 (11).
[1997 c.707 §3; 2003 c.116 §6;
2003 c.737 §§50,51; 2005 c.702
§§57,58,59; 2007 c.493 §14; 2011 c.595
§75]
107.435 [1971 c.280 §19; repealed by 1973 c.502
§18]
107.437 Order of assistance to obtain custody of child held in violation of custody order.