Q. MY WIFE AND I ARE BREAKING UP. I’LL BE MOVING OUT AND SHE’LL STAY AT OUR HOUSE WITH OUR THREE CHILDREN. I’LL BE GIVING HER MONEY TO PAY THE BILLS AND FOR THE KIDS. BUT WE DON’T WANT TO FILE FOR A DIVORCE RIGHT NOW. WE MIGHT WORK THINGS OUT AND GET BACK TOGETHER. SHE SAYS THAT WE SHOULD GET A SEPARATION WHILE WE GO TO MARRIAGE COUNSELING. WHAT IS THE DIFFERENCE BETWEEN AND A DIVORCE AND A SEPARATION?
A. Under Oregon law, a married person can file either a petition for dissolution of marriage (divorce) or a petition for a legal separation. With either action, a judge can award one party custody of the children, provide for parenting time for the other parent, award child support and divide up the assets and debts of the parties. The only difference between a divorce and a legal separation is that a separation does not terminate the marriage. So a couple can have a legal separation and have all of the rights and responsibilities that they would have in a divorce but would still be married at the end of the process. A legal separation can be converted to a divorce later on by a request by one or both of the parties, but if you believe that you might resolve your differences in counseling, there is no reason to file anything now. You can physically separate and if necessary file a divorce later.
Q: I HAVE CUSTODY OF MY 13-YEAR-OLD DAUGHTER AND SHE LIVES WITH ME. SHE IS WELL CARED FOR. SHE DOES NOT LIKE DOING CHORES OR FOLLOWING HOUSE RULES, AND HER 3-YEAR-OLD STEPBROTHER (FROM MY CURRENT MARRIAGE) BUGS HER. SHE WANTS TO GO LIVE WITH HER DAD. DOES SHE HAVE ANY SAY IN WHERE SHE LIVES?
A: In some states, when there is a divorce, if a child is of a certain age, they can make the determination with which parent they want to live. Oregon is not one of those states. In Oregon, a child’s wishes are just one factor the court considers. A court will listen to a child’s request and take into account the maturity of the child and the reasons for the child’s decisions.
After the judge has awarded custody to a parent, the non-custodial parent can come back to court and ask the court to change custody. Usually, there must be a change since the last award of custody; the non-custodial parent must show a “substantial change in circumstances”. That is, some compelling reason why it is in the child’s best interest to move from the custodial parent’s house to the non-custodial parent’s house. In the absence of other facts, a child’s preference to move to the non-custodial parent’s house does not constitute a change in circumstances.