Legal Resources & Glossary of Common Terms
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Divorce is simply the legal process for ending a marriage. You may encounter some or all of these terms throughout the divorce proceedings.
Also known as spousal support or maintenance, alimony is monetary compensation paid by one spouse to the other. It is not guaranteed that the court will order alimony to be paid to either spouse.
Whether the court awards alimony depends on a number of factors, including length of the marriage, the earning capacity of each spouse, and whether one spouse left the workforce to raise the children.
If you and your spouse no longer wish to be married, but divorce is not an option – either for religious or financial reasons – some states allow for a legal separation. Different from a trial separation, a legal separation follows the same procedures as a divorce, except that at the end of the proceedings, the couple remains married.
An uncontested divorce occurs when both spouses agree on all issues related to property distribution and child custody (if children are involved).
If you and your soon-to-be ex-spouse had children, you will need to decide who will have custody of the children. Issues regarding custody and child support do not necessarily end when the court issues an order – both can change throughout the years depending on circumstances.
Child support is money that one parent must pay to help the other parent with the expense of raising a minor child. The non-custodial parent is usually the one ordered to pay support, but it is possible for the custodial parent to also be ordered to pay support.
The amount a parent must pay is generally determined using a statutory formula that takes into consideration how much money each parent makes and the amount of time the child will spend with each parent. The court can take other factors into consideration as well, including the relative wealth of each parent, any future children either parent may have, or specific needs of each child.
Child support should not be confused with alimony. Child support is for the benefit of a minor child, while alimony is for the benefit of someone who was economically dependent on his/her spouse during the marriage.
Legal custody refers to the parent who gets to make decisions regarding the child’s health and well-being, including medical decisions, religious upbringing and where the child will attend school.
Parents can be awarded shared (joint) legal custody, meaning they have joint decision-making authority, or sole legal custody, meaning only one parent can make these decisions. Parents can have shared legal custody even if they do not have shared physical custody.
The non-custodial parent is the parent who does not have custody of the child. Generally, it refers to a parent who has neither legal nor physical custody of the child, but it is sometimes used to refer to the parent who does not have actual physical custody of the child at that specific time. For example, if one parent has physical custody of the child for the entire summer, the other parent would be considered the non-custodial parent during that time period.
Physical custody refers to the parent who is responsible for the actual, physical care for the child. Parents can be awarded primary or shared (joint) physical custody of the child. The technical legal term for primary and shared custody vary by state.
For example, in Alaska, parents are considered to have shared physical custody if one parent has the children 30% of the year, and the other has the children 70% of the year.
If a parent has sole custody of the child, they have both legal and physical custody.
Visitation refers to the time that the parent who does not have primary physical custody spends with the child.
Unless the marriage is of very short duration and no marital assets were accumulated, getting divorced means dealing with dividing assets.
Commingling of Funds
If property that you owned before your marriage has been commingled, or mixed, with marital property, it will be considered a marital asset. For example, if you had a savings account in your name prior to marriage, it would become marital property if you allowed your spouse to make deposits or withdrawals at any point during the marriage.
In community property states, money earned by either spouse, except for specific assets that are legally classified as separate, belong to both spouses equally. In these states it does not matter if one spouse keeps all the earnings from his job in a separate account; as soon as he receives the check, one-half of the assets belong to his wife.
Dissipation of Marital Estate
During divorce proceedings each spouse is prohibited from significantly reducing (dissipating) the size of the marital estate. Marital funds may only be used for regular, every day expenses that align with the couple’s former spending habits, such as mortgage and car payments, medical expenses and other typical household expenses.
A spouse who is found to have dissipated marital funds can be forced to pay it back.
In non-community property states, the court must divide the marital estate based on what is most equitable under the circumstances. Equitable does not always mean equal. The court will take into consideration many factors, including the relative earning power of each spouse and the length of the marriage.
Marital property, also referred to as the marital estate, generally includes all assets acquired during the marriage, even if these assets are listed only under one spouse’s name.
Separate property is property that each spouse came in to the marriage with, or certain assets the spouse acquired during marriage that are legally classified as separate property, such as an inheritance. These assets are not subject to division if the marriage ends in divorce.
Separate property can, however, be turned in to marital property if you allow marital funds to be added to it, put your spouse’s name on the asset, or otherwise use it for marital purposes.
Whether you live in a community or non-community property state, before assets can be divided in a divorce they must be assigned a value. Valuation methods differ depending on the asset, and may include agreement of the parties, property appraisals or bank and brokerage statements.