Modifying Your Oregon Divorce Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

General vs. Detailed Parenting Plans

Parenting plans can be either very detailed or very general.  A detailed parenting plan is just want it sounds like – there will be a lot of detail about exact days, times of parenting exchanges, how summer vacation is scheduled, etc.  A general parenting plan, on the other hand, may just say that one parent will have two overnights per week based on his or her work schedule, and that both parents will work together to figure out holidays on an as-needed basis.  Different states have different requirements about the minimum amount of detail that must be included in a parenting plan.  In Oregon, ORS 107.102 provides that a parenting plan just needs to set out the minimum amount of parenting time that each parent will have.

Pros and cons of each approach.

There are pros and cons to both of these types of parenting plans.  The main “pro” of a general parenting plan is that it builds in a high degree of flexibility, which many parents prefer.  Another benefit is that you don’t have to worry about figuring out all of the different details of your parenting plan; by definition a general parenting plan does not address all of the various details that you would find in a specific plan.  The main “con” of a general parenting plan – and this is significant – is that if you cannot agree on something, what are you going to do?  For example, if your parenting plan says you will “work together” to determine holidays, what will you do if you can’t agree on Labor Day this year?

The main “pro” of a specific parenting plan is that all of the terms are spelled out so you know exactly what the parenting plan is at all times.  This (hopefully) serves to reduce disagreements regarding scheduling because everyone knows what the parenting plan is in every situation.  The main “con” is that a highly detailed approach may be too rigid for some people and actually lead to further disagreements.

Which one is right for you?

There are a few things to consider when deciding whether to use a general or detailed parenting plan.  The first question to answer is what kind of working relationship do you have with the other parent?  Be honest!  Do you work well together?  Do you disagree about whether the sun is shining or not?  If you work well together, a general parenting plan may work well for you.  If you disagree on everything, you probably need a more detailed parenting plan.  If you have a high conflict relationship, then you almost certainly need a detailed parenting plan.

Another thing to consider is how long you have been separated and how things have gone so far.  If you’ve been separated for six months and have established a routine, that should tell you a lot about what type of parenting plan you need.  If you’ve been able to “figure it out”, then a general plan may work well for you.  If you’ve been flexible with each other over time, you probably will continue to be flexible with each other.  If there is constant disagreement about days or times of exchanges, then a specific parenting plan probably makes more sense.

Another thing to consider is that even though co-parenting might be going well right now, it is at least possible that things might be difficult later on.  If that happens, it may be helpful to have a more detailed parenting plan.

You can always be flexible.

You can think of your parenting plan as a “baseline”, i.e., your parenting plan is what you will do unless you reach some different agreement.  Even with the most detailed parenting plan, you can still do something different if both of you agree.  Your parenting plan should address modifications to the parenting plan.  For example, your parenting plan might say that any permanent changes must be agreed to in writing, but one time changes can be agreed to verbally.  Of course, if you cannot agree, then the terms of the parenting plan will determine what is going to happen.

A hybrid approach.

If a general approach is appealing but you are concerned about running into disagreements later on, a hybrid approach may be worth considering.  In a hybrid approach, sometimes called a Plan A/Plan B” approach, you have a general “Plan A” and a more specific “Plan B”.  This approach can apply to your general schedule, your vacation schedule or your holiday schedule (e.g., it might just apply to your vacation schedule and the rest of your parenting plan is a set schedule).

Here is an example of how a hybrid approach might work for holidays:

  • Holidays.  The parents are awarded a “Plan A/Plan B” holiday schedule.
    • General Holiday Schedule. Both parents are desirous of a holiday schedule which provides maximum flexibility to both of them, so that each might have holiday parenting time with the children when they will be best able to take advantage of the time.  It is anticipated that the parents will be able to work together and work out a mutually advantageous schedule on an ad hoc basis.  However, if either party feels that this flexible, non-specific holiday schedule is not working effectively, he or she may unilaterally decide that the Alternate Holiday Schedule detailed below shall go into effect
    • Alternate Holiday Schedule. If the parties fail to reach agreement on a flexible, non-specific holiday plan, or if either party decides such agreement is not working effectively, this alternate general holiday schedule shall go into effect.  Under this alternate schedule the parties shall have holiday parenting time as follows:
      • The terms of this Alternate Holiday Schedule will need to be negotiated and will be inserted here.

 This approach can provide the best of both worlds for co-parents.  It provides a high degree of flexibility but it also takes into account situations where you cannot reach an agreement.  Sometimes people don’t want to take the time to develop a specific Plan B.  However, a specific Plan B is necessary for this type of parenting plan.

So what type of parenting plan should you choose?

The most important thing is to focus on what is best for your children.  A parenting plan that minimizes conflict between co-parents will be better for your kids then one that could contribute to conflict.  With that in mind, if one parent prefers a specific plan and the other prefers a general plan, it probably makes sense to either have a specific or a hybrid type of parenting plan.  If both parents feel like a general parenting plan will work, then it’s probably a safe bet that it will.

Regardless of the parenting plan you choose, be aware that parenting plans are always subject to modification.  If you don’t get it quite right the first time, you can always modify the parenting plan in the future.

What Does Custody Really Mean?

If you had to define “custody” how would you define it? Interestingly, Oregon statutes do not actually define sole custody but they do define joint custody.  ORS 107.169 defines joint custody as “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.”

There are a number of common misunderstandings about legal custody:

Custody doesn’t impact child support. People sometimes think that legal custody impacts child support. It doesn’t. The parenting plan impacts child support but legal custody doesn’t.

Custody is not parenting time. People often confuse custody with parenting time. Custody literally only refers to decision making while parenting time refers to the actual parenting schedule. To illustrate this point, you can have: Sole custody with a 50/50 parenting plan; Sole custody with an every-other-weekend parenting plan; Joint custody with a 50/50 parenting plan; or Joint custody with an every-other-weekend parenting plan.  When we discuss these two concepts in mediation or Collaborative Law we usually talk in terms of “decision making” and the “parenting plan” or “parenting schedule.”

Custody doesn’t automatically allow someone to move out of state. People often think that sole custody automatically allows a parent to move far away with the children. That’s not the case. In Oregon, if there is a contested move-away situation the court looks at what is best for the child. The assumption used to be that if a parent was moving away to get a better job or to get more family support, that would be good for the parent which would then be good for the child. That assumption is no longer made. Now the assumption is that if a child has a regular relationship with both parents, it is best to ensure that those relationships continue.  Mediation is a great option for addressing move-away cases because it allows parents to focus on creating a workable arrangement for both of them  rather than taking a “win-lose” approach to the situation.

So what is custody?

In the mediation or Collaborative process we don’t usually use the word custody. Instead, we refer to it as “decision making.” The phrase “decision making” is more accurate and less inflammatory than the word custody. When we talk about decision making we typically are talking about religious upbringing, school decisions and elective medical decisions. As we see in ORS 107.169, the major decisions “include but are not limited to” these three types of decisions. Realistically, major decisions include any decisions that are coming up where you end a lot of time thinking about the decision, research different possible options, etc.

How is decision-making addressed in mediation and Collaborative Law?

In mediation we begin by asking the question, “How have you made decisions in the past?” We then ask, “How do you envision making decisions in the future?” Often times whatever people have done in the past they will continue to do in the future, although that doesn’t always have to be the case. For example, it may the case that a stay-at-home parent historically made most of the decisions but now that there will be separate households the wage-earning parent begins to take a more active role.

Regardless of the approach to decision-making, mediation and Collaborative Law provide a process for identifying and discussing interests. When we are discussing something as important as making major decisions for your children, it is important that each parent have a chance to discuss the issue from their perspective and feel heard.

Co-Parenting Meetings

Do you ever want to ask your co-parent about scheduling about an upcoming trip (yours or theirs) or what time bedtime is at their house?  Ask them!  It is perfectly normal to want to make sure you have a basic understanding of the rules in the other person’s home.  It is perfectly reasonable to want to know if there is a birthday party coming up that could impact parenting time in either household.  Rather than asking your child, ask the other parent.  Your children don’t want to be put in the middle, even if the topic seems minor.  Instead, try talking to your co-parent.

Co-parenting meetings are regularly scheduled appointments for both parents to connect and talk about whatever is going on in their child’s life.  Here are a few topics that you might discuss at a co-parenting meeting:

  1. Scheduling.  Are there any activities coming up that your co-parent might want to know about?  Is there anything coming up that could impact your co-parent’s parenting time?  Is there something coming up that could impact your own parenting time such as a work trip?  Scheduling could include things like extra-curricular activities, performances, parent-teacher conferences, a child’s friend’s birthday party, etc.
  1. Big Decisions.  Do you need to make a decision about something that is coming up in the next few months?  This could include whether your child should attend public school or private school, undergo medical care or naturopathic care, or whether or not to get braces.  These are just a few examples, but really this could be any big decision that you know is coming up.
  1. Rules.  Is it important to you to have consistent bed times or dietary restrictions in your homes?  Do both of you want to have the same curfew?  Do you want to have the same rules regarding driving?  Does one parent have a concern about actions or attitudes that are going on during their parenting time?  Co-parenting meetings are a great opportunity to make sure you are both on the same page.  In fact, your co-parent might even be able to help you address challenges that are going on during your parenting time.
  1. Anything Else?  Is there anything else you are wondering about or what to discuss that is related to your child?  If it is on your mind, chances are that your co-parent is concerned about it as well.  Just talk about it.

Co-parenting meetings can be structured or they can be more informal.  There are only a few rules to co-parenting meetings:

  1. Agenda.  Each parent needs to send a proposed agenda of what they would like to discuss 24 hours prior to the meeting.  The point of sharing agendas is to give someone time to process and consider whatever you want them to think about.  You don’t want to feel put on the spot and your co-parent doesn’t want that either.
  1. Agree to Disagree.  It is possible to disagree in a respectful manner.  If there is something you disagree about and you cannot reach a resolution, take some time to think about it and schedule a follow up conversation.  Each of you should spend time thinking about a resolution to the issue that is acceptable to you and that you think will also be acceptable to the other parent.  Do not raise your voice, make personal attacks, or threaten to call your lawyer.  If you need to, consider scheduling an appointment with a mediator or child specialist.
  1. Keep It About The Kids.  Co-parenting meetings are not the time to talk about your relationship or what is going on in the other person’s life.  If someone wants to volunteer information, that’s fine.  But this is a time to discuss your kids and how they are doing.

So what’s next?  If you aren’t comfortable discussing the idea of co-parenting meetings, try emailing them a link to this page and ask them what they think.  Try scheduling three co-parenting meetings.  It may seem awkward at first, but if it does, just know it probably feels awkward for both of you!  Just remember that you are doing this for your child and so that you can have a more effective co-parenting relationship in the future.  If you don’t know what to talk about, consider using numbers 1-4 above as a template agenda.

Here are a few things to consider when you schedule your co-parenting meetings:  Do you want to have them around a parenting time transition so that your kids can see you interacting respectfully?  Do you want to avoid having these meetings around the kids so they aren’t waiting on you?  Do you want to schedule a phone meeting after kids have gone to bed?  How long do you want these meetings to last?  There are no “right” answers to these questions.  Try scheduling a meeting and seeing how it goes.  You can always make changes to future meetings.  Remember, this isn’t about the two of you – this is about your kids!