The court can establish custody or parenting time in divorces, annulments, legal separations, modifications, custody actions, filiation actions, and third party custody cases. If custody is established in these cases at the time of the final hearing, it may take months between the filing of the petition or motion and the court’s final decision. But what do you do if a child is in danger now, and a full evidentiary hearing is months away? Oregon courts provide for an emergency remedy if a child is in immediate danger of harm.

Oregon courts can award emergency custody even if there is no previous custody determination between the parties. ORS 107.097 provides in part that “[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.”

Oregon courts can also award emergency custody even if there is already a custody judgment between the parties. ORS 107.139 provides in part that “[f]ollowing 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.”

The main difference between the two provisions is that pre-judgment no notice is required; while post-judgment you must make a good faith effort to talk to the other party about the appearance. If the court grants an emergency motion, the non-moving party is entitled to a hearing. The issue at the hearing is limited to whether or not the child was in an immediate danger at the time the emergency order was issued.

If you already have a parenting plan, you need the court’s permission to change it. You cannot simply refuse to return a child in violation of the parenting plan. The consequences for refusing to follow parenting plans are serious, and can include jail time in some situations. The emergency custody statutes do not offer much guidance to the courts, and judges in the same courthouse can have different interpretations of what both “immediate” and “danger” mean. You should immediately consult with an experienced family lay attorney if you believe your child is in danger of harm with the other parent.

Divorce can be a time of stress and uncertainty. People change living arrangements and residences, sometimes voluntarily, and sometimes by court order. As family law lawyers based in Portland, Oregon, we hear lots of questions about who gets to live in the marital home during a divorce. We hear questions like:

1. Will one of us have to move out?
2. Can I make my Husband / Wife move out during the case?
3. I am worried about the kid’s once he or she is served. Can I exclude my spouse from the home to protect the kids?
4. Can I make my Husband or Wife move out even if we don’t have kids living in the home?

Once someone files a divorce, legal separation, or annulment case, the court can provide for “temporary orders.” You can seek temporary orders between the time of filing and the time a final judgment is entered. One type of relief you can ask for is to have exclusive use of property during the case, including a home. ORS 107.095(1) (f) provides that the court can make orders “[f]or 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.”

If minor children live in the house, the court can exclude a party from the home if it is in the children’s best interests. ORS 107.095(1) (d) provides “[t]hat 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.” With kids in the home or apartment, either party can ask to kick the other one out regardless of who is on the lease or title.

Even if there are no minor children live in the house, and there is a threat of violence from your spouse, you can ask the court to exclude them. ORS 107.095(1) (g) provides “[t]hat 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.

Basically, if you have kids in the house and it is good for them, the court can exclude either parent. If you don’t have kids in the house, and your spouse threatens you, you can exclude them. However, without kids or a credible threat, the court has no power to exclude either parent. If you can’t reach an agreement on sharing the house or who will move out, you can ask for exclusive possession of the home. You should consult with an experienced family law attorney prior to filing such a motion, because asking to kick your spouse out can turn a potentially cooperative case into a high conflict and expensive case.

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Annulments, legal separations, and divorces are more similar than different. The differences can be categorized by (1) the legal standard to obtain them, and (2) the relief available.

The legal standard to get a divorce or an unlimited separation is defined in ORS 107.025 which provides that “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.” In English, the marriage is broken and can’t be fixed.

The court can give you a “legal separation” if irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage; and the parties file an agreement suspending for a year or more their obligation to live together as husband and wife, and the court finds such agreement to be just and equitable; or irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest. In English, if you have a marital problem, and want to suspend your marriage for a year, you can. If you have a marital problem, but need to remain married because you are religious, need your spouse’s health insurance, need to protect a legal interest, or don’t want to hold yourself out as divorced, you can get a legal separation.

The court can give you an “annulment,” or a divorce if you don’t want an annulment, when “either party to the marriage was incapable of making such contract or consenting thereto for want of legal age or sufficient understanding; (2) When the consent of either party was obtained by force or fraud.” ORS 107.015. Per ORS106.020, the court can also grant an annulment when “either party thereto had a wife or husband living at the time of such marriage.” or “when the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, whether by blood or adoption, computing by the rules of the civil law, except that when the parties are first cousins by adoption only, the marriage is not prohibited or void.”

The relief offered by each is more similar than different. ORS 107.105 states what the court can do in all three types of cases. In annulments, disillusions, and separations, the court can make provisions for:

Temporary orders per ORS 107.095 for:

1. attorney fees
2. custody
3. child and spousal support
4. parenting time
5. changing the kids routine
6. awarding a party exclusive possession of a residence

Final orders per ORS 107.105 for:

1. Custody of all children of the marriage.
2. Parenting time for all children of the marriage.
3. Child support.
4. Transitional, compensatory, and maintenance spousal support.
5. Division of real property.
6. Division of personal property.
7. Creation of trusts for children.
8. Creation of trusts and appointment of trustees for the parties to manage property.
9. Restore a former name.
10. Continue a money award from a limited judgment.
11. Award attorney fees and costs.

What are the differences between an annulment, legal separation, or divorce? If your marriage is annulled, it is as if it never happened. Per ORS 107.005, in an annulment case, the court can declare a marriage valid, void from the beginning, or void from the time of judgment. If you get a legal separation, you are still married, until you convert your separation into a divorce. An important side-note is that you can file for a legal separation without meeting the 6 month residency requirement. If you need immediate relief, it is a great option. In a divorce, the marriage is terminated when the judgment is entered.

What does this all mean? Annulments, legal separations, and divorces are much more similar than different. You can get virtually identical relief in all three, but there are subtle differences. Talk to an experienced family law attorney to see if the differences between the three may help you in your case.