Introduction to Laws, Rules, and Procedures
Whether you have hired an attorney to represent you or you are representing yourself pro se, you should have at least a basic understanding of the rules and laws that apply to your case. Your life has the potential to be radically altered during a family law case so it is imperative that you know the rules. Cases are sometimes won and lost on procedural grounds alone, so it is in your interest to understand which applicable rule or law applies, where to find it, and what will be expected of you.
If you are represented by an attorney then you’ll have less of a need to know the specific procedural rules, but I am of the philosophy that it is usually better to have more information than to have less. Legal cases are rarely won because someone didn’t prepare enough or didn’t know the rules. On the other hand, they are often won because one side was better prepared or knew the rules and other side didn’t. Don’t let that happen to you. Do your own research and don’t take shortcuts.
Relevant Governing Authority
There are basically a minimum of six different sources of written governing authority you are likely to encounter in a typical family law case. It is important to know that these rules and laws are constantly changing, so you should review the most current edition of any rule or law before acting upon the information. Below is a brief description of each source of rule or law and where you can find it to research more on your own.
Oregon Revised Statutes (ORS)
The first, and most prominent source of law relevant to your case are the Oregon Revised Statutes (ORS). These are the State laws that govern how our society treats crimes and punishments, infrastructure regulation, environmental protections, business regulations, taxation, etc. It also governs Domestic Relations, commonly known as Family Law.
You can find the Oregon Revised Statutes on the official Oregon State Legislature website, at https://www.oregonlegislature.gov/bills_laws/Pages/ORS.aspx.
The ORS contains several chapters that may be potentially relevant to you, depending on the nature of your case, but the most frequently used statutes in most family law cases are typically found in Volume 3, Title 11. They are Chapters:
106 (Marriage);
107 (Marital Dissolution, Annulment and Separation);
108 (Spousal Relationships);
109 (Parent and Child Rights and Relationships); and
110 (Uniform Interstate Family Support Act).
Most family law cases will fall under one or more of these specific Chapters. However, guardianships and conservatorships are governed by Volume 3, Title 13, Chapter 125 (Protective Proceedings). In addition to these Chapters, the rules regarding admissibility of evidence, found in the Oregon Evidence Code, is found in Volume 3, Title 4, Chapters 40 – 45.
Oregon Rules of Civil Procedure (ORCP)
The next relevant set of rules directly relevant in your case will likely be the Oregon Rules of Civil Procedure (ORCP). These are statewide rules that govern the court and legal procedure for civil cases in Oregon. The ORCP governs procedure on such issues as jurisdiction standards, service of process requirements, certain timelines and deadlines, discovery rules, trial procedure, party eligibility, default orders and judgments, jury selection procedure, and much, much more.
You can find a current copy of the Oregon Rules of Civil Procedure on your local county circuit court website and/or on the official Oregon State Legislature website, at: https://www.oregonlegislature.gov/bills_laws/SiteAssets/ORCP.html.
I have seen many cases lost by a party representing themselves simply because they didn’t know or didn’t respect the rules. Your attorney will know the procedural rules, but if you are representing yourself, it is critical that you know and understand the procedural rules and timelines that apply to your case. As a general guideline, it is usually less time-consuming and much less expensive to correctly comply with a procedural rule rather than trying to fix the damage done after ignoring it. Don’t let this happen to you. Look before you leap and read the rule before you act.
Uniform Trial Court Rules (UTCR)
You should also familiarize yourself with the portions of the Uniform Trial Court Rules (UTCR) that are applicable to your case. The UTCR is the statewide set of rules for the courts and for parties interacting with the courts during their cases. It governs such things as document standards and court decorum, trial procedure, court scheduling, and specific rules for domestic relations and adoption proceedings.
Chapter 8 of the UTCR has specific rules and provisions for family law cases and Chapter 5 relates to proceedings in civil cases. You would be wise to familiarize yourself with both chapters. The Uniform Trial Court Rules (UTCR) can be found on your local circuit court website and/or on the Oregon Judicial Department website, at:
Supplementary Local Rule (SLR)
Supplementary Local Court Rules (SLR) are county-specific rules that govern how a specific county circuit court operates and the procedures they follow and expect you to follow. They govern such issues as court hours and location, filing and document standard requirements, court decorum, trials and settlement conferences, court scheduling, and domestic relations. You should also familiarize yourself with the SLR requirements of your local court, specifically on the chapter relevant to family law.
The Supplementary Local Court Rules (SLR) can be found on your local circuit court website and/or on the Oregon Judicial Department website, at:
Oregon Administrative Rules (OAR)
You will also likely encounter Oregon Administrative Rules (OAR) in your family law case. These are administrative rules created by various agencies, boards, and commissions based on authority derived from the ORS and internal agency policies. These are also the rules that the Department of Human Services and Division of Child Support follow in situations like child welfare investigations and calculating child support.
You can find the Oregon Administrative Rules (OAR) on the official Oregon Secretary of State website, at:
https://sos.oregon.gov/archives/Pages/oregon_administrative_rules.aspx and you can find the specific OARs relating to child support on the official Oregon Department of Justice, Division of Child Support website, at: https://www.doj.state.or.us/child-support/calculators-laws/child-support-laws-and-rules/.
Case Law
The final most common source of law you may encounter in your family law case is called case law, also known as judicial law. This is based on a commonly followed legal concept called “stare decisis,” which is a Latin phrase that essentially means “to let the decision stand.”
Although they are all guided by the same framework of law, every family law case is factually different, even if only slightly. So, because of this, the court is often called upon to interpret the law to determine how it applies to the particular facts of that case.
When a court makes a ruling in a case, that ruling establishes a legal precedent on that particular issue. So, in future cases, courts will try to follow that already established legal precedent, unless the facts vary enough to interpret the law differently, or if that earlier ruling is found to be contrary to public policy.
There are usually always exceptions, but the general rule is that the legal precedent will be binding authority on similar courts in similar circumstances and may be persuasive authority in non-similar courts. For example, valid legal precedent set in an Oregon state court will typically be binding on other Oregon state courts in similar circumstances, but it would not be binding on an Oregon federal district court. Similarly, federal case law is not necessarily binding on a state issue in a state court, but it can potentially be used to persuade the state court to follow that precedent. Case law from a different state is also not going to be binding authority on an Oregon court, but it can also potentially be used to persuade the court to accept the out-of-state precedent.
Sometimes, the nuanced difference between otherwise similar facts is enough to change the relevant law applied or may grant the judge wider discretion to make a decision. A good example is a person’s intent. When a person commits a bad act, it makes a difference whether they intended that bad action or whether it was unintentional and outside their own personal control. Another example is the “best interests of the child,” a common custody and parenting time term that is vague and ambiguous and gives the court a wide berth for interpretation.
Although trial judges (the judge you will likely see in your case) can sometimes make case determinations that either set or change legal precedent, no one will likely ever know until and unless the case is appealed. Trial judges do not normally write published opinions on the cases in which they sit, so it is difficult to know sometimes what law or logic the judge applied to the case.
Appeals
When a case is appealed from trial court, the appealed issue will then be decided by a panel of judges on the Oregon Court of Appeals. When a decision is made, the appellate court will often write a published opinion describing their analysis and how they believe the relevant law intersects with the particular facts of that appealed case. That published opinion can then be accessed by the public and any legal precedent set in that case by the Court of Appeals can also then be cited and followed in future cases.
There are literally entire buildings filled with case law, spanning multiple generations, because there generally is no time limit to good legal precedent. Because of that, researching case law for a specific issue is sometimes like searching for the proverbial needle in the haystack, and can be a frustrating and time-consuming experience. It is also imperative that you confirm the law you find is indeed still good precedent and that a new legal precedent hasn’t been set in a more recent case that nullifies the validity of the earlier one.
Despite, and maybe due to, the fact that case law is so prevalent, it is typically more difficult for an unrepresented party to find the information they are looking for. If you want to research case law, you can visit your local county law library, or the library at your local law school, or you can access paid case law subscriptions, such as Westlaw or Fastcase, but these services tend to be prohibitively expensive for a party representing themselves. You can also try searching for applicable case law for free on Google Scholar, which can be found at: https://scholar.google.com/.
Conclusion
In addition to researching the applicable sources of law I described above, you should also utilize the research opportunities in your own local community. Your local county court website, a law library, Legal Aid, and any agencies that may be involved in your case, like DHS or DCS, are rich source of great information and their official websites often include any relevant laws, rules, or policies you may be researching. The internet is also a valuable source of information but be cautious with the information you get because the internet can also be a vast source of disinformation that can lead you astray.
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