Authored By: Legal Aid Services of Oregon
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You and your spouse or registered domestic partner are living apart, but you haven't filed for legal separation or divorce.
An excerpt from the Community Education booklet Family Law in Oregon
My spouse and I have been separated for several years but we have never filed for divorce. Are we still married? Can I marry someone else?
Until you end your marriage through divorce (or annulment in very rare cases -- see the section on Annulment) you and your spouse are married. Neither of you can remarry until you end your marriage.
My spouse and I have separated but we haven't filed for divorce. I have our children. Do I have more custody rights than my spouse?
No. Unless you have a custody order (a court order signed by a judge that says that you have custody), you and your spouse have equal rights to have the children. You and your spouse can agree on where the children should live. Without a court custody order, you usually won't be able to have the police get your children back if your spouse breaks the agreement.
How can I get a court order that gives me custody?
If you are filing for divorce, you can ask in your petition that permanent custody be awarded to you in the divorce judgment. (See the section on Divorce on this website.) Once you have filed for divorce, you can ask for a temporary order that gives you custody until the divorce is final. (See the sections on Child Custody on this site.
If you are afraid of your spouse because of physical abuse or threats of physical abuse against you within the last six months, you should be able to get temporary custody as part of a Family Abuse Prevention Act restraining order. See Questions 9, 10, 12 and 77 of the Family Law in Oregon booklet.
In a divorce or restraining order case, the court can make custody decisions only if your children have lived in Oregon for 6 months, need emergency protection, or in some special situations when they have ties to the state.
If my spouse and I are separated, can I get child support? How?
Your spouse can agree to pay you child support, but you can't enforce this arrangement unless you have a court or agency order.
You can get a child support order without filing for a divorce. If you are getting Temporary Assistance for Needy Families (TANF) or are on the Oregon Health Plan (OHP), the Oregon Department of Justice, Division of Child Support (DCS) will try to get a support order against your spouse. If you are not getting public assistance, you can contact the District Attorney (DA) in your county for free help in getting a child support order. In some counties, DCS handles all child support cases.
You can also ask for child support as a part of your divorce. A judge can require your spouse to pay child support payments in a temporary order and in the final divorce judgment.
See Questions 99 through 134 of the Family Law in Oregon booklet for more information about child support.