Beware & Be Aware

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February 10, 2011

Divorce may be the most emotionally overwhelming time in your life. During this challenging time, it can be hard not to give up and want the whole ordeal to just go away. Your attorney can help you survive your divorce in the best possible manner—and prevent you from making an impulsive decision you may later regret.

Davis v. Davis addressed this very issue. During divorce proceedings, Mrs. Davis was extremely distraught. She thought that if she gave her husband whatever he wanted, the divorce would soon be over. Against her attorney’s advice, Mrs. Davis signed an agreement giving up most of the assets. She later regretted her decision and moved to void the judgment, asserting that she was not mentally competent to sign the agreement.

The Court found that Mrs. Davis was competent, or legally able to enter the agreement, under current Oregon law. In Oregon, competency is determined based on the person’s ability to understand the consequences of the agreement. However, from Davis, a new standard is being reviewed that would test a person’s capacity to make reasonable decisions at the time of an agreement. Simply put, the new standard would surmise if the person was in some way under duress prior to making a decision. Further, the new standard would ascertain whether the opposing party was aware of the person’s inability to make the best decision.

Although the Davis opinion opened the door for a more expansive competency standard, Oregon law remains strict. Like Mrs. Davis, you may want to “get it over with,” but a little distance from the situation can go a long way. It’s best to play it safe and resist the impulse to settle until you’re sure you can live with the decision.