HOW IS PROPERTY DIVIDED IN A DIVORCE?

Oregon requires full disclosure of all separate and marital property when a Petition for Dissolution of Marriage (Divorce) is filed. Parties who can agree on property division can use a Marital Settlement Agreement to divide their property. The Marital Settlement Agreement will then be incorporated into the final Decree of Dissolution. If the parties are unable to agree on the division of their property, the court will have to make a determination as to how the property should be divided between the parties.

We can help with your property division issues in your divorce.  Call the Law Offices of Paul F. Sherman at (503) 223-8441 or Contact Us for a free divorce consultation.

JUST AND PROPER DIVISION OF MARITAL PROPERTY

The courts in Oregon require that the division of the marital estate is “just and proper in all the circumstances.” This is often referred to as an “equitable distribution” and does not necessarily mean an equal split of the marital property. Courts are required to distribute the property on an equitable basis. This means that each spouse should receive a “fair” share of the marital property. What is fair and just and proper will depend on the facts and circumstances of your particular case.

In Oregon, when a divorce is initiated by one party, a Statutory Financial Restraining Order is placed on the marital estate to ensure that neither party improperly transfers any asset or hinders the other party’s right to the property. A Financial Restraining Order essentially maintains the status quo of the marital estate pending final resolution. Statutory Restraining Orders allow the parties to maintain normal business activity and to have access to marital property to pay attorneys fees. The Restraining Order does, however, prevent the other party from selling, encumbering or transferring property during the divorce. It also prevents the cancellation of auto, home and health insurance policies.

The division of marital property in Oregon is a three-stage process. The first stage is to identify all assets and liabilities held by the parties to the divorce. The second stage is to value the assets which have been identified; and, the third stage is to divide the assets and liabilities of the parties. This process occurs through the production of documentation and is commonly referred to as “the discovery process.” Additional information may also be obtained in discovery through depositions and subpoenas. Thus, a skilled divorce attorney can assemble the information necessary to ascertain the true value of the marital estate and can obtain the documents necessary with court intervention should the other party be unwilling to cooperate.

In Oregon, there is a presumption that each party contributes equally to property acquired during the marriage. This is a rebuttable presumption and is generally designed to protect the homemaker. A party’s contribution can be in the form of income from employment, labor or attending to other matters such as raising the children and the like. The Oregon courts must also consider the efforts of the spouse as a homemaker or stay-at-home mom as a contribution to property acquired during the marriage. This contribution is provided by statute and protects the stay-at-home mother from the argument that she did not contribute to assets generated by the family business or the husband’s source of employment. Again, the homemaker presumption can be rebutted upon a proper showing of evidence.

It should be noted that Oregon is a “no-fault” divorce state and requires only a showing of “irreconcilable differences” in order to obtain a divorce. Thus, a showing of fault is irrelevant as to the division or distribution of assets.

FULL DISCLOSURE OF ASSETS AND LIABILITIES IS REQUIRED UNDER OREGON LAW

In order to arrive at a just and proper distribution, the Oregon courts require a full and complete disclosure of all assets and liabilities held by the parties to the divorce. This full disclosure requirement is incorporated by statute and the essential items to any divorce are enumerated in ORS 107.089, which requires production of the following:

(a) All federal and state income tax returns filed by either party for the last three calendar years;

(b) If income tax returns for the last calendar year have not been filed, all W-2 statements, year-end payroll statements, interest and dividend statements and all other records of income earned or received by either party during the last calendar year;

(c) All records showing any income earned or received by either party for the current calendar year;

(d) All financial statements, statements of net worth and credit card and loan applications prepared by or for either party during the last two calendar years;

(e) All documents such as deeds, real estate contracts, appraisals and most recent statements of assessed value relating to real property in which either party has any interest;

(f) All documents showing debts of either party, including the most recent statement of any loan, credit line or charge card balance due;

(g) Certificates of title or registrations of all automobiles, motor vehicles, boats or other personal property registered in either party’s name or in which either party has any interest;

(h) Documents showing stocks, bonds, secured notes, mutual funds and other investments in which either party has any interest;

(i) The most recent statement describing any retirement plan, IRA pension plan, profit-sharing plan, stock option plan or deferred compensation plan in which either party has any interest; and

(j) All financial institution or brokerage account records on any account in which either party has had any interest or signing privileges in the past year, whether or not the account is currently open or closed.

The statutory provisions of ORS 107.089 will generally provide all assets and liabilities of most marital estates. High asset estates or estates with family businesses or closely held businesses, will require more detailed discovery requests. There are also enforcement provisions within the statutory scheme which may be used by a skilled family law attorney to obtain documentation necessary to value the marital estate.

Complex marital assets are common among our clients who have higher incomes, family businesses, multiple properties, and other sources of wealth. Paul F. Sherman is highly skilled at uncovering hidden assets.

When one spouse has controlled the majority of the finances, the other spouse can often be of unaware of their actual financial status. Assets and properties can be uncovered in:

• family businesses,
• multiple properties,
• real estate holdings,
• stocks and stock options,
• retirement plans including 401(k) and PERS.

The division of property in a divorce requires a skill and guidance of a Portland divorce attorney. At the Law Offices of Paul F. Sherman, we have over 30 years experience in the division of high-asset estates and complex property division. Paul F. Sherman is a skilled trial attorney and negotiator. He has the litigation experience you and your family need to protect your assets and property rights. The Law Offices of Paul F. Sherman can also help parties obtain a fair property division through arbitration or mediation. Paul F. Sherman is intimately familiar with the division and valuation of high asset estates and complex property division issues.

CONTACT PAUL F. SHERMAN FOR EXPERT ADVICE REGARDING THE DIVISION OF YOUR MARITAL ESTATE

We know you have questions and we have answers. If you would like more information regarding the division of your marital estate, call the Law Offices of Paul F. Sherman at (503) 223-8441 or Contact Us today for a free property division consultation.

About pfs2law

LAW OFFICES OF PAUL F. SHERMAN
This entry was posted in Complex property division, Dissolution of Partnership, Divorce, Family law, High Asset Divorces, Separation, Uncategorized, Uncontested Divorce and tagged , , , , , , , , , , . Bookmark the permalink.

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