ORS 107.093 provides that when a petition for marital annulment, separation or dissolution is filed and upon service of summons and petition upon the respondent, a restraining order is in effect against the parties.  Violation of the statute is punishable via contempt proceedings.

On April 14, 2010, the Oregon Court of Appeals filed an opinion in Frazier and Frazier. The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A137220.htm

The case dealt with how to address a party’s violation of the statutory asset restraining order.  After filing for divorce, wife completed a refinance of the marital home.  The refinance violated the statutory asset restraining order.  The trial court valued her withdrawal of equity as $60,000, based upon husband’s testimony.  The trial court decided that the full amount of her benefit from the refinance should be awarded to husband out of the division of assets as an equalizing judgment.

The court of appeals held that the actual benefit to wife was only $47,000, but the trial court’s ultimate determination as to what property division is just and proper in all circumstances is a matter of discretion that the court of appeals will not disturb unless the trial court misapplied the statutory and equitable considerations that ORS 107.105 requires.  The court of appeals held that husband should receive a benefit of $47,000 out of the division of sale proceeds from the house.

The order provides for certain exceptions.  It is important to consult a lawyer when initiating a divorce proceeding or being served with divorce paperwork with regard to how the asset restraining order affects you.  Failure to consult an attorney and properly abide by the order can have harmful effects.  Also, visit the following link for a prior post by Sean Stephens on this issue:  http://oregondivorceblog.wordpress.com/2007/05/15/to-sell-or-not-to-sell/

The Oregon Court of Appeals filed an opinion in Stokes and Stokes on March 31, 2010.  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A136795.htm  The case addressed the treatment of the following issues:  1.  Whether military benefits that are non-taxable can be included in gross income for child support calculation purposes;  2.  What the proper valuation date for a pension is; 3. The proper method to divide a pension interest; 4. Whether payment for other debts can be credited against support obligations.

Husband is in the military and receives BAH and BAS payments which are included in his monthly paychecks.  He argued that the court should not consider those benefits as income for child support purposes since they are non-taxable.  The court of appeals did not agree and held that pursuant to OAR 137-050-0340 which defines gross income as “income from any source including, but not limited to, salaries, wages, commissions, advances, bonuses, dividends, severance pay, pensions, interest, honoraria, trust income, annuities, return on capital, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, including lottery winnings, and alimony or separate maintenance received,” that the BAH and BAS payments were gross income.  It did not matter that those payments were non-taxable.

Husband, as a member of the military, is entitled to a military pensiion after 20 years of service.  At the time of the divorce he had not completed 20 years of service, but testified that he would complete said service.  Under Oregon law, the marital portion of husband’s pension must be calculated as a fraction of the entire actual pension, rather than as a fraction of a hypothetical pension amount.  The trial court had awarded wife a potion of the pension based upon a hypothetical retirement date prior to his full srevice.  The “time” rule is typically used to calculate the marital portion of benefits under a defined benefit retirement plan.  Under that rule, the marital portion is determined by multiplying the total actual pension benefit by a fraction, the numerator of which is the number of years (or months) of service during the marriage and the denominator of which is the total years (or months) of employment.  Wife’s interest in the pension should be based on the total pension benefit as of the date of retirement, determined either by way of an actuarial present value or through a division of benefits as they are distributed.

The court used the date of the parties’ separation to determine the marital portion of the pension.  The court of appeals held that the proper date is the date of dissolution, not the date of separation.

The court of appeals also held that in view of the fact that wife is entitled to a share of the marital portion of husband’s retirement benefits, and because those benefits would terminate if husband were to predecease her, it is appropriate that wife’s interest be protected by the provision of survivor benefits in an amount sufficient to cover wife’s share of the marital portion of the pension, with the parties to share equally in the cost of the annuity. 

The trial court ruled that husband satisfied his pretrial child and spousal support obligation via payment of the parties’ credit card debt.  Under Oregon law, a court cannot forgive a past-due support obligation.  Wife was awarded temporary spousal and child support in order to provide her with assistance in meeting her monthly expenses during the pendency of the proceeding as sset forth in ORS 107.095.  The trial court should not have credited husband’s obligation by his payment of credit card debt.

This case shows that a trial court can make myriad errors in its decisions.  In this case, the divorce was finalized by the trial court years prior to the court of appeals rendering its decision.  The issues in this case were complex.  In complex cases, the parties are frequently unable to reach a settlement due to their lawyers not being sure of a proper result.  Obviously, the alternative of throwing the issue into the hands of a trial court was not helpful in this case.  It is important to make sure that your lawyer has a firm grasp of the law and is able to property understand its application to the facts of your case and to the trial court.

The Oregon Court of Appeals published an opinion in Fields and Fields on March 24, 2010.  The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A141040.htm

The case dealt with the treatment of wife’s separately held company.  Wife was given the company by her parents prior to the marriage.  She kept the company in her sole name throughout the marriage.  Husband provided a significant amount of work for the company and the parties used the company’s income during the marriage.  The trial court ruled that husband was not entitled to a award to equalize the value of the company to wife. 

The court of appeals held the the trial court was mistaken and, that while wife had rebutted the presumption of equal contribution with regard to her initial acquisition of the property that she had not done so with respect to the company’s appreciation during the marriage.  ORS 107.105(1)(f) requires that the division of marital property be “just and proper” under the circumstances.   Marital assets are subject to a rebuttable presumption of equal contribution and ownership, which applies to property acquired by a spouse by gift during the marriage.   The appreciation in value of a separately held asset is a marital asset that is also subject to the rebuttable presumption of equal contribution.  A spouse rebuts the presumption of equal contribution with respect to the appreciation of a separately held asset if he or she proves that the other spouse did not contribute either directly or indirectly to its appreciation.  Here, wife could not rebut the presumption.

The court of appeals awarded husband one half of the appreciation of the company during the marriage.

The Court of Appeals decided the case of Bolte and Bolte on February 17, 2010.  The case is an appeal from a divorce trial.  The Court of Appeals modified the spousal support award made by the trial court.

Husband and Wife were married for 22 years, and separated a few years prior to trial.  Wife gave up employment opportunities of her own to further Husband’s career.  The parties had a household income of $14,000 per month, consisting of Husband’s income of $10,700 and Wife’s income of $3,300. 

Husband argued that his income should be only $7,900 per month because the remainder was from a position that he termed temporary.  Husband also argued that Wife’s income should be presumed to be higher because she was underemployed.

Trial court awarded indefinite support in the amount of $1,500 per month. 

The Court of Appeals held that Wife was not underemployed as she was already working full time and is not, for spousal support purposes, required to work at the highest possible salary.  The amount of spousal support must be “just and equitable” under the totality of the circumstances.  Specifically, ORS 107.105(1)(d)(C) provides a nonexclusive list of factors that we consider in establishing a just and equitable support award for spousal maintenance support, which include (1) the duration of the marriage; (2) the standard of living established during the marriage; and (3) the parties’ age, income and earning capacities, training and employment skills, work experience, and financial needs and resources.  The Court of Appeals modified the support award up to $2,500 per month indefinitiely because “without a substantial award of spousal support, wife’s standard of living following the dissolution will be significantly diminished when compared to the parties’ predissolution lifestyle, which was based on a monthly household income of approximately $14,000.”

The opinion can be found here:  http://www.publications.ojd.state.or.us/A139055.htm

The courtroom is not the only path to a good resolution. Divorce mediation is a wise choice in most cases. I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate.  The opposing attorney had filed for temporary custody without asking for mediation. We asked the opposing attorney to mediate prior to the hearing, but they refused. I would have been happy to meet in our conference room and talk about some creative solutions to the problem, but they refused.  Rather than mediate or negotiate, a hearing was held. The result was substantially worse for the moving party than they expected, and perhaps even than they could have reached in mediation. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

Good divorce lawyers are dispute resolution experts. They are trained in negotiation, cooperative face to face meetings, collaborative law, mediation, and have trial skills. When asking a lawyer questions before you hire them, make sure to ask about how they resolve disputes. If court is the primary answer, you may be wise to look elsewhere.

The Indian court system does not properly recognize divorces issued in the United States.  A divorced wife can flee on her own, or even worse with the parties’ children to India.  Once there, she can file dowry harassment charges against her “ex-husband.”  In addition, India is not yet ratified the Hague convention and will not act to send abducted children back to the United States. 

There has been a rise in the number of dowry harassment cases filed against non-residen Indians (NRIs).  India has been used as a haven for ex-wives who are disatisfied with the result of their United States divorce case.  Once in India they utilize dowry laws which are peculiar to the Indian legal system and do not have a US counterpart. 

Spouses who are NRIs or are divorcing NRIs should discuss their case with a competent attorney who understands these complex international law issues.

On December 23, 2009, the Oregon Court of Appeals filed its decision in Baker and Andrews, a dissolution of domestic partnership case.  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A135564.htm.

                Baker and Andrews were an opposite sex couple who lived together for many years.  Baker appealed the trial court’s order that no domestic partnership existed and from an order of the court awarding Andrews sanctions against both Baker and her attorney.  The court of appeals agreed with the trial court with respect to its ruling that no domestic partnership existed, but reversed the trial court with respect to its ruling on sanctions.

                They lived together for 24 years, and shared a home and bed and raised their own separate children to adulthood in the home during that time.  They maintained separate bank accounts. Baker did some work outside of the home and Andrews owned a business (that Baker did some work for without pay).  Baker also worked as a homemaker.   They had no agreement as to their financial relationship.  Andrews added Baker to the title on the house in 1994, but Baker then signed a quitclaim deed releasing her interest in the home in 2004.  She also filed for SSI disability, stating in her application that she did not expect anything from the home and that she lives financially separately from Andrews.

                The trial court did not find Baker to be credible, a finding upon which the court of appeals must rely. 

                Oregon does not recognize common law marriage.  Under the court’s decision in Beal and Beal and subsequent cases, however, Oregon has a body of case law that recognizes that where parties intend to create a domestic partnership that the court can then equitably divide their property and debts.  The court of appeals describes this as follows:  “In general, an equitable property division on dissolution of domestic partnership is appropriate where the parties’ intent to share assets and expenses is shown by evidence that they have jointly purchased, built, or maintained property, held joint accounts, and made substantial economic and noneconomic contributions to the household for mutual benefit.” There cannot be an award of spousal support, nor can there be a claim for attorney fees made in such a proceeding.

                Here the court of appeals found that there was insufficient evidence of financial commingling sufficient to support Baker’s claim of the existence of a domestic partnership.

                Even though a party has no entitlement to attorney fees in this form of proceeding, if the other party files a frivolous case then the offended party can seek sanctions under Oregon Rule of Civil Procedure 17.   The court of appeals did not reach the issue of whether the filing was in fact frivolous, because it decided that the trial court’s manner of assessing sanctions was legally improper.  The matter was remanded to the trial court to decide if sanctions were warranted under ORCP 17.

Few property claims cause as much contention as a claim to divide a personal injury settlement in a divorce. Oregon’s Court of Appeals  treats personal injury claims as a form of property. Timing matters in determining how a claim may be divided. A claim from a post separation injury should go to the hurt spouse. The court can divide a pre-separation claim that is unresolved at the time of separation. The court can also divide personal injury settlements that were received during the marriage. Settlements received during the marriage are marital assets and subject to the presumption that both spouses equally acquired the asset. A spouse may try to rebut the presumption that the non-injured spouse contributed to the acquisition of the claim.  Even if the injured spouse is successful in rebutting the presumption, the divorce court can still give part of the settlement to the non injured spouse if it is “just and proper” in all the circumstances. Personal injury claims may have multiple components, such as lost wages, pain and suffering, loss of spousal companionship, and medical payments. How the settlement is characterized may have an impact on the court’s division.  If your case involves a substantial personal injury claim, consult with an experienced family law lawyer about your options.

The division of personal property in a divorce can be one of the most expensive, emotional, and wasteful parts of a case.  Parties will often spend thousands of dollars arguing over a very inexpensive piece of personal property. 

Personal property, meaning furniture, art, family photos, pets, and other general property, in a divorce is treated no differently than the division of other assets.  A dollar value figure is placed on the property and the allocation of property is dealt with as part of the general division of assets and debts.  For example, if all of the personal property is worth $20,000 and one party takes all of it, they would owe the other party $10,000 as either a cash payment or out of the division of some other asset or by taking on a similar amount of debt.

The better way to deal with the division is for the parties to agree on who takes what piece of furniture and not assign a dollar figure to anything.  This can be more complicated with valuable artwork.  Family photos are generally given to one party with the other party having an option to make copies.

If there is a clear dispute over which property each party wants, the easiest method is to have the personal property appraised.  The appraiser will make a list of all property and assign dollar values to each piece and then the judge can make a determination of how it is divided. 

Some property is not included as a marital asset.  Generally this happens with jewelry or other clear gifts that were intended to be given to the other party and not shared.  In that case, there will be no offset and the property will go to the party whom received the gift.  One example is that a wedding ring always stays with the party who received it.

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On August 5, 2009, the Court of Appeals ruled in the case of Morales and Morales, in which the court modifies the trial court’s ruling with respect to spousal support based upon the wife’s appeal.

Husband and Wife married when he was 22 and she was 17.  Their marriage lasted for over 35 years.  Wife raised the parties’ children, never working outside the home, while Husband served in the army.  Husband retired from the army in 1992, after 20 years of service, for medical reasons. 

Wife was awarded $2,000 per month in support at a temporary hearing, in order to cover joint family expenses along with her own individual expenses.  At the hearing, the trial court imputed minimum wage income to wife and advised her to obtain a job.

At the time of trial, husband’s income totaled approximately $5,200 after subtracting taxes and payment for his child’s health insurance.  His income included $3,210 in nontaxable disability payments.  Wife had attempted to find a job, but was still unemployed.  The trial court awarded wife spousal support in the amount of $1,000 per month for one year, $800 per month for two years, and then $500 per month indefinitely.  The court imputed minimum wage income to wife and made a ruling that the nontaxable disability income for husband could not be divided by the court.

On appeal, wife argues that the award of $500 per month is inequitable and husband counters that the award is appropriate based upon husband’s non-disability income. 

The court of appeals explains that husband’s nontaxable disability income is in to be considered income for support purposes, regardless of whether it can be divided as part of a property distribution.  Oregon law defines “income” for purposes of support payments, as, among other things, “any program or contract to provide substitute wages during times of unemployment or disability.”  ORS 25.010(7)(f); see also OAR 137-050-0340 (for purposes of support, “gross income includes income from any source including, but not limited to * * * disability insurance benefits” (emphasis added)).  In addition, the court held that federal law does not restrict the court’s ability to consider the disability payments as income. 

The court of appeals then goes on to consider what amount of support is “just and equitable.”  Based on the length of the parties marriage, the parties’ respective situations, and the parties’ respective incomes or ability to obtain employment, the court of appeals held that wife should be awarded an amount of $1,400 per month indefinitely. 

The entire opinion can be viewed here:  http://www.publications.ojd.state.or.us/A134242.htm
The lawyers at Stephens Margolin P.C. can assist you with your family law appellate questions. If you have any questions about Oregon appellate law please contact Daniel Margolin, who focuses part of his practice on family law appeals, or C. Sean Stephens at Stephens Margolin P.C.