On December 29, 2011, the Oregon Court of Appeals decided Rushby and Rushby.

In this case, the husband and wife were both former government employees and were both receiving monthly retirement benefit payments from PERS.  Generally retirement accounts are divided along with the rest of the personal property in a divorce case, and the court tries to make sure that the husband and wife each get an equal share of the property.  In this case, however, because both accounts were in payout status the Trial Court treated them as “income streams” for the purpose of calculating spousal support. The wife appealed the Trial Court’s decision, and the Court of Appeals decided that retirement accounts, even those in payout status, are property and should be divided as part of the property division, not treated as income.  As a result, the Court of Appeals ordered that the Trial Court should divide the retirement accounts between the parties and award the wife a portion of the husband’s account to equalize the property division.

The entire opinion can be found here.  http://www.publications.ojd.state.or.us/A144086.pdf

I prevously blogged about omitted assets, and what the court can do if an asset is  left out of property division.  What do you do if you have an omitted liability in your Oregon divorce vs. an omitted asset?  I advise everyone to pull a copy of their credit report to make sure they know what liabilities are showing up, but this system isn’t perfect.  With the condo and home  foreclosures in the Portland area, it is not uncommon for bills to be sent to a house which neither party occupies, and for both parties to miss them.  The language of the omitted asset statute, ORS 107.452 is clear that it only applies to liabilities, so what to do if you  if you discover an omitted liability after your divorce is final?

If you accidentally leave a debt out of your property division, and discover it later, the court can still help. Oregon Rule of Civil Procedure 71 B allows a party relief from a judgment for several reasons, including:

1. mistake, inadvertence, surprise, or excusable neglect;
2. newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial;
3. fraud, misrepresentation, or other misconduct of an adverse party.

If a liability is accidentally omitted, or intentionally concealed by your spouse, the court has the power to re-open the Oregon divorce case and include it in the distribution. There is no substitute for due diligence during a divorce, including scrutinizing your credit report, and making sure all assets and liabilities are accounted for. However, if a liability is omitted, a lawyer can help make the liability distribution fair.

The lawyers at Stephens Margolin PC have substantial experience helping divorced Oregonians with post-judgment issues.

On December 14, 2011, the Oregon Court of Appeals decided Loomis and Loomis.

In this case, the wife owned a 60% interest in a piece of property prior to the marriage, and acquired the other 40% interest during the marriage. The trial court awarded the entire property to the wife as a pre-marital asset and did not include it in the division of marital property in the divorce. The Court of Appeals found that the wife’s 60% interest acquired prior to the marriage was her separate property, and not a marital asset. It also stated that the prenuptial agreement signed by the parties overrode any interest the husband might have had in the appreciation on the wife’s 60% interest under ORS 107.105(1)(f) or the Kunze line of cases. However, the Court found that the 40% interest that the wife acquired during the marriage was a marital asset. The Court stated that this interest was subject to the ORS 107.105(1)(f) presumption of equal contribution, and that the wife did not rebut that presumption where the husband made some financial contribution to the purchase, he was making financial contributions to the couple’s joint finances, and the couple used the property for “joint marital endeavors.”

The entire opinion can be found here.

As a Portland Oregon divorce lawyer, I meet with many parents post divorce that have difficulty getting along with their ex-spouse.  One of the  most stressful events in life is divorce, and it makes sense that divorce would further damage  many parent’s ability to get along with the ex. Although the marital relationship ends, many ex-spouses would like to have an ongoing friendly relationship with their exes, especially where kids are involved. Not everyone can get along, and there are safety and metal health reasons that may make post divorce cooperation impossible.  From my perspective as a divorce lawyer, for divorced parents that could get along, cooperation and getting along has enormous benefits for your children. I believe that many divorced parents that end up using lawyers for modifications could have avoided the legal process in the first place by maintaining a good relationship with their ex.

Here are a few tips based on my 17 years of experience helping people during and after divorce:

1. Establish New Boundaries. Decide what things can and cannot be discussed. It is best for you to stay away from the topics of conflict until such time that you can calmly discuss them.
2. Compromise. “Agree to disagree.” This one can be tough because of pride and differences in opinion. When this happens, you need to focus and get back to the reason why you need to get along… your children. You should also acknowledge from the beginning that there will be inevitably differences in opinion. Then agree that when this happens, you should try not to talk while angry.  There should be a reasonable cooling period, and the try again.
3. Keep the promises. Once you and ex-spouse have compromised agreements, you need to keep those promises. If you agreed to take turns to pick up kids,  live up to that agreement.  Whether you followed through or not during the marriage, you need to now.
4. Continue to communicate. Communication is vital. The cold shoulder or silent treatment may have contributed to the breakdown of the marriage, and it is even more destructive to cooperation post-divorce.  You and your ex-spouse need to keep the lines of communication open even if it is awkward.
5. Consider Counseling. The Portland area has many extraordinary counselors who can help divorced couples with communication. I frequently refer people to counselors as part of our helping approach to divorce and because I believe that if successful,  it has enormous benefits for a client. If you or your ex are having difficulty with the above three points, consider getting into post divorce counseling to help with your communication issues.

Divorce is an opportunity to establish a new relationship with your ex that focuses on the children.  From my experience, parents that can focus on getting along and on the kids use lawyers less and are happier. Most importantly, there are enormous benefits for your children.