There are some limited exceptions where the court can revisit part of a property award.  One exception is for “omitted” assets.  The court has the authority under ORS 107.452 to reopen the property distribution if a significant asset is left out of the division. What authority the court has depends on whether the asset was omitted accidentally or concealed and omitted intentionally.

It is critical to make sure you are aware of the nature and extent of the marital property, and that you have good advice from a lawyer about what property division is fair in your case. You should consult with an experienced divorce lawyer before signing any final property agreement.

Assets can be “omitted” two ways, intentionally or accidentally. ORS 107.452 specifies what the divorce court can do if a party discovers an omitted asset post divorce. If a party alleges that significant assets belonging to either party (1) existed at the time of the entry of the judgment; and (2) were not discovered until after the entry of the judgment; the divorce court must reopen the case.

If the assets were accidentally or inadvertently omitted from the distribution, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances. Basically, if the omission was an accident, the court will divide the asset using the same legal standard as if the asset were discovered prior to the divorce.

The court can hand out harsher remedies in the event an asset was intentionally concealed. If the court finds evidence of intentional concealment, it can order:

1. The division of the appreciated value of the omitted assets;

2. The forfeiture of the omitted assets to the injured party;

3. A compensatory judgment in favor of the injured party;

4. A judgment in favor of the injured party as punitive damages; or

5. Any other distribution as may be just and proper in all the circumstances.

The court can order attorney fees on a motion to reopen a divorce case. A fee award is mandatory if the court finds a party intentionally concealed assets. We previously blogged about how the court decides if fees are appropriate, and if so, how much. Many of the factors the court considers in awarding fees factor in to concealed asset cases.

Time limitations apply. If you think significant assets were omitted from your divorce, you should consult with an experience family law lawyer immediately.

U.S. News and World Report ran an interesting article captioned “Childhood Smiles-or Frowns-and the Risk of Divorce” Researchers compared the intensity of smiles from college students’ yearbook photos and childhood photos, and then compared the intensity of the smiles to the divorce rate among the sample.  The top 10% of smilers had a 5.5% divorce rate, while 27% of the worst smilers were divorced. One theory behind the result is that optimistic people fare better in relationships than the eternally grumpy. Should my divorce lawyer peers be asking for a copy of the yearbook photos before drafting a prenuptial agreement?

While some cases require a Judge to make decisions to resolve a case, having a judge impose a decision on litigants is usually not the best way for a family to resolve disputes.  Most good family law attorneys advise clients to participate in mediation or other forms of alternative dispute resolution.   A small group is trained in collaborative law, a rapidly growing form of alternative dispute resolution.  The lawyers of Stephens Margolin P.C. are prepared to meet the needs of family law clients by offering dispute resolution tools that don’t require a judge or a five day a week court calendar.  We are strong advocates of using mediation to resolve cases, and are trained in using collaborative law to resolve the needs of clients outside the court system.

On February 11, 2009, the Oregon Court of Appeals published an opinion in Branam and Beaver.  The case is an appeal from a trial court ruling on the division of assets in a long term domestic partnership.  The main question before the court was how to divide the proceeds from the sale of the parties’ home.

Beaver and Branam are a man and woman who lived together in a domestic partnership but never married. Branam had received an inheritance from her former husband. She used part of the money to buy a house. The parties never discussed what would happen if they decided to separate. When Beaver moved into the house, Branam agreed to put his name on the house. Beaver argued that this meant that he owned half the house and should receive half of the equity in the house after they broke up. Beaver said that she never intended for him to receive the money originally paid for the house and that she added his name as a way to insure that he could live in the house if she died.  The parties sold the house and the trial court decided to award half of the apprectiation of the value of the house to each party and to award 100% of the original value to Branam.  On appeal, Beaver contends that the court erred in reimbursing the purchase price to Branam.

In its opinion, the court of appeals explainst that Oregon law, based on the court of appeals’ ruling in Beal and Beal and that case’s progeny, provides that, in the dissolution of a domestic partnership, courts are required to divide property according to the express or implied intent of the parties at the time that they established their partnership. If the court cannot discern the parties’ intent, the court may exercise its equitable powers to reach a fair dissolution of the parties’ partnership. How the parties held legal title to real property is evidence of the parties’ intent, but it is not dispositive. Where there is no express agreement of the parties regarding the division of their property in the event of dissolution of their domestic partnership, “courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon.” Beal, 282 Or at 122. The court then looks at the following factors to determine the intent of the parties: 1. Inferences drawn from the way the parties lived; 2. The fact of cohabitation can be evidence of an intent to share incomes during the time the parties live together; and 3. Joint acts of a financial nature (joint checking account, joint savings account, joint purchases, etc…) may give rise to an inference of a intention to share equally. Where the evidence establishes that parties in a domestic partnership intend to share property equally but one party makes a greater initial contribution to the property, the property will be divided equally but the party making the greater initial contribution will be credited for that contribution.

In this case, since there was no evidence that the parties intended to split the initial contribution made by Branam, it was proper for the court to split the appreciation in the property equally, but to award the initial purchase price to Branam.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A133414.htm.

The case teaches us that unmarried couples who intend to share their financial lives would be well advised to set forth their intentions in a formal document.  If not, the court will decide for them how to split up their possessions and finances when they break up.

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens Margolin P.C. can assist parties going through the dissolution of a domestic partnerhip or who want information on dometic partnership agreements and in better understanding the law in Oregon regarding divorce. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

The following is the casting call notice and contact information:

MTV’s documentary series, “True Life,” is casting young people who are going through or affected by a divorce

Are you in the process of getting divorced, or considering getting a divorce? Do you feel like you married too young, and just can’t make it work anymore? Is your  marriage taking an emotional toll on your home, work and social life? Do you feel like people in your life – friends, family members, your children – must take sides in your marital war? Is the chaos just too much to bear anymore? Or is your parents’ pending divorce forcing you to choose sides? Is one of your parents moving far away, and taking you along? Do you feel like their divorce is somehow your fault… or that it’s basically ruining your life? If divorce is affecting your life right now, MTV wants to hear from you. If you appear to be between the ages of 16 and 28 email us at divorce@mtvn.comwith all the details. Please be sure to include your name, location, phone number and a current photo, if possible. 

“Since its initial episode in 1998, MTV’s award-winning True Life documentary series has told remarkable real-life stories of young people and the unusual subcultures they inhabit. Whether documenting the lives of gay marriage activists, individuals dealing with obesity, or teens in high school–the True Life series tells its stories solely from the varied voices and points-of-view of its characters–putting the series in the unique position of reflecting the state of youth culture at any given moment.”

- MTV’s True Life website

http://www.mtv.com/ontv/dyn/truelife/series.jhtml

Mediation is a form of dispute resolution that aims to assist two or more disputants in reaching an agreement. At a trial, the parties present evidence, and a decision is imposed on the parties by the judge. In mediation, the parties themselves determine if there is an agreement, and the contents of the agreement. Many parents chose mediation with a private mediator. If, for financial or other reasons, you do not want to hire a private mediator, Multnomah, Clakamas, and Washington county make mediation available to parties involved in family law disputes.  Courts want people to mediate because it weeds out cases that can be resolved without the help of a judge. Clients want mediation because it gives them control over the outcome, is confidential, reduces conflict between the parties, and is generally less expensive than litigation.  Good lawyers like mediation because it provides an efficient and lower cost way to help clients resolve their disputes.          

ORS 107.755 requires that each judicial district provide a mediation orientation session for all parties in cases where custody, parenting time, or visitation is in dispute, and in any other domestic relations case where mediation has been ordered. The orientation session should make parties aware of (1) what mediation is; (2) mediation options available to them; and (3) the advantages and disadvantages of each method of dispute resolution. With limited exceptions, mediation is mandatory prior to a judge hearing  a case.  Mediation is not appropriate for restraining order or cases involving domestic violence, and court mediators must, per statute, be trained in recognizing domestic violence, allow parties to opt out, and take steps to avoid intimidation before and during mediation. County mediation is held in private, and all persons other than the mediator and staff, parties, counsel and children of the parties shall be excluded.  All communications, verbal or written, made in mediation proceedings shall be confidential, and not subject to examination in court.

Multnomah County:  The court’s rules about mediation are located in SLR 8.046.  Multnomah county is a mandatory mediation county for family law cases.  If you don ‘t mediate or get permission to get out of mediation, you won’t get time with a judge. No temporary hearing or trial regarding custody or parenting time will be set unless an Order for mediation has been obtained, an Order Waiving Mediation has been entered, or the parties have attended mediation since the filing of the Petition.  Modification motions will not be heard without compliance with the mediation requirement. The Multnomah County Family Court Services website provides that mediation is available for custody and visitation issues.  The service is supported by filing fees and is free to the participants. For more information or to set an appointment call Family Court Services at 503.988.3189.

Washington County: Washington County has mandatory mediation for Any action filed in the court involving a controversy over custody or parenting time of minor children. If the parties agree, the mediator can address issues other than children, such as property and support.  If there is a disagreement concerning custody or parenting time at any stage of a domestic relations proceeding, the parties must mediate.  Parties must complete two sessions of Kids Turn, the mandatory parenting class prior to mediating. Parties may independently select a private mediator. Mediation is confidential, and free. The Washington County Conciliation Services website provides information on mediation services in Washington County. Mediation can be scheduled by court order, or by calling Conciliation Services at : (503) 846-3428.

Clackamas County: Clackamas county is a voluntary mediation county.  There is no SLR mandating mediation. Parents can access free mediation through the county, but are not required to do so in most cases unless specifically ordered to by a judge.  The Clackamas County Family Court Services website provides information about accessing mediation in Clackamas County.  Most types of family law filings qualify for one or two free mediation sessions. Mediation sessions beyond the two free sessions are charged at $80 per hour. Mediation can be scheduled by calling  Family Court Services at  503-655-8415 .