During a divorce all of the property that was gathered during the marriage is divided between the two people. Property that could be given to either person includes real property (the house and any land), personal property (cars, jewelry, etc.), and intangible property (money).
Both people must make a list of all of their property and all of their debt so it can be divided between them. You can decide between yourselves how you want to divide your property and give the court a marital settlement agreement. If you can’t agree, the court will divide the property for you in a manner called “equitable distribution” (see below). After you make a list of all your property and debts, the court then decides whether each piece of property is “marital property” or “separate property.”
Marital Property
Marital property are things you got while you were married. For example, if you bought a car together while you were married, this would be marital property. Marital property is what the court will split between the two people during a divorce.
Separate Property
Separate property are things you already had before you were married, or the things you got after you were separated. For example, if you bought a car in full before you knew your spouse, the car would be separate property. Separate property is usually not split up between both people during a divorce. It stays with the person that had it originally. Sometimes gifts or inheritance that only one person gets, even if it is during the marriage, can count as separate property if the other spouse does not have access to it. See ORS §107.105(d)(i).
Debt
Debt is also divided between both people during a divorce. When both people are making a list of their properties, they must also include a list of debts. Splitting debt between people happens in the same way as property. If the debt was created during the marriage, it will be divided between both people as marital property. If it was one person’s debt from before the marriage, like student loans, it will stay with that person after the divorce. The only difference is if the debt started with one person before the marriage and then both people added to the debt during the marriage, like credit card debt. This type of debt might be split between both people during a divorce.
Pension and Retirement Plans
Pension and retirement plans are a bit more difficult to split up. Any amount added during the marriage can be thought of a marital property that can be divided during a divorce. Any amounts added to the plan before marriage, or after separation, are separate property and stay with the person that made the deposit. Separating these accounts is done with a Qualified Domestic Relations Order (QDRO). The court and the plan administrator, like the employer, must approve the QDRO. See Oregon Judicial Branch, Divorce, Separation, Annulment: Property and Debt FAQs.
Many experts are used in this process and you may need legal help to divide these accounts.
Need Help?
If you have questions about divorce and property division, contact the attorneys at The Commons Law Center by calling (503) 850-0811 or by emailing hello@thecommonslawcenter.org.