Property division in a divorce can be confusing and stressful. Oregon law follows a practice of ‘equitable distribution’ when considering how assets should be divided. Learning about equitable distribution can help you protect your interests during your divorce.
What is Equitable Distribution?
Equitable distribution is the way the court tries to split up marital property between both people during a divorce. Equitable does not mean equal, it means fair. See ORS §107.105(1)(f). The court will assume that each person contributed equally to any property, including debt, that you got during the marriage. See ORS §107.105(1)(f)(C). The court will try to divide the property in a way that seems most fair, even if it is not a complete 50/50 split. Courts still prefer to try for an equal split, but are guided by fairness. Matter of Marriage of Simmons, 55 Or. App. 773, 775 (1982). For example, the actual house is not divided in half and given to both people. If they don’t want to sell the house, one person will get the house but will get less of the other marital property so that it is fair to both people.
The court looks at several factors when deciding a fair way to divide the property. They can think about things like:
- Contributions of each spouse, including contributions as a homemaker
- Amount of property
- Reasonable cost involved if a sale is necessary to split an asset’s value
- Needs of children
- Future income and costs anticipated by each spouse. See ORS §107.105(1)(f).
If one person ends up with property that is worth more than the other person, the court can order an equalization judgment. This means that the person who got the more valuable property would pay the other person some money to make it fair. In the house example above, if you were the person that got to keep the house, you would pay the other person a chunk of money to keep things fair. If neither person has the money to pay in order to keep the house, courts sometimes order the house be sold and split the profits.
What if My Spouse Tries to Spend All the Money So I Get Nothing?
Once the divorce papers are filed, the court issues a statutory restraining order that prevents either person from spending money excepts for normal, daily needs. If you are concerned about your spouse spending a lot of money during a divorce, let your attorney know. See Oregon Judicial Branch, Divorce, Separation, Annulment: Property and Debt FAQs. The attorney can ask for a more limited restraining order.
Everything We Own is in My Spouse’s Name, Will I Get Nothing?
It almost never matters whose name the property is under. See Oregon Judicial Branch, Divorce, Separation, Annulment: Property and Debt FAQs. The court will assume that each person contributed equally to any property, including debt, that you got during the marriage. This is why the court tries to divide property fairly between both people. If one spouse did not contribute at all to gaining a piece of property or debt during the marriage, a party can try to convince the court not to divide that piece between both people. See ORS §107.105(1)(f)(C). This will be hard to do and you should ask your attorney if that seems right for your situation. See Matter of Marriage of Nixon, 126 Or. App. 381 (1994). If the court assigns a debt to only your spouse and your name is still on it, make sure that your name is removed from that debt to protect your finances.
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