Property Division

Question 1

what are the 3 questions to ask for dividing property

Answer 1

1. what type of property system exists in the state
2. what assets are subject to division
3. what is the standard by which court will divide

Question 2

types of systems for property division

Answer 2

1. title based system
2. Hodge Podge system
3. equitable distribution of marital community property system

Question 3

what is title based system

Answer 3

all property acquired during marriage is deemed owned fifty-fifty. whatever you brought into the marriage is yours. used to be the common law system

Question 4

what is the hodge podge system

Answer 4

all assets are potentially subject to equitable division, regardless of when it was acquired

Oregon has

Question 5

what is equitable distribution of marital community property

Answer 5

most common

each spouse takes his separate property and court divides the marital property equitably, not equally

Question 6

what is considered marital property

Answer 6

all property acquired during marriage except
- gifts, bequest
- property acquired in exchange for separate property
- property acquired by another spouse after divorce
- property excluded by valid agreement of parties
- appreciation of property acquired before marriage
- product of spousal labor usually

Question 7

what about income from a non marital asset

Answer 7

depends. some say it is marital, most say it is separate. some say depends on if spousal labor contributed to the income

Question 8

can changing title change property from non marital to marital

Answer 8

yes if the intent is to do that

Question 9

what kind of gifts are not separate property

Answer 9

when parents make contributions to marital property

Question 10

how can you transmute property from separate to marital

Answer 10

by voluntary act manifesting this intent

Question 11

how can you show property is not marital

Answer 11

tracing it to source. if ambiguous, treated as marital. some courts don’t allow because too annoying

Question 12

theories for division

Answer 12

contribution - backwards looking

need- future looking

fault - most states don’t consider

economic misconduct - not a huge thing, basically if parties are trying to take assets for selves after dissolution

disentanglement - trying not to force sale of property so kids can keep home

marital debts - divided like assets

Question 13

what are the theories to divide marital debts

Answer 13

same - contribution need fault, must be divided into marital and non marital

joint benefit – if used to acquire a marital asset

Question 14

what if you lived together for a long time before marriage and want a cut of that stuff

Answer 14

marvin remedy

Question 15

key considerations for alimony

Answer 15

eligibility duration amount

Question 16

what are the types of alimony

Answer 16

traditional (permanent)

rehabilitative

compensatory

transitional

Question 17

what kind of alimony does Oregon have

Answer 17

transitional/ rehabilitative to allow party back on feet
compensatory
spousal maintenance for support for indefinite period

Question 18

what is traditional alimony

Answer 18

if the spouse is otherwise unable to become self-sufficient while living a lifestyle reasonably comparable to the lifestyle lived during the marriage

consider
-length
-age and health
-distribution of property
-education
-earning capacity
-reasonability of party becoming self sufficient
-mutual agreement

Question 19

when does traditional alimony usually end

Answer 19

remarriage or death

Question 20

what is rehabilitative/ transitional alimony

Answer 20

awarded for a fixed period time to allow for the spouse to become self-supporting.

consider duration of marriage and amount of ward

Question 21

how do courts analyze for awarding rehabilitative alimony

Answer 21

courts analyze the spouse’s prior employment and future employability to determine that the spouse will become self-sufficient in the near future

Question 22

theories for alimony

Answer 22

needs – status, rehabilitation

compensation – for contributions, loss in earnings, fairness, fault

Question 23

can you terminate alimony

Answer 23

can petition to if the other person didn’t try to become self sufficient

compensatory can only be terminated if there’s a voluntary extraordinary change in income

Question 24

what is compensatory alimony

Answer 24

for contributions and losses

Question 25

policy considerations for alimony

Answer 25

want people who can work to do so

but also encourages gendered dependency

Question 26

what does Oregon say about pensions

Answer 26

it is property even if not vested

Question 27

is a pension divisible property

Answer 27

if matured probably