Property Division Flashcards
what are the 3 questions to ask for dividing property
- what type of property system exists in the state
- what assets are subject to division
- what is the standard by which court will divide
types of systems for property division
- title based system
- Hodge Podge system
- equitable distribution of marital community property system
what is title based system
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
what is the hodge podge system
all assets are potentially subject to equitable division, regardless of when it was acquired
Oregon has
what is equitable distribution of marital community property
most common
each spouse takes his separate property and court divides the marital property equitably, not equally
what is considered marital property
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
what about income from a non marital asset
depends. some say it is marital, most say it is separate. some say depends on if spousal labor contributed to the income
can changing title change property from non marital to marital
yes if the intent is to do that
what kind of gifts are not separate property
when parents make contributions to marital property
how can you transmute property from separate to marital
by voluntary act manifesting this intent
how can you show property is not marital
tracing it to source. if ambiguous, treated as marital. some courts don’t allow because too annoying
theories for division
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
what are the theories to divide marital debts
same - contribution need fault, must be divided into marital and non marital
joint benefit – if used to acquire a marital asset
what if you lived together for a long time before marriage and want a cut of that stuff
marvin remedy
key considerations for alimony
eligibility duration amount
what are the types of alimony
traditional (permanent)
rehabilitative
compensatory
transitional
what kind of alimony does Oregon have
transitional/ rehabilitative to allow party back on feet
compensatory
spousal maintenance for support for indefinite period
what is traditional alimony
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
when does traditional alimony usually end
remarriage or death
what is rehabilitative/ transitional alimony
awarded for a fixed period time to allow for the spouse to become self-supporting.
consider duration of marriage and amount of ward
how do courts analyze for awarding rehabilitative alimony
courts analyze the spouse’s prior employment and future employability to determine that the spouse will become self-sufficient in the near future
theories for alimony
needs – status, rehabilitation
compensation – for contributions, loss in earnings, fairness, fault
can you terminate alimony
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
what is compensatory alimony
for contributions and losses
policy considerations for alimony
want people who can work to do so
but also encourages gendered dependency
what does Oregon say about pensions
it is property even if not vested
is a pension divisible property
if matured probably
