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Frequently Asked Settlement Questions
| General Questions about Settlement |
| Q: |
What about division of property? |
| A: |
In Oregon, there is a presumption that each spouse contributed equally to the assets of the marriage. This means that, absent evidence to the contrary, each spouse will receive an equal share of the assets. A homemaker's contribution (domestic duties, child care, etc.) will be considered as making both parties equally responsible for the acquisition of assets.
A party may present evidence challenging the presumption of equal contribution by, for example, proving that specific assets were received by only one spouse as a gift or inheritance or without any contribution from the other spouse.
The Court will always attempt to divide the assets to produce a "just and proper" result under the circumstances of the case, considering factors such as:
1. Length of marriage.
2. Amount of property brought into the marriage by each party.
3. Amount of property available for division.
4. Financial needs, prospects, age, and health of both parties and their children.
5. Education, work experience, and income of the parties.
6. The extent of the parties' mixing of assets. |
| Q: |
What is a property settlement agreement? |
| A: |
A property settlement agreement is a written contract between the parties listing and dividing the marital property and financial obligations. It also may be used in settling custody, child support and spousal support in accordance with the wishes of the parties. A property settlement agreement reached before a trial is subject to a judge's approval. |
| Q: |
What kind of property is divided in a divorce? |
| A: |
Property can include any land or homes, vehicles and boats, bank accounts, investments, retirement accounts, life insurance policies, lawsuit settlements, trusts, and collections. Certain debts are also divided in a divorce. Unless the spouses agree on what is to be divided, the judge will divide all of the property and debt that is included in the marital estate. |
| Q: |
Will aprenuptial agreement control the terms of settlement? |
| A: |
Prenuptial agreements are usually enforced by Oregon courts, but are subject to a high level of scrutiny. For example, a Court may invalidate a prenuptial agreement if it was signed under duress or coercion, if one of the parties was not given a reasonable time to examine the agreement and seek the advice of an attorney prior to signing, or if one of the parties did not fully disclose all of his/her assets. |
| Q: |
After the divorce, who is responsible for debts both spouses took on during the marriage? What about debts signed for in only one spouse's name? |
| A: |
The divorce judgment will indicate who is responsible for each debt. Joint debts may be divided equitably as part of the property division, or may be assigned to one spouse or the other.
Debts incurred by one spouse alone are treated as their separate responsibility, except where the debts were incurred for "family expenses." These include things such as medical bills, household goods, educational expenses, etc. The rationale behind this rule is that the entire family benefitted (not only the debtor spouse) and should share in the responsibility for the debt.
Debts incurred after physical separation (i.e. after a party moves out) are the responsibility of the person who incurred them, unless the debts are related to the parties' children. In these situations, a court may extend liability to both spouses.
But if the court does not have authority over the person to whom the money is owed, i.e. credit card company, the fact the divorce court orders your spouse to pay a debt which also is your name does not protect you in case of bankruptcy or if your spouse refuses to pay or charges more debt. The best course is to close all unsecured joint accounts. |
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