Over the years helping clients with Oregon divorces, I have heard many people express frustration with their ex not following through on the personal property division. This seems to be much more of a problem in contentious cases. Judges have a distaste for litigating about who gets the household personal property, which makes it more important to have good language in your general judgment of divorce about how personal property will be transferred between the parties. It’s important to identify with specificity what personal property you want back and who has possession of it. I have seen courts decline to enforce personal property awards where, post judgment, someone is asking for a specific piece of property back, but the general judgment just says “husband gets his property, wife gets hers.” If you care enough about it to want it back, identify it!
In the event you cannot get your ex to return the property awarded to you in the divorce judgment, the court does provide two remedies for retrieival. The first is contempt of court. Under the contempt statute, the court has broad power to fine, sanction, and assess attorney fees against a person wrongfully retaining personal property.
A second remedy (contained in ORCP 85) is “claim and delivery”, which allows for the sheriff to retrieve the property on behalf of the rightful owner.
Consult with a lawyer familiar with both remedies should you have difficulty retrieving your personal property after your divorce is finalized.
Utah recently voted down a bill that would have created a state mandated barrier to divorce. Representatives killed HB290 , which would have required divorcing couples with children to take a “divorce orientation” class prior to filing. The class is still mandatory in Utah, but currently must be completed within 60 days of filing, and not prior.
As a Portland Oregon based divorce lawyer, I find that many potential clients are surprised by how easy it is to file for divorce in Oregon. All you have to do in Oregon is say you have “irreconcilable differences.” While it makes constitutional sense to keep the State out of a person’s freedom to end a marriage, a mandatory class or counseling prior to filing for divorce is an interesting idea, considering the statistic that 20% to 40% of divorce couples wish they had worked harder to save their marriage.
The full article from the Salt Lake Tribune can be found here.
On December 29, 2011, the Oregon Court of Appeals decided Rushby and Rushby.
In this case, the husband and wife were both former government employees and were both receiving monthly retirement benefit payments from PERS. Generally retirement accounts are divided along with the rest of the personal property in a divorce case, and the court tries to make sure that the husband and wife each get an equal share of the property. In this case, however, because both accounts were in payout status the Trial Court treated them as “income streams” for the purpose of calculating spousal support. The wife appealed the Trial Court’s decision, and the Court of Appeals decided that retirement accounts, even those in payout status, are property and should be divided as part of the property division, not treated as income. As a result, the Court of Appeals ordered that the Trial Court should divide the retirement accounts between the parties and award the wife a portion of the husband’s account to equalize the property division.
The entire opinion can be found here. http://www.publications.ojd.state.or.us/A144086.pdf
I prevously blogged about omitted assets, and what the court can do if an asset is left out of property division. What do you do if you have an omitted liability in your Oregon divorce vs. an omitted asset? I advise everyone to pull a copy of their credit report to make sure they know what liabilities are showing up, but this system isn’t perfect. With the condo and home foreclosures in the Portland area, it is not uncommon for bills to be sent to a house which neither party occupies, and for both parties to miss them. The language of the omitted asset statute, ORS 107.452 is clear that it only applies to liabilities, so what to do if you if you discover an omitted liability after your divorce is final?
If you accidentally leave a debt out of your property division, and discover it later, the court can still help. Oregon Rule of Civil Procedure 71 B allows a party relief from a judgment for several reasons, including:
- mistake, inadvertence, surprise, or excusable neglect;
- newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial;
- fraud, misrepresentation, or other misconduct of an adverse party.
If a liability is accidentally omitted, or intentionally concealed by your spouse, the court has the power to re-open the Oregon divorce case and include it in the distribution. There is no substitute for due diligence during a divorce, including scrutinizing your credit report, and making sure all assets and liabilities are accounted for. However, if a liability is omitted, a lawyer can help make the liability distribution fair.
The lawyers at Stephens & Margolin LLP have substantial experience helping divorced Oregonians with post-judgment issues.
On December 14, 2011, the Oregon Court of Appeals decided Loomis and Loomis.
In this case, the wife owned a 60% interest in a piece of property prior to the marriage, and acquired the other 40% interest during the marriage. The trial court awarded the entire property to the wife as a pre-marital asset and did not include it in the division of marital property in the divorce. The Court of Appeals found that the wife’s 60% interest acquired prior to the marriage was her separate property, and not a marital asset. It also stated that the prenuptial agreement signed by the parties overrode any interest the husband might have had in the appreciation on the wife’s 60% interest under ORS 107.105(1)(f) or the Kunze line of cases. However, the Court found that the 40% interest that the wife acquired during the marriage was a marital asset. The Court stated that this interest was subject to the ORS 107.105(1)(f) presumption of equal contribution, and that the wife did not rebut that presumption where the husband made some financial contribution to the purchase, he was making financial contributions to the couple’s joint finances, and the couple used the property for “joint marital endeavors.”
The entire opinion can be found here.
As a Portland Oregon divorce lawyer, I meet with many parents post divorce that have difficulty getting along with their ex-spouse. One of the most stressful events in life is divorce, and it makes sense that divorce would further damage many parent’s ability to get along with the ex. Although the marital relationship ends, many ex-spouses would like to have an ongoing friendly relationship with their exes, especially where kids are involved. Not everyone can get along, and there are safety and metal health reasons that may make post divorce cooperation impossible. From my perspective as a divorce lawyer, for divorced parents that could get along, cooperation and getting along has enormous benefits for your children. I believe that many divorced parents that end up using lawyers for modifications could have avoided the legal process in the first place by maintaining a good relationship with their ex.
Here are a few tips based on my 17 years of experience helping people during and after divorce:
- Establish New Boundaries. Decide what things can and cannot be discussed. It is best for you to stay away from the topics of conflict until such time that you can calmly discuss them.
- Compromise. “Agree to disagree.” This one can be tough because of pride and differences in opinion. When this happens, you need to focus and get back to the reason why you need to get along… your children. You should also acknowledge from the beginning that there will be inevitably differences in opinion. Then agree that when this happens, you should try not to talk while angry. There should be a reasonable cooling period, and the try again.
- Keep the promises. Once you and ex-spouse have compromised agreements, you need to keep those promises. If you agreed to take turns to pick up kids, live up to that agreement. Whether you followed through or not during the marriage, you need to now.
- Continue to communicate. Communication is vital. The cold shoulder or silent treatment may have contributed to the breakdown of the marriage, and it is even more destructive to cooperation post-divorce. You and your ex-spouse need to keep the lines of communication open even if it is awkward.
- Consider Counseling. The Portland area has many extraordinary counselors who can help divorced couples with communication. I frequently refer people to counselors as part of our helping approach to divorce and because I believe that if successful, it has enormous benefits for a client. If you or your ex are having difficulty with the above three points, consider getting into post divorce counseling to help with your communication issues.
Divorce is an opportunity to establish a new relationship with your ex that focuses on the children. From my experience, parents that can focus on getting along and on the kids use lawyers less and are happier. Most importantly, there are enormous benefits for your children.
Are you in the process of a divorce and thinking if you will keep or change your last name? It is a simple process to do as part of a divorce, and harder if you decide to do it after the divorce is completed.
In Oregon at the time of divorce, the court can change the name of either spouse to a name the spouse held before the marriage.
Do you feel you need your former name for a fresh start? Do you have kids, and how will a name change affect the children at school and with their peers? Are you an established professional with goodwill attached to your current last name? There are a lot of considerations to go through in deciding what is the right choice for you.
If you decide to change your name, plan on spending substantial time working on it.
Here are some things that you need to do when you will change your last name:
- Get new identification cards, such as drivers license or state ID card, social security, etc.
- Inform people, agencies and organizations, and and companies of the change of name. You should let your bank, schools, doctors, postal office, insurance companies, business associates, family members, retirement accounts, and friends know. Be ready for supporting documents when updating information.
- Once you have completed #2, get a credit report to make sure your account information is showing accurately.
- Update important papers, such as a will, advanced directive, power of attorney, motor vehicle tile, etc.
I previously blogged about redecorating your house after a divorce, and one of the tips was to get rid of the joint property that had memories attached to it. But how to start getting rid of the property? Rather than take it to the dump, sell it on “Never Liked It Anyway”, a web startup that lets you sell gifts and items from previous romantic partners. From an Oregon Divorce Lawyer’s perspective, this site is brilliant.
On a legal note, this site is for after the divorce! Do NOT do this during your divorce without agreement or because of the statutory restraining order on assets.
*** UPDATE TO POST ****
The site Never Liked It Anyway appears to be down. They had a brilliant idea and I hope they are back up soon!
If you are a newly-engaged couple, you probably don’t want to think about the possibility that one day you and your soon-to-be spouse will divorce, but there is good reason to consider signing a prenuptial agreement. By entering into a prenuptial agreement, you and your spouse will be able to structure the financial consequences of divorce instead of leaving it in the hands of a court in the event of a future divorce. Many engaged couples think they would not benefit from a prenuptial agreement because they have few assets or because they aren’t planning on having children. However, prenuptial agreements help nearly all couples ensure they will receive a fair outcome if they happen to divorce. That being said, some couples should strongly consider entering into a prenuptial agreement. If you are marrying someone with a significant amount of debt, consider structuring a prenuptial agreement to avoid becoming responsible for all or some of the debt upon divorce. If one partner has a much higher earning potential than the other partner, a prenuptial can limit the amount of spousal support the wealthier spouse has to pay while still making certain the less wealthy spouse is protected. Similarly, if one spouse foregoes work in order to stay home and raise children, a prenuptial can ensure the stay-at-home spouse is given full credit for his or her contribution to the family despite not being in the workforce for a number of years. Some couples, like older people or couples who have children from previous relationships, may also benefit from the protection of a prenuptial agreement.
The lawyers at Stephens & Margolin LLP have substantial experience assisting Oregonians with prenuptial agreements.
Divorce can be a difficult process to go through. Remaining in the marital home after a divorce can be emotionally difficult and contribute to lingering hurt feelings. Focusing on the past won’t help, and it is psychologically important to reclaim your old living space and make it your new, vibrant living space. The Oregon Divorce Blog offers the following 10 tips on reclaiming your space.
- Ditch the joint property. Remove the old things that you bought as a couple and own the place. Change the interior design according to your new self. Make it more attractive and lively.
- Keep only what you will use. When dividing property, if you think you are going to remain in the marital home, don’t take things that you really won’t use.
- Get some color. Spend time to research on what style your new space will look like. Explore different colors and ideas. Craft your space according to your personality this time. Change the colors of your rooms. Color can influence mood, and find some colors that go with your stuff and make you happy. If you have kids, consider leaving their rooms alone, and if you are going to paint or move things around, make sure to talk to them first and get their opinions!
- Splurge on bedding. Throw out the bedding from the master bedroom and buy new bedding. Just do it.
- Mix up your furniture. Re-arrange your furniture so they layout is new and fresh.
- De-clutter and organize. This is a great opportunity to de-clutter and eliminate stress.
- Change your art. If you can afford to, pick an artistic style that is uniquely yours and purchase art. It helps.
- Get good lighting. Lighting has a big effect on mood, and new lamps or brighter lights can really help.
- Change the location of your collectibles. You can place your collectibles anywhere you want them to be. Have that special piece that your spouse hated and buried in the closet? Bring it out and be proud!
- Purge your photographs. If you don’t have kids, change your photos to remove pictures of your ex, and bring out your family and childhood pictures. If you have kids, it is a good idea to have a picture of your ex and the kids somewhere in the house to send a message to the kids that you and the ex co-operate.