What Factors Does the Court Consider in Divorce Property Division?

Divorce Attorney Presenting Case in Courtroom with Judge, Custody Battle Over Family House and Children
Just about everyone understands that marital property division is a part of divorce. But it may not be until you are actually facing a divorce that you wonder: how exactly does the court decide who gets what? Portrayals of divorce in the media often show one spouse “taking the other one for all they are worth.” It’s no wonder that the specifics of property division are of great concern to divorcing spouses. You may wonder if you’ll get to stay in the marital home, if your spouse will take your business, or even if you’ll have the means to build your new life after divorce. The good news is that marital property division in Oregon is rarely as drastic or dramatic as it looks in the movies or on TV. That said, it can still be a complicated process, and it’s important to understand the factors courts consider in divorce property division.

Understanding Equitable Distribution

Different states take different approaches to property division. Oregon is one of the majority of states that divides marital property according to the principles of equitable distribution. “Equitable” sounds a lot like “equal,” but they don’t mean the exact same thing. Equitable distribution means a division of property that is fair under all the circumstances. In practice, that does often come out to be about equal, but it may not be. Before we talk about how a court arrives at what it considers an equitable property division, you should understand that in many cases, it is not the court that decides on marital property division—it’s the couple. If you and your spouse are able to reach an agreement on how to split up your property and debts, on your own or through divorce mediation, the court will generally approve it, so long as it appears equitable. For most people, reaching a settlement regarding marital property division is the best option, since they have more control over the process. But sometimes, it is impossible to reach an agreement, and the court needs to divide marital property and debt in the divorce.

Marital vs. Non-Marital Property

As you may have noticed, we have referred repeatedly to “marital” property, as opposed to “non-marital” or “separate” property. In Oregon, marital property generally consists of all property acquired by either spouse during the marriage, regardless of who acquired it or whose name it is in. (There are some exceptions, like property acquired by gift or property protected by a prenuptial agreement.) “During the marriage” typically means between the date of the wedding and the date the parties separated, though another date may be used. Under Oregon law, courts consider the contribution of a homemaker spouse as a contribution to the acquisition of marital assets. There is a presumption that both spouses have contributed equally to the acquisition of marital property through their various efforts (but this presumption can be rebutted with sufficient evidence to the contrary). Non-marital property is not usually subject to division in divorce. That said, it may be divided between spouses under certain circumstances, such as when necessary to achieve an equitable division of assets or to ensure one party to the divorce has adequate resources. It’s not always obvious whether property is considered marital or non-marital. For instance, if one spouse inherits property, that would ordinarily be considered non-marital. However, if they commingle the inherited property with marital property (such as by depositing it in a joint bank account), it would likely be considered marital. Property can also be partly marital and partly non-marital, such as a retirement account one spouse acquired before the marriage and continued to contribute to during the marriage.

Factors in Marital Property Division in Divorce

When dividing marital property and debt, Oregon courts take into account the same factors they consider regarding spousal support, including:
  • Financial and non-financial contributions to the acquisition of property
  • The length of the marriage
  • The economic circumstances of each party, both current and anticipated
  • The needs of any children of the marriage (for example, courts may be more likely to allow a parent with primary custody of children to remain in the marital home for the children’s stability)
  • Whether formerly separate property was commingled with marital assets
  • The tax implications of dividing certain assets
  • Any agreements between the parties, such as valid and enforceable prenuptial and postnuptial agreements
The ultimate goal of Oregon courts in dividing marital property is fairness, so courts can take into account any relevant circumstances when trying to achieve an equitable distribution of property. However, in Oregon, which is a no-fault divorce state, this generally does not include marital misconduct like infidelity. That said, if the misconduct had to do with marital assets—such as gambling away joint property or running up credit card debt on gifts for an affair partner, a court might take it into account in property division. The help of an experienced Oregon divorce attorney can be invaluable in making your case regarding equitable distribution to the court. Your attorney will know what evidence the court considers relevant, and how to present it in the light most favorable to your position.

Contact an Experienced Oregon Divorce and Estate Planning Attorney

Your marital property division affects the resources you will have to move forward with your life after divorce. The right attorneys can make the difference between having to struggle and being able to thrive financially. Based in Salem, Litowich Law helps with property division in divorce, so that you and your family can feel secure about your financial future. We work with clients throughout Oregon, and welcome you to contact us for a consultation.
Categories: Property Division