2015 ORS 107.105¹
Provisions of judgment

(1) Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment:

(a) For the future care and custody, by one party or jointly, of all minor children of the parties born, adopted or conceived during the marriage and for minor children born to the parties prior to the marriage, as the court may deem just and proper under ORS 107.137 (Factors considered in determining custody of child). The court may hold a hearing to decide the custody issue prior to any other issues. When appropriate, the court shall recognize the value of close contact with both parents and encourage joint parental custody and joint responsibility for the welfare of the children.

(b) For parenting time rights of the parent not having custody of such children and for visitation rights pursuant to a petition filed under ORS 109.119 (Rights of person who establishes emotional ties creating child-parent relationship or ongoing personal relationship). When a parenting plan has been developed as required by ORS 107.102 (Parenting plan), the court shall review the parenting plan and, if approved, incorporate the parenting plan into the court’s final order. When incorporated into a final order, the parenting plan is determinative of parenting time rights. If the parents have been unable to develop a parenting plan or if either of the parents requests the court to develop a detailed parenting plan, the court shall develop the parenting plan in the best interest of the child, ensuring the noncustodial parent sufficient access to the child to provide for appropriate quality parenting time and ensuring the safety of the parties, if implicated. The court shall deny parenting time to a parent under this paragraph if the court finds that the parent has been convicted of rape under ORS 163.365 (Rape in the second degree) or 163.375 (Rape in the first degree) or other comparable law of another jurisdiction and the rape resulted in the conception of the child. Otherwise, the court may deny parenting time to the noncustodial parent under this subsection only if the court finds that parenting time would endanger the health or safety of the child. In the case of a noncustodial parent who has a disability as defined by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the court may consider the noncustodial parent’s disability in determining parenting time only if the court finds that behaviors or limitations related to the noncustodial parent’s disability are endangering or will likely endanger the health, safety or welfare of the child. The court shall recognize the value of close contact with both parents and encourage, when practicable, joint responsibility for the welfare of such children and extensive contact between the minor children of the divided marriage and the parties. If the court awards parenting time to a noncustodial parent who has committed abuse, other than being convicted for rape as described in this paragraph, the court shall make adequate provision for the safety of the child and the other parent in accordance with the provisions of ORS 107.718 (Restraining order) (6).

(c) For the support of the children of the marriage by the parties. In ordering child support, the formula established under ORS 25.275 (Formula for determining child support awards) shall apply. The court may at any time require an accounting from the custodial parent with reference to the use of the money received as child support. The court is not required to order support for any minor child who has become self-supporting, emancipated or married or for any child who has ceased to attend school after becoming 18 years of age. A general judgment entered under this section may include an amount for support as requested in a petition filed under ORS 107.085 (Petition) or under a motion for relief made pursuant to ORS 107.095 (Provisions court may make after commencement of suit and before judgment) (1)(b) for which a limited judgment was not entered, payment of which commences no earlier than the date the petition or motion was served on the nonrequesting party, and the amount shall be considered a request for relief that has been decided by the general judgment for purposes of ORS 18.082 (Effect of entry of judgment) (3).

(d) For spousal support, an amount of money for a period of time as may be just and equitable for one party to contribute to the other, in gross or in installments or both. Unless otherwise expressly provided in the judgment and except for any unpaid balance of previously ordered spousal support, liability for the payment of spousal support shall terminate on the death of either party, and there shall be no liability for either the payment of spousal support or for any payment in cash or property as a substitute for the payment of spousal support after the death of either party. The court may approve an agreement for the entry of an order for the support of a party. A general judgment entered under this section may include an amount for support as requested in a petition filed under ORS 107.085 (Petition) or under a motion for relief made pursuant to ORS 107.095 (Provisions court may make after commencement of suit and before judgment) (1)(b) for which a limited judgment was not entered, payment of which commences no earlier than the date the petition or motion was served on the nonrequesting party, and the amount shall be considered a request for relief that has been decided by the general judgment for purposes of ORS 18.082 (Effect of entry of judgment) (3). In making the spousal support order, the court shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision. The court may order:

(A) Transitional spousal support as needed for a party to attain education and training necessary to allow the party to prepare for reentry into the job market or for advancement therein. The factors to be considered by the court in awarding transitional spousal support include but are not limited to:

(i) The duration of the marriage;

(ii) A party’s training and employment skills;

(iii) A party’s work experience;

(iv) The financial needs and resources of each party;

(v) The tax consequences to each party;

(vi) A party’s custodial and child support responsibilities; and

(vii) Any other factors the court deems just and equitable.

(B) Compensatory spousal support when there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party and when an order for compensatory spousal support is otherwise just and equitable in all of the circumstances. The factors to be considered by the court in awarding compensatory spousal support include but are not limited to:

(i) The amount, duration and nature of the contribution;

(ii) The duration of the marriage;

(iii) The relative earning capacity of the parties;

(iv) The extent to which the marital estate has already benefited from the contribution;

(v) The tax consequences to each party; and

(vi) Any other factors the court deems just and equitable.

(C) Spousal maintenance as a contribution by one spouse to the support of the other for either a specified or an indefinite period. The factors to be considered by the court in awarding spousal maintenance include but are not limited to:

(i) The duration of the marriage;

(ii) The age of the parties;

(iii) The health of the parties, including their physical, mental and emotional condition;

(iv) The standard of living established during the marriage;

(v) The relative income and earning capacity of the parties, recognizing that the wage earner’s continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property;

(vi) A party’s training and employment skills;

(vii) A party’s work experience;

(viii) The financial needs and resources of each party;

(ix) The tax consequences to each party;

(x) A party’s custodial and child support responsibilities; and

(xi) Any other factors the court deems just and equitable.

(e) For the delivery to one party of such party’s personal property in the possession or control of the other at the time of the giving of the judgment.

(f) For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. In determining the division of property under this paragraph, the following apply:

(A) A retirement plan or pension or an interest therein shall be considered as property.

(B) The court shall consider the contribution of a party as a homemaker as a contribution to the acquisition of marital assets.

(C) Except as provided in subparagraph (D) of this paragraph, there is a rebuttable presumption that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held.

(D)(i) Property acquired by gift to one party during the marriage and separately held by that party on a continuing basis from the time of receipt is not subject to a presumption of equal contribution under subparagraph (C) of this paragraph.

(ii) For purposes of this subparagraph, "property acquired by gift" means property acquired by one party through gift, devise, bequest, operation of law, beneficiary designation or inheritance.

(E) Subsequent to the filing of a petition for annulment or dissolution of marriage or separation, the rights of the parties in the marital assets shall be considered a species of co-ownership, and a transfer of marital assets under a judgment of annulment or dissolution of marriage or of separation entered on or after October 4, 1977, shall be considered a partitioning of jointly owned property.

(F) The court shall require full disclosure of all assets by the parties in arriving at a just property division.

(G) In arriving at a just and proper division of property, the court shall consider reasonable costs of sale of assets, taxes and any other costs reasonably anticipated by the parties.

(H)(i) If a party has been awarded spousal support in lieu of a share of property, the court shall so state on the record and shall order the obligor to provide for and maintain life insurance in an amount commensurate with the obligation and designating the obligee as beneficiary for the duration of the obligation.

(ii) The obligee or attorney of the obligee shall cause a certified copy of the judgment to be delivered to the life insurance company or companies.

(iii) If the obligee or the attorney of the obligee delivers a true copy of the judgment to the life insurance company or companies, identifying the policies involved and requesting such notification under this section, the company or companies shall notify the obligee, as beneficiary of the insurance policy, whenever the policyholder takes any action that will change the beneficiary or reduce the benefits of the policy. Either party may request notification by the insurer when premium payments have not been made. If the obligor is ordered to provide for and maintain life insurance, the obligor shall provide to the obligee a true copy of the policy. The obligor shall also provide to the obligee written notice of any action that will reduce the benefits or change the designation of the beneficiaries under the policy.

(g) For the creation of trusts as follows:

(A) For the appointment of one or more trustees to hold, control and manage for the benefit of the children of the parties, of the marriage or otherwise such of the real or personal property of either or both of the parties, as the court may order to be allocated or appropriated to their support and welfare, and to collect, receive, expend, manage or invest any sum of money awarded for the support and welfare of minor children of the parties.

(B) For the appointment of one or more trustees to hold, manage and control such amount of money or such real or personal property of either or both of the parties, as may be set aside, allocated or appropriated for the support of a party.

(C) For the establishment of the terms of the trust and provisions for the disposition or distribution of such money or property to or between the parties, their successors, heirs and assigns after the purpose of the trust has been accomplished. Upon petition of a party or a person having an interest in the trust showing a change of circumstances warranting a change in the terms of the trust, the court may make and direct reasonable modifications in its terms.

(h) To change the name of either spouse to a name the spouse held before the marriage. The court shall order a change if it is requested by the affected party.

(i) For a money award for any sums of money found to be then remaining unpaid upon any order or limited judgment entered under ORS 107.095 (Provisions court may make after commencement of suit and before judgment). If a limited judgment was entered under ORS 107.095 (Provisions court may make after commencement of suit and before judgment), the limited judgment shall continue to be enforceable for any amounts not paid under the limited judgment unless those amounts are included in the money award made by the general judgment.

(j) For an award of reasonable attorney fees and costs and expenses reasonably incurred in the action in favor of a party or in favor of a party’s attorney.

(2) In determining the proper amount of support and the proper division of property under subsection (1)(c), (d) and (f) of this section, the court may consider evidence of the tax consequences on the parties of its proposed judgment.

(3) Upon the filing of the judgment, the property division ordered shall be deemed effective for all purposes. This transfer by judgment, which shall affect solely owned property transferred to the other spouse as well as commonly owned property in the same manner as would a declaration of a resulting trust in favor of the spouse to whom the property is awarded, is not a taxable sale or exchange.

(4) If an appeal is taken from a judgment of annulment or dissolution of marriage or of separation or from any part of a judgment rendered in pursuance of the provisions of ORS 107.005 (Annulment of void marriage) to 107.086 (Where to file petition), 107.095 (Provisions court may make after commencement of suit and before judgment), 107.105 (Provisions of judgment), 107.115 (Effect of judgment) to 107.174 (Modification of order for parenting time), 107.405 (Powers of court in dissolution, annulment or separation proceedings), 107.425 (Investigation of parties in domestic relations suit involving children), 107.445 (Attorney fees in certain domestic relations proceedings) to 107.520 (Establishment of conciliation jurisdiction), 107.540 (Conciliation jurisdiction by court) and 107.610 (Qualifications of conciliation counselors), the court rendering the judgment may provide in a supplemental judgment for any relief provided for in ORS 107.095 (Provisions court may make after commencement of suit and before judgment) and shall provide that the relief granted in the judgment is to be in effect only during the pendency of the appeal. A supplemental judgment under this subsection may be enforced as provided in ORS 33.015 (Definitions for ORS 33.015 to 33.155) to 33.155 (Applicability) and ORS chapter 18. A supplemental judgment under this subsection may be appealed in the same manner as provided for supplemental judgments modifying a domestic relations judgment under ORS 19.275 (Continuing jurisdiction of trial court in certain domestic relations cases).

(5) If an appeal is taken from the judgment or other appealable order in a suit for annulment or dissolution of a marriage or for separation and the appellate court awards costs and disbursements to a party, the court may also award to that party, as part of the costs, such additional sum of money as it may adjudge reasonable as an attorney fee on the appeal.

(6) If, as a result of a suit for the annulment or dissolution of a marriage or for separation, the parties to such suit become owners of an undivided interest in any real or personal property, or both, either party may maintain supplemental proceedings by filing a petition in such suit for the partition of such real or personal property, or both, within two years from the entry of the judgment, showing among other things that the original parties to the judgment and their joint or several creditors having a lien upon any such real or personal property, if any there be, constitute the sole and only necessary parties to such supplemental proceedings. The procedure in the supplemental proceedings, so far as applicable, shall be the procedure provided in ORS 105.405 (Costs and expenses of partition) for the partition of real property, and the court granting the judgment shall have in the first instance and retain jurisdiction in equity therefor. [1971 c.280 §13; 1973 c.502 §8; 1975 c.722 §1; 1975 c.733 §2; 1977 c.205 §2; 1977 c.847 §2; 1977 c.878 §2a; 1979 c.144 §2; 1981 c.775 §1; 1983 c.728 §2; 1987 c.795 §9; 1987 c.885 §2; 1989 c.811 §6; 1993 c.315 §1; 1993 c.716 §3; 1995 c.22 §1; 1995 c.608 §3; 1997 c.22 §1; 1997 c.71 §19; 1997 c.707 §7; 1999 c.587 §1; 1999 c.762 §1; 2001 c.873 §5; 2003 c.576 §109; 2005 c.536 §7; 2005 c.568 §29; 2007 c.71 §27; 2011 c.115 §2; 2011 c.306 §1; 2011 c.438 §4; 2013 c.72 §2; 2013 c.126 §1]

Notes of Decisions

Under Former Similar Statute (Ors 107.100)

The court could consider the amount of the tax the wife would have to pay in setting alimony and maintenance for a child but the court should have fixed the amount instead of directing the husband to pay the income tax. Thomason v. Thomason, 6 Or App 341, 487 P2d 1397 (1971)

Pay­ments arising from service in the Armed Forces, or prop­erty acquired with such pay­ments, though exempt as to the claims of ordinary creditors, were not exempt from a claim for alimony, support or maintenance, or from distribu­tion in a divorce ac­tion. Gerold v. Gerold, 6 Or App 353, 488 P2d 294 (1971)

Court may award custody in manner that divides children from each other if compelling circumstances show that division is in best interest of children. Amundson v. Amundson, 7 Or App 33, 489 P2d 983 (1971)

The mere fact that one spouse brings more assets to a marriage than the other does not entitle that spouse to recover the value of those assets before division of prop­erty. Hardenburger v. Hardenburger, 18 Or App 267, 524 P2d 179 (1974)

In General

"Just and proper" means viewed in the light of the existing circumstances. Apling and Apling, 26 Or App 367, 552 P2d 567 (1976), Sup Ct review denied

This sec­tion does not authorize court to place marital assets of wife in trust where there are no children to be cared for. Tharp and Tharp, 39 Or App 565, 592 P2d 1079 (1979)

Trial court has authority to determine which parent is entitled to claim children as dependent for tax purposes. Connelly and Connelly, 90 Or App 484, 752 P2d 1258 (1988)

Dissolu­tion judg­ment does not constitute contract. Dee and Dee, 96 Or App 252, 772 P2d 444 (1989)

Where court in an­oth­er state awards status-only dissolu­tion during pendency of Oregon dissolu­tion case, ORS 107.115 (Effect of judgment) provides Oregon court subject matter jurisdic­tion to decide nonstatus issues, such as prop­erty and support, and to grant any supple­mental relief that is available under this sec­tion. Anderson and Anderson, 102 Or App 169, 793 P2d 1378 (1990), Sup Ct review denied; Weller v. Weller, 164 Or App 25, 988 P2d 921 (1999)

Although couples who choose to live together without marriage also choose not to avail themselves of statutory presump­tions of equal contribu­tion provided by this sec­tion, equitable resolu­tion to pro­ceed­ings arising from breakdown of nonmarital domestic rela­tionship cannot be reached without considera­tion of its unique and symbiotic nature. Shuraleff v. Donnelly, 108 Or App 707, 817 P2d 764 (1991)

Decree of "marital annul­ment" includes termina­tion of both void and voidable marriages. Denis and Denis, 153 Or App 655, 958 P2d 199 (1998)

Court may not approve stipula­tion that deprives court of authority to modify award. Heinonen and Heinonen, 171 Or App 37, 14 P3d 96 (2000)

Where parties to marital dissolu­tion entered into mediated settle­ment agree­ment that parties then contest because one party learned other party had not fully disclosed assets prior to entering into agree­ment, court must ensure full disclosure of all assets before court enters judge­ment to enforce contested agree­ment. Pollock and Pollock, 357 Or 575, 355 P3d 117 (2015)

Custody

In Determining the Best Interests of the Child the Court Was Required to Consider All Relevant Factors, Which Generally Included

1) The con­duct of the parties; 2) the moral, emo­­tion­al and physical fitness of the parties; 3) the comparative physical environ­ments; 4) the emo­­tion­al ties of the child to other family members; 5) the interest of the parties in, and attitude toward the child; 6) the age, sex, and health of the child; 7) the desirability of continuing an existing rela­tionship and environ­ment; and 8) the preference of the child. Ellenwood and Ellenwood, 20 Or App 486, 532 P2d 259 (1975)

Where neither party seeks joint custody, order compelling joint custody is inappropriate. Handy and Handy, 44 Or App 225, 605 P2d 738 (1980)

Award for Maintenance of Minor Children

A divorce court is without power to provide for the support of, or aid to, an adult child of the parties, or to continue a pro­vi­sion for support after a child attains his majority. Langnese and Langnese, 13 Or App 88, 508 P2d 831 (1973)

The court may require life insurance as part of a prop­erty division or a form of child support if the re­quired coverage does not extend beyond the age limita­tions for the children set forth in this sec­tion and ORS 107.108 (Support or maintenance for child attending school). Miller and Miller, 21 Or App 253, 534 P2d 512 (1975)

In determining the noncustodial parent's "just and proper" contribu­tion, the court should balance the needs of the children against the financial condi­tions and capabilities of both the noncustodial and custodial parents. Cavilee and Cavilee, 21 Or App 506, 535 P2d 774 (1975)

"Minor children of the marriage" includes children conceived during marriage yet born after dissolu­tion, and thus it was improper for court to limit father's financial responsibility for unborn child to costs of abor­tion if mother chose to have abor­tion. Godwin and Godwin, 30 Or App 425, 567 P2d 144 (1977)

Court es­tab­lished formula with modifying factors to aid lower courts in determina­tion of "just and proper" amount of child support in cases where both parties have substantial resources. Smith v. Smith, 290 Or 675, 626 P2d 342 (1981)

Social security pay­ments for benefit of child resulting from father's eligibility and paid directly to mother should not have been credited to father's support obliga­tion. Cope and Cope, 291 Or 412, 631 P2d 781 (1981)

Authority to create trusts conferred on trial court by this sec­tion relates only to pro­vi­sion of support for children entitled to support. Crowley and Crowley, 82 Or App 27, 727 P2d 141 (1986)

Applica­tion of formula set forth in Smith v. Smith, 290 Or 675 (1981), is inappropriate where one parent lacks sufficient income to both support self and pay support. Martin and Ives, 85 Or App 392, 736 P2d 613 (1987)

Where legislature is silent as to intent in applying current version of this statute which took effect on October 3, 1989, Court of Appeals does not apply new child support guide­lines on de novo review to judg­ment entered before that date. Butcher and Butcher, 100 Or App 476, 786 P2d 1293 (1990), Sup Ct review denied

Court may consider future earning capacity in making award of child support. Harper and Harper, 122 Or App 9, 856 P2d 334 (1993), Sup Ct review denied

Trial court is not re­quired to consider potential tax consequences of disability insurance benefits or to adjust tax exempt income upward in determining gross income to calculate child support award. Hoag and Hoag, 122 Or App 230, 857 P2d 208 (1993)

Court was not limited to criteria enumerated under ORS 25.280 (Formula amount presumed correct) as basis for departing from child support guide­lines. Petersen and Petersen, 132 Or App 190, 888 P2d 23 (1994); Grile and Grile, 138 Or App 630, 909 P2d 1248 (1996)

Where marital assets are placed in trust for children, trust assets do not affect child support obliga­tion until assets are distributed to children. Butler and Butler, 160 Or App 314, 981 P2d 389 (1999)

Spousal Support

In mo­tion for modifica­tion, amount of increase is governed primarily by needs of supported spouse and ability of payor spouse to pay. Wells v. Wells, 15 Or App 507, 516 P2d 480 (1973)

Employability of dependent spouse includes considera­tion of educa­tion, training, experience, age, health, capacity and custody of small children. Kitson and Kitson, 17 Or App 648, 575 P2d 575 (1974), Sup Ct review denied

In determining the dura­tion that one party should be ordered to contribute to support of the other party, the most significant factor is whether the party to be supported is employable at an income not overly dispropor­tionate from the standard of living he or she enjoyed during the marriage. Kitson and Kitson, 17 Or App 648, 575 P2d 575 (1974), Sup Ct review denied

In determining spousal support amount, considera­tions include financial condi­tion of parties, nature and value of respective properties, contribu­tion of each to prop­erty held by entirety, dura­tion of marriage, payor spouse income, earning capacity, age, health and ability to labor, and dependent spouse age, health, sta­tion and ability to earn living. Dodge and Dodge, 19 Or App 363, 527 P2d 750 (1974)

Trial court had authority to give spouse choice between receiving money as spousal support or as increased child support. Duvall and Duvall, 26 Or App 99, 551 P2d 1319 (1976)

Award of modified support retroactive to date of mo­tion for modifica­tion is discre­tionary. Bloch v. Bloch, 26 Or App 245, 552 P2d 278 (1976)

Court did not have authority to modify judg­ment that was result of pendente lite award of temporary support under ORS 107.095 (Provisions court may make after commencement of suit and before judgment). Derby and Derby, 31 Or App 803, 571 P2d 562 (1977), Sup Ct review denied, modified 31 Or App 1333, 572 P2d 1080 (1977)

Except in special instances, it is improper for dissolu­tion decree to provide for automatic termina­tion of spousal support upon remarriage; includes comprehensive summary of policy with respect to awards of spousal support. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

In any decree providing for spousal support, decree should enjoin upon supported spouse duty to advise other party if supported spouse remarries. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

Dura­tion of support must be based on need and ability to pay for period that furthers ending of dependency rela­tionship if possible and that provides dependent spouse with opportunity to increase earning capacity. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

Where sufficient assets are available, amount of spousal support is not limited to needs of dependent spouse. Grove and Grove, 280 Or 341, 571 P2d 477 (1977), modified 280 Or 769, 572 P2d 1320 (1977)

Where wife gave up secure teaching posi­tion to follow husband to Oregon and after separa­tion was unable because of age and lack of other skills to find regular employ­ment, she was properly awarded permanent spousal support though parties were married only four years. McLean and McLean, 36 Or App 809, 585 P2d 750 (1978)

Obliga­tion to make pay­ments for spousal support terminates at death of obligor unless contrary inten­tion clearly appears in prop­erty settle­ment agree­ment incorporated into dissolu­tion decree. De­ment v. De­ment, 47 Or App 1047, 615 P2d 1136 (1980); Hendricks v. Hendricks, 109 Or App 80, 817 P2d 1339 (1991), Sup Ct review denied

Retroactive spousal support is not amount "reasonably necessary to enable such party to prosecute...suit." Olson and Olson, 52 Or App 695, 629 P2d 834 (1981)

Spousal support awarded due to inability of court to equitably divide prop­erty is not subject to usual considera­tions for determining amount and dura­tion. Haguewood and Haguewood, 292 Or 197, 638 P2d 1135 (1981); Madden and Madden, 114 Or App 319, 836 P2d 1349 (1992)

Child support and spousal support are separate pro­vi­sions of dissolu­tion decree, but are not independent of each other; determina­tion of one requires considera­tion of other. Gurr and Gurr, 57 Or App 1, 643 P2d 1282 (1982)

Spousal support is not justified to compensate for per­sonal injury suffered during marriage at hands of other spouse and injuries to wife were relevant only insofar as they affected her employability or need for support. Koch and Koch, 58 Or App 252, 648 P2d 406 (1982)

Where husband ap­pealed support awards and interest rate and, while ap­peal was pending, moved trial court to modify decree as to support pay­ments, mo­tion in trial court was nullity because trial court no longer had jurisdic­tion in case; overruling Wilson v. Wilson, 242 Or 201, 407 P2d 898, 408 P2d 940 (1965). Nickerson and Nickerson, 296 Or 516, 678 P2d 730 (1984)

Remarriage of supported spouse does not terminate support obliga­tion but may constitute substantial change in circumstances justifying termina­tion. Bates and Bates, 303 Or 40, 733 P2d 1363 (1987)

Where marriage was relatively short but evidence shows that wife's employ­ment skills and her ability to maintain her current earnings are deteriorating, spousal support to enable wife to retrain herself and then maintain standard of living "not overly dispropor­tionate to that enjoyed during marriage" is appropriate. Holt and Holt, 97 Or App 192, 776 P2d 7 (1989)

Burden to show that remarriage of supported spouse is substantial change of circumstances remains with peti­tioning spouse. Fouts and Fouts, 98 Or App 483, 779 P2d 145 (1989), Sup Ct review denied

Modifica­tion of spousal support is properly based only on party's present or future ascertainable ability to pay. Curran and Curran, 100 Or App 330, 786 P2d 205 (1990)

Where dissolu­tion of marriage was delayed following separa­tion, decision whether to award spousal support depended on circumstances existing at time of dissolu­tion, not at time of separa­tion. Howard and Howard, 103 Or App 171, 797 P2d 369 (1990)

Because shareholders of corpora­tion and corpora­tion were not parties to dissolu­tion pro­ceed­ing, shareholder and corpora­tion were not bound to guarantee pay­ments to spouse. Waker and Waker, 114 Or App 255, 834 P2d 522 (1992), Sup Ct review denied

Spousal support of $200 per month for two years was proper considering financial obliga­tions to dependents and responsibility for financial obliga­tions from marriage. Robertson and Robertson, 114 Or App 481, 836 P2d 149 (1992)

Pay­ment of spousal support pending ap­peal does not constitute acquiescence in judg­ment that precludes review. Zeedyk and Swanstrom, 120 Or App 6, 852 P2d 210 (1993)

Court may disregard earnings and base award on future income where amount of future income is reasonably determinable. Furlong and Furlong, 120 Or App 105, 852 P2d 233 (1993)

Where disability insurance was intended only to replace lost income, benefits are not marital asset. Hoag and Hoag, 122 Or App 230, 857 P2d 208 (1993)

Court may award spousal support upon termina­tion of void marriage. Denis and Denis, 153 Or App 655, 958 P2d 199 (1998)

Prenuptial agree­ment waiving spousal support is enforceable unless en­force­­ment deprives spouse of necessary support that cannot be obtained elsewhere. Bridge and Bridge, 166 Or App 458, 998 P2d 780 (2000), Sup Ct review denied

Spouse's contribu­tion to educa­tion, training, voca­tional skills, career or earning capacity of other spouse need not have resulted in actual increase in income to qualify for compensatory spousal support award. Austin and Austin, 191 Or App 307, 82 P3d 170 (2003)

Characteriza­tion of amount as spousal support in marital settle­ment agree­ment incorporated in dissolu­tion judg­ment is not binding on bankruptcy court. In re Jennings, 306 B.R. 672 (Bkrtcy. D. Or. 2004)

Considera­tion of "other factors" in awarding compensatory spousal support does not include considera­tion of payor spouse's misbehavior that is unrelated to determining extent of supported spouse's contribu­tions to educa­tion, training, voca­tional skills, career or earning capacity of payor spouse. Garza and Garza, 201 Or App 318, 118 P3d 824 (2005)

Require­ment that court awarding spousal support consider dura­tion of marriage does not prevent court from also considering dura­tion of premarital cohabita­tion. Lind and Lind, 207 Or App 56, 139 P3d 1032 (2006)

Court may issue order providing for contribu­tion in gross or contribu­tion in install­ments to be alternative form of contribu­tion that takes effect upon occurrence of contingency. McLauchlan and McLauchlan, 227 Or App 476, 206 P3d 622 (2009), Sup Ct review denied

Contribu­tions of spouse are significant if they are meaningful and are likely to have influence and effect. Harris and Harris, 349 Or 393, 244 P3d 801 (2010)

Costs and Attorney Fees

An award of attorney fees will only be modified on a showing of abuse of discre­tion. Erpelding v. Erpelding, 6 Or App 333, 487 P2d 1406 (1971)

Death of party deprived court of jurisdic­tion to award attorney fees. Drucker v. Drucker, 7 Or App 85, 488 P2d 1377 (1971), Sup Ct review denied

Court may award judg­ment for cost of expert witness necessary to value marital assets as addi­tional costs and expenses reasonably and necessarily incurred in suit or de­fense. Cushman and Cushman, 20 Or App 317, 531 P2d 911 (1975); Fowler and Fowler, 52 Or App 223, 627 P2d 1304 (1981)

Wife was entitled to a reasonable fee which reflected the extra expense incurred as a result of husband's efforts to frustrate the attorney's efforts to discover his net worth. Hinsdale and Hinsdale, 20 Or App 638, 532 P2d 1137 (1975), Sup Ct review denied

Because attorney fees are re­quired to be judg­ment in favor of spouse, court could not order specific prop­erty to be sold to pay fees. Paget and Paget, 36 Or App 595, 585 P2d 38 (1978), Sup Ct review denied

Where pro­vi­sion for attorney fees to prevailing party in ac­tion to enforce agree­ment was silent as to statutory right to attorney fees, trial court had authority to make award to wife not subject to terms of agree­ment. Purcell and Purcell, 99 Or App 668, 783 P2d 1038 (1989)

Award of "addi­tional costs and expenses" is subject to ORCP 68 pro­hi­bi­­tion against awarding deposi­tion costs. Benson and Youngblutt, 141 Or App 458, 919 P2d 496 (1996), Sup Ct review denied

Party intervening in dissolu­tion pro­ceed­ing is subject to pay­ment of costs, disburse­ments and attorney fees awarded on ap­peal. Holm and Holm, 323 Or 581, 919 P2d 1164 (1996)

Attorney fees are not available in ac­tion dissolving nonmarital domestic partnership. Stufflebean v. Brown, 147 Or App 347, 935 P2d 482 (1997)

Proposed stipulated dissolu­tion judg­ment does not make award of attorney fees subject to ORCP 54E determina­tion of whether party has improved posi­tion. Saunders and Saunders, 158 Or App 601, 975 P2d 927 (1999)

Recipient of sub­poe­na is not "party" to whom court may award costs in dissolu­tion pro­ceed­ings unless recipient moves to intervene at trial or on ap­peal. Githens and Githens, 230 Or App 586, 216 P3d 904 (2009), Sup Ct review denied

Denial of peti­tion for review by Supreme Court is not matter on ap­peal for which appellate court may order pay­ment of attorney fees. Bolte and Bolte, 349 Or 289, 243 P3d 1187 (2010)

This sec­tion does not authorize awarding attorney fees to party seeking en­force­­ment of stipulated terms of dissolu­tion judg­ment under ORS 107.104 (Policy regarding settlement) unless attorney fees are re­quired by judg­ment. Berry and Huffman, 247 Or App 651, 271 P3d 128 (2012)

Judg­ments; Contempt and Appeal

Judg­ment for unpaid temporary support could not be entered absent finding of contempt. Lockard and Lockard, 108 Or App 388, 816 P2d 632 (1991), Sup Ct review denied

Court's authority to order temporary relief does not supersede pro­vi­sions governing setting of undertaking upon ap­peal. Benson and Benson, 132 Or App 297, 888 P2d 96 (1995)

Post-judg­ment order for execu­tion of money judg­ment is ap­pealable order that is part of suit for dissolu­tion of marriage. Maresh and Maresh, 193 Or App 69, 87 P3d 1154 (2004)

Disposi­tion of Property

Asset held by party for benefit of children was not prop­erty includable in that party's share of prop­erty division. Bates and Bates, 17 Or App 641, 523 P2d 579 (1974)

Temporary use of commerical prop­erty is valuable asset attributable at fair market rental value. Marrs and Marrs, 20 Or App 320, 531 P2d 713 (1975)

Where litigants seeking to terminate a financially disastrous marriage of short dura­tion have comparable ability to provide for their own support after dissolu­tion, usually each party should be awarded properties roughly in propor­tion to their respective contribu­tions. Nolan and Nolan, 20 Or App 432, 532 P2d 35 (1975), Sup Ct review denied

If the pro­vi­sions of a settle­ment agree­ment relate to the division of prop­erty, even though it may be through the means of periodic future pay­ment of money, they are invulnerable to change in the event of changed circumstances. Stein v. Stein, 21 Or App 195, 534 P2d 222 (1975)

The court may require life insurance as part of prop­erty division or a form of child support if the re­quired coverage does not extend beyond the age limita­tions for the children set forth in this sec­tion and ORS 107.108 (Support or maintenance for child attending school). Miller and Miller, 21 Or App 253, 534 P2d 512 (1975)

Industrial accident award in settle­ment of all claims by parties was properly considered marital asset in division of prop­erty. Cavilee and Cavilee, 21 Or App 506, 535 P2d 774 (1975); Pugh and Pugh, 138 Or App 63, 906 P2d 829 (1995), Sup Ct review denied

Dissolu­tion decree may not provide for forced sale of prop­erty in lieu of parti­tion. Teeter and Teeter, 26 Or App 535, 552 P2d 1338 (1976)

Although trust interests, whether vested or contingent, should be considered when making equitable distribu­tion of parties' assets where there are no special problems to be solved, it is reasonable to permit parties to retain their respective trusts. Walker and Walker, 27 Or App 693, 557 P2d 36 (1976)

Goodwill may be properly considered when an interest in a corpora­tion is among the marital assets to be divided. Goger and Goger, 27 Or App 729, 557 P2d 46 (1976)

Inherited prop­erty is part of marital estate under this sec­tion, with division determined by what is just and proper in all circumstances. Beers and Beers, 31 Or App 1273, 572 P2d 364 (1977); Pullen and Pullen, 38 Or App 137, 589 P2d 1145 (1979), Sup Ct review denied; Bodeen v. Bodeen, 43 Or App 141, 602 P2d 336 (1979); Pierson and Pierson, 294 Or 117, 653 P2d 1258 (1982)

Where parties were divorced briefly and remarried, prop­erty division based on total marriage time was proper. Flowers and Flowers, 34 Or App 211, 577 P2d 1369 (1978)

Inheritance received after dissolu­tion pro­ceed­ing for long-term marriage had commenced was properly considered in prop­erty distribu­tion. Harrington and Harrington, 57 Or App 316, 644 P2d 620 (1982); Bekooy and Bekooy, 118 Or App 227, 846 P2d 1183 (1993)

Property acquired after separa­tion through exercise of op­tion earned during marriage is marital asset. Clapperton and Clapperton, 58 Or App 577, 649 P2d 620 (1982)

There is nothing in parti­tion statutes, ORS 105.205 (Who may maintain partition) to 105.405 (Costs and expenses of partition), that precludes ac­tion from being brought under this sec­tion and then sub­se­quent one from being brought under parti­tion statutes where res judicata does not bar sec­ond ac­tion. Hellesvig v. Hellesvig, 59 Or App 356, 650 P2d 1072 (1982), aff'd 294 Or 769, 622 P2d 709 (1983)

Upon filing of peti­tion, prop­erty that is acquired during marriage other than by gift or inheritance and that is held in name of one party is converted to co-ownership. Engle and Engle, 293 Or 207, 646 P2d 20 (1982)

Where marriage terminates before financial affairs of parties are commingled, just and proper division of non-appreciated assets is in nature of rescission. Jenks and Jenks, 294 Or 236, 656 P2d 286 (1982); Miller and Miller, 294 Or 660, 661 P2d 1361 (1983)

Where prop­erty was acquired by gift and there was no finding that gift was related to spouse's efforts or that spouse was object of donative intent, presump­tion of equal contribu­tion to acquisi­tion of prop­erty is overcome. Jenks and Jenks, 294 Or 236, 656 P2d 286 (1982); Helm and Helm, 107 Or App 556, 813 P2d 52 (1991); Wolhaupter-Heinzel v. Heinzel, 108 Or App 514, 816 P2d 672 (1991), Sup Ct review denied

Where assets of parties were not sufficient to support child, require­ment of "just and proper" division overrides policy of placing parties in relative pre-marriage posi­tion. Seefeld and Seefeld, 294 Or 345, 657 P2d 201 (1982)

Where recipient of trust income and spouse did not contribute to crea­tion of trust, presump­tion of equal contribu­tion to marital asset is rebutted and spouse is not entitled to trust income; however, trust income may be considered in division of assets. Graff and Graff, 71 Or App 194, 691 P2d 520 (1984)

Value of pension as marital asset is its actuarial present value. Phipps and Phipps, 73 Or App 100, 698 P2d 52 (1985)

Value of any social security benefits should not be considered in prop­erty division. Swan and Swan, 301 Or 167, 720 P2d 747 (1986). But see Herald and Steadman, 256 Or App 354, 303 P3d 341 (2013), aff'd 355 Or 104, 322 P3d 546 (2014)

Nature of asset growth does not affect presump­tion of equal contribu­tion. Crislip and Crislip, 86 Or App 146, 738 P2d 602 (1987)

Separa­tion does not affect presump­tion of equal contribu­tion to asset growth. Crislip and Crislip, 86 Or App 146, 738 P2d 602 (1987)

Considera­tion of reasonably determinable future tax effects on value of asset is proper. Alexander and Alexander, 87 Or App 259, 742 P2d 63 (1987); Follansbee and Ackerman, 115 Or App 39, 836 P2d 763 (1992)

Homemaker spouse who works may not use presump­tion of equal contribu­tion by homemaker in combina­tion with work income to es­tab­lish contribu­tion exceeding 50 percent of marital assets. Stice and Stice, 308 Or 316, 779 P2d 1020 (1989)

Marital assets transferred without con­sent of other spouse may be considered in determining just and proper prop­erty division. Howard and Howard, 103 Or App 342, 798 P2d 683 (1990)

Where immediate asset division would produce adverse results, division of asset proceeds on "if and when" basis was just and proper. Howard and Howard, 103 Or App 342, 798 P2d 683 (1990)

Failure to assess interest on judg­ment representing just and equitable share of marital prop­erty constituted improper reduc­tion in settle­ment share. Schmidt and Schmidt, 108 Or App 110, 813 P2d 1129 (1991)

Prior pro­ceed­ing under this sec­tion is not bar to pro­ceed­ing under ORS 105.205 (Who may maintain partition). Weber v. Galton, 111 Or App 33, 824 P2d 1166 (1992), Sup Ct review denied

In long-term marriage where inheriting spouse gave assurances that anticipated inheritance made saving for retire­ment unnecessary and non-inheriting spouse relied on assurances, inheritance was properly included in marital estate even though inheritance interest became possessory after dissolu­tion pro­ceed­ing was initiated. Taylor and Taylor, 121 Or App 635, 856 P2d 325 (1993), on reconsidera­tion 124 Or App 581, 863 P2d 473 (1993), Sup Ct review denied

Where value of retire­ment plan was based on employee contribu­tions rather than length of service, court correctly refused to apply time rule in dividing pension, distinguishing Richardson and Richardson, 307 Or 370, 769 P2d 179 (1989). Hester and Hester, 122 Or App 147, 856 P2d 1048 (1993)

Unequal division of prop­erty based on existence of unvested pension was proper. Risch and Risch, 124 Or App 107, 860 P2d 891 (1993)

Where contribu­tion of each spouse to long term marriage was not negligible, greater burden carried by one spouse during marriage does not overcome presump­tion of equal contribu­tion. Nixon and Nixon, 126 Or App 381, 868 P2d 1352 (1994)

Finding of equal contribu­tion may apply to some specific marital assets and not apply to other specific marital assets. Hadden and Hadden, 127 Or App 483, 873 P2d 394 (1994)

Fact that pension is in payout status does not prohibit court from assigning value to pension account as prop­erty asset. Colling and Colling, 139 Or App 16, 910 P2d 1165 (1996), Sup Ct review denied

Proper pro­ce­dure for valuing defined-benefit pension is to multiply present value of pension by ratio of marriage years to employ­ment years. Caudill and Caudill, 139 Or App 479, 912 P2d 915 (1996)

Applica­tion of marketability discount to mi­nority share in asset is not proper where share is unlikely to be sold on open market independently of entire asset. Batt and Batt, 149 Or App 517, 945 P2d 517 (1997), Sup Ct review denied

Interest in defined-value benefit plan as marital asset is determined by multiplying amount of money re­quired to purchase equivalent annuity by length of marriage and dividing by re­quired service period. Reich and Reich, 150 Or App 311, 946 P2d 319 (1997)

Support arrearage amount may be made setoff against prop­erty division equalizing judg­ment. Binnell and Binnell, 153 Or App 204, 956 P2d 1003 (1998)

Court may not direct behavior of party as trustee of trust, but may award spouse judg­ment that accounts for value of prop­erty held in trust. Jones and Jones, 158 Or App 41, 973 P2d 361 (1999), on reconsidera­tion 159 Or App 377, 981 P2d 338 (1999), Sup Ct review denied

Where husband and wife are still cohabiting at time money is commingled with other marital assets, presump­tion arises that both parties benefited equally from commingling. Butler and Butler, 160 Or App 314, 981 P2d 389 (1999)

Apprecia­tion in value of prop­erty brought into marriage is prop­erty subject to presump­tion of equal contribu­tion. Massee and Massee, 328 Or 195, 970 P2d 1203 (1999)

Transfer resulting from division of marital prop­erty by way of noncollusive decree of dissolu­tion is not subject to bankruptcy restric­tions on preferential transfers. In re Parker, 241 B.R. 722 (Bkrtcy. D. Or. 1999)

Death of party prior to entry of dissolu­tion decree deprives court of jurisdic­tion over prop­erty division issues. Trotts and Trotts, 170 Or App 714, 13 P3d 1035 (2000)

Voluntary separa­tion incentive paid by military is equivalent to retire­ment pay from pension. Menard and Menard, 180 Or App 181, 42 P3d 359 (2002)

Lien created by prop­erty division judg­ment is excep­tion to ORS 18.395 (Homestead exemption) homestead exemp­tion from sale on execu­tion. Maresh and Maresh, 190 Or App 228, 78 P3d 157 (2003), Sup Ct review denied

Separately acquired asset may be included in prop­erty division despite ability to identify source of asset if commingling of asset evidences owner intent that asset be joint prop­erty of marital estate. Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004); Tsukamaki and Tsukamaki, 199 Or App 577, 112 P3d 416 (2005)

For educa­tion or training to result in enhanced earning capacity under pre-1999 version of statute, educa­tion or training must actually result in produc­tion of income. Kunze and Kunze, 337 Or 122, 92 P3d 100 (2004)

Intent to make separately acquired asset part of marital estate through commingling does not require that asset be divided equally. Tsukamaki and Tsukamaki, 199 Or App 577, 112 P3d 416 (2005)

Where settle­ment agree­ment does not violate law or clearly contravene public policy, agree­ment supersedes authority of court to determine just and proper disposi­tion of marital prop­erty. Patterson and Kanaga, 206 Or App 341, 136 P3d 1177 (2006)

Survivor annuity is prop­erty interest in retire­ment plan subject to valua­tion and disposi­tion on dissolu­tion. Miller and Garren, 208 Or App 619, 145 P3d 285 (2006)

Contractual right of spouse to possess or dispose of frozen embryos is marital prop­erty subject to just and proper disposi­tion by dissolu­tion court. Dahl and Angle, 222 Or App 572, 194 P3d 834 (2008), Sup Ct review denied

Unvested interests, including revocable beneficial interests in trusts, or mere expectancies are not marital prop­erty for purposes of division in dissolu­tion pro­ceed­ing. Githens and Githens, 227 Or App 73, 204 P3d 835 (2009), Sup Ct review denied

Courts must treat retire­ment accounts as prop­erty, not as income streams, even when pay­ments are being made from those accounts to holders of those accounts. Rushby and Rushby, 247 Or App 528, 270 P3d 327 (2011), Sup Ct review denied

Entitle­ment to social security benefits may be considered in prop­erty division. Herald and Steadman, 256 Or App 354, 303 P3d 341 (2013), aff'd 355 Or 104, 322 P3d 546 (2014). But see Swan and Swan, 301 Or 167, 720 P2d 747 (1986)

Completed Cita­tions

Emery v. Emery, 5 Or App 133, 481 P2d 656 (1971), Sup Ct review denied; West v. West, 6 Or App 128, 487 P2d 96 (1971); Bohanan v. Bohanan, 6 Or App 141, 487 P2d 113 (1971)

Atty. Gen. Opinions

In General

Legal effect of pendente lite order after final divorce decree, (1975) Vol 37, p 698; change of name in public records, (1977) Vol 38, p 945

Law Review Cita­tions

Under Former Similar Statute (Ors 107.100)

7 WLJ 502 (1971)

In General

51 OLR 715-726 (1972); 53 OLR 204, 205 (1974); 57 OLR 365 (1978); 19 WLR 269 (1983); 24 WLR 464 (1988); 68 OLR 249 (1989); 26 WLR 1020 (1990); 69 OLR 730 (1990); 35 WLR 585, 643 (1999); 78 OLR 735 (1999); 83 OLR 1291 (2004)

Chapter 107

Notes of Decisions

Trial court has authority to es­tab­lish liquidated sum as amount owed by spouse under settle­ment agree­ment. Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)

Atty. Gen. Opinions

Emergency or necessity as the only grounds for waiver of 90-day period, (1971) Vol 35, p 982

Law Review Cita­tions

55 OLR 267-277 (1976); 27 WLR 51 (1991)

  • The Oregon Divorce Blog, Apr 30, 2009
    “On April 15, 2009, the Court of Appeals ruled in the case of McLauchlan and McLauchlan. Husband ap­pealed from the trial court’s ruling in his divorce with regard to the division of prop­erty and the award of spousal support to his ex-wife. ...”
  • The Oregon Divorce Blog, Apr 23, 2008
    “With many types of assets, it is relatively easy to predict what a court will do (the marital home, retire­ment accounts where there are kids, etc.) In our experience, divorcing couples have more difficulty reaching an agree­ment on the division of inherited prop­erty and trust prop­erty. ...”

1 Legislative Counsel Committee, CHAPTER 107—Marital Dissolution, Annulment and Separation; Mediation and Conciliation Services; Family Abuse Prevention, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors107.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 107, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano107.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.