§6.2 Specific Criteria To Be Considered In Dividing Property: Social Objectives and Other Considerations
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As discussed in § 6.1-4, the final step of the court's property-division analysis requires the court to consider what division of all property, including premarital property, inherited property, jointly acquired property, or property otherwise acquired, is "just and proper in all the circumstances." In re Marriage of Kunze, 337 Or 122, 135, 92 P3d 100 (2004). This stage of the analysis is intended to take "into account the social and financial objectives of the dissolution, as well as any other considerations" that the court determines bear on the question of what division is fair. Kunze, 337 Or at 135. See § 6.2-1 to § 6.2-11 for examples of social objectives and other issues that the court has considered in reported cases while conducting its "just and proper" analysis.
§ 6.2-1 Difference in Earning Potential or Economic Self-Sufficiency
Considerations regarding a disparity in future earning potential or the economic self-sufficiency of one of the parties may influence a court's "just and proper" determination under ORS 107.105(1)(f). The court may divide the parties' assets in a manner that compensates for such inequality in lieu of, or in addition to, a spousal support award. See, for example, the following cases:
(1) In In re Marriage of Simmons, 55 Or App 773, 775-76, 639 P2d 1296 (1982), the court held that the difference in each party's earning potential justified awarding the wife a greater share of the residence than the trial court awarded to her.
(2) In In re Marriage of Pierson, 294 Or 117, 124, 653 P2d 1258 (1982), an unequal division of assets "enable[d] both parties to begin post-marital life with a degree of economic self-sufficiency."
(3) In In re Marriage of Pierce, 70 Or App 24, 28-29, 688 P2d 114 (1984), the court recognized that an equal division of the assets would require the wife to liquidate her portion of the assets to support herself, thereby causing a reduction in her share of the capital through payment of taxes and commissions. This was inequitable because the husband could maintain his half intact and live off his income. An unequal distribution of the assets was appropriate to compensate for the disparity in future earning potential.
(4) In In re Marriage of Richardson, 307 Or 370, 380-82, 769 P2d 179 (1989), the husband's income, earning power, and individually acquired assets were greater than the wife's. The wife also had "emotional maladies" that prevented her from working full-time and sometimes from working at all. Richardson, 307 Or at 382. Thus, the wife had a reduced level of economic self-sufficiency, and an unequal distribution of assets was warranted.
(5) In In re Marriage of Hansen, 102 Or App 681, 795 P2d 609, rev den, 311 Or 13 (1990), the wife was awarded more property than the husband even though her income was greater than his. The unequal division was justified because the wife suffered from multiple sclerosis and depression, and there was a probability that the reoccurrence of these illnesses would significantly impact her earning capacity. An award of the "long half" of the assets in lieu of spousal support was appropriate. Hansen, 102 Or App at 682.
(6) In In re Marriage of Howard, 103 Or App 342, 352, 798 P2d 683 (1990), the court awarded the wife over $35,000 more than the husband because the husband had more resources and opportunities than the wife had to become economically self-sufficient. The court looked at the distribution as a whole to obtain a division that minimized the economic harm and maximized the economic benefits to both parties.
(7) In In re Marriage of Moore, 112 Or App 503, 829 P2d 704 (1992), the wife had a limited earning capacity. The husband decided to quit his job and return to school, thereby reducing his income. The best way to provide support to the wife during the husband's period of reduced income level was to award her more of the marital assets in the place of spousal support. The wife was therefore awarded 59 percent of the assets because the court felt that the wife "should not be required to bear the entire financial burden resulting from husband's career change." Moore, 112 Or App at 507. See In re Marriage of Prescott, 107 Or App 14, 17, 810 P2d 861 (1991).
(8) In In re Marriage of Risch, 124 Or App 107, 109, 860 P2d 891 (1993), the court awarded the wife the "long half" of the assets by giving her the existing IRAs. Her employment did not provide for retirement, whereas the husband's did, although his benefit was as yet unvested. An unequal division of assets through the award of the IRAs to the wife recognized the wife's need for future financial security because the husband would continue to accrue additional retirement benefits through his employment, whereas the wife would not.
(9) In In re Marriage of Bushell, 122 Or App 43, 48, 857 P2d 174 (1993), the court's holding shows that an unequal division of the parties' assets may be appropriate when one spouse's "ability to achieve economic self-sufficiency in post-marital life is substantially better" than the other's. In this case, the husband's earning power was significantly greater than the wife's, and he left the marriage with no debt. On the other hand, the wife had "yet to attain any significant earning power," although she was enrolled in a program to obtain a teaching certificate. Bushell, 122 Or App at 48. She also had been awarded custody of the couple's four minor children and the family home, which she had to maintain.
(10) In In re Marriage of Gano-Ridge & Ridge, 211 Or App 393, 409-11, 155 P3d 84, adh'd to as modified on recons, 213 Or App 235, 159 P3d 1292 (2007), the wife received a greater share of the assets than she might have otherwise been entitled to in a short-term marriage because she had become financially dependent on the husband.
(11) In In re Marriage of Morton, 252 Or App 525, 287 P3d 1227 (2012), the wife received more of her inherited assets that were arguably commingled in part due to the wife's need for financial support. The wife suffered mental-health issues that limited her employment, had limited earning capacity, and was many years away from retirement.
§ 6.2-2 Child Support and Spousal Support Awarded
No division of property can be made without also taking into consideration awards of spousal support and child support. The support and property divisions are so interrelated that neither of them can be evaluated in isolation. In re Marriage of Grove, 280 Or 341, 344, 571 P2d 477, modified, 280 Or 769, 572 P2d 1320 (1977). For example, a large spousal support award may compensate for the fact that certain assets cannot be divided or distributed at the time of dissolution. However, the entry of a large spousal support award in lieu of property-division money must be approached with caution because "we can expect no more golden eggs if the decree kills the goose that lays them." In re Marriage of Haguewood, 292 Or 197, 207, 638 P2d 1135 (1981). Additionally, an unequal property division may take the place of support. For example, when earnings are not sufficient to meet the needs of the children, the court may award the custodial parent additional property to meet current needs (for instance, a car for family transportation) rather than imposing higher child support payments that cannot be relied on realistically. In re Marriage of Seefeld, 294 Or 345, 352, 657 P2d 201 (1982). The following cases provide examples of this principle:
(1) In Grove, 280 Or at 344, the court found an unequal division of assets preferable because it enabled a party to pay spousal support and child support.
(2) In Seefeld, 294 Or at 351-52, the court awarded the family home and car to the custodial parent. The court explained:
The equation of property division and the entitlement of a party to solely acquired property may be disturbed in order to accomplish broader purposes of a dissolution. A "broader" purpose here is to divide the property so that the child can adequately be cared for. This does not mean that property should be divided differently simply because there are children to care for. Where the assets and foreseeable earnings available to the parties are reasonably sufficient to provide funds for the needs of the children, the proper division of property and the award of child support and spousal support should each be considered separately, dividing the property as may be "just and proper" between the parties.
Where earnings and assets are not sufficient to support the needs of the children as well as both parties, however, courts often cannot escape the necessity to determine which combination of support payments, property, and other sources of income will most effectively provide for the children. Frequently this results in an award of the family home to the custodial parent. It may also involve an award of property that helps to meet current needs (for instance, an automobile for family transportation) rather than imposing higher child support payments that cannot realistically be counted on.
Seefeld, 294 Or at 351-52 (internal quotation marks and citations omitted).
(3) In In re Marriage of Drayton, 84 Or App 185, 187-88, 733 P2d 483, rev den, 303 Or 370 (1987), the husband was awarded assets that had a higher income-producing capacity. The court determined that it would be more equitable to set a higher spousal support award for the wife rather than to make her liquidate the assets that she received in the property division.
(4) In In re Marriage of Clark, 94 Or App 550, 553, 765 P2d 1262 (1988), the custodial parent was awarded most of the marital assets and the family home. An unequal division in favor of the custodial parent is appropriate if the noncustodial parent cannot afford to pay child support.
(5) In In re Marriage of Hansen, 102 Or App 681, 795 P2d 609, rev den, 311 Or 13 (1990), the court awarded the wife more than half...
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