Is property division always 50-50 in a divorce?

50-50 Property Division in Divorce

In an Oregon divorce, property division is not always 50-50. How property gets divided is subject to numerous rules and court rulings, so it can get complicated.

The starting point is figuring out what property is marital, and what is not marital. Oregon law presumes (basically, makes an assumption) that all property of whatever nature and whenever acquired by either party to the marriage is “marital”. It is up to the spouse who wants to claim something is non-marital to prove it.

A frequent example of non-marital property is retirement benefits that accrued before the marriage. Say one spouse had $100,000 in her 401(k) on the date of marriage. If at the time of the divorce she can prove that fact, usually by finding a benefit statement, then the court can find that $100,000 is non-marital and may be excluded from the 50-50 property division.

Property that is marital is presumptively (again, a kind of assumption) divided 50-50. So, for example, the value of joint bank accounts, cars purchased during the marriage, the house, and so forth, get divided in half. In many cases this means that property has to be sold or mortgages refinanced and loan size increased so as to transfer money from one spouse to another to equalize or make that 50-50 division.

There are exceptions to property division 50-50 in a divorce. If one spouse needs support but the other cannot pay it, the needy spouse might get more property to compensate. I am aware of one case a few years back where a disabled spouse was awarded nearly all the assets of the marriage so that the working spouse was able to escape without a spousal support obligation. For the most part, though, marital property division will be close to 50-50.

As with all things in a divorce, property division is a complex matter. Please consult with an attorney such as Christopher Eggert at Eggert & Associates before taking action.

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