Is there any way I can protect myself from paying spousal support if I divorce?
Full Question:
I am preparing for the possibility of divorce and am concerned about having to pay spousal support/maintenance. I can't afford to do either for any amount of time. I have been the sole household income for at least 3 1/2 to 4 years. My wife has a one year business cerificate from PCC and I have an AS in Fire Protection but have always done fairly low paying blue collar work. She has worked in several busniess environments like Dean Whitter, Prudential and smaller financial service type offices during the time she worked. Her last position was as an acountant type in a commodities brokerage that downsized and laid her off with no possibility of recall.
We have some credit card debt in her name and some in mine and both our names on the auto loan for a used 2005 PT Cruiser as asset protection. We both cashed out our retirements in response to job losses to survive and have less than $50.00 savings in my name. Her nearly 21 year old high school dropout son lives with us and does not work, no drug habit or substance addictions - just enabled by his mom which can be just as debilitating. Am I vulnerable (and how badly) to having to pay spousal support/maintenance? How do I dodge that bullet and protect myself.
05/17/2007 |
Category: Divorce ยป Alimony |
State: Oregon |
#5090
Answer:
The relevant Oregon statutes are as follows:
SECTION 27. ORS 107.105 is amended to read:
107.105. (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. 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. When a parenting plan has been developed as required by ORS
107.102, 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 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. 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, 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 (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 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 who has ceased to attend school after becoming 18 years of
age.
(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. The court may approve an agreement for the
entry of an order for the support of a party. 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. A retirement plan or
pension or an interest therein shall be considered as property. The court
shall consider the contribution of a spouse as a homemaker as a
contribution to the acquisition of marital assets. There is a rebuttable
presumption that both spouses have contributed equally to the acquisition
of property during the marriage, whether such property is jointly or
separately held. 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 coownership, 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. The court shall
require full disclosure of all assets by the parties in arriving at a
just property division. 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. If a
spouse 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. If the obligor dies prior to the termination of such
support and such insurance is not in force, the court may modify the
method of payment of spousal support under the judgment or order of
support from installments to a lump sum payment to the obligee from the
estate of the obligor in an amount commensurate with the present value of
the spousal support at the time of death. 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. 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. If a
limited judgment was entered under ORS 107.095, 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 to 107.086, 107.095, 107.105,107.115 to 107.174, 107.405, 107.425, 107.445 to 107.520, 107.540 and 107.610, the court rendering the judgment may provide in a supplemental
judgment for any relief provided for in ORS 107.095 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 to 33.155 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.
(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 for the
partition of real property, and the court granting the judgment shall have
in the first instance and retain jurisdiction in equity therefor.