Bill Text: OR HB3431 | 2011 | Regular Session | Introduced

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Bill Title: Relating to domestic relations proceedings.

Sponsorship: Moderate Partisan Bill (Republican 4-1)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3431 Detail]

Download: Oregon-2011-HB3431-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3714

                         House Bill 3431

Sponsored by Representative BREWER, Senator STARR;
  Representatives BERGER, DOHERTY, KENNEMER

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Allows court in domestic relations proceeding to consider
substantiated evidence of spousal abuse when determining proper
amount of child and spousal support and proper division of
property. Directs court or administrative law judge in child
support proceeding to consider parent's ability to work.
Prohibits court or administrative law judge from considering
parent's impaired employability if court or administrative law
judge finds substantiated evidence of abuse of one parent by
other parent.  Requires court or administrative law judge to
presume that parent committing substantiated abuse earns not less
than state minimum wage in child support calculation.

                        A BILL FOR AN ACT
Relating to domestic relations proceedings; creating new
  provisions; and amending ORS 25.280 and 107.105.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. 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 - }  { +  judgment + }. When
incorporated into a
  { - final order - }  { +  judgment + }, 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 court shall
apply + } 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  { + for a child + } 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 - }  { +
that + } party's personal property in the possession or control
of the other  { + party + } 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 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. 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 - }  { +  the spousal + } support and
 { - such - }  { +  life + } 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) { + (a) + } 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 { +  and any
substantiated evidence of abuse of a spouse by the other spouse.
  (b) Substantiated evidence of abuse of a spouse by the other
spouse may include:
  (A) A conviction of an offense that constitutes domestic
violence, as defined in ORS 135.230;
  (B) Demonstrated chemical addiction of the alleged abuser;
  (C) A history of calls to police from the spouse or another
family member reporting abuse by the alleged abuser;
  (D) A history of psychological counseling of either spouse;
  (E) Testimony of a witness to acts of abuse by the alleged
abuser;
  (F) Records of the Department of Human Services reporting abuse
by the alleged abuser; or
  (G) A history of suicide attempts by either spouse.
  (c) If the court finds substantiated evidence of abuse, the
court may consider the evidence:
  (A) As a factor to rebut the presumption that the amount of
child support determined by the formula established under ORS
25.275 is correct;
  (B) To award compensatory spousal support to the spouse who
suffered the abuse; and
  (C) As a factor to rebut the presumption that both spouses
contributed equally to the acquisition of property during the
marriage + }.
  (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 - }  { +  affects + }
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 - }  { +  an + } additional sum of money as
  { - it - }  { +  the court + } 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 - }
 { +  the + } 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 - }
 { +  the + } suit for the partition of   { - such - }  { +
the + } 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 - }  { +
the + } real or personal property, if any   { - there be - } ,
constitute the sole and only necessary parties to   { - such - }
 { +  the + } 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 - }  { +  of the proceedings + }.
  SECTION 2. ORS 25.280 is amended to read:
  25.280. In any judicial or administrative proceeding for the
establishment or modification of a child support obligation under
ORS chapter 107, 108, 109, 110 or 416 or ORS 419B.400, 419B.923,
419C.590 or 419C.610, the amount of support determined by the
formula established under ORS 25.275 is presumed to be the
correct amount of the obligation. This is a rebuttable
presumption and a written finding or a specific finding on the
record that the application of the formula would be unjust or
inappropriate in a particular case is sufficient to rebut the
presumption. The  { + court or administrative law judge shall
consider the + } following criteria
  { - shall be considered - }  in making the finding:
  (1) Evidence of the other available resources of a parent;
  (2) The reasonable necessities of a parent;
  (3) The net income of a parent remaining after withholdings
required by law or as a condition of employment;
  (4) A parent's ability to borrow;
  (5) The number and needs of other dependents of a parent;
  (6) The special hardships of a parent including, but not
limited to, any medical circumstances of a parent affecting the
parent's ability to pay child support;
  (7) The needs of the child;
  (8) The desirability of the custodial parent remaining in the
home as a full-time parent and homemaker;
  (9) The tax consequences, if any, to both parents resulting
from spousal support awarded and determination of which parent
will name the child as a dependent;   { - and - }
  (10) The financial advantage afforded a parent's household by
the income of a spouse or another person with whom the parent
lives in a relationship similar to husband and wife { + ; and
  (11)(a) The ability of a parent to work. If the court or
administrative law judge has found substantiated evidence of
abuse of a parent by the other parent, the alleged abusive parent
is presumed to earn not less than the state minimum wage, and the
court or administrative law judge may not consider the parent's
impaired employability as a rebuttal to the presumption under
this section. If the alleged abusive parent is unemployed, the
parent must complete appropriate job training or employment
rehabilitation before the court may exempt the parent from
providing child support or significantly reduce the parent's
obligation to provide child support.
  (b) Substantiated evidence of abuse of a parent by the other
parent may include:
  (A) A conviction of an offense that constitutes domestic
violence, as defined in ORS 135.230;
  (B) Demonstrated chemical addiction of the alleged abuser;
  (C) A history of calls to police from the parent or another
family member reporting abuse by the alleged abuser;
  (D) A history of psychological counseling of either parent;
  (E) Testimony of a witness to acts of abuse by the alleged
abuser;
  (F) Records of the Department of Human Services reporting abuse
by the alleged abuser; or
  (G) A history of suicide attempts by either parent + }.
  SECTION 3.  { + The amendments to ORS 25.280 and 107.105 by
sections 1 and 2 of this 2011 Act apply to domestic relations
proceedings pending on or after the effective date of this 2011
Act. + }
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