Bill Text: OR HB3531 | 2013 | Regular Session | Introduced
Bill Title: Relating to domestic relations.
Sponsorship: Partisan Bill (Republican 1)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3531 Detail]
Download: Oregon-2013-HB3531-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 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 3974
House Bill 3531
Sponsored by Representative WHITSETT
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.
Modifies law regarding establishment and modification of
spousal support awards in domestic relations proceedings. Limits
duration and amount of spousal support that court may order.
Automatically terminates obligation to pay spousal support upon
death of either party, upon remarriage or cohabitation of obligee
or upon obligor reaching retirement age. Requires obligee to
repay certain spousal support if not used as ordered by court.
Requires court to consider moneys received from judgment in favor
of either party when establishing spousal or child support.
Prescribes circumstances under which reinstatement of terminated
spousal support may be ordered.
A BILL FOR AN ACT
Relating to domestic relations; creating new provisions; amending
ORS 19.275, 107.104, 107.105, 107.135, 107.136, 107.407,
107.412, 107.434, 107.449 and 107.475; and repealing ORS
107.406.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2013 Act are added to
and made a part of ORS 107.093 to 107.449. + }
SECTION 2. { + (1) For purposes of this section:
(a) 'Cohabitation' means a domestic arrangement between parties
who are not married to each other but who live as husband and
wife or as domestic partners for more than three months and who
share a common domicile and living expenses.
(b) 'Good faith retirement' means the retirement of the obligor
at an age when the obligor could first make application for
retirement in accordance with the terms of the retirement plan
under which the obligor is eligible, regardless of the obligor's
ability to work beyond that age.
(2) The court may order the payment of spousal support in a
judgment of marital annulment, dissolution or separation, subject
to the provisions of this section.
(3) The court may not order the payment of spousal support for
a period of time greater than one-half the duration of the
parties' marriage.
(4) The amount of spousal support ordered to be paid:
(a) May not exceed 25 percent of the obligor's gross annual
income; and
(b) When applicable, must take into account the income and
assets of the obligee's new spouse or partner in cohabitation.
(5) The court may consider any money received by a party as a
result of a judgment entered in favor of the party before or
during the marriage or after the date of separation.
(6) In making an order for payment of spousal support, the
court shall designate one or more of the following categories of
spousal support and shall make findings of the relevant factors
in the decision:
(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. In awarding transitional spousal support, the court
shall consider:
(A) The duration of the marriage;
(B) A party's training and employment skills;
(C) A party's work experience;
(D) The financial needs and resources of each party;
(E) The tax consequences to each party;
(F) A party's custodial and child support responsibilities; and
(G) Any other factors the court deems just and equitable.
(b) Compensatory spousal support if one party made a
significant financial or other contribution to the education,
training, vocational skills, career or earning capacity of the
other party, when an order for compensatory spousal support is
otherwise just and equitable. In awarding compensatory spousal
support, the court shall consider:
(A) The amount, duration and nature of the financial or other
contribution;
(B) The duration of the marriage;
(C) The relative earning capacity of the parties;
(D) The extent to which the marital estate has already
benefited from the contribution;
(E) The tax consequences to each party; and
(F) Any other factors the court deems just and equitable.
(c) Spousal maintenance as a contribution by one spouse to the
support of the other. In awarding spousal maintenance, the court
shall consider:
(A) The duration of the marriage;
(B) The age of the parties;
(C) The health of the parties, including the physical, mental
and emotional condition of each party;
(D) The overall standard of living during the marriage;
(E) The relative income and earning capacity of the parties,
recognizing that a wage earner's continuing income may be a basis
for support distinct from the income that a supported spouse may
receive from the distribution of marital property;
(F) A party's training and employment skills;
(G) A party's work experience;
(H) The financial needs and resources of each party;
(I) The tax consequences to each party;
(J) A party's custodial and child support responsibilities; and
(K) Any other factors the court deems just and equitable.
(7) Except as otherwise agreed by the parties in writing, the
obligation of an obligor under an order to pay any category of
spousal support terminates without further notice to the obligee
and without further order of the court:
(a) Upon the death of either party;
(c) Upon the remarriage or cohabitation of the obligee; or
(c) Upon the good faith retirement of the obligor.
(8) An order or judgment for payment of spousal support under
this section must include a provision that regulates the
repayment of transitional spousal support that was received by
the obligee but not used in accordance with the order or
judgment.
(9) An obligor may not be required to name the obligee on a
life insurance policy of the obligor for a period of time longer
than the duration of the obligation to pay spousal support.
(10) The court may approve a marital support agreement between
the parties for the purpose of entering a judgment awarding
spousal support.
(11) A general judgment entered under ORS 107.105 may include
an amount for support as requested in a petition filed under ORS
107.085 for which a limited judgment was not entered, payment of
which commences no earlier than the date the petition 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 (3). + }
SECTION 3. { + (1) As used in this section, 'substantial
change in economic circumstances' includes, but is not limited
to:
(a) A substantial change in the cost of reasonable and
necessary expenses to either party;
(b) A substantial change in income, benefits or income
opportunities to either party; or
(c) The provisions for spousal support in a judgment entered
prior to the effective date of this 2013 Act that exceed the
limits on duration or amount of spousal support that may be
ordered under section 2 of this 2013 Act.
(2) The court may, at any time after a judgment of marital
annulment, dissolution or separation has been entered, upon the
motion of either party and after service of notice on the other
party in the manner provided by ORCP 7, set aside or modify any
portion of the judgment awarding spousal support or providing for
life insurance under section 2 of this 2013 Act in accordance
with this section.
(3)(a) A substantial change in economic circumstances of a
party must exist and be proved by the party seeking to set aside
or modify the judgment.
(b) An order setting aside or modifying a provision for spousal
support in a judgment is subject to section 2 of this 2013
Act. + }
SECTION 4. 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 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 or 163.375 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. 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 (6).
(c) For { - the support of the children of the marriage by
the parties - } { + child support + }. In ordering child
support, the formula established under ORS 25.275 shall apply.
{ + The court may consider any money received by a parent as a
result of a judgment entered in favor of the parent before or
during the marriage or after the date of marital annulment,
dissolution or separation. + } 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 or
under a motion for relief made pursuant to ORS 107.095 (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 (3).
(d) For spousal support { + awarded pursuant to section 2 of
this 2013 Act. + } { - , 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. A general judgment entered under this section may include
an amount for support as requested in a petition filed under ORS
107.085 or under a motion for relief made pursuant to ORS 107.095
(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 (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) If the obligor dies prior to the termination of
spousal support and life insurance is not in force as provided in
sub-subparagraph (i) of this subparagraph, 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. - }
{ - (iii) - } { + (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.
{ - (iv) - } { + (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. 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.
SECTION 5. ORS 107.135 is amended to read:
107.135. (1) The court may at any time after a judgment of
annulment or dissolution of marriage or of separation is granted,
upon the motion of either party and after service of notice on
the other party in the manner provided by ORCP 7, and after
notice to the Division of Child Support when required under
subsection { - (9) - } { + (8) + } of this section:
(a) Set aside, alter or modify any portion of the judgment that
provides for the appointment and duties of trustees, for the
custody, parenting time, visitation, support and welfare of the
minor children and the children attending school, as defined in
ORS 107.108, including any health or life insurance provisions
{ - , for the support of a party - } or for life insurance
under ORS 107.820 or 107.830;
(b) Make an order, after service of notice to the other party,
providing for the future custody, support and welfare of minor
children residing in the state, who, at the time the judgment was
given, were not residents of the state, or were unknown to the
court or were erroneously omitted from the judgment;
(c) Terminate a duty of support toward any minor child who has
become self-supporting, emancipated or married;
(d) After service of notice on the child in the manner provided
by law for service of a summons, suspend future support for any
child who has ceased to be a child attending school as defined in
ORS 107.108; and
(e) Set aside, alter or modify any portion of the judgment that
provides for a property award based on the enhanced earning
capacity of a party that was awarded before October 23, 1999. A
property award may be set aside, altered or modified under this
paragraph:
(A) When the person with the enhanced earning capacity makes a
good faith career change that results in less income;
(B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
(C) Under such other circumstances as the court deems just and
proper.
(2) When a party moves to set aside, alter or modify the child
support provisions of the judgment:
(a) The party shall state in the motion, to the extent known:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS
chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the judgment the
party is moving to set aside, alter or modify.
(b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the judgment the party is moving to set aside,
alter or modify. The party shall use a certificate that is in a
form established by court rule and include information required
by court rule and paragraph (a) of this subsection.
(3) In a proceeding under this section to reconsider the
{ - spousal or - } child support provisions of the judgment,
{ - the following provisions apply: - }
{ - (a) - } a substantial change in economic circumstances
of a party, which may include, but is not limited to, a
substantial change in the cost of reasonable and necessary
expenses to either party, is sufficient for the court to
reconsider its order of support { + . + } { - , except that an
order of compensatory spousal support may only be modified upon a
showing of an involuntary, extraordinary and unanticipated change
in circumstances that reduces the earning capacity of the paying
spouse. - }
{ - (b) If the judgment provided for a termination or
reduction of spousal support at a designated age in anticipation
of the commencement of pension, Social Security or other
entitlement payments, and if the obligee is unable to obtain the
anticipated entitlement payments, that inability is sufficient
change in circumstances for the court to reconsider its order of
support. - }
{ - (c) If Social Security is considered in lieu of spousal
support or partial spousal support, the court shall determine the
amount of Social Security the party is eligible to collect. The
court shall take into consideration any pension, retirement or
other funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement. - }
(4) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
{ - spousal or - } { + the + } child support provisions of a
judgment, the following provisions apply:
(a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
(A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
(B) Retirement benefits available to the obligor and to the
obligee.
(C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,
contrasted with benefits to which the obligee is similarly
entitled.
(D) Social Security benefits paid to a child, or to a
representative payee administering the funds for the child's use
and benefit, as a result of the obligor's disability or
retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before May 12,
2003.
(E) Apportioned Veterans' benefits or Survivors' and
Dependents' Educational Assistance under 38 U.S.C. chapter 35
paid to a child, or to a representative payee administering the
funds for the child's use and benefit, as a result of the
obligor's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before May 12,
2003.
(b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court { - shall - } { + may + } not find a change
in circumstances sufficient for reconsideration of support
provisions, if the motion is based upon a reduction of the
obligor's financial status resulting from the obligor's taking
voluntary retirement, partial voluntary retirement or any other
voluntary reduction of income or self-imposed curtailment of
earning capacity, if it is shown that such action of the obligor
was not taken in good faith but was for the primary purpose of
avoiding the support obligation. In any subsequent motion for
modification, the court shall deny the motion if the sole basis
of the motion for modification is the termination of voluntarily
taken retirement benefits and the obligor previously has been
found not to have acted in good faith.
(c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in { - spousal - }
support.
(B) { - Whether all or most of the income producing assets
and property were awarded to the obligor, and spousal support in
lieu of such property was awarded to the obligee - } { + The
availability of income-producing assets and property awarded to
the obligor and obligee respectively + }.
(C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
(D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the { - spousal - } support could have been paid.
{ - (E) Whether the obligor has given gifts of substantial
value to others, including a current spouse, to the detriment of
the obligor's ability to meet the preexisting obligation of
spousal support. - }
{ - (5) Upon terminating a duty of spousal support, a court
shall make specific findings of the basis for the termination and
shall include the findings in the judgment. - }
{ - (6) - } { + (5) + } Any modification of child { - or
spousal - } support granted because of a change of circumstances
may be ordered effective retroactive to the date the motion for
modification was served or to any date thereafter.
{ - (7) - } { + (6) + } The judgment is final as to any
installment or payment of money that has accrued up to the time
the nonmoving party, other than the state, is served with a
motion to set aside, alter or modify the judgment. The court may
not set aside, alter or modify any portion of the judgment that
provides for any payment of money { - , either - } for minor
children { - or for the support of a party, - } that has
accrued before the motion is served. However:
(a) The court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or judgment, during which
the obligor, with the knowledge and consent of the obligee or
pursuant to court order, has physical custody of the child; and
(b) The court may allow, as provided in the rules of the Child
Support Program, a dollar-for-dollar credit against child support
arrearages for any Social Security or Veterans' benefits paid
retroactively to the child, or to a representative payee
administering the funds for the child's use and benefit, as a
result of an obligor's disability or retirement.
{ - (8) - } { + (7) + } In a proceeding under subsection
(1) of this section, the court may assess against either party a
reasonable attorney fee and costs for the benefit of the other
party. If a party is found to have acted in bad faith, the court
shall order that party to pay a reasonable attorney fee and costs
of the defending party.
{ - (9) - } { + (8) + } Whenever a motion to establish,
modify or terminate child support or satisfy or alter support
arrearages is filed and the child support rights of one of the
parties or of a child of both of the parties have been assigned
to the state, a true copy of the motion shall be served by mail
or personal delivery on the Administrator of the Division of
Child Support of the Department of Justice or on the branch
office providing support services to the county in which the
motion is filed.
{ - (10)(a) - } { + (9)(a) + } Except as provided in ORS
109.701 to 109.834, the courts of Oregon, having once acquired
personal and subject matter jurisdiction in a domestic relations
action, retain such jurisdiction regardless of any change of
domicile.
(b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
{ - (11) - } { + (10) + } In a proceeding under this
section to reconsider provisions in a judgment relating to
custody or parenting time, the court may consider repeated and
unreasonable denial of, or interference with, parenting time to
be a substantial change of circumstances.
{ - (12) - } { + (11) + } In a proceeding under this
section to reconsider provisions in a judgment relating to
parenting time, the court may suspend or terminate a parent's
parenting time with a child if the court finds that the parent
has abused a controlled substance and that the parenting time is
not in the best interests of the child. If a court has suspended
or terminated a parent's parenting time with a child for reasons
described in this subsection, the court may not grant the parent
future parenting time until the parent has shown that the reasons
for the suspension or termination are resolved and that
reinstated parenting time is in the best interests of the child.
Nothing in this subsection limits the court's authority under
subsection (1)(a) of this section.
{ - (13) - } { + (12) + } In a proceeding under this
section to reconsider provisions in a judgment relating to
custody, temporary placement of the child by the custodial parent
pursuant to ORS 109.056 (3) with the noncustodial parent as a
result of military deployment of the custodial parent is not, by
itself, a change of circumstances. Any fact relating to the
child and the parties occurring subsequent to the last custody
judgment, other than the custodial parent's temporary placement
of the child pursuant to ORS 109.056 (3) with the noncustodial
parent, may be considered by the court when making a change of
circumstances determination.
{ - (14) - } { + (13) + } Within 30 days after service of
notice under subsection (1) of this section, the party served
shall file a written response with the court.
{ - (15)(a) - } { + (14)(a) + } It is the policy of this
state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 6. ORS 107.136 is amended to read:
107.136. (1) When { - a court has terminated - } the duty of
spousal support { + has been terminated or set aside + } under
{ - ORS 107.135 - } { + section 3 of this 2013 Act + }, the
court may reinstate the remaining duration and remaining amount
of the support award if the moving party alleges and proves that:
(a) The basis for the termination { + or set-aside + } has
ceased to exist; { - and - }
{ + (b) The basis for the termination or set-aside was not
the death or good faith retirement of the obligor or the
remarriage or cohabitation of the obligee; and + }
{ - (b) - } { + (c) + } The reinstatement is just and
equitable under all the circumstances.
(2) For the purposes of this section:
(a) The remaining duration of a support award is the term of
the award remaining as if the award had not been terminated
{ + or set aside + } and support had been paid from the date of
termination { + or set-aside + } to the date of reinstatement.
For example, if the applicable judgment required payment of
spousal support for 10 years, the award was terminated { + or
set aside + } in year three and reinstatement of the award was
sought at the end of year seven, the maximum remaining duration
of the support award that could be reinstated would be three
years.
(b) The remaining amount of a support award is the amount of
support owed as if the award had not been terminated { + or set
aside + } and support had been paid from the date of termination
{ + or set-aside + } to the date of reinstatement. For example,
if the applicable judgment required support payments of $1,000
per month for five years and $500 per month for the next five
years, the award was terminated { + or set aside + } in year
three and reinstatement of the award was sought at the end of
year seven, the maximum remaining amount of the support award
that could be reinstated would be $500 per month.
(3) A motion for reinstatement of a spousal support award under
this section must be brought within the remaining duration of the
award or within 10 years after the entry of the judgment
terminating { + or setting aside + } the award, whichever is
sooner.
(4) In exercising the discretion granted under subsection (1)
of this section, the court shall consider the basis for the
spousal support award, the basis for the termination { + or
set-aside + } of the award and the totality of the circumstances
of each party existing since the termination { + or
set-aside + } of the award.
(5) Either party may file a motion to modify spousal support
under { - ORS 107.135 - } { + section 3 of this 2013 Act + }
in a proceeding to reinstate the spousal support award. In
addition to considering the factors { - under ORS 107.135 (3)
and (4) - } { + described in sections 2 and 3 of this 2013
Act + }, the court shall consider the factors described in
subsection (4) of this section.
(6) At any time, the parties may waive their rights under this
section in writing, signed by both parties and referencing this
section.
(7) Any reinstatement of a spousal support award may be ordered
effective retroactive to the date the motion was served or to any
date thereafter.
SECTION 7. ORS 107.407 is amended to read:
107.407. If an individual has paid an amount of money in
installments { - for more than 10 years - } for the support of
a former spouse under a judgment of annulment or dissolution of
marriage that ordered such payment, and when the former spouse
has not made a reasonable effort during that period of time to
become financially self-supporting and independent of the support
provided under the judgment, the individual paying the support
may petition the court that issued the judgment to set aside so
much of the judgment as may provide for the support of the former
spouse. The petition shall not be granted if spousal support was
granted in the judgment in lieu of a share of property in order
to provide the other spouse with a tax benefit.
SECTION 8. ORS 107.412 is amended to read:
107.412. (1) Upon petition of an individual { + under ORS
107.407 + } and after service of notice on the other party in the
manner provided by law for service of a summons, the court shall
conduct a proceeding to determine whether so much of its judgment
as provides for the support of a party shall be set aside.
(2) Except as provided in subsections (3) and (4) of this
section, if the court finds that the party receiving support has
not made a reasonable effort { - during the previous 10
years - } to become financially self-supporting and independent
of the support provided under the judgment, the court shall order
that support terminated. In making its finding under this
subsection, the court shall consider the following matters:
(a) The age of the party receiving support;
(b) The health, work experience and earning capacity of the
party;
(c) The ages, health and dependency conditions of the minor
children of the party; and
(d) Efforts made by the party { - during the previous 10
years - } to improve opportunities for gainful or improved
employment including, but not limited to, attendance at any
school, community college or university or attendance at courses
of professional or technical training.
(3) A court does not have power under ORS 107.407 and this
section to set aside any payment of money for the support of a
party that has accrued prior to the filing of the petition under
subsection (1) of this section.
(4) ORS 107.407 and this section do not affect a judgment, or
any portion of it, that provides for the payment of money for the
support of minor children or for the support of a party who is 60
years of age or older when the proceeding under subsection (1) of
this section is held.
(5) In a proceeding held under subsection (1) of this section,
the court may assess against either party a reasonable attorney
fee for the benefit of the other party.
SECTION 9. ORS 107.104 is amended to read:
107.104. (1) It is the policy of this state:
(a) To encourage the settlement of suits for marital annulment,
dissolution or separation; { - and - }
(b) For courts to enforce the terms of settlements described in
subsection (2) of this section to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy { - . - } { + ; and
(c) To permit the reconsideration of a judgment for spousal
support unless all parties specifically agree in writing that the
judgment may not be reconsidered. + }
(2) In a suit for marital annulment, dissolution or separation,
the court may enforce the terms set forth in a stipulated
judgment signed by the parties, a judgment resulting from a
settlement on the record or a judgment incorporating a marital
settlement agreement:
(a) As contract terms using contract remedies;
(b) By imposing any remedy available to enforce a judgment,
including but not limited to contempt; or
(c) By any combination of the provisions of paragraphs (a) and
(b) of this subsection.
(3) A party may seek to enforce an agreement and obtain
remedies described in subsection (2) of this section by filing a
motion, serving notice on the other party in the manner provided
by ORCP 7 and, if a remedy under subsection (2)(b) of this
section is sought, complying with the statutory requirements for
that remedy. All claims for relief arising out of the same acts
or omissions must be joined in the same proceeding.
(4) Nothing in subsection (2) or (3) of this section limits a
party's ability, in a separate proceeding, to file a motion to
set aside, alter or modify a judgment under ORS 107.135 { + or
section 3 of this 2013 Act + }or to seek enforcement of an
ancillary agreement to the judgment.
SECTION 10. ORS 107.434 is amended to read:
107.434. (1) The presiding judge of each judicial district
shall establish an expedited parenting time enforcement procedure
that may or may not include a requirement for mediation. The
procedure must be easy to understand and initiate. Unless the
parties otherwise agree, the court shall conduct a hearing no
later than 45 days after the filing of a motion seeking
enforcement of a parenting time order. The court shall provide
forms for:
(a) A motion filed by either party alleging a violation of
parenting time or substantial violations of the parenting plan.
When a person files this form, the person must include a copy of
the order establishing the parenting time.
(b) An order requiring the parties to appear and show cause why
parenting time should not be enforced in a specified manner. The
party filing the motion shall serve a copy of the motion and the
order on the other party. The order must include:
(A) A notice of the remedies imposable under subsection (2) of
this section and the availability of a waiver of any mediation
requirement; and
(B) A notice in substantially the following form:
_________________________________________________________________
When pleaded and shown in a separate legal action, violation of
court orders, including visitation and parenting time orders, may
also result in a finding of contempt, which can lead to fines,
imprisonment or other penalties, including compulsory community
service.
_________________________________________________________________
(c) A motion, affidavit and order that may be filed by either
party and providing for waiver of any mediation requirement on a
showing of good cause.
(2) In addition to any other remedy the court may impose to
enforce the provisions of a judgment relating to the parenting
plan, the court may:
(a) Modify the provisions relating to the parenting plan by:
(A) Specifying a detailed parenting time schedule;
(B) Imposing additional terms and conditions on the existing
parenting time schedule; or
(C) Ordering additional parenting time, in the best interests
of the child, to compensate for wrongful deprivation of parenting
time;
(b) Order the party who is violating the parenting plan
provisions to post bond or security;
(c) Order either or both parties to attend counseling or
educational sessions that focus on the impact of violation of the
parenting plan on children;
(d) Award the prevailing party expenses, including, but not
limited to, attorney fees, filing fees and court costs, incurred
in enforcing the party's parenting plan;
(e) Terminate, suspend or modify spousal support;
(f) Terminate, suspend or modify child support as provided in
ORS 107.431; or
(g) Schedule a hearing for modification of custody as provided
in ORS 107.135 { - (11) - } { + (10) + }.
SECTION 11. ORS 107.475 is amended to read:
107.475. The court shall determine and fix in its judgment the
duration of the separation. At the expiration of such time, the
judgment shall have no further effect. However, no rights created
or granted in the judgment which have vested shall be affected by
its termination. Upon motion of a party and service upon the
other party of notice in the manner provided by law for service
of summons, the court may renew or extend the duration. When the
judgment is for unlimited separation, a party may by motion
alleging that the cause for separation no longer exists and after
due service of notice upon the other party in the manner provided
by law for service of summons, apply for an order modifying or
vacating the judgment, subject to the provisions of ORS
107.135 { + and sections 2 and 3 of this 2013 Act + }.
SECTION 12. ORS 19.275 is amended to read:
19.275. (1) Any motion that requires a showing of a change of
circumstances before the court may modify a judgment, including a
motion to reconsider the spousal or child support provisions of a
judgment pursuant to ORS 107.135 { + and sections 2 and 3 of
this 2013 Act + }, may be filed with the trial court while an
appeal from the judgment is pending before an appellate court.
The filing of a motion under this subsection does not affect the
right of the appellant to pursue the appeal of the judgment.
(2) The trial court in its discretion may proceed to hear and
decide a motion under this section or may hold the motion in
abeyance pending disposition of the appeal.
(3) Pursuant to the provisions of ORS 19.205, the court's
decision on a motion under this section is a supplemental
judgment. The appellate court in its discretion may consolidate
an appeal from a supplemental judgment under this section with
the pending appeal of the general judgment in the case, may
direct that both appeals be heard at the same time or may allow
the appeals to proceed independently.
SECTION 13. ORS 107.449 is amended to read:
107.449. (1) Upon motion of a party to a proceeding under ORS
107.135 (1) { + or section 2 or 3 of this 2013 Act + } that is
not otherwise covered under the provisions of ORS 25.100 (1),
based upon convenience of the parties, the court that has entered
the original judgment may order that the matter be transferred to
an auxiliary circuit court where either party resides for the
purpose of hearing the matter.
(2) Upon entry of an order under this section and payment by
the moving party of the copying and certification costs, the
clerk of the court that ordered the transfer shall transmit
certified copies of the files, records and prepared transcripts
of testimony in the original proceeding to the clerk of the court
receiving the matter. Upon receipt of such certified copies, the
circuit court of the county to which such certified copies have
been transmitted shall have jurisdiction the same as if it were
the court that made and entered the original order or judgment.
(3) The only court having jurisdiction to modify any provision
of the original order or judgment is the court having original
jurisdiction of the cause in which such order or judgment was
entered or the circuit court of the county in which either party
resides if that court has received the certified copies referred
to in subsection (2) of this section. The provisions of ORS
25.100 (2) to (4) shall apply to all records maintained and
orders issued in the auxiliary proceeding.
SECTION 14. { + ORS 107.406 is repealed. + }
SECTION 15. { + Sections 2 and 3 of this 2013 Act, the
amendments to ORS 19.275, 107.104, 107.105, 107.135, 107.136,
107.407, 107.412, 107.434, 107.449 and 107.475 by sections 4 to
13 of this 2013 Act and the repeal of ORS 107.406 by section 14
of this 2013 Act apply to spousal or child support proceedings
that are pending or commenced on or after the effective date of
this 2013 Act. + }
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