Bill Text: OR SB512 | 2011 | Regular Session | Introduced
Bill Title: Relating to spousal support.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB512 Detail]
Download: Oregon-2011-SB512-Introduced.html
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 2002
Senate Bill 512
Sponsored by Senator BOQUIST (at the request of Mark Pauletto)
(Presession filed.)
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.
Provides for automatic termination of spousal support upon
death, remarriage or cohabitation of supported party.
A BILL FOR AN ACT
Relating to spousal support; creating new provisions; and
amending ORS 107.105 and 107.136.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2011 Act is added to and made
a part of ORS 107.093 to 107.425. + }
SECTION 2. { + (1) Except as otherwise agreed by the parties
in writing, the obligation of a party under an order for spousal
support of the other party terminates upon the death of either
party, or upon the remarriage or cohabitation of the other party.
(2) For purposes of this section, '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 a brief period of time and who share a common
domicile and living expenses. + }
SECTION 3. 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 { + , subject to
section 2 of this 2011 Act + }. 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 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 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.
SECTION 4. ORS 107.136 is amended to read:
107.136. (1) When a court has terminated the duty of spousal
support under ORS 107.135, 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 has ceased to exist; and
(b) 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 and
support had been paid from the date of termination to the date of
reinstatement. For example, if the applicable judgment required
payment of spousal support for 10 years, the award was terminated
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 and support
had been paid from the date of termination 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 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 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 of the award
and the totality of the circumstances of each party existing
since the termination of the award.
(5) Either party may file a motion to modify spousal support
under ORS 107.135 in a proceeding to reinstate the spousal
support award. In addition to considering the factors under ORS
107.135 (3) and (4), 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.
{ + (8) This section does not apply where support has been
terminated under section 2 of this 2011 Act, unless the parties
have otherwise agreed in writing for the continuation or
reinstatement of support in the event of death, remarriage or
cohabitation. + }
SECTION 5. { + Section 2 of this 2011 Act and the amendments
to ORS 107.105 and 107.136 by sections 3 and 4 of this 2011 Act
apply to domestic relations proceedings pending or commenced on
or after the effective date of this 2011 Act. + }
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