Portland Legal Services - Joanne Reisman, Attorney at Law
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PROPERTY DIVISION AND UNMARRIED COUPLES - A CAUTIONARY TALE!

The case of Staveland vs. Fisher , 25 OR App 210 (2018) demonstrates the disparity in the results between a trial court dividing property for an unmarried couples as compared to property division in a divorce. Under Oregon Law, by virtue of being married, there arises a presumption of equal contribution.  ORS 107.105. Accordingly, for married couples, it doesn’t matter what the parties say their intent was with respect to the property. It also doesn’t matter if only one spouse’s name is on the title.  It doesn’t matter if one spouse owned the property prior to the marriage (although in that case, normally only the appreciation of the property during the marriage would count as the marital portion to be shared).

For a married couple, the starting point in property division is that the court is going to  look at ALL PROPERTY owned during the marriage as the property to be split.  A spouse wanting to rebut the legal presumption of equal contribution is going to have a difficult up hill battle to prove that the two spouses did not equally contribute to the efforts in the marriage which fostered their ultimate financial state.  Keep in mind, by equal contribution, we do not mean that each spouse worked and brought home a paycheck.

The courts have long recognized that participation as a full time home maker counts as an equal contribution in a marriage.  Cases where a spouse is found to not have contributed equally tend to be extreme situations where the non-contributing spouse was completely absent from the household, perhaps due to mental illness and inpatient hospitalization, or the spouse’s participation was counter productive as in the case of a person suffering from some type of addiction who dissipates marital assets to support their addiction.

Contrast the situation with unmarried couples.  There is no presumption of equal contribution.  But rather the struggle is to prove what the parties intended with respect to property owned by either or both of them during their period of cohabitation.  As the Staveland case illustrates, this leaves the court open to make subjective conclusions based on a myriad of factors.  In the Staveland case the court ended up focusing on representations that the couple made during the cohabitation to conclude that the property bought solely by Mr. Fisher, the Dickinson House, but used as a joint residence, was intended by the couple to be a joint investment and consequently the court awards Ms. Staveland ½ of the appreciated value of the Dickinson House, which accrued during their cohabitation.   The court however refused to offset this award with any property interest being awarded to Mr. Fisher for the appreciation of the  Ainsworth house, used as a rental, which Ms. Staveland owned prior to and during the relationship.   The court again relied on evidence presented to determine that there was no similar intent to share the equity in the Ainsworth house.

So the lesson to be learned here is if you plan to live together with someone and have financial dealings, you need to put your intentions as a financial partnership IN WRITING to avoid an unexpected outcome.

    DO not assume that your relationship will last - statistically the odds are against that.

    DO not assume that living together means you will finalize your plans to get married.

    DO not assume the person that is all lovey dovey right now will still be generous and giving when you get around to breaking up.

    DO not assume that there is some kind judge who will figure everything out and make sure that fairness prevails over the facts of the case.

A DOMESTIC PARTNERSHIP AGREEMENT, PROPERLY DRAFTED BY AN EXPERIENCED ATTORNEY, CAN HELP UNMARRIED COUPLES AVOID THE PROBLEMS THAT AROSE IN THE STAVELAND CASE!



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