Q: My wife and I are getting divorced in Oregon. After separating and separate bank accounts, can my wife take my money?

A: Under Oregon Law a court can consider all property held by either or both spouses at the time the court is asked to adjudicate the divorce. Unless you had a judgment of legal separation previously rendered by a court, your voluntary separation does not divide your property such that the court cannot now conclusively consider it as part of the marital property.

Until there is a judgment of divorce or legal separation, the court is going to use a presumption of equal contribution. So the court starts with the idea that all property has been acquired by the equal contribution of both spouses and should therefore be split equally in half. This presumption under Oregon Law is rebuttable. So you can make the argument that the money in your separate bank account is not the product of the equal contribution of both spouses. The court may or may not agree with you. You have the burden of convincing the court that not to apply the presumption so if it isn't clear, you lose.

Remember the court is looking at the complete picture and that includes sweat equity that your spouse may have put into the acquisition and maintenance of marital property. Equal contribution is not about an analysis of earnings and expenditures. It includes non-monetary domestic duties such as house keeping and child care for example which in theory enables the other spouse to have more time to go to a job and earn money.

For example, let's say you both have a house and you moved out to live somewhere else while your spouse stayed in the house and paid the mortgage and did maintenance and repairs that increased the value of the house using their own money. Now you want half the value of the house which you consider joint marital property. Because you moved out and didn't contribute labor or funds you were able to save your own income in a bank account that you now want to claim is your separate funds. Your situation may not present such an obvious inequity but the point is that sometimes it is hard for the court to draw a bright line as to when the couple is no longer equally contributing to the overall financial picture that is now before the court to divide.

You will need to talk to an Attorney and explain the situation to get an idea of what your Attorney thinks is likely to happen. It may be cheaper just to split things equally then spend a lot of money on Attorney's Fees especially if what you are fighting over is not that much money and the period of separation is relatively short. One thing is certain, the sooner you get divorced the sooner you and your spouse will be legally disentangled. There can however be good reasons to put off the divorce. For example if your spouse was not working when you separated, giving your spouse time to get on their feet and get employed may lessen your risk of being ordered to pay transitional spousal support when the case finally goes before the court. Each situation is unique and only by talking to an experienced Divorce Attorney can you come up with the strategy that is best for your situation.