ORS Chapter 108 - Oregon Statutes

Chapter 108 — Husbandand Wife Relationship; Property Rights; Premarital

 

2009 EDITION

 

Agreements

 

MARITALRELATIONSHIPS

 

DOMESTICRELATIONS

 

GENERALPROVISIONS

 

108.010     Removalof wife’s civil disabilities; wife’s civil rights same as husband’s

 

108.015     Domicileof married person or minor child

 

108.020     Nonliabilityfor other spouse’s obligations

 

108.030     Liabilityof husband for civil injuries committed by wife

 

108.040     Liabilityof parents for expenses of family and education of children

 

108.045     Liabilityof stepparent for expenses of family and education of children

 

108.050     Nonliabilityof wife’s property for husband’s obligations

 

108.060     Noninterestof one spouse in property of other

 

108.080     Civilremedies between spouses in respect of separate property

 

108.090     Conveyances,transfers and liens between spouses; creation and dissolution of estates byentireties; validation of prior dissolutions

 

108.100     Husbandand wife as attorney in fact for each other

 

108.110     Petitionfor support of spouse and children; rules

 

108.120     Supportjudgment or order

 

108.130     Fees

 

COMMUNITYPROPERTY MATTERS

 

108.510     Revocationof election to come under terms of Community Property Law of 1943; fee

 

108.515     Dispositionof fees

 

108.520     Effectof Act repealing Community Property Law of 1947

 

108.530     Removalof community property status by agreement

 

108.540     Removalof community property status by death of either spouse

 

108.550     Relianceon spouse’s right to deal with property in spouse’s name

 

PREMARITALAGREEMENTS

 

108.700     Definitionsfor ORS 108.700 to 108.740

 

108.705     Agreementto be in writing; consideration not required

 

108.710     Subjectsof agreement; child support not to be adversely affected

 

108.715     Agreementeffective upon marriage

 

108.720     Modificationof agreement; consideration not required

 

108.725     Partymay prove agreement unenforceable; when court may require support;determination of unconscionability

 

108.730     Effectof void marriage

 

108.735     Statuteof limitations; defenses

 

108.740     Shorttitle; construction; severability

 

GENERALPROVISIONS

 

      108.010Removal of wife’s civil disabilities; wife’s civil rights same as husband’s. All laws whichimpose or recognize civil disabilities upon a wife which are not imposed orrecognized as existing as to the husband hereby are repealed; and all civilrights belonging to the husband not conferred upon the wife prior to June 14,1941, or which she does not have at common law, hereby are conferred upon her,including, among other things, the right of action for loss of consortium ofher husband.

 

      108.015Domicile of married person or minor child. (1) Each married person mayestablish and maintain a domicile in the State of Oregon as if that person werenot married.

      (2)The domicile of a minor shall follow the domicile of the parents of the minorunless the parents establish separate domiciles. If the parents establishseparate domiciles, the minor’s domicile shall be that of the parent with whomthe minor resides. However, if there has been a legal separation, annulment or dissolution,the minor’s domicile shall be that of the parent to whom custody of the minorhas been legally given. [1975 c.434 §1; 1981 c.775 §8]

 

      Note: 108.015 wasenacted into law by the Legislative Assembly but was not added to and made apart of ORS chapter 108 by legislative action. See Preface to Oregon RevisedStatutes for further explanation.

 

      108.020Nonliability for other spouse’s obligations. Neither husband nor wife isliable for the debts or liabilities of the other incurred before marriage; andexcept as otherwise provided in ORS 108.040, they are not liable for theseparate debts of each other, nor is the rent or income of property owned byeither husband or wife liable for the separate debts of the other.

 

      108.030Liability of husband for civil injuries committed by wife. For all civilinjuries committed by a married woman, damages may be recovered from her aloneand her husband shall not be responsible therefor, except in case where hewould be jointly responsible with her if the marriage did not exist.

 

      108.040Liability of parents for expenses of family and education of children. (1)(a) Theexpenses of the family and the education of the minor children are chargeableupon the property of both husband and wife, or either of them, and in relationthereto they may be sued jointly or separately.

      (b)As used in this subsection:

      (A)“Expenses of the family” includes only expenses incurred for the benefit of amember of the family.

      (B)“Family” means the husband, wife and minor children of the husband and wife.

      (2)Notwithstanding subsection (1) of this section, after the separation of onespouse from the other spouse, a spouse is not responsible for debts contractedby the other spouse after the separation except for debts incurred for maintenance,support and education of the minor children of the spouses.

      (3)For the purposes of subsection (2) of this section, spouses shall be consideredseparated if they are living in separate residences without intention ofreconciliation at the time the debt is incurred. The court may consider thefollowing factors in determining whether the spouses are separated in additionto such other factors as may be relevant:

      (a)Whether the spouses subsequently reconciled.

      (b)The number of separations and reconciliations of the spouses.

      (c)The length of time the spouses lived apart.

      (d)Whether the spouses intend to reconcile.

      (e)Whether the spouses have filed a petition for separation or dissolution.

      (4)An action under this section shall be commenced within the period otherwiseprovided by law. [Amended by 1965 c.530 §1; 1993 c.598 §1; 2005 c.732 §3]

 

      108.045Liability of stepparent for expenses of family and education of children. (1) Theexpenses of the family and the education of minor children, includingstepchildren, are chargeable upon the property of both husband and wife, oreither of them. However, with regard to stepchildren, the obligation shallcease upon entry of a judgment of dissolution.

      (2)As used in this section, “stepchild” means a child under the age of 18, or achild attending school as defined in ORS 107.108 who is in the custody of onebiological or adoptive parent who is married to and not legally separated froma person other than the second biological or adoptive parent of such child.

      (3)Notwithstanding subsection (1) of this section, the legal duty of a parent toprovide support for a child, as otherwise required by law, shall not beaffected. [Formerly 109.053]

 

      Note: 108.045 wasenacted into law by the Legislative Assembly but was not added to or made apart of ORS chapter 108 or any series therein by legislative action. SeePreface to Oregon Revised Statutes for further explanation.

 

      108.050Nonliability of wife’s property for husband’s obligations. The propertyand pecuniary rights of every married woman at the time of her marriage orafterwards acquired including real or personal property acquired by her ownlabor during coverture, shall not be subject to the debts or contracts of herhusband.

 

      108.060Noninterest of one spouse in property of other. When propertyis owned by either husband or wife, the other has no interest therein which canbe the subject of contract between them, or such interest as will make the sameliable for the contracts or liabilities of either the husband or wife who isnot the owner of the property, except as provided in ORS 108.040.

 

      108.070 [Repealed by1999 c.182 §1]

 

      108.080Civil remedies between spouses in respect of separate property. Should eitherthe husband or wife obtain possession or control of property belonging to theother either before or after marriage, the owner of the property may maintainan action therefor, or for any right growing out of the same, in the samemanner and to the same extent as if they were unmarried.

 

      108.090Conveyances, transfers and liens between spouses; creation and dissolution ofestates by entireties; validation of prior dissolutions. (1) Aconveyance, transfer or lien executed by either husband or wife to or in favorof the other is valid to the same extent as between other persons.

      (2)When a husband or wife conveys to the other an undivided one-half of any realproperty and retains a like undivided half, and in such conveyance there areused words indicating an intention to create an estate in entirety, saidhusband and wife hold the real property described in the conveyance by theentirety.

      (3)A conveyance from husband or wife to the other of his or her interest in anestate held by them by entirety is valid and dissolves the estate by entirety.All deeds heretofore executed by husband or wife to the other for the purposeof dissolving the estate by entirety are valid.

 

      108.100Husband and wife as attorney in fact for each other. One spouse mayconstitute the other his or her attorney in fact to control, sell and convey,mortgage, or bar dower or curtesy for their mutual benefit, and may revoke thesame to the same extent and in the same manner as other persons.

 

      108.110Petition for support of spouse and children; rules. (1) Any marriedperson may apply to the circuit court of the county in which the married personresides or in which the spouse may be found for an order upon the spouse toprovide for support of the married person or for the support of minor childrenand children attending school, or both, and, if the married person initiatingthe action for support is a woman who is pregnant, her unborn child, or both,if her spouse is the natural father of such children, children attending schoolor unborn child or if her spouse is the adoptive father of such children orchildren attending school. The married person initiating the action for supportmay apply for the order by filing in such county a petition setting forth thefacts and circumstances upon which the married person relies for such order. Ifsatisfied that a just cause exists, the court shall direct that the marriedperson’s spouse appear at a time set by the court to show cause why an order ofsupport should not be entered in the matter. The provisions of ORS 107.108apply to an order entered under this section for the support of a childattending school.

      (2)As used in this section, “child attending school” has the meaning given thatterm in ORS 107.108.

      (3)The petitioner shall state in the petition, to the extent known:

      (a)Whether there is pending in this state or any other jurisdiction any type ofsupport proceeding involving children of the marriage, including a proceedingbrought under ORS 107.085, 109.100, 125.025, 416.400 to 416.465, 419B.400 or419C.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.

      (4)The petitioner shall include with the petition a certificate regarding anypending support proceeding and any existing support order. The petitioner shalluse a certificate that is in a form established by court rule and includeinformation required by court rule and subsection (3) of this section.

      (5)The provisions of this section apply equally to cases where it is the husbandmaking application for a support order.

      (6)In any proceeding under this section, the obligee, as that person is defined inORS 110.303, is a party to the proceeding. [Amended by 1963 c.497 §1; 1973c.827 §12d; 1975 c.140 §1; 1975 c.458 §13; 1979 c.90 §1; 1981 c.669 §2; 1993c.596 §18; 1995 c.343 §23; 1997 c.704 §54; 2001 c.334 §7; 2003 c.73 §53a; 2003c.116 §7; 2005 c.560 §16]

 

      108.120Support judgment or order. (1) After the hearing of the petition for an orderof support the court shall make an order granting or denying it and fixing, ifallowed, the terms and amount of the support.

      (2)The court has the same power to compel the attendance of witnesses or theproduction of testimony as in actions and suits, to make such judgment ororders as are equitable in view of the circumstances of both parties and topunish violations thereof as other contempts are punished.

      (3)The judgment or order is final as to any installment or payment of money thathas accrued up to the time the nonmoving party, other than the state, is servedwith a motion to set aside, alter or modify the judgment or order. The courtmay not set aside, alter or modify any portion of the judgment or order thatprovides for any payment of money, either for minor children or for the supportof a party, that has accrued before the motion is served. However, the courtmay 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 orpursuant to court order, has physical custody of the child. [Amended by 1989c.812 §6; 1997 c.707 §21; 2003 c.419 §2; 2003 c.576 §133a]

 

      108.130Fees.At the time of filing the petition for an order of support, the petitionershall pay to the clerk of the court a fee of $6, which shall cover all chargesincident to the filing of documents necessary to a complete determination ofthe matter and no part of which shall be applied toward the library fund of thecounty. Payment of the fee is subject to the provisions of ORS 21.680 to 21.698applicable to waiver, deferral and payment of fees. [Amended by 1965 c.619 §34;1971 c.621 §23; 1975 c.607 §23; 1981 s.s. c.3 §89; 1983 c.673 §25; 2003 c.737 §§53,54;2005 c.702 §§61,62,63; 2007 c.129 §22; 2007 c.493 §16]

 

      108.140 [Repealed by1987 c.715 §10]

 

COMMUNITYPROPERTY MATTERS

 

      108.510Revocation of election to come under terms of Community Property Law of 1943;fee.(1) Notwithstanding any repeal of chapter 440, Oregon Laws 1943, known as theOregon Community Property Law of 1943, any husband and wife who elected to comeunder the terms thereof may revoke such election upon filing in the office ofthe Secretary of State a notice of their desire to revoke such election in thefollowing form:

______________________________________________________________________________

REVOCATIONOF ELECTION

TOCOME UNDER THE

OREGONCOMMUNITY

PROPERTYLAW, CHAPTER 440,

OREGONLAWS 1943

      KNOWALL PERSONS BY THESE PRESENTS, That we, _____and_____, hereby state andrepresent that we are husband and wife; that we reside in _____ County, Oregon,and our post-office address is No. _____Street, City of_____; that we do herebyrevoke our election filed in the office of the Secretary of State of the Stateof Oregon on the _____ day of_____, 2_____, to avail ourselves of theprovisions of chapter 440, Oregon Laws 1943, being the Oregon CommunityProperty Law.

      INWITNESS WHEREOF we have hereunto set our hands and seals this _____ day of_____,2_____.

 

__________________

 

__________________

 

STATEOF OREGON,          )

      )     ss.

Countyof_____          )

 

      BEIT REMEMBERED that on this _____ day of_____,

2_____,before me, the undersigned, a notary public in and for said county and state, personallyappeared the within named _____ and_____, his wife, who are known to me to bethe identical persons described in and who executed the within instrument, andacknowledged to me that they executed the same.

 

__________________

 

Notary Publicfor Oregon

 

My commissionexpires: _________

______________________________________________________________________________

 

Acknowledgmentsmay be taken by any other officer authorized to take acknowledgments.

      (2)Such an instrument, together with a fee of $15, shall be presented to theSecretary of State, who thereupon shall file the instrument, properly index itin a book kept for that purpose and transmit to the recording officer of eachcounty in the state the certificate of the Secretary of State, setting forththe nature of such instrument, the names of the parties thereto, the datethereof, and the date of the filing thereof in the office of the Secretary ofState. Upon receipt of such certificate, the recording officer shall file itand properly index it in a book kept for that purpose.

      (3)Public notice of such revocation exists upon compliance with subsection (2) ofthis section.

      (4)The filing of such revocation operates to restore the title to any communityproperty of persons making the revocation to the status of the property whichexisted on the date on which such persons filed a certificate of election underthe terms of the Oregon Community Property Law of 1943. Such revocation innowise limits the right of such persons to execute and record such conveyances,assignments and transfers of property, or title thereto, as may operate toeffect and make a matter of record the restoration of titles to the status theyoccupied prior to the filing of the certificate of election.

 

      108.515Disposition of fees.(1) All moneys received by the Secretary of State under ORS 108.510 shall bepaid into the State Treasury to the credit of the General Fund.

      (2)Any funds remaining in the Community Property Revocations Account are herebytransferred to the credit of the General Fund. [Amended by 1959 c.85 §1]

 

      108.520Effect of Act repealing Community Property Law of 1947. The provisionsof ORS 108.530 to 108.550 do not impair or affect any right acquired prior toApril 11, 1949, but the same may be enjoyed as fully and to the same extent asif ORS 108.520 to 108.550 had not been passed, under and according to the lawin force at the time such right was acquired, except as provided in ORS 108.530and 108.540.

 

      108.530Removal of community property status by agreement. Communityproperty acquired during coverture and between July 5, 1947, and April 11,1949, may be converted into property held as tenants in common or by entiretyor as the separate property of either spouse by an agreement in writingevidencing such intent, signed by both husband and wife. If such agreementaffects title to real property, it shall describe the property affectedthereby, shall be executed and acknowledged in the same manner as deeds andshall be recorded in the deed records of each county in which any such realproperty is located.