Davis and Davis

Under ORS 107.105, if the property at issue is a personal injury settlement, the equal contribution presumption is overcome when the injured spouse can prove that the other spouse did not have a part in the settlement and failed to claim damages for consortium.

Husband appealed a judgment of dissolution and challenged the trial court’s division of property. During the course of the marriage, husband recovered a sum of money in a personal injury settlement. He assigns error to the trial court for determining the he did not rebut the presumption of equal contribution regarding the settlement. Under ORS 107.105, the court must first determine when the property was acquired. Second, if the property was acquired during the course of the marriage it is considered a marital asset and there is a rebuttable presumption that both parties contributed equally to it. If the presumption is not rebutted the marital assets will be divided equally. Finally, the statute requires that the court make an equitable and just distribution of the property in light of the presumptions, overcome or otherwise. The Court determined that because husband’s personal injury settlement happened after their separation and wife played no role in securing it in any way and claimed no damages for loss of consortium, the husband had rebutted the presumption of equal contribution. Remanded for reconsideration, otherwise affirmed.