New Case Law – Affect of Violating Statutory Asset Restraining Order
ORS 107.093 provides that when a petition for marital annulment, separation or dissolution is filed and upon service of summons and petition upon the respondent, a restraining order is in effect against the parties. Violation of the statute is punishable via contempt proceedings.
On April 14, 2010, the Oregon Court of Appeals filed an opinion in Frazier and Frazier. The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A137220.htm
The case dealt with how to address a party’s violation of the statutory asset restraining order. After filing for divorce, wife completed a refinance of the marital home. The refinance violated the statutory asset restraining order. The trial court valued her withdrawal of equity as $60,000, based upon husband’s testimony. The trial court decided that the full amount of her benefit from the refinance should be awarded to husband out of the division of assets as an equalizing judgment.
The court of appeals held that the actual benefit to wife was only $47,000, but the trial court’s ultimate determination as to what property division is just and proper in all circumstances is a matter of discretion that the court of appeals will not disturb unless the trial court misapplied the statutory and equitable considerations that ORS 107.105 requires. The court of appeals held that husband should receive a benefit of $47,000 out of the division of sale proceeds from the house.
The order provides for certain exceptions. It is important to consult a lawyer when initiating a divorce proceeding or being served with divorce paperwork with regard to how the asset restraining order affects you. Failure to consult an attorney and properly abide by the order can have harmful effects. Also, visit the following link for a prior post by Sean Stephens on this issue: http://oregondivorceblog.wordpress.com/2007/05/15/to-sell-or-not-to-sell/