Appreciation of QDRO During Second Marriage Not Subject to Division

August 19, 2004 ( - Appreciation of a pension payout awarded at the end of one marriage is not subject to division at the end of a second marriage.

>The Oregon Court of Appeals found the entire sum of the original Qualified Domestic Relations Order (QDRO) account ($105,000), which includes appreciation gained during the course of the second marriage, is solely property of the wife.   Therefore, any appreciation gained during the course of the marriage – in this case $54,000 – is not subject to division.

“[T]he trial court erred in treating the appreciation in wife’s QDRO as a marital asset,” ruled Judge David Schuman.

Even though property acquired before the marriage, such as a wife’s QDRO account, is not a marital asset, as a general rule, appreciation of property during marriage is; however, the court drew a distinction in this case.   The court examined the “presumption of equal contribution,” a presumption that both parties contribute equally to the acquisition of any marital assets to find in this case that the husband did not contribute, either directly or indirectly, to the appreciation of the QDRO account.

>Additionally, during the course of the second marriage, the wife did not add to or take away from her QDRO account, nor was the account commingled with any other asset. Thus, she argues, she has overcome the presumption of equal contribution, and the trial court should have treated the entire account, including the appreciation, as her separate property.

>The appellate body agreed.

The case isOwens-Koenig andKoenig, Oregon Court of Appeals, No. A119612.