Oregon Equity Standards
In equity states in particular, and also in community property states by the parties' agreement, it may make sense for the parties to distinguish between "individual" and "marital" (joint) property and debts. Property received and debt incurred prior to marriage, if segregated and identifiable, may be treated as individual property and not subject to a concept of equal division. Property acquired during the marriage and earnings on that property are almost always treated as "marital property."
The distinction between "individual" and "marital" property is often hard to predict in court. For example, with regard to gifts and inheritance, the donor's intent and the way in which the parties dealt with the property are probative in determining the appropriate equitable division. The fact that it may be hard to predict how a court would treat property can be turned to the mediator's advantage. Any time there is substantial risk in moving forward to court, this can be utilized to develop motivation for a controlled settlement in mediation.