Oregon family law: when is a prenuptial agreement a good idea?

April 13, 2013

Many modern couples are getting savvier about their relationships and finances. While it may not seem particularly romantic, prospective spouses often find it advantageous to come to an understanding before marriage about financial goals individually and as a couple, including what should happen to wealth, property and debts should the marriage end in separation, divorce or death.

A binding solution

When an understanding is reached, the unique desires of the parties can be made legally binding by entering into a valid premarital, or prenuptial, agreement. A prenuptial agreement is a contract between two people about what will happen to their property, money and debt should the marriage end.

Possible scenarios

For example, one spouse may own a family business that he or she wants to pass to relatives or children from another relationship instead of the new spouse. Another might want family heirlooms, antiques or pieces of art to go someone other than the new spouse or eventually the new spouse's family. Perhaps one spouse wants to divert significant property to care for an incapacitated or incompetent relative, or a spouse wants to be sure that he or she is never saddled with the debts of a spendthrift husband or wife.

The reasons for changing how property would normally be disposed of in a marriage are endless and as unique as the couple that is getting married. A prenuptial agreement can prevent expensive litigation over property or debt issues later if the marriage turns sour.

Oregon's prenuptial agreement law

In 1987, Oregon enacted its version of the Uniform Premarital Agreement Act, a model act available for adoption by any state. The advantage to having the same standards enacted in multiple states is that interpretation of or carrying out the terms of a prenuptial agreement signed in any of those states can be easier if parties move and bring their agreement with them to another uniform state.

Oregon's main provisions include:
- A prenuptial agreement is made between two people who plan to marry and takes effect when the marriage occurs.
- A valid prenuptial agreement must be written and both spouses must sign it; after marriage they may modify or revoke it only by a written, signed agreement.
- The agreement requires no consideration; in other words, nothing of value needs to be exchanged between the parties to make the contract enforceable.
- No prenuptial agreement can negatively impact child support.
- The parties may agree to terms concerning control or disposal of a broad range of joint or separate properties, including what will happen to particular property if an event occurs (or doesn't occur) such as death, separation or divorce.
- A prenuptial agreement can predetermine future spousal support, traditionally called alimony, including waiving the right to receive it.
- The parties can decide what jurisdiction's law will apply if the agreement needs to be interpreted.
- Although prenuptial agreements are generally used to determine property rights, Oregon law broadly says "any other matter" may be covered as long as it is not against public policy or in violation of criminal law.
- A prenuptial agreement will not be enforceable if it was entered into involuntarily; or if the agreement was "unconscionable" (shockingly unfair) and the disadvantaged spouse was not told about, reasonably would not have known about and did not waive the right to disclosure about property or debt of the other.
- If a waiver or modification of spousal support in a prenuptial agreement would force a spouse to rely on public benefits, a court may override that term and order support.

It is wise for each prospective spouse to speak to his or her own family law attorney about the rights and responsibilities that should be addressed in a prenuptial agreement. An experienced lawyer can assist with negotiating and drafting such an agreement.

Article provided by Suzanne J. Noland
Visit us at www.suzannenolandlaw.com