Prenuptial Agreements in Oregon

If a wedding is in your plans, you may also want to consider a prenuptial agreement. Premarital contracts don't carry the negative stigma they once did and are used now more than ever. A prenuptial agreement can contribute to marital satisfaction by defining common financial issues, such as how money should be spent during the marriage and outlining property division in the event of divorce.

States have varying rules about prenuptial agreements. This article provides an overview of prenuptial agreements in Oregon and what makes it enforceable. If after reading this article, you have questions, please contact a local family law attorney for advice.

What Is a Prenuptial Agreement?

A "prenuptial agreement," also referred to as a "premarital agreement" or a "prenup," is a contract between two individuals who plan to get married. In Oregon, a premarital agreement must be in writing and signed by both future spouses. The agreement will only take effect if and when the couple marries. A prenuptial agreement can resolve how spouses will share their assets, debts, and property during the marriage or in the event of death or divorce.

Who Should Get a Prenuptial Agreement?

Very wealthy individuals and individuals with children from a prior relationship should consider getting a prenuptial agreement. Additionally, a prenuptial agreement may appeal to someone who's been through a stressful divorce or someone with significant debt from which he or she wants to protect a future spouse.

Often, a prenuptial agreement is the last thing two people in love are considering. However, premarital contracts can protect a child's inheritance or prevent a messy divorce down the road. Without a prenuptial agreement, the division of a couple's assets is left up to the discretion of a judge and Oregon state law. Thus, many lawyers recommend prenups to anyone who wants to maintain control of personal assets and property.

What Does a Prenuptial Agreement Cover in Oregon?

Prenuptial agreements vary, just like the individuals who enter into them. However, for the most part, a premarital contract will generally resolve issues regarding property, assets, debts, and inheritance. Specifically, a prenup can cover any or all of the following issues:

• each spouse's rights and obligations to separate or marital property
• each spouse's right to buy, sell, use, transfer, exchange, mortgage or dispose of property
• the division of assets and debts upon death or divorce
• the ownership and management of a family business upon death or divorce
• each spouse's right (if any) to the other spouse's gifts or inheritances
• spousal support
• each spouse's entitlement to death benefits from the other's insurance policy, and
• any other matter the couple believes is essential.

Unlike a will, a prenuptial agreement doesn't have to be witnessed to be enforceable in Oregon. Additionally, spouses can change their minds after marriage and alter or amend their agreement, as long as the changes are in writing. However, a prenuptial agreement can't resolve all issues and are instead left up to the discretion of a judge.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in Oregon?

A prenuptial agreement can't decide custody or support obligations of unborn or living children. Parents and the judge must consider the child's best interests in every custody case. A judge will look at a child's best interests at the time of a hearing on custody, but not before. Therefore, parents can't decide future custody and support issues at the time they enter into a prenuptial agreement.

The court will ignore any custody provisions in a prenuptial agreement. Nevertheless, a judge can make a custody order that reaches the same result as the parents' prenuptial agreement as long as it serves a child's best interests.

Will an Oregon Court Enforce My Prenuptial Agreement?

Oregon is in the majority of states that have adopted the Uniform Prenuptial Agreement Act (UPAA), which outlines the requirements for a prenuptial agreement to be enforceable.

If a couple enters into a void marriage (because the spouses are closely related or one spouse is already married or underage), the court will uphold a prenuptial agreement only to prevent an unfair result. Nevertheless, the majority of premarital contracts are enforceable unless one of the following factors exists:

• one spouse forced the other to sign the agreement
• the agreement is severely unfair or "unconscionable" when the parties signed because:
• either spouse failed to disclose assets or debts fully
• the defrauded spouse did not waive in writing the right to know the other spouse's financial information, and
• either spouse did not have, or reasonably could not have had, knowledge of the property or financial situation of the other person.

Moreover, alimony provisions can be struck down if a spouse is forced to seek public assistance under a premarital agreement. In that circumstance, a court can go against the prenup and award alimony to a needy spouse.

The court won't necessarily deem a premarital agreement unconscionable if it awards more money to one spouse than the other. The contract must have an extreme result for it to be unreasonable. For example, in one Oregon case, a prenuptial agreement that awarded the marital home, as well as any increase in its value to the husband, was considered fair.

It's always wise to consult an attorney before signing a prenuptial agreement. Prenuptial contracts are often complicated, contain lots of legal jargon, and may require the assistance of an attorney to decipher. If you have additional questions regarding prenups, contact an Oregon family law attorney for advice.