A Guide to Oregon Prenuptial Agreements

January 25th, 2023
Posted By
Sarah M. Litowich
close up of couples' hands signing a prenup - Oregon Prenuptial agreement concept
Most people are familiar with prenuptial agreements. Commonly referred to as “prenups,” many might think that these contracts are only for celebrities and the ultra-wealthy. However, this is not correct — a prenuptial agreement is a crucial legal tool that can be used by anyone who wishes to have control over their assets and property in the event of divorce. Oregon prenuptial agreements can also be used in connection with an estate plan to ensure one’s future wishes are carried out according to their goals.

What is a Prenuptial Agreement?

A prenuptial agreement is a type of contract that parties enter into before they get married. Generally, it distinguishes marital property versus separate property, determines how property will be divided if the marriage does not work out, and resolves the issue of who will be responsible for debts. In addition to controlling the distribution of property and assets, a prenup can also decide whether spousal support will be paid after divorce and other financial issues under certain circumstances

What are the Requirements for an Enforceable Prenuptial Agreement?

Every Oregon prenuptial agreement is governed by the Uniform Premarital Agreement Act (UPAA), which was adopted in 1987 and is codified under ORS 108.700–108.740. The UPAA outlines certain requirements that must be met in order for a prenup to be valid and enforceable. Under the Oregon prenup laws, a prenuptial agreement must be in writing — an oral agreement made between the parties is not legally enforceable. The agreement does not have to be witnessed, but it must be signed by both parties. It becomes effective upon marriage and can only be revoked or amended by written agreement between the spouses. Additionally, full financial disclosure by both parties is required before signing a prenup. This allows a couple to have a full picture of each other’s financial situation and a thorough understanding of the assets each owns. If an agreement is made without full disclosure or a spouse withheld information, the document may be deemed invalid if it is later brought into court to be enforced.

What Provisions Should an Oregon Prenuptial Agreement Include?

Prenups can vary widely, depending upon the specific financial circumstances of the future spouses and their objectives. An Oregon prenuptial agreement can include almost any provisions when it comes to financial matters, as long as they aren’t unconscionable, go against state law, or violate public policy. They typically cover the following issues:
  • The rights of each spouse to separate or marital property
  • The rights of each spouse to buy, sell, trade, or transfer property
  • How assets will be divided in divorce
  • Who will own or manage the family business in the event of divorce
  • Spousal support matters
  • How inheritances acquired during the marriage should be treated
  • Pet custody matters
  • Property distribution upon the death of a spouse
Critically, under the prenup laws in Oregon, an agreement cannot include a provision that reduces or eliminates a spouse’s child support obligations. If the agreement includes a provision for spousal support that would result in a party’s eligibility for public assistance at the time of divorce, a court has the discretion to modify the agreement. In such cases, a judge could require the higher-earning party to provide spousal support in an amount that would help the dependent spouse avoid having to rely on public assistance benefits.

Who Should Get a Prenuptial Agreement?

Prenups aren’t only for high net-worth individuals. Anyone who wants to clarify their financial rights and protect their assets in divorce should obtain a prenuptial agreement — regardless of their wealth. However, those who should seriously consider prenups include business owners, individuals with children from previous marriages, those who want to protect themselves from a future spouse’s debts, and those with substantial retirement benefits. Not only can these agreements help to protect assets, but the prenup process can also encourage future spouses to have important financial discussions prior to tying the knot. When preparing a prenup, couples are forced to examine crucial legal and financial issues that might otherwise have been overlooked.

Why is a Prenuptial Agreement Important?

There are numerous advantages that can come with executing a well-drafted Oregon prenuptial agreement. By discussing the content of a prenup, future spouses can ensure they are both on the same page regarding how they will handle their finances. Potential disputes can be avoided regarding things like investments and spending habits by having the open and honest conversation that is required before signing a prenup. When property division issues are determined in advance, parties can save a significant amount of time and expense that might otherwise be spent on divorce litigation. A prenup can also define the legal process that spouses agree to use if divorce is imminent, such as collaborative divorce, mediation, or negotiation. It can be much easier to decide a fair outcome for the issues that must be resolved during divorce in advance, rather than when emotions are running high. Prenups are particularly important for individuals who are entering into a subsequent marriage. While people often wish to leave property to their children when they pass away, these agreements can be used in connection with an estate plan to help to ensure a child from a prior marriage is provided for — and their inheritance is safeguarded.

Contact an Experienced Oregon Divorce Attorney

Marriage is an emotional commitment, as well as a financial one. It’s essential for future spouses to clarify their financial expectations and responsibilities to avoid the potential for conflict regarding such matters in their marriage. Based in Salem, Litowich Law provides reliable representation for drafting, negotiating, and litigating prenuptial agreements throughout Oregon. We welcome you to contact us for a consultation.
Categories: Divorce, Estate Planning