How To Get A Prenup In Oregon
A prenuptial agreement is used to change the rights and obligations parties would normally have as a result of getting married. It is a contract between two people to follow a set of rules that are different than what would ordinarily happen if they were to get divorced.
The question on how to get a prenuptial agreement hinges on making sure you have a prenuptial agreement that is enforceable. Although it might appear to be as simple as drafting out a few small agreements and signing a document, there are steps you need to take to make sure that the agreement will hold up in court if you need to enforce it.
What Makes A Prenup Enforceable?
The best way to help make an agreement enforceable is to make sure that one of the provisions of ORS 107.725 is not implicated. The exact text of the law states:
1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(a) That party did not execute the agreement voluntarily; or
(b) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(A) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(B) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(C) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
The key to having a strong prenuptial agreement lies in the following ideas:
- Full disclosure. Make sure the other party knows what exists and what they are agreeing to.
- Independent Counsel. Make sure each party has their own attorney review the agreement.
- Time. Each party should have adequate time to review and understand the agreement.
- Reasonableness. The agreement has to be reasonable. If one spouse brings 100% of the assets into the marriage, and the other spouse has nothing, it may not be reasonable that a divorce of a thirty year marriage, one spouse walks away with nothing.
What Can I Agree To In A Prenup?
The list of things that you can agree to quite large. You can make agreements from everything relating to property division, spousal support, wills, trusts, life insurance, etc.
The official list is as written in ORS 108.710:
(1) Parties to a premarital agreement may contract with respect to:
(a) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(b) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property;
(c) The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
(d) The modification or elimination of spousal support;
(e) The making of a will, trust or other arrangement to carry out the provisions of the agreement;
(f) The ownership rights in and disposition of the death benefit from a life insurance policy;
(g) The choice of law governing the construction of the agreement; and
(h) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
What Can I NOT Agree To In A Prenup?
There are many things you can put in a prenuptial agreement, but Oregon law is clear that the two things you cannot agree on are child support and a spousal support provision that will require the other spouse to be on public assistance:
ORS 108.710(2) The right of a child to support may not be adversely affected by a premarital agreement.
ORS 108.725(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance or medical assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
Should I Draft My Own Prenuptial Agreement?
Only if you aren’t worried about whether it is valid and enforced if you get divorced. It is at the very least worth a consultation to ensure you are protected.