January 23, 2011

Premarital Agreements – What Can You Agree To?

We previously blogged about how Oregon courts recognize premarital agreements on divorce if certain requirements are met during the negotiation process. We get a lot of questions from people about the scope of what can be agreed to in a prenuptial agreement.  A common question we get is can you contract for custody and parenting time on divorce? The answer is no, because the court always has the power to independently determine what is in a child’s best interests. Fortunately, the Oregon Legislature has defined the permissible scope of what can be agreed to in ORS 108.710.  By statute, parties are allowed to contract in a prenuptial agreement regarding:

  1. 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;
  2. 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;
  3. The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
  4. The modification or elimination of spousal support;
  5. The making of a will, trust or other arrangement to carry out the provisions of the agreement;
  6. The ownership rights in and disposition of the death benefit from a life insurance policy;
  7. The choice of law governing the construction of the agreement; and
  8. Any other matter, including their personal rights and obligations, not in
  9. violation of public policy or a statute imposing a criminal penalty.
  10. The right of a child to support may not be adversely affected by a premarital agreement.

The ability to contract away spousal support rights is not unlimited, and the court won’t allow a spouse to be forced on to public assistance by the terms of a prenuptial agreement. You can’t contract for custody, parenting time, or child support, or any other term that is against the public interest or illegal.  Other than these basic restrictions, parties have the freedom to contract for whatever property or estate planning arrangements they want.  Talk to a lawyer prior to getting married if you have concerns about what a court might do with your property or income on divorce, and want some certainty in what will happen.