January 23, 2011

Premarital Asset Protection With A Prenuptial Agreement – Requirements For Validity

As Portland Oregon based divorce lawyers, we get a lot of questions from people about protecting existing wealth or income in the event of a divorce.  The time lawyers can help the most is before a new marriage through a premarital agreement, also known as a prenuptial agreement. After the marriage a lawyer can help some with a “post-nuptial agreement”, however there are issues with the enforcement of post-nuptial agreements.  In Oregon, married spouses share a series of statutory rights that are listed in ORS 107.105. Two important rights are the right to share in property acquired during the term of the marriage, and the right to spousal support if appropriate under the facts of the divorce.  A prenuptial agreement lets couples alter these statutory rights on divorce by entering into a contract before marriage to do so.  The Oregon legislature has endorsed the use of prenuptial agreements, if they met certain requirements. To be enforceable, a premarital agreement must be:

  1. executed voluntarily
  2. Not unconscionable when it was executed and, before signing, the party
  3. Was  provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  4. voluntarily waives in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure
  5. provided; and
  6. Had or could have had an adequate knowledge of the property or financial obligations of the other party.

Spousal support rights can be altered, however, if the support provisions would cause the spouse to go on public assistance, the court can order enough spousal support to prevent this from happening.

If you are contemplating a new marriage and have income or assets you wish to protect in the event of divorce, or if you are asked to sign a prenuptial agreement you should consult with a lawyer.  The lawyers at Stephens & Margolin LLP have substantial experience representing clients with prenuptial agreements.