Questions about rights and duties arise before and during marriage as well as after/during divorce. Whether you are contemplating marriage and want to clarify property issues to guard against future disputes or are in need of counsel to address issues that have arisen in the course of your marriage, we have alternatives that can help. The following agreements are the most common.
□ Judgments of separation that may include a written agreement between the parties (“legal separation”); and
□ Separation Agreements that are contracts in which spouses voluntarily agree not to cohabit (“separation agreements”).
Either of these documents can specifically address the parties’ rights and obligations including, child custody and parenting time, child and spousal support, and, finally, division of property and debts.
Unlike a divorce, separation merely suspends the effect of the marriage in terms of cohabitation. In other words, separated spouses are no longer obligated to live together as husband and wife for whatever term is agreed. However, the marriage itself is not affected. In addition, third parties such as creditors and health or life insurance companies may not be bound by the agreements you reach with your spouse. Before you enter into a separation agreement, contact me to discuss whether the separation is the best way to accomplish your goals.
How Do Premarital Agreements Work?
Prenuptial or premarital agreements are a way for a couple to change the rights and duties otherwise created by law upon marriage. It is an agreement between you and your prospective spouses made in contemplation of your marriage. Prenuptial agreements become effective upon your marriage. Since 1987, Oregon has followed the Uniform Premarital Agreement Act which requires that any prenuptial agreement be in writing and signed by both parties.
The complexity and breadth of prenuptial agreements vary from couple to couple according to facts and their legal needs. A prenuptial agreement can create or redefine each party’s rights and responsibilities as to:
□ The division of marital assets and debts in the event of divorce
□ The transfer of assets you wish to secure for your children or other heirs in the event of divorce or your death
□ The payment of spousal support/alimony upon divorce
□ What will occur upon the death of one spouse
□ How inheritances acquired during the marriage are to be treated
□ How a spouse’s trust is addressed
Although enforceable under Oregon law, prenuptial agreements are closely scrutinized. Thus, agreements that reduce either party to poverty or ones executed without adequate disclosure or as a result of coercion may not be enforceable. It is recommended that a prenuptial agreement be drafted and signed with as much time as possible before the wedding date. If you or your /fiancée may be wondering whether a prenuptial agreement is right for you, contact me to discuss the necessary legal requirements and steps to take.
Is A Premarital Agreement Right For Me or My Fiancé?
No one newly engaged or on planning their wedding wants to think about divorce. However, it is advisable for couples to examine key life issues together to identify common values and provide for their differences. There is a common belief that prenuptial agreements are only for the wealthy or the shrewd. However, now, more than ever, prenuptial agreements benefit a broad range of people and are a wise choice for
□ single parents
□ A spouse who has separate, significant assets
□ business owners or professionals in sole practice
While many engaged couples don’t hesitate to seek premarital counseling from a member clergy member, or family counselor, a discussion of legal matters with legal counsel is often overlooked. A prenuptial agreement can serve many purposes, and may be an especially wise choice for you. Call or email me to discuss drafting a prenuptial agreement that will protect your interests.
Post Nuptial Agreements
There are two types of agreements commonly included within the term “post-nuptial agreement.” The first is really a divorce settlement (addressed below) whereas the second is an agreement between two spouses by which they intend to change their rights and duties but not incident to a pending or contemplated divorce. Said differently, a post nuptial agreement in the truest sense of the word is a prenuptial agreement signed after you get married. The Uniform Premarital Act Agreement does not apply to such agreements however. Neither the courts nor the laws of Oregon expressly approve “postnuptial” agreements. Notwithstanding the uncertainty as to the legal effect of post nuptial agreements, several courts have interpreted parties’ rights under postnuptial agreements in effect conceding their validity. Thus, before you sign a postnuptial agreement, call me to discuss the effect of such an agreement and whether it accomplishes your intended goals.
It is possible and generally advisable for spouses to decide themselves how their rights and duties will be structured following their divorce. After all, parents generally know best their child’s needs and how they can meet those needs. Similarly, most couples have particular ideas about the best division of debts and assets. If spouses can come to their own agreement, they save resources by avoiding attorneys fees and litigations costs. Sometimes parties are able to amicably split both their relationship and the property. At other times, some external and objective guidance is all that is required to bring spouses together to reach mutually agreeable terms. At other times, court and the litigation process are necessary before the parties can resolve these issues. However, not all cases, and in fact the vast majority do not go to trial. When spouses agree on the all of the terms of their divorce — regardless of what stage of the process this occurs — the resulting agreement can be reduced to a written contract that is adopted by the court in rendering a final judgment.
To be included in a judgment or enforceable, your divorce settlement must be “just,” “equitable,” and “fair.” To get help in devising creative approaches that will provide for your financial and other family needs as well as to reach an agreement that can be given full effect by the court, call me to discuss preparation of an agreement or review of one that has already been drafted.