As we pass the most romantic day of the year and the weather begins to turn sunny, we enter into the most beautiful time of the year to live in the Pacific Northwest. We also enter into the unofficial wedding season.
By Christopher Fanning
From the sunny shores of the coastline through the picturesque farmlands, vibrant urban downtown, the breathtaking natural beauty of Columbia Gorge, stunning mountainous backdrops, and beyond, many Oregonians will be entering into one of the most meaningful journeys of their lives.
Although nobody anticipates that their marriage will end, it isn’t unreasonable to consider what would happen if things didn’t work out and what if we end up getting a divorce. You may be asking yourself the following questions: Would I have to pay alimony? What would happen to my assets? How much would a divorce cost me? How much would I get from my spouse if we did get divorced? Do I need to have a prenuptial agreement?
In Oregon, prenuptial agreements are largely enforceable so long as they are not grossly unjust or lead to an inequity. A well-drafted prenuptial agreement will provide for both parties so that, in the event of a divorce, concepts of Oregon divorce law are largely followed and neither side is left with only the clothes on their back. In that sense, a prenuptial agreement can also be helpful in Oregon as it can serve as a sort of bookmark for where the parties are in their lives at the time they get married.
In the event of a divorce, the parties will need to divide their assets and liabilities. Under Oregon law, there is a presumption that both parties contributed equally to any assets or liabilities that were obtained or incurred during the marriage. That presumption doesn’t necessarily exist for assets that were brought into the marriage. However, finding the proof of exactly what you had when you were married may be difficult if you’ve been married for a significant amount of time.
It isn’t uncommon as a divorce attorney to hear a client say that he or she came into the marriage with significant assets while the other spouse came into the marriage with nothing or significant debt. However, it may be difficult or impossible to go back in time to determine what those assets and debts were worth at the time of the marriage. A prenuptial agreement can summarize which assets existed before the marriage and make it easier to sort out the assets in the event of a divorce. It may require some research and organization by the parties, but it can be the best and cleanest way to help parties maintain their premarital positions.
Additionally, a well-drafted prenuptial agreement will not create incentives for one spouse to act against the other spouse or feel as though the couple is not working as a team. In this sense, a prenuptial agreement can be helpful for a relationship in that it will get both future spouses talking about expectations for a relationship.
If you haven’t already discussed career goals, family plans, and a long-term future together, the discussion around a prenuptial agreement can force those issues to the surface so that hopefully both sides don’t have any misunderstandings.
For example, if one party is intending to be a homemaker or be less career-oriented, having the discussion of employment expectations in the context of discussing whether to exclude spousal support in a prenuptial agreement can bring that topic to the table so that both parties are aware of the expectations of the other party. These conversations can be awkward or unpleasant, but can also be invaluable support for a long and healthy marriage.
Prenuptial agreements, however, are not without their limitations. Most notably, terms in a prenuptial agreement that attempt to outline custody, parenting time, or child support for the parties existing or future children are unenforceable. Because these issues deal with children, the rights of children, and more subjective standards, such as the best interests of a child or children, any such term would not be practical.
Further, if the parties don’t abide by terms in a prenuptial agreement or if the circumstances change so that the terms are extremely difficult or impossible to follow, then the prenuptial agreement may have little to no value. For example, if at the time of marriage, a party has a separate bank account with $50,000 in it and the parties subsequently use that money to take an extensive vacation or for other joint purposes, it may be impossible for the party to get that money back. Similarly, if a party has a brand new car at the time of marriage and that marriage ends 20 years later, it does not mean that the other party will owe the other spouse a brand new car in the final General Judgment of Dissolution.
While prenuptial agreements can have their limitations, they can also be extremely helpful and effective in protecting assets and helping people know what to expect from their spouse. If you are considering having a prenuptial agreement, the attorneys at Schantz Lang, PC are available to meet with you to discuss your situation and options.
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