Oregon Pre-nuptial Agreement Act containing sections 108.700 to 108.740, is simple but serves the cause of the people in the best possible way.
Oregon Pre-nuptial Agreements
Irrespective of the age of a person, undoubtedly romance plays the major and leading role in motivating a person to get married. But marriage creates a different impact, duties and responsibilities in a person according to his age. For example, a person who is getting married in his 40s has more duties and responsibilities than a person who is getting married in his 20s.But irrespective of the age group, economic factors play vital role in the life of a person in varying degrees. Moreover, in US, the institution of marriage having lost its sanctity and relevance has become more formal and just ‘an extension of dating’. Ever since the enactment and introduction of ‘no fault divorce law’ in various states of US, the rate of divorce has increased rapidly. Of late, nearly 50 % of the marriages lead to divorce. Therefore, naturally, any person in US who proposes to get married needs protection and accordingly he has to plan his life prior to his marriage.
Any person who proposes to get married with a person can enter into a Pre-nuptial or premarital agreement with him or her, so as to safeguard their assets and regulate their liabilities. In fact, on entering into a pre-nuptial or premarital agreement, it creates some legal bindings on the persons who enter into the agreement besides preventing the general operation of law in the disposition of their assets and liabilities.
At the early stages of the evolution and practice of pre-nuptial or premarital agreements, there were some misconceptions about the real purpose they would serve:
- They emanated out of disbelief and mutual mistrust prevailing between the parties who propose to get married.
- A pre-nuptial agreement presages a divorce between the parties entering into the agreement.
In order to dispel such misconceptions and wrong notions,since1983, most of the states in US have enacted Uniform Pre-nuptial Agreement Acts.
The State of Oregon has its own Uniform Pre-nuptial Agreement Act. Sections 700 to 740 of Chapter 108 of Oregon Statues are referred to as the Uniform Pre-nuptial agreement Act.
Definition of Pre-nuptial Agreement:
‘Pre-marital agreement’ means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. (108.700 (1))
Therefore, a pre-nuptial agreement is entered into between the prospective spouses who propose to get married. It comes into force only after the marriage. (108.715)
The main purpose of the Pre-nuptial agreement is to safeguard the properties of the parties to the agreement. Property is defined under section 700 (2) as follows: ‘Property means an interest present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.’
Prerequisites of Oregon Pre-nuptial Agreement:
As enjoined by Section 705 of Chapter 108: A Pre-nuptial agreement must be reduced into writing and it should be signed by both parties to the document. No consideration is required for enforcing the pre-nuptial agreement. Only a written document will have evidentiary value in a court of law in case a dispute arises between the parties to the document. Besides, a written pre-nuptial agreement also clearly defines and spells out the real intention of each party in arriving at the document and prevents them from retracing what they have already specifically agreed to in the document.Besides, before entering into a pre-nuptial agreement, each party should separately consult a lawyer allowing a reasonable time.Any hasty decision to arrive at a pre-nuptial agreement will always be viewed with suspicion by the court.
Oregon Pre-nuptial Agreement Act also specifically provides for the subject matter on which the parties can enter into a pre-nuptial agreement: (108. 710 (1))
- The rights and obligations of the parties in the disposition of their properties: the properties acquired by either of them, before or after the marriage;
- The right to buy, sell or use the property in any manner as they wish.
- The right of disposition of the property in the event of separation, death or the occurrence of any other event.
- Providing for spousal support or modification in spousal support
- Enacting a Will or creating a Trust or making any other arrangement for the disposition of the properties.
- Providing for the disposition of the insurance policy amount in the event of death.
- Choosing the law according to which the agreement must be framed and the provisions governed.
- Any other matter not opposed to the public policy.
Provision for child support:
Oregon Pre-nuptial Agreement Act specifically provides under Section 710(2) of 108, the provisions of the pre-nuptial agreement should not in any way affect the rights of a child for support from the parties to the agreement.
Provision for amendment or revocation:
Once a pre-nuptial agreement is enforced, if necessary, the parties may provide for amendments in the agreement or even revoke the pre-nuptial agreement through a separate written agreement to that effect, as enjoined under section 720 of 108 of the Oregon Pre-nuptial Agreement Act. Sometimes, the social and economic conditions of the parties may entirely change subsequent to the marriage. For example, the parties to the pre-nuptial agreement were ordinary citizens, when they entered into the agreement.But after the enforcement of the agreement, any one of them may attain stardom in Hollywood or one of them may become a senate or a governor of a state, needing amendments in the agreement or revocation of the agreement.
Situations under which the pre-nuptial agreement may become unenforceable or become unconscionable: (Section 725 of 108.)
After the enforcement of the pre-nuptial agreement, if a party chooses to oppose it under the following grounds:
- He or she did not sign the agreement voluntarily
- The provisions of the agreement are unconscionable
- One party feels that the other party to the agreement did not disclose all his or her assets or debts or obligations correctly. Hence, there was no fair and reasonable disclosure. Hence, there was no mutual trust between them that led to disbelief.
- If the pre-nuptial agreement provides for no spousal support, but subsequently, one of them becomes very poor needing spousal support from public fund, the court may order the other party to provide spousal support to the needy spouse.
- If the provisions of the agreement are unconscionable, it has to be decided by the court.
Effect of void marriage upon the pre-nuptial agreement: (Section 730 of 108)
Subsequent to the enforcement of a pre-nuptial agreement, if a marriage becomes void, the provisions of the agreement will still be enforceable unless they lead to an inequitable result.
Any Oregon Pre-nuptial agreement arrived at is subject to the statues of limitations and either party to the agreement can avail those provisions.
A sample of the Pre-nuptial agreement:
Gary, referred to as the prospective husband, and Mary, referred to as the prospective wife, agree:
The parties contemplate marriage in OR and desire to fix their respective rights and entitlements regarding each other's property.
Each party herewith waives the right to:
- Share in each other's estate upon death, whether by will, dower, courtesy, statutory share, statutory right, whether such right now exists by statute or case law.
- Share in any pension, profit sharing, government or military pension plan.
- Share in the increase in marital assets regarding separate property during marriage.
- Alimony, whether permanent or rehabilitative, separate maintenance, or other forms of spousal support, or division of property due to their status of marriage or former marriage.
Each party acknowledges an opportunity to consult with independent counsel of their own choosing.
Each party hereby acknowledges that:
* Each spouse represents to the other that he/she has adequate separate resources for his/her own support.
* Each spouse has made a full and complete disclosure of his/her respective financial conditions to the other prospective spouse.
This pre-marital agreement represents the entire agreement of the parties, and there are no representations other than those stated herein. This agreement may only be modified in a writing executed by both parties.
EACH PARTY IS AWARE THAT UNDER THE LAW, COURTS HAVE THE AUTHORITY TO IGNORE THIS AGREEMENT UNDER CERTAIN CIRCUMSTANCES IF ONE SPOUSE IS IMPOVERISHED AND THE OTHER IS NOT.
READ CAREFULLY BEFORE SIGNING. THIS IS A LEGALLY BINDING INSTRUMENT.
Dated: March 30, 2011
A Pre-nuptial agreement arrived at between the parties have the following advantages:
- It safeguards the properties of parties to the agreement, protecting family assets and business assets.
- It defines and limits the obligations of the parties.
- It ensures child support
- It provides for spousal support
- It provides for predetermined disposition of properties through will and inheritance and other ways of disposition of properties and prevents and limits the operation of the general law.
- In case of divorce, it reduces the litigation cost
- It helps to avoid protracted legal proceedings in a divorce
- It protects creditors.
- It helps to allay the fears of family members.
Thus Oregon Uniform Pre-nuptial or Premarital agreement Act besides being simple serves the interests of the people in the best possible way.