Under English common law tradition– from which our American legal doctrines and concepts have developed– a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. With greater equality between the sexes, many people today might view marriage as a business merger. It naturally follows that martial contracts can contain marital agreements.
What Types of Agreements Can You Have In A Marriage?
Oregon marital agreements can include prenuptial agreements (also called antenuptial or premarital agreements, aka “prenups” or “prenupts”), postnuptial agreements, and martial settlement agreements. A prenuptial, antenuptial, or premarital agreement (aka “prenup” or “prenupt”) occurs before marriage. A postnuptial agreement or martial settlement agreement occurs after marriage.
Pursuant to ORS 108.710, the following subjects can be covered in a prenuptial agreement:
- 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;
- 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;
- The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support;
- The making of a will, trust or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
Note that the right of a child to support can not be adversely affected by a premarital agreement. Also, the prenuptial agreement cannot dictate child custody or restrict parenting time.
Martial Settlement Agreements in Oregon
It is public policy in Oregon to encourage settlement, and to enforce written settlement agreements. ORS 107.104 states:
(1)”It is the policy of this state:
(a) To encourage the settlement of suits for marital annulment, dissolution or separation; and
(b) For courts to enforce the terms of settlements described in subsection (2) of this section to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.
(2) In a suit for marital annulment, dissolution or separation, the court may enforce the terms set forth in a stipulated judgment signed by the parties, a judgment resulting from a settlement on the record or a judgment incorporating a marital settlement agreement:
(a) As contract terms using contract remedies;
(b) By imposing any remedy available to enforce a judgment, including but not limited to contempt; or
(c) By any combination of the provisions of paragraphs (a) and (b) of this subsection.
(3) A party may seek to enforce an agreement and obtain remedies described in subsection (2) of this section by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under subsection (2)(b) of this section is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.
(4) Nothing in subsection (2) or (3) of this section limits a party’s ability, in a separate proceeding, to file a motion to set aside, alter or modify a judgment under ORS 107.135 or to seek enforcement of an ancillary agreement to the judgment.
Note that the right of a child to support can not be waived in a marital settlement agreement if it would violate Oregon public policy. Also, the parties in a divorce can stipulate to (agree upon) a set amount for child support, but either party can later request a modification. ORS 109.100 and ORS 25.287(1) authorize both a child and the State to seek modification of parents’ child support obligations, regardless of parents’ willingness to do so. Also, the marital settlement agreement cannot dictate child custody or restrict parenting time. While the parties can stipulate to legal custody and parenting time, either parent can later move the court for an order modifying legal custody or parenting time upon a substantial change in circumstances since the last custody order.
Enforcing Marital Agreements in Oregon
Enforcing a marital agreement in Oregon starts with the proper drafting of a clear and legally-binding document. Many parties– in an effort to save money– attempt to draft their own agreements. Often they will download a random template off the Internet from a totally different legal jurisdiction from the one in-which they reside.
If you are looking to protect your interests in a marriage or divorce, contact an experienced Oregon divorce attorney for proper representation. Our office has experience drafting:
- Premarital agreements (aka antenuptial or prenuptial agreements),
- Postnuptial agreements, and
- Martial settlement agreements as part of a divorce.