According to a survey administered by the American Academy of Matrimonial Lawyers (AAML), 63% of divorce attorneys had noticed an increase in prenups between 2010-2013. According to an AAML press release, the top three items most commonly covered by the marriage contracts were cited as “protection of separate property” (by 78% of respondents), “alimony/spousal maintenance” (at 74%), and “division of property” (with a 68% total). Parties seeking protection in the event of divorce want to know, “How is a prenuptial agreement enforced?” and “Do prenuptial agreements hold up in court?”

Prenuptial Agreement Enforcement in Oregon

In general, five elements are required to enforce a valid prenuptial agreement:

The agreement must be in writing,
It must have been executed voluntarily,
There must have been a full disclosure of assets and liabilities between the parties at the time of execution,
The agreement cannot be unconscionable, and
The premarital agreement must have been be executed (signed) by both parties– preferably before a notary public (i.e. notarized).

ORS 108.725 provides as follows:

(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(a) That party did not execute the agreement voluntarily; or
(b) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(A) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(B) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(C) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance or medical assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
(3) An issue of whether a premarital agreement is unconscionable shall be decided by the court as a matter of law.

Enforcing a Prenuptial Agreement During Divorce

If you have a prenuptial agreement and are facing divorce, contact an experienced Oregon divorce lawyer. Enforcement of the prenuptial agreement will not be automatic, and you’ll need legal representation. Generally, Oregon favors enforcement of prenuptial agreements and marital settlement agreements. But if you have significant assets, you do not want to leave them to chance.