Wedding venue booked? Check. Photographer selected? Check. Cake tasted? Check. Flower arrangements picked out? Check. Prenuptial agreement signed? It should be.
It is no secret that negotiating a prenuptial agreement is unromantic and, at times, uncomfortable. However, it is typically well worth it if the marriage fails. As the rate of divorce rises, couples are becoming more interested in entering into prenuptial agreements before they marry. Prenuptial agreements are not just for couples with a lot of wealth. They are suited for couples that wish to put the financial cards on the table and agree on a method of division at the outset.
It is important to understand what the law is in Oregon without a prenuptial agreement. Without an agreement otherwise, the court has the authority to divide all property owned by the parties, regardless of how held, including but not limited to jointly held marital property, separately acquired property, inherited property and property acquired prior to the marriage. The court must make a division of property that is considered “just and proper”. For couples who do not wish to leave this division in the hands of a judge, a prenuptial agreement is the way to go.
When it comes to drafting the agreement, there are many options. Not all prenuptial agreements look alike. The agreement should be tailored to the specific couple depending on the details unique to them, including but not limited to; their ages, current and future financial picture, health concerns, and family planning needs. Some prenuptial agreements will be very lengthy while others may be very short. A prenuptial agreement can be used to segregate assets that the parties already each have, and it can be used to segregate assets that one party may acquire in the future. The agreement can specify how a couple agrees to divide assets in the case of a divorce. The agreement can address spousal support. The agreement can be used to protect one asset, or it can be drafted to protect all assets of the parties based on how the assets are held.
It is crucial that a prenuptial agreement is drafted correctly and executed carefully. If not done correctly, the prenuptial agreement could be determined to be unenforceable. The prenuptial agreement should be drafted, negotiated and signed as soon after an engagement as possible. The closer the finalization of the agreement is to the wedding date, the less enforceable it is. Once the wedding plans are made and the invitations have been sent, most people feel significantly more pressure to sign an agreement that they do not agree to. It is also important for both parties to have independent legal advice prior to signing the prenuptial agreement. Finally, the prenuptial agreement must be conscionable. To this end, there must be a full disclosure of assets and debts. Also, a waiver of spousal support by a party must not cause that party to qualify for public assistance.
While the prenuptial agreement process can be unromantic, divorces involving contested asset division issues are expensive. If the marriage does not last forever, the unromantic process will be worth it.