The all-inclusiveOregon prenup

The controlling statute & cases

What is the governing law in Oregon?

Oregon enacted its own version of the Uniform Premarital Agreement Act (UPAA) in the 80s. It is still the controlling law on prenuptial agreements in Oregon today. You can find Oregon's governing prenup laws at Oregon Revised Statutes sections 108.700 to 108.740. In addition, case law in Oregon also helps fill in the gaps on prenup law in the state. For instance, Bowers and Bowers, 143 Or App 24, 922 P.2d 722 (1996) is one of Oregon's landmark cases, where it expressly shows its public policy favoring prenups by stating “The purpose of entering into an antenuptial agreement is self-protection.” Oregon case law also helps fill in the other gaps where the prenup statute is lacking.

Is Oregon a UPAA state?

Yes. Oregon enacted the UPAA in 1987, almost exactly the same as the model act, with minimal material changes. This means that Oregon Revised Statutes sections 108.700 to 108.740 are almost identical to the UPAA model act that was available at that time, and it tells us how prenups should be created, enforced, and amended. The UPAA was meant to provide states with a sample of how prenup statutes should look, based on a committee dedicated to researching current law and trends, and to create consistent statutes across the US.

Requirements for an Oregon prenup

What are the requirements for a prenup in Oregon?

In Oregon, a prenuptial agreement must be in writing, signed, voluntarily entered into, not unconscionable, and there should be fair and reasonable disclosure of financials (or a waiver of such). There is no requirement for notarization or witnesses.

Requirements:

• In writing
• Signed by both parties
• Entered into voluntarily
• Not unconscionable when it was executed
• Fair and reasonable disclosure of each party's property and financial obligations, or a written waiver of that disclosure

The writing and signature requirements come from ORS § 108.705, and the enforcement standard, including voluntariness, unconscionability, and disclosure, comes from ORS § 108.725. The disclosure piece is where most couples spend their time, and it is worth spending it: debt counts just as much as assets. Among HelloPrenup couples in Oregon, the median debt disclosed during the process is $81,000, which is exactly the kind of number that is easier to put on paper before the wedding than to argue about after it. You can read more about how to approach financial disclosure before you start.

Does a prenup need to be notarized in Oregon?

No, prenups in Oregon do not need to be notarized, though getting them notarized anyway is often a good way to protect the agreement even further by verifying that each party actually signed the agreement. It can deter future arguments regarding signatures, such as whether one party forged a signature or not. Signing in front of a notary public requires both parties to visibly appear in front of the notary (virtually or in-person), and verify their identity. It's very difficult to argue that the signatures were fraudulent because there was another person witnessing it and confirming identities.

Do both parties need a lawyer for a prenup in Oregon?

No, Oregon courts have made it clear that hiring a lawyer for your prenup is not strictly required. However, it can help. For example, in Rudder and Rudder, 230 Or App 437, 217 P.3d 183 (2009), the court explained that when evaluating the voluntariness of a prenup, it can consider whether or not there was an attorney, whether either party had the opportunity to hire a lawyer, the amount of time before the wedding, the sophistication of the parties, and the level of financial disclosure. All of these, taken as a whole picture, speak to whether or not the parties entered into the agreement voluntarily. However, hiring an attorney is still not required, but it can help show a court (as one piece of the puzzle) that the parties took voluntary steps to enter into the agreement.

What makes a prenup invalid in Oregon?

A prenup may be deemed invalid in Oregon if it is not properly signed, there is inadequate (fair and reasonable) financial disclosure, either party did not enter into it voluntarily, or the agreement is unconscionable. In addition, a court may throw out parts of an agreement if they are ambiguous, meaning a court cannot decipher the meaning and the parties disagree on the meaning, or a clause is against public policy.

The voluntariness aspect of these requirements looks at whether either party had the opportunity to hire a lawyer, the amount of time each person had before the wedding, the amount of disclosure, and the sophistication of each spouse when signing the agreement.

How long before the wedding do you need to sign an Oregon prenup?

There is no set time before a wedding that you need to sign an Oregon prenup. However, timing can be taken into consideration by a court if one party is arguing that they didn't sign the agreement voluntarily. A timing pressure can speak to a person's voluntariness, in some circumstances. That is not always the case, though. For example, in Simmons v. Simmons, 82 Or App 540, 728 P.2d 921 (1986), an Oregon court upheld a prenup signed four days before the wedding. The court relied on the fact that the wife had received advice from her husband's counsel to urgently seek an attorney and explained the consequences of such to her. The bottom line is that timing alone does not invalidate an Oregon prenup, but it may come into the conversation if the prenup is ever challenged.

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What can & can't be in an Oregon prenup

Does cheating invalidate a prenup in Oregon?

No, cheating alone does not invalidate or void a prenup in Oregon. The grounds for invalidating an agreement include improper signatures, improper financial disclosure, involuntariness when signing the agreement, and/or unconscionability. Nowhere in the Oregon prenup statutes does it say that marital infidelity may lead to the invalidation of a prenup.

Are infidelity clauses in prenups enforceable in Oregon?

Oregon prenup statute ORS § 108.710 lays out what may and may not be included in prenuptial agreements. It specifically states: “Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” So, the question becomes, are infidelity clauses in violation of public policy? It has not been specifically addressed by an Oregon court as it relates to prenuptial agreements, however, we can deduce that they are against public policy because Oregon Revised Statutes § 107.025(1) lays out the grounds for divorce, and adultery has been removed as an option, potentially as a violation of Oregon's public policy. Many states have moved toward 100% no-fault divorce grounds as a matter of public policy, so it is likely that an Oregon court would find clauses based on misconduct to also run afoul of public policy.

Can a prenup include child custody matters in Oregon?

No, prenups in Oregon may not include custody arrangements. This is because child custody is an issue for the court to determine at the time of divorce, based on the best interest of the child, not based on contractual arrangements between the parents, possibly years prior to the event. This could be a dangerous term to enforce if upholding custody arrangements in a prenup were actually (in reality) detrimental or unsafe to the children. Oregon's statute is explicit on the related point that ORS § 108.710 does not let a premarital agreement adversely affect a child's right to support.

Can a prenup protect inheritances in Oregon?

Yes, prenups in Oregon often include provisions to ensure inheritances are kept separate in a divorce. In fact, about 92% of Oregon-based HelloPrenup users opted to keep future inheritances separate in their prenuptial agreement. As you can see, this is a common reason Oregon couples choose to get a prenup, among other reasons, like protecting businesses, children from previous marriages, and premarital homes.

Can a prenup protect businesses in Oregon?

Yes, prenups in Oregon can protect businesses. In fact, about 93% of Oregon-based HelloPrenup users opted to protect premarital businesses in their prenuptial agreement! It's a very common use case for getting a prenup, especially in Oregon. Couples seeking out prenups can protect existing businesses, and also businesses created during the marriage (i.e., future businesses). This can include income from the business, debt, assets, eventual buyouts, and more. If you want to see the full range of what people put in these agreements, our guide to prenup clauses walks through the most common ones.

Marital property in Oregon

Is Oregon a community property state?

No, Oregon is not one of the nine community property states. Oregon is an equitable distribution state, which means that it treats property division in a divorce as an equitable division, rather than an automatic 50-50 split. Equitable distribution states generally look at property on a case-by-case basis and determine a split that a court deems fair based on the circumstances. Everyone's situation is different, so this framework takes that into account.

How is property divided in an Oregon divorce without a prenup?

Oregon Revised Statutes § 107.105(1)(f) states that a court may divide property in a manner that is “just and proper” and may take into consideration things like whether one party was a homemaker. In addition, there is a rebuttable presumption that all property acquired during the marriage should be split 50-50. In other words, this means all assets, debt, etc., acquired during the marriage will be split 50-50, but one party can argue against this presumption and the court may (or may not) agree to step outside of the 50-50 split.

That presumption is why the family home is so often the first thing couples want settled in writing. Only 17% of HelloPrenup users in Oregon own a home before they marry, so for most Oregon couples the house is bought during the marriage, which puts it squarely inside the equal-contribution presumption unless the agreement says otherwise.

What is considered “separate property” in Oregon?

Oregon Revised Statutes § 107.105(1)(f)(D) states that property acquired by gift (such as a third-party gift or inheritance) is not considered property that may be split up in an Oregon divorce, but is instead considered Separate Property. However, that gifted/inherited property must have remained separately held the entire time. If it was commingled, then there's an argument to be made that it is actually marital property subject to division in a divorce.

Oregon courts will hold couples to the classification they wrote down. In Proctor and Proctor, 234 Or App 722, 229 P.3d 635 (2010), the Oregon Court of Appeals treated the parties' premarital agreement as controlling which property counted as premarital separate property, and as binding both the court and the parties to distribute the marital property according to the agreement's terms.

Spousal support in Oregon

Can a prenup waive spousal support in Oregon?

Yes, a prenup can waive spousal support in Oregon. Spousal support is the court-ordered payment from one ex-spouse to another in order to financially support the spouse with less money. In fact, 84% of HelloPrenup users based in Oregon select to waive spousal support in some way, shape, or form. It is typically beneficial for couples to waive spousal support when both parties are financially independent and neither party plans on staying home with the children.

The statute puts that option in writing: ORS § 108.710 lets parties to a premarital agreement contract about “the modification or elimination of spousal support.” Oregon does not require either party to be represented by an attorney in order to waive it.

How is spousal support determined in Oregon without a prenup?

ORS § 107.105(1)(d) tells us that Oregon courts use a “just and equitable” standard to determine spousal support awards. A court may award spousal support for as long as it is equitable and may be in installments or a lump sum. For certain types of spousal support, an Oregon court may look to certain factors, such as age, health, length of the marriage, work history, earning capability, and more.

How much does a prenup cost in Oregon?

How much does a prenup cost in Oregon?

We spoke with Portland, Oregon-based prenup attorney, Amanda Quatier. She charges $1500.00 for standard cases, and if she is the attorney who does the review, she charges $750.00. More complex cases get different pricing, which usually includes some estate planning. In general, pricing in Oregon, even outside of Portland, can vary based on the needs of the clients and how complex their situation is. Many Oregon attorneys charge hourly rates, which will result in a higher or lower total cost depending on the complexity of the situation. Complex cases may involve intricate finances, such as multiple businesses and trusts or a complex drafting situation where couples require many hours of drafting and review.

Put those two numbers together, $1,500 to draft plus $750 for the review on the other side, and a traditional Oregon prenup runs about $2,250. HelloPrenup's flat rate is $599 for the couple, which is where the $1,651 average saving in our Oregon data comes from.

What is the cheapest way to get a prenup in Oregon?

The cheapest way to get a prenup in Oregon is typically to utilize an online prenup platform, such as HelloPrenup. In Oregon, the cost of a prenup via HelloPrenup is $599. There may be other cheaper online prenup platforms with Oregon-compliant prenups, but they may not be as reliable. In addition, with HelloPrenup's platform, you can utilize Oregon-licensed attorneys for flat-rates below the average flat rate Oregon attorneys charge outside of the platform.

How much does a prenup lawyer cost in Oregon?

The average lawyer in Oregon charges $325 per hour. However, that rate can fluctuate depending on the attorney's area of practice, expertise, experience, and personal preference. Family law attorneys in Portland may charge significantly more than they do, say, on the Oregon Coast in a smaller town. An Oregon prenup lawyer on HelloPrenup's platform charges $799 per person.

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How to get a prenup in Oregon

How do I get a prenup in Oregon?

You can get a prenup in Oregon by writing one yourself (this is risky), by hiring two lawyers to represent each person, or you can utilize a hybrid approach by going to an online prenup company that helps you create your own prenup and also offers you Oregon-based prenup lawyers to help edit, review, and advise your prenup.

Can I write my own prenup in Oregon?

Yes, it is possible to write your own prenup in Oregon; however, it is risky. Non-lawyers may not be able to spot inconsistencies in contract language that would render a prenup unenforceable, and they may also not be up to speed on Oregon law and what would be a conscionable agreement. Remember, unconscionable agreements will not be enforced. In addition, writing your own prenup doesn't give you the legal knowledge to understand whether or not what you're signing is good for you. Hiring a lawyer can help with that.

How long does it take to get a prenup in Oregon?

It depends on the method you take to get a prenup. If you are hiring two prenup lawyers, the traditional route, it may take a few weeks to a few months, depending on each lawyer's case load. If you are going the online prenup route, it can take less time, but it depends on each fiancé's commitment to the prenup process. For example, if the couple drags their feet on collecting financial information and selecting options for their prenup, it could take longer than the couple that has already compiled everything.

Do I need a lawyer for my Oregon prenup?

No. Hiring a lawyer is not a prerequisite for a valid prenuptial agreement. However, in Rudder and Rudder, 230 Or App 437, 217 P.3d 183 (2009), the court explained that the presence or absence of a lawyer may come into consideration when one party argues they did not enter into the agreement voluntarily. The presence of a lawyer can help deter that argument and create an extra safety net around the agreement, even though it's not a strict requirement.

Caselaw & enforceability

Are prenups enforceable in Oregon?

Yes, prenuptial agreements are enforceable in Oregon. They simply must meet the requirements laid out by the Oregon Premarital Agreement Act, including signatures, proper financial disclosure, voluntariness, and conscionability. Oregon courts actually favor prenuptial agreements as a way for people to proactively protect themselves financially when entering into a marriage.

How hard is it to break a prenup in Oregon?

It is relatively hard to break a prenup in Oregon when the parties make sure it meets all the necessary requirements such as signatures and financial disclosure and when they ensure both parties sign it voluntarily and make sure the agreement is not unconscionable. When those factors are in place, yes, it is hard to break in a prenup in Oregon.

Can a judge throw out a prenup in Oregon?

Yes, prenups can be broken in Oregon. For example, a 2016 case showed us an example of how an Oregon court can throw out a prenup. In Porter and Porter, 281 Or App 169, 381 P.3d 873 (2016), the Court held a prenup unenforceable because the prenup gave the wife nothing, it was sprung on her at the last minute (while the husband had been preparing it for weeks), she was given no time to review it, and didn't have the opportunity to hire a lawyer. (Note: Even though a lawyer is not required in Oregon, the opportunity to hire a lawyer is required, meaning each party has enough time to hire a lawyer if they want one).

What can void a prenup in Oregon?

A prenuptial agreement in Oregon may be voided through:

• Lack of proper signatures
• Not being in writing
• Lack of proper financial disclosure
• Lack of voluntariness, which can mean lack of time to review the prenup or lack of opportunity to seek counsel
• Unconscionability of the contract, which can mean the terms are onerously one-sided
• Against public policy

Outside of the above reasons, it is difficult to void an Oregon prenup. The statutory grounds sit in ORS § 108.725, and the two Oregon decisions that actually applied them, Rudder and Rudder, 230 Or App 437, 217 P.3d 183 (2009) and Porter and Porter, 281 Or App 169, 381 P.3d 873 (2016), both turned on voluntariness rather than on the terms of the deal.

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Duration & after-marriage

How long does a prenup last in Oregon?

A prenup lasts as long as the couple wants it to last. There is no expiration date for a prenup in Oregon. However, couples may choose to include an expiration date in their prenup, which is sometimes referred to as a “sunset clause” which means the agreement “sunsets” at some point in the marriage. Some couples opt in for this type of expiration date clause because they agree that if the marriage lasts to a certain point, there's no need to divide up assets or keep certain things separate.

Can you get a prenup after marriage in Oregon?

No, Oregon courts have yet to really address this issue, and the case law that does address it does not find postnuptial agreements to be enforceable. Oregon is one of the handful of states where postnuptial agreements (post-marriage prenups) are not enforceable. One specific case regarding a postnup was Grossman and Grossman, 191 Or App 294 (2003), where the court held a postnup to be not enforceable, as the Oregon prenup statute doesn't apply to postnups, and, instead, they are subject to court discretion.

Can you change a prenup in Oregon?

Yes, you may amend a prenuptial agreement under Oregon's premarital agreement act ORS § 108.720. This statute explains that prenuptial agreements in Oregon may only be modified through another written agreement. This means an oral agreement to revoke or change a prenuptial agreement with your spouse does not suffice; it must be in writing.

Cross-border & recognition

Is a prenup signed in another state valid in Oregon?

Yes, unless the prenup is against Oregon's public policy. Generally, prenups executed in another state will be honored in Oregon as long as they followed the rules of the state they executed the agreement in (or the state law they chose to apply to the agreement). For example, if the couple signed an agreement in California, with a choice of law clause dictating California as the applicable state law, then an Oregon court may analyze the execution and creation of the agreement under California laws.

Oregon's own statute contemplates this directly: ORS § 108.710 lets the parties contract about “the choice of law governing the construction of the agreement.”

What happens to my Oregon prenup if we move to another state?

It depends on the state law under which the couple is getting a divorce in. Many states do recognize validly executed prenups from other states, as long as they were executed properly under that state's law. In addition, courts generally don't want to throw out a contract just because it was signed in another state; it just must not be against the public policies of Oregon.