We’ve previously blogged about altering your rights on divorce by using a prenuptial agreement. Prenuptial agreements are authorized by statute, and must occur before the actual marriage. So what do you do if you want to alter your rights at divorce after you are already married? Some couples try to do this by using a “Postnuptial Agreement” that contains terms similar to those found in prenuptial agreements. A postnuptial agreement is a written contract executed after a couple gets married, or have entered a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce.
There is no statute in Oregon authorizing postnuptials. While Oregon courts have never expressly approved the use of postnuptial agreements, there are several Oregon cases where they were upheld.
When would you want to use a postnuptial agreement? A couple may want to use a postnuptial agreement to provide for the assignation of marital property at the time of death of one spouse. These agreements typically have the surviving spouse waiving any rights to property they would have had the right to inherit under a will or statutory scheme. A couple may want to use a postnuptial agreement to define what a financial separation would look like without having the current intent to divorce.
If you have concerns about how property may be divided or support may be established at the time of divorce, consider talking to an experienced divorce attorney about the benefits and risks of using a postnuptial agreement.