James
Prenuptial agreements are valid and enforceable in Oregon. we often advise clients to possess one in situ if they need children from a previous relationship or this marriage won't be their first. Also, if the parties have significant separately owned assets acquired before their marriage they'll want to think about having one in situ.
<a href=“https://jamesnoblelaw.com.au/services/prenuptial-agreements-bfa/">prenuptial agreements</a> can take the guess to compute of determining spousal support and property division within the event of a divorce or upon a spouse's death. A properly drafted "prenup" will typically provide a formula for determining spousal support (or may contain language waiving spousal support altogether) and have provisions detailing how the parties wish to divide separately owned property and jointly owned property. The agreement should have a schedule attached thereto that accurately lists each party's separate property and any jointly owned property that they need acquiring before their marriage.
Prenuptial agreements can make sure that each party's separate property, which may be property owned before the wedding or acquired during the wedding (such as an outsized inheritance from that spouse's family), passes thereto party's separate children or other heirs or beneficiaries freed from any claim by the longer-term spouse.
It's best if both parties also do their estate planning at an equivalent time they're performing on a prenup. Usually, both parties have separate attorneys representing them and these attorneys have an honest grasp on each party's assets and their distribution goals.
However, oftentimes the parties will forego estate planning until a later date. the matter with waiting is that the majority of people postpone estate planning until after they're married. Five or six years down the road, the couple is going to be happily married and remember that they have to try to estate planning. They talk with their financial planner who refers them to a replacement attorney; or worse, the parties create a will or joint revocable inter vivos trust using a web legal service. During this process, the parties forget to disclose the existence of the prenuptial agreement. The existence of it is not mentioned within the wills or trust and therefore the estate planning documents potentially destroy the effectiveness of the prenup.
For example, the couple executes a joint revocable inter vivos trust which states that each one of their joint property is listed during a schedule following the trust. The schedule lists all of the couple's property, including their separately owned property. The property is retitled within the trust's name.
By doing this, the parties may have destroyed the prenuptial agreement and made it ineffective. Years down the road, the parties may decide they need to divorce. By moving all of their property to the trust and titling the property within the name of the trust, the parties may have inadvertently converted separately owned assets into jointly owned assets.
In other words, each spouse could have a 50 percent interest within the other spouse's separately owned property - something that the prenuptial agreement was made to guard against. there's Oregon case law which will help to avoid this result but those cases are fact-specific and there's no clear law during this area.
At the very least the couple will have an upscale divorce fighting over whether a property is separate or joint.
Here are some steps to still preserve ownership of property identified as separate property during a prenuptial agreement:
1. Accurately identify all separate and jointly owned property within the prenup.
2. Do estate planning at an equivalent time that the prenuptial agreement is being created.
3. Don't use self-help legal services to make a prenup or estate planning documents. Enforceable prenups must meet several legal requirements which will presumably be overlooked if you are trying to draft one on your own. Execution of straightforward estate planning documents may economize within the beginning, but will presumably end in an upscale proceeding within the future.
4. confirm you tell your attorney that you simply have a prenuptial agreement. After you're married you'll want to urge obviate it altogether or change certain provisions in it to profit your spouse.
5. make sure that all separately owned property is usually titled therein spouse's name who owns the property in which the property isn't integrated or commingled with other assets within the marital estate.
6. Don't use a joint revocable inter vivos trust unless safeguards are put in situ that reference the prenuptial agreement, dictate what happens to separate property upon divorce or death, and accurately identifies and labels all separate and jointly owned property.
As stated above, cases involving the enforceability and application of prenuptial agreements are in fact specific. It's virtually impossible to make an "ironclad" prenup since attorneys cannot control their clients after it's signed. Although the above steps and other steps might not avoid expensive litigation, they will help successfully defend claims by one spouse against the opposite spouse's separate property in situations where a prenuptial agreement is in situ.
