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March 31, 2011

Most people have heard of a prenuptial or premarital agreement. This is a contract signed by the husband and wife prior to marriage which sets forth their rights in the marriage, and in most cases, in the event of a separation or divorce. A prenuptial agreement outlines how property will be divided and may address spousal support. Oregon law recognizes and favors prenuptial agreements, and has enacted a set of statutes specifically dealing with the creation and enforcement of prenuptial agreements.

After two individuals marry, it is no longer possible to enter into a prenuptial agreement. Instead, spouses have the option of entering into a similar type of agreement: the postnuptial agreement. As the name indicates, this agreement is a contract between spouses, regarding their specific rights in the marriage and any divorce entered into after the parties are married. These agreements, like prenuptial agreements, often attempt to set forth the property rights of the parties as well as define support rights. However, unlike prenuptial agreements, there is not a specific statutory scheme sanctioning and defining postnuptial agreements. This important distinction was pointed out by the Court of Appeals in the recent case Grossman and Grossman.

In Grossman, the Court of Appeals held that postnuptial agreements do not fall into the specific statutory rules regarding prenuptial agreements. Further, postnuptial agreements should be scrutinized for fairness even more so than prenuptial agreements due to the expectations in the relationship between husbands and wives. This is a higher burden than that placed on couples who are considering marriage when entering into a prenuptial agreement. Ultimately, the courts can refuse to follow the postnuptial agreement of the parties if the court deems it to be unjust or unfair. In so deciding, the Court of Appeals has not said that postnuptial agreements are unenforceable, but has raised the bar, making a postnuptial agreement more difficult to enforce.