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Preventing enforcement of prenuptial agreement

On Behalf of | Jan 14, 2021 | Family Law |

Most Oregon attorneys who practice family law will advise their clients, especially rich clients, to sigh a prenuptial agreement before they marry. Prenuptial agreements may appear to be the antithesis of a loving relationship, but they can be extremely useful in reducing the stress and anger that can infest many divorces. Sometimes, however, a person who has signed a prenuptial agreement discovers that the agreement was based on fraud or duress. Can such an agreement be voided? Oregon statutes provide a clear answer to this question, and the answer is “Yes.”

Why challenge a prenuptial agreement?

Not every person who signs a prenuptial agreement is interested in challenging the enforcement of the agreement, but persons who think that the agreement was unfair or unconscionable when it was signed, or that the other party failed to make the required financial disclosures, may have a valid claim to render the agreement unenforceable.

The second reason for challenging a prenuptial agreement is money.  Especially in second or third marriages, the parties may have a significant disparity in their personal assets. The person who has the smaller amount of personal assets may see challenging the prenuptial agreement as a way to increase his (or her) share of the total.

When will a challenge succeed?

The statute sets out several grounds on which a prenuptial agreement can be held unenforceable. The first ground is that the agreement was never executed by both parties or that the execution was coerced by the party against whom enforcement is sought. The agreement can be successfully challenged if the challenging party can prove that the agreement was unconscionable when it was signed and that the party seeking enforcement failed to make a full and fair disclosure of assets or that the challenging party had no reasonable way of knowing the full extent of the other party’s financial situation.

Anyone facing a divorce and who may have signed a prenuptial agreement may wish to obtain a legal opinion about the enforceability of the agreement. An experienced divorce attorney can provide such an opinion and an estimate of the likelihood of a challenge succeeding.