2007 Oregon Code - Chapter 108 :: Chapter 108 - Husband and Wife Relationship - Property Rights - Premarital Agreements
Chapter 108 —
Husband and Wife Relationship;
Property
Rights; Premarital Agreements
2007 EDITION
MARITAL RELATIONSHIPS
DOMESTIC RELATIONS
GENERAL PROVISIONS
108.010Â Â Â Â Removal
of wifeÂ’s civil disabilities; wifeÂ’s civil rights same as husbandÂ’s
108.015Â Â Â Â Domicile
of married person or minor child
108.020Â Â Â Â Nonliability
for other spouseÂ’s obligations
108.030Â Â Â Â Liability
of husband for civil injuries committed by wife
108.040Â Â Â Â Liability
of parents for expenses of family and education of children
108.045Â Â Â Â Liability
of stepparent for expenses of family and education of children
108.050Â Â Â Â Nonliability
of wifeÂ’s property for husbandÂ’s obligations
108.060Â Â Â Â Noninterest
of one spouse in property of other
108.080Â Â Â Â Civil
remedies between spouses in respect of separate property
108.090Â Â Â Â Conveyances,
transfers and liens between spouses; creation and dissolution of estates by
entireties; validation of prior dissolutions
108.100Â Â Â Â Husband
and wife as attorney in fact for each other
108.110Â Â Â Â Petition
for support of spouse and children; rules
108.120Â Â Â Â Support
judgment or order
108.130Â Â Â Â Fees
COMMUNITY PROPERTY MATTERS
108.510Â Â Â Â Revocation
of election to come under terms of Community Property Law of 1943; fee
108.515Â Â Â Â Disposition
of fees
108.520Â Â Â Â Effect
of Act repealing Community Property Law of 1947
108.530Â Â Â Â Removal
of community property status by agreement
108.540Â Â Â Â Removal
of community property status by death of either spouse
108.550Â Â Â Â Reliance
on spouseÂ’s right to deal with property in spouseÂ’s name
PREMARITAL AGREEMENTS
108.700Â Â Â Â Definitions
for ORS 108.700 to 108.740
108.705Â Â Â Â Agreement
to be in writing; consideration not required
108.710Â Â Â Â Subjects
of agreement; child support not to be adversely affected
108.715Â Â Â Â Agreement
effective upon marriage
108.720Â Â Â Â Modification
of agreement; consideration not required
108.725Â Â Â Â Party
may prove agreement unenforceable; when court may require support;
determination of unconscionability
108.730Â Â Â Â Effect
of void marriage
108.735Â Â Â Â Statute
of limitations; defenses
108.740Â Â Â Â Short
title; construction; severability
GENERAL PROVISIONS
     108.010
Removal of wifeÂ’s civil disabilities; wifeÂ’s civil rights same as husbandÂ’s. All laws which impose or recognize civil
disabilities upon a wife which are not imposed or recognized as existing as to
the husband hereby are repealed; and all civil rights belonging to the husband
not conferred upon the wife prior to June 14, 1941, or which she does not have
at common law, hereby are conferred upon her, including, among other things,
the right of action for loss of consortium of her husband.
     108.015
Domicile of married person or minor child. (1) Each married person may establish and maintain a domicile in the
State of
     (2) The domicile of a minor shall follow
the domicile of the parents of the minor unless the parents establish separate
domiciles. If the parents establish separate domiciles, the minorÂ’s domicile
shall be that of the parent with whom the minor resides. However, if there has
been a legal separation, annulment or dissolution, the minorÂ’s domicile shall
be that of the parent to whom custody of the minor has been legally given. [1975
c.434 §1; 1981 c.775 §8]
     Note: 108.015 was enacted into law by the
Legislative Assembly but was not added to and made a part of ORS chapter 108 by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
     108.020
Nonliability for other spouseÂ’s obligations. Neither husband nor wife is liable for the debts or liabilities of the
other incurred before marriage; and except as otherwise provided in ORS
108.040, they are not liable for the separate debts of each other, nor is the
rent or income of property owned by either husband or wife liable for the
separate debts of the other.
     108.030
Liability of husband for civil injuries committed by wife. For all civil injuries committed by a
married woman, damages may be recovered from her alone and her husband shall
not be responsible therefor, except in case where he would be jointly
responsible with her if the marriage did not exist.
     108.040
Liability of parents for expenses of family and education of children. (1)(a) The expenses of the family and the
education of the minor children are chargeable upon the property of both
husband and wife, or either of them, and in relation thereto they may be sued
jointly or separately.
     (b) As used in this subsection:
     (A) “Expenses of the family” includes only
expenses incurred for the benefit of a member of the family.
     (B) “Family” means the husband, wife and
minor children of the husband and wife.
     (2) Notwithstanding subsection (1) of this
section, after the separation of one spouse from the other spouse, a spouse is
not responsible for debts contracted by the other spouse after the separation
except for debts incurred for maintenance, support and education of the minor
children of the spouses.
     (3) For the purposes of subsection (2) of
this section, spouses shall be considered separated if they are living in
separate residences without intention of reconciliation at the time the debt is
incurred. The court may consider the following factors in determining whether
the spouses are separated in addition to such other factors as may be relevant:
     (a) Whether the spouses subsequently
reconciled.
     (b) The number of separations and reconciliations
of the spouses.
     (c) The length of time the spouses lived
apart.
     (d) Whether the spouses intend to
reconcile.
     (e) Whether the spouses have filed a
petition for separation or dissolution.
     (4) An action under this section shall be
commenced within the period otherwise provided by law. [Amended by 1965 c.530 §1;
1993 c.598 §1; 2005 c.732 §3]
     108.045
Liability of stepparent for expenses of family and education of children. (1) The expenses of the family and the
education of minor children, including stepchildren, are chargeable upon the
property of both husband and wife, or either of them. However, with regard to
stepchildren, the obligation shall cease upon entry of a judgment of
dissolution.
     (2) As used in this section, “stepchild”
means a child under the age of 18, or a child attending school as defined in
ORS 107.108 who is in the custody of one biological or adoptive parent who is
married to and not legally separated from a person other than the second
biological or adoptive parent of such child.
     (3) Notwithstanding subsection (1) of this
section, the legal duty of a parent to provide support for a child, as
otherwise required by law, shall not be affected. [Formerly 109.053]
     Note: 108.045 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 108 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     108.050
Nonliability of wifeÂ’s property for husbandÂ’s obligations. The property and pecuniary rights of every
married woman at the time of her marriage or afterwards acquired including real
or personal property acquired by her own labor during coverture, shall not be
subject to the debts or contracts of her husband.
     108.060
Noninterest of one spouse in property of other. When property is owned by either husband or
wife, the other has no interest therein which can be the subject of contract
between them, or such interest as will make the same liable for the contracts
or liabilities of either the husband or wife who is not the owner of the
property, except as provided in ORS 108.040.
     108.070 [Repealed by 1999 c.182 §1]
     108.080
Civil remedies between spouses in respect of separate property. Should either the husband or wife obtain
possession or control of property belonging to the other either before or after
marriage, the owner of the property may maintain an action therefor, or for any
right growing out of the same, in the same manner and to the same extent as if
they were unmarried.
     108.090
Conveyances, transfers and liens between spouses; creation and dissolution of
estates by entireties; validation of prior dissolutions. (1) A conveyance, transfer or lien executed
by either husband or wife to or in favor of the other is valid to the same extent
as between other persons.
     (2) When a husband or wife conveys to the
other an undivided one-half of any real property and retains a like undivided
half, and in such conveyance there are used words indicating an intention to
create an estate in entirety, said husband and wife hold the real property
described in the conveyance by the entirety.
     (3) A conveyance from husband or wife to
the other of his or her interest in an estate held by them by entirety is valid
and dissolves the estate by entirety. All deeds heretofore executed by husband
or wife to the other for the purpose of dissolving the estate by entirety are
valid.
     108.100
Husband and wife as attorney in fact for each other. One spouse may constitute the other his or
her attorney in fact to control, sell and convey, mortgage, or bar dower or
curtesy for their mutual benefit, and may revoke the same to the same extent
and in the same manner as other persons.
     108.110
Petition for support of spouse and children; rules. (1) Any married person may apply to the
circuit court of the county in which the married person resides or in which the
spouse may be found for an order upon the spouse to provide for support of the
married person or for the support of minor children and children attending
school, or both, and, if the married person initiating the action for support
is a woman who is pregnant, her unborn child, or both, if her spouse is the
natural father of such children, children attending school or unborn child or
if her spouse is the adoptive father of such children or children attending
school. The married person initiating the action for support may apply for the
order by filing in such county a petition setting forth the facts and
circumstances upon which the married person relies for such order. If satisfied
that a just cause exists, the court shall direct that the married personÂ’s
spouse appear at a time set by the court to show cause why an order of support
should not be entered in the matter. The provisions of ORS 107.108 apply to an
order entered under this section for the support of a child attending school.
     (2) As used in this section, “child
attending school” has the meaning given that term in ORS 107.108.
     (3) The petitioner shall state in the
petition, to the extent known:
     (a) Whether there is pending in this state
or any other jurisdiction any type of support proceeding involving children of
the marriage, including a proceeding brought under ORS 107.085, 109.100,
125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS chapter 110; and
     (b) Whether there exists in this state or
any other jurisdiction a support order, as defined in ORS 110.303, involving
children of the marriage.
     (4) The petitioner shall include with the
petition a certificate regarding any pending support proceeding and any
existing support order. The petitioner shall use a certificate that is in a
form established by court rule and include information required by court rule
and subsection (3) of this section.
     (5) The provisions of this section apply
equally to cases where it is the husband making application for a support
order.
     (6) In any proceeding under this section,
the obligee, as that person is defined in ORS 110.303, is a party to the
proceeding. [Amended by 1963 c.497 §1; 1973 c.827 §12d; 1975 c.140 §1; 1975
c.458 §13; 1979 c.90 §1; 1981 c.669 §2; 1993 c.596 §18; 1995 c.343 §23; 1997
c.704 §54; 2001 c.334 §7; 2003 c.73 §53a; 2003 c.116 §7; 2005 c.560 §16]
     108.120
Support judgment or order.
(1) After the hearing of the petition for an order of support the court shall
make an order granting or denying it and fixing, if allowed, the terms and
amount of the support.
     (2) The court has the same power to compel
the attendance of witnesses or the production of testimony as in actions and
suits, to make such judgment or orders as are equitable in view of the
circumstances of both parties and to punish violations thereof as other
contempts are punished.
     (3) The judgment or order is final as to
any installment or payment of money that has accrued up to the time the nonmoving
party, other than the state, is served with a motion to set aside, alter or
modify the judgment or order. The court may not set aside, alter or modify any
portion of the judgment or order that provides for any payment of money, either
for minor children or for the support of a party, that has accrued before the
motion is served. However, the court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting time unless
otherwise provided by order or judgment, during which the obligor, with the
knowledge and consent of the obligee or pursuant to court order, has physical
custody of the child. [Amended by 1989 c.812 §6; 1997 c.707 §21; 2003 c.419 §2;
2003 c.576 §133a]
     108.130
Fees. At the time of filing
the petition for an order of support, the petitioner shall pay to the clerk of
the court a fee of $6, which shall cover all charges incident to the filing of
documents necessary to a complete determination of the matter and no part of
which shall be applied toward the library fund of the county. Payment of the
fee is subject to the provisions of ORS 21.680 to 21.698 applicable to waiver,
deferral and payment of fees. [Amended by 1965 c.619 §34; 1971 c.621 §23; 1975
c.607 §23; 1981 s.s. c.3 §89; 1983 c.673 §25; 2003 c.737 §§53,54; 2005 c.702 §§61,62,63;
2007 c.129 §22; 2007 c.493 §16]
     108.140 [Repealed by 1987 c.715 §10]
COMMUNITY
PROPERTY MATTERS
     108.510
Revocation of election to come under terms of Community Property Law of 1943;
fee. (1) Notwithstanding any
repeal of chapter 440, Oregon Laws 1943, known as the Oregon Community Property
Law of 1943, any husband and wife who elected to come under the terms thereof
may revoke such election upon filing in the office of the Secretary of State a
notice of their desire to revoke such election in the following form:
______________________________________________________________________________
REVOCATION OF ELECTION
TO COME UNDER THE
PROPERTY LAW, CHAPTER 440,
     KNOW ALL PERSONS BY THESE PRESENTS, That
we, _____ and _____, hereby state and represent that we are husband and wife;
that we reside in _____ County, Oregon, and our post-office address is No. _____
Street, City of _____; that we do hereby revoke our election filed in the office
of the Secretary of State of the State of
     IN WITNESS WHEREOF we have hereunto set
our hands and seals this _____ day of _____, 2_____.
__________________
__________________
STATE OF
                                              )          ss.
     BE IT REMEMBERED that on this _____ day of
_____, 2_____, before me, the undersigned, a notary public in and for said
county and state, personally appeared the within named _____ and _____, his
wife, who are known to me to be the identical persons described in and who
executed the within instrument, and acknowledged to me that they executed the
same.
__________________
Notary Public for
My commission expires: _________
______________________________________________________________________________
Acknowledgments
may be taken by any other officer authorized to take acknowledgments.
     (2) Such an instrument, together with a fee
of $15, shall be presented to the Secretary of State, who thereupon shall file
the instrument, properly index it in a book kept for that purpose and transmit
to the recording officer of each county in the state the certificate of the
Secretary of State, setting forth the nature of such instrument, the names of
the parties thereto, the date thereof, and the date of the filing thereof in
the office of the Secretary of State. Upon receipt of such certificate, the
recording officer shall file it and properly index it in a book kept for that
purpose.
     (3) Public notice of such revocation
exists upon compliance with subsection (2) of this section.
     (4) The filing of such revocation operates
to restore the title to any community property of persons making the revocation
to the status of the property which existed on the date on which such persons
filed a certificate of election under the terms of the Oregon Community
Property Law of 1943. Such revocation in nowise limits the right of such
persons to execute and record such conveyances, assignments and transfers of
property, or title thereto, as may operate to effect and make a matter of
record the restoration of titles to the status they occupied prior to the
filing of the certificate of election.
     108.515
Disposition of fees. (1) All
moneys received by the Secretary of State under ORS 108.510 shall be paid into
the State Treasury to the credit of the General Fund.
     (2) Any funds remaining in the Community
Property Revocations Account are hereby transferred to the credit of the
General Fund. [Amended by 1959 c.85 §1]
     108.520
Effect of Act repealing Community Property Law of 1947. The provisions of ORS 108.530 to 108.550 do
not impair or affect any right acquired prior to April 11, 1949, but the same
may be enjoyed as fully and to the same extent as if ORS 108.520 to 108.550 had
not been passed, under and according to the law in force at the time such right
was acquired, except as provided in ORS 108.530 and 108.540.
     108.530
Removal of community property status by agreement. Community property acquired during coverture
and between July 5, 1947, and April 11, 1949, may be converted into property
held as tenants in common or by entirety or as the separate property of either
spouse by an agreement in writing evidencing such intent, signed by both
husband and wife. If such agreement affects title to real property, it shall
describe the property affected thereby, shall be executed and acknowledged in
the same manner as deeds and shall be recorded in the deed records of each
county in which any such real property is located.
     108.540
Removal of community property status by death of either spouse. Upon the death of either spouse after April
11, 1951, all real or personal property which would have been the separate
property of such spouse but for the enactment of chapter 525, Oregon Laws 1947,
shall be subject to disposition by will and to descent and distribution as the
separate property of such decedent as though said chapter 525 had not been
passed.
     108.550
Reliance on spouseÂ’s right to deal with property in spouseÂ’s name. Notwithstanding any provisions of chapter
525, Oregon Laws 1947, or any provision of ORS 108.520 to 108.550, any other
person may rely, and shall be fully protected in so doing, upon the right of
the husband or the wife to receive, manage, control, dispose of or otherwise
deal with property standing in his or her name in such manner that, by law, but
for the provisions of said statutes, he or she would be entitled so to deal
therewith.
     108.610 [Formerly 184.885; 1983 c.480 §1; 2001 c.900
§237; renumbered 409.290 in 2005]
     108.620 [Formerly 184.890; 1983 c.480 §2; 1993 c.546
§97; renumbered 409.292 in 2005]
     108.630 [1981 c.357 §5; 1983 c.480 §3; renumbered
409.294 in 2005]
     108.640 [1981 c.357 §§6,8; 1983 c.480 §4; renumbered
409.296 in 2005]
     108.650 [1981 c.357 §7; renumbered 409.298 in 2005]
     108.660 [1981 c.357 §9; 1983 c.480 §5; 1995 c.79 §36;
renumbered 409.300 in 2005]
     108.662 [1995 c.555 §5; 2001 c.829 §3; 2005 c.700 §6;
renumbered 409.304 in 2005]
PREMARITAL
AGREEMENTS
     108.700
Definitions for ORS 108.700 to 108.740. As used in ORS 108.700 to 108.740:
     (1) “Premarital agreement” means an
agreement between prospective spouses made in contemplation of marriage and to
be effective upon marriage.
     (2) “Property” means an interest, present
or future, legal or equitable, vested or contingent, in real or personal
property, including income and earnings. [1987 c.715 §1]
     Note: 108.700 to 108.740 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
108 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     108.705
Agreement to be in writing; consideration not required. A premarital agreement must be in writing
and signed by both parties. It is enforceable without consideration. [1987
c.715 §2]
     Note: See note under 108.700.
     108.710
Subjects of agreement; child support not to be adversely affected. (1) Parties to a premarital agreement may contract
with respect to:
     (a) The rights and obligations of each of
the parties in any of the property of either or both of them whenever and
wherever acquired or located;
     (b) The right to buy, sell, use, transfer,
exchange, abandon, lease, consume, expend, assign, create a security interest
in, mortgage, encumber, dispose of or otherwise manage and control property;
     (c) The disposition of property upon
separation, marital dissolution, death or the occurrence or nonoccurrence of
any other event;
     (d) The modification or elimination of
spousal support;
     (e) The making of a will, trust or other
arrangement to carry out the provisions of the agreement;
     (f) The ownership rights in and
disposition of the death benefit from a life insurance policy;
     (g) The choice of law governing the
construction of the agreement; and
     (h) Any other matter, including their
personal rights and obligations, not in violation of public policy or a statute
imposing a criminal penalty.
     (2) The right of a child to support may
not be adversely affected by a premarital agreement. [1987 c.715 §3]
     Note: See note under 108.700.
     108.715
Agreement effective upon marriage. A premarital agreement becomes effective upon marriage. [1987 c.715 §4]
     Note: See note under 108.700.
     108.720
Modification of agreement; consideration not required. After marriage, a premarital agreement may
be amended or revoked only by a written agreement signed by the parties. The
amended agreement or the revocation is enforceable without consideration. [1987
c.715 §5]
     Note: See note under 108.700.
     108.725
Party may prove agreement unenforceable; when court may require support;
determination of unconscionability. (1) A premarital agreement is not enforceable if the party against
whom enforcement is sought proves that:
     (a) That party did not execute the
agreement voluntarily; or
     (b) The agreement was unconscionable when
it was executed and, before execution of the agreement, that party:
     (A) Was not provided a fair and reasonable
disclosure of the property or financial obligations of the other party;
     (B) Did not voluntarily and expressly
waive, in writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided; and
     (C) Did not have, or reasonably could not
have had, an adequate knowledge of the property or financial obligations of the
other party.
     (2) If a provision of a premarital
agreement modifies or eliminates spousal support and that modification or
elimination causes one party to the agreement to be eligible for support under
a program of public assistance at the time of separation or marital
dissolution, a court, notwithstanding the terms of the agreement, may require
the other party to provide support to the extent necessary to avoid that eligibility.
     (3) An issue of whether a premarital
agreement is unconscionable shall be decided by the court as a matter of law. [1987
c.715 §6]
     Note: See note under 108.700.
     108.730
Effect of void marriage. If
a marriage is determined to be void, an agreement that would otherwise have
been a premarital agreement is enforceable only to the extent necessary to
avoid an inequitable result. [1987 c.715 §7]
     Note: See note under 108.700.
     108.735
Statute of limitations; defenses. Any statute of limitations applicable to an action asserting a claim
for relief under a premarital agreement is tolled during the marriage of the
parties to the agreement. However, equitable defenses limiting the time for
enforcement, including laches and estoppel, are available to either party. [1987
c.715 §8]
     Note: See note under 108.700.
     108.740
Short title; construction; severability. (1) ORS 108.700 to 108.740 may be cited as the Uniform Premarital
Agreement Act.
     (2) ORS 108.700 to 108.740 shall be
applied and construed to effectuate its general purpose to make uniform the law
with respect to the subject of this Act among states enacting it.
     (3) If any provision of ORS 108.700 to
108.740 or its application to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of ORS 108.700 to
108.740 which can be given effect without the invalid provision or application,
and to this end the provisions of ORS 108.700 to 108.740 are severable. [1987
c.715 §9]
     Note: See note under 108.700.
_______________
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