If there is any single point that drives most nonlawyers (and most lawyers for that matter!) crazy about family law, it is that there is a morass of gray areas. What child custody means is not set out in the statute, nor in the case law, but we have a statute on the factors to award custody. We know that there is a statute stating that if property was acquired by gift or inheritance, it is not presumed to be a “marital asset” unless it is “just and proper.” We know that parenting time is established by what is “in the best interest of the child” but that is a never-ending moving target. Which all comes down to this: family is a court of “equity” where the judges are charged with doing equity, if the statute doesn’t specify what is to happen.

So how do premarital, postmarital and marital settlement agreements, which are contracts, fit into the family law context?

First, let’s define what each of these terms mean.

Premarital agreements are defined by ORS 108.700-108.740, as being a contract “between prospective spouses made in contemplation of marriage.” The contract must be in writing and signed by both parties. Parties may contract with respect to their rights and obligations in their property, the modification or elimination of spousal support, making a will or trust, and any other matter not in violation of public policy or criminal statute. The basic elements of the contract is that there is an agreement, and that there is consideration for the agreement. The consideration for the agreement is that the parties intend to get marriage.

Postmarital agreements are more in question because of the question of consideration. Is the consideration that the parties agree not to divorce?

Marital Settlement agreements are made in anticipation of a divorce.

ORS 107.104 states that “It is the policy of this state:

(a) To encourage the settlement of suits for marital annulment, dissolution or separation; and

(b) For courts to enforce the terms of settlements described in subsection (2) of this section to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.

  1. (2) In a suit for marital annulment, dissolution or separation, the court may enforce the terms set forth in a stipulated judgment signed by the parties, a judgment resulting from a settlement on the record or a judgment incorporating a marital settlement agreement:
  1. (a) As contract terms using contract remedies;
  2. (b) By imposing any remedy available to enforce a judgment, including but not limited to contempt; or
  3. (c) By any combination of the provisions of paragraphs (a) and (b) of this subsection.
  4. (3) A party may seek to enforce an agreement and obtain remedies described in subsection (2) of this section by filing a motion, serving notice on the other party in the manner provided by ORCP 7 and, if a remedy under subsection (2)(b) of this section is sought, complying with the statutory requirements for that remedy. All claims for relief arising out of the same acts or omissions must be joined in the same proceeding.
  5. (4) Nothing in subsection (2) or (3) of this section limits a party’s ability, in a separate proceeding, to file a motion to set aside, alter or modify a judgment under ORS 107.135 or to seek enforcement of an ancillary agreement to the judgment. [2001 c.203 §2; 2003 c.576 §108]