How a Prenuptial Agreement May Keep You Happily Married

I am often asked by clients whether they should get a prenuptial agreement or not.  Some of my clients only come to see me because their parents are “making” them get a prenuptial agreement in order to secure some future inheritance or perhaps shares in the family business.  Others have been asked to sign a prenup and they aren’t sure they should. Whatever your situation, here are some questions you should be asking before deciding whether to enter a prenuptial agreement before you say “I do.”

Do I need to get a prenuptial agreement before I actually get married, or can I get one after we are married?  Believe it or not, I do get asked this question from time to time.  The name itself answers this question: pre (BEFORE) nuptial (MARRIAGE).  So yes, you must enter this agreement with your betrothed before you are legally married.  If you don’t, then you are looking at a post-nuptial agreement which is an entirely different legal animal and we will leave that topic for another day.

Are prenuptial agreements valid?  The lawyer’s answer is, it depends.  You want to make sure you have an attorney advising you, that you both fully disclose your assets and debts to each other, and you want to make sure you have plenty of time to consider, negotiate and enter the agreement…ahead of your wedding day. These are typical challenges to whether a court will uphold your agreement.  You don’t want to take these chances and will want to meet with an attorney to make sure you have these challenges covered.  The last thing you want to see is the judge legally throwing out your prenup in the middle of a future divorce proceeding.

Why do I need a prenuptial agreement?  Prenuptial agreements are often used by clients who have amassed wealth that they do not necessarily want to share with a potential ex-spouse in a future divorce, or that they want to protect for their children from a prior relationship in the event of their death, or divorce.  Some clients may own a family business and want to make sure the business stays within the family and not with a future divorced in-law.  If you are self-employed and want to avoid sharing all of your blood, sweat and tears in building your business in a future divorce, then you should consider a prenup. If you want to protect your income from a large spousal support obligation, a prenuptial agreement can do that, or if you stand to inherit any wealth and want to make it clear from the beginning that any inheritance you may receive remains your separate property after you are married.

Have you and your betrothed had “the talk?” Better put, do you know anything about your soon to be spouse’s finances?  Are they employed?  Do they have savings? How much debt are they carrying on their credit cards?  Are they still on the mortgage with their former spouse?  Are you moving in with your spouse or are they moving into your house?  Are you putting them on the deed?  Should you put them on the deed?  How do you plan to handle your joint expenses?  Are you expected to contribute or are you going to support your beloved? If you have assets of any significance and you don’t want to take the risk of having to share half of those in a divorce, then you absolutely should be talking to an attorney to decide whether to get a prenuptial agreement.

How Will a Prenup Keep Me Happily Married? You hoped I would get here.  Here is my answer:  no one should enter a marriage without having “the talk” ahead of marriage.  Don’t make assumptions about financial issues because, in my experience, financial issues are what cause most marriages to break down.  If you determine you need a prenup, then the process of negotiating the prenup will answer most of these questions.  Once we have gone through the process, clients are relieved to know they have protected what they have built, they have control over their wealth, they can acquire joint property with their spouse without fear of losing their separate property, they can share their wealth by gifting without risking their estate planning, and they can provide for their heirs while also providing for their spouse if they want.  And if you are the spouse with the smaller estate, you can negotiate provisions that allow you to be provided for in the (hopefully) unlikely event of a divorce or the untimely death of your spouse. So starting a marriage with all of this worked out ahead of time does allow the parties to focus on the happy aspects of marriage like love and family, which should help you to stay happily married ‘til death do you part.

Social Media & Child Custody

Celebrity divorces are not news and many celebrities go out of their way to keep their divorces out of the mainstream and social media.  One recent exception is the ongoing divorce of “Kimye” or Kim Kardashian and Ye (aka Kanye) West.  The “Kimye” divorce has not made the news because of the size of their multi-billion-dollar marital estate; but rather much of the recent publicity has been their dispute over their 8-year-old daughter, North’s, TikTok account.  In an interview earlier this year, Kanye said “My children [aren’t] going to be on TikTok without my permission.” North shares her TikTok account with her mother, Kim, who also manages North’s account.  To date, the California court has not made any public decisions about this issue as part of the child custody claim, but will in a final resolution if Kim and Kanye cannot settle their differences. 

The questions of whether and how a judge might consider a child’s use of social media in deciding which parent should be awarded custody of the child in a divorce are unsettled in Oregon. Meaning, there is no published opinion on how an Oregon trial judge has decided this question. 

Under Oregon statutes, Family Court judges determine which parent is awarded legal custody of a child by giving “primary consideration to the best interests and welfare of the child.”  With the role social media has come to play in the mental health and safety of youth, it is plausible that a court could factor in a parent’s approach to the child’s social media habits when determining custody. Factors likely to be considered are the child’s age, the nature of their posting, time allowed on social media, and whether there are any parental controls available. 

The main takeaway is that parents should use caution and seriously consider what is safe and reasonable, and what is crossing the line. Here are some things to consider if you find yourself seeking to resolve a custody dispute: 

  • Most social media sites, including Facebook, Instagram, TikTok, and Twitter, require users to be a minimum age of thirteen. If a social media company determines that your child is too young to interact with social media, the court may find a child under the company’s age requirements is too young to have their own account.  
  • There have been a number of recent studies on the effects of social media on youth that provide fodder for both proponents and opponents of youth accessing social media.  Studies, such as those linking social media use by teenagers to worsened perspectives of themselves, highlight the negatives. Yet other studies have shown that social media can provide LGBTQ+ teens support by being able to access information and communities that might otherwise be unavailable to them. Staying informed can benefit your understanding of your child’s interactions with social media and show a judge that you are taking your child’s welfare seriously. 
  • In March 2022, Instagram launched a new feature allowing parents to monitor their children’s time on the platform. Known as “Family Center,” the feature allows parents to track their children’s time and activity on Instagram. Family Center also allows parents to get updates on the accounts their children follow and allows parents to set time limits for their children. Using this tool could evidence you are monitoring your child’s social media presence in a responsible way.  
  • Like Kim managing North’s TikTok account, managing your child’s social media could be a safe middle ground. The “bio” section of Kim and North’s TikTok account even states that the account is “Managed by an adult.” 

You may not be a celebrity with hundreds of thousands of people clamoring to see what your celebrity children are up to, but that doesn’t mean that your child’s social media presence isn’t important. When it comes to deciding what is in the “best interest” of your children, be aware that their social media accounts could play a role in how a court perceives you as a parent in your child custody dispute. 

Multnomah County Presiding Judge Issues Child Custody and Parenting Time Orders During COVID 19 Pandemic

Last week we wrote about the State Family Law Advisory Committee (SFLAC) recommendations for custody and parenting time issues that may arise during this COVID 19 pandemic. Since that post, those recommendations have been adopted in a Court Order as of March 27, 2020 issued by Presiding Judge Stephen Bushong and Presiding Family Law Judge Susan Svetkey of the Multnomah County Circuit Court (here is a link to that order). This Order applies to any person who has a court-ordered parenting plan in a Multnomah County Circuit Court case that is still in effect. The Order sets forth parenting time guidelines for parents to follow during this COVID 19 pandemic regarding Summer vacation and other holidays, denial of parenting time, parenting time in public places, supervised parenting time, impact of Governor Brown’s Executive Order regarding travel, safety-related issues, transparency and make up parenting time. We encourage you to review this Order as it may provide useful information and answer some questions you may be having depending on your circumstances.  If you have a current parenting time order from a different county in Oregon, this Order does not apply to you but it may provide you with some guidelines to follow if your court order from a different county does not address these issues. We encourage you to seek legal counsel for any questions you may have about your particular court order. We hope you and your family is staying healthy and safe during this stressful time.

Chris Costantino is committed to helping clients navigate the complex and emotionally challenging territory of family law in their personal lives and family businesses. Her trademark philosophy — love your children, protect your assets, and preserve your legacy — guides her law practice.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Divorcing Your Pet

More of my clients are asking me about what happens to the family pet in a divorce.  It’s a very direct (and perhaps callous for some) answer to an emotional question.  Pets are personal property or in Ye Olde English Law speak: chattel.  The family pet is divided much in the same way as the family car or couch.  The “property” is valued and then awarded to one spouse, and the other spouse is given the cash equivalent or other property for her half share of the pet’s “value.”  How is one to value a pet?  King Solomon had ideas but we all agree that does not work for kids or, similarly, for pets.  I have yet to put on such evidence in an Oregon Court but I suppose that day may come.  Every pet I have “divorced” was dealt with in settlement negotiations rather than in open Court by a judge because the parties wanted control in the decision.

Parties can agree that one has sole ownership of the pet while allowing the other party a contractual right to visitation, or the parties can agree to joint ownership of the pet with some kind of mutual visitation plan.  Visitation plans for a cat, dog, rabbit, [you fill in the blank], can be very complicated.  What if the cat gets loose on the night she is to go to your ex?  Are you in contempt of a court order if you can’t deliver the cat on the court-ordered date and time?  This all sounds a bit unreal and silly, but a visitation schedule is a court order which must be followed like any other court order.  A good reason to consider whether to have visitation rights of the pet in the first place.

Parties enter mutual agreements in divorce cases every day which are enforced by the Court.  There are certain legal requirements that must be present in such agreements in order for a Court to uphold it like any other legal contract.  There is no legal opinion under Oregon law at present that deals directly with this pet issue.  So there is a significant risk if one of you challenges the validity of the agreement, that a judge may not uphold your agreement.  However, a mutual agreement is the best solution under current law.  Otherwise, a judge is likely to award the pet to one of you and will likely not grant visitation to the other; much in the same way you can’t both share the couch anymore.

Oregon State Agencies are Now Required to Recognize Out of State Same Sex Marriages

In October 2013, the Oregon Department of Justice (“DOJ”) issued a decision to allow State agencies to recognize out of state same sex marriages. (See my previous blog posting on October 8). Now, effective January 1, 2014, a new Oregon Administrative Rule requires all State agencies to recognize same sex marriages validly performed in other jurisdictions. OAR 105-010-0018. This rule follows the reasoning of the DOJ’s decision that the state must recognize those same-sex marriages in order to comport with the United States Constitution. The rule expires on June 30, 2014 and is intended to give agencies time to adopt specific rules and procedures implementing this mandate prior to the expiration date. We expect to see agencies come out with their new rules and procedures over the next six months, which should provide more clarity for same-sex couples in Oregon.

Oregon DOJ – State Agencies Can Extend Rights And Benefits To Same Sex Couples

On October 16, 2013, the Oregon Department of Justice (“DOJ”) issued an opinion concluding that Oregon agencies can recognize valid same-sex marriages from other jurisdictions for purposes of administering Oregon law without registering as domestic partners. (Emphasis supplied). This is significant given the fact that under current Oregon law, same sex couples must register as domestic partners in order to have the same rights, privileges and responsibilities as heterosexual married couples.

This agency opinion comes on the heels of the June 26, 2013 United States Supreme Court decision in United States v. Windsor, 113 S.Ct. 2675 (2013) in which the Court held Section 3 of the Defense of Marriage Act (“DOMA”) unconstitutional on equal protection grounds in defining marriage as between one man and one woman for purposes of federal law; and the October 15, 2013 federal court case filing in the United States District Court in Eugene, Oregon by two gay couples who seek a holding that Oregon’s Constitutional ban on gay marriage is similarly unconstitutional under the Oregon Constitution. The Windsor holding allows gay couples who are married in jurisdictions that allow gay marriage, the same rights and responsibilities under federal law as heterosexual spouses.

Federal agencies have come out with regulations that clarify the ruling to provide that these federal rights follow the couple regardless of the State they reside. The Windsor decision does not require States to allow gay marriage and continues the long established principle that domestic relations issues fall squarely under the power of the States. In applying Windsor in Oregon, a gay couple who marries in Washington State (which allows gay marriage) but lives in Oregon, has the same rights as spouses under federal law. However, given Oregon’s domestic partnership statute and express ban on gay marriage, that same couple would be required to register as domestic partners in order to avail themselves of the same rights as spouses under state law. Neither the Windsor decision nor the DOJ opinion alters Oregon law.

There are two challenges currently underway against Oregon’s Constitutional ban on gay marriage, including a voter initiative for the November 2014 election and the recently filed law suit mentioned above. It is likely that this question of constitutionality of Oregon’s gay marriage ban will be decided in the near future by way of one or both of these challenges. For now, we are advising our same sex clients who have decided to marry, to register as domestic partners in Oregon in order to guarantee their rights under state law, and to marry in jurisdictions (like Washington or California – there are differences but that’s for another day) to avail themselves of the federal rights and benefits of traditional spouses.