Chapter 108 — Husband
and Wife Relationship; Property Rights; Premarital Agreements
2011 EDITION
MARITAL RELATIONSHIPS
DOMESTIC RELATIONS
GENERAL PROVISIONS
108.010 Removal
of wife’s civil disabilities; wife’s civil rights same as husband’s
108.015 Domicile
of married person or minor child
108.020 Nonliability
for other spouse’s obligations
108.030 Liability
of husband for civil injuries committed by wife
108.040 Liability
of parents for expenses of family and education of children
108.045 Liability
of stepparent for expenses of family and education of children
108.050 Nonliability
of wife’s property for husband’s obligations
108.060 Noninterest
of one spouse in property of other
108.080 Civil
remedies between spouses in respect of separate property
108.090 Conveyances,
transfers and liens between spouses; creation and dissolution of estates by
entireties; validation of prior dissolutions
108.100 Husband
and wife as attorney in fact for each other
108.110 Petition
for support of spouse and children; rules
108.120 Support
judgment or order
COMMUNITY PROPERTY MATTERS
108.510 Revocation
of election to come under terms of Community Property Law of 1943; fee
108.515 Disposition
of fees
108.520 Effect
of Act repealing Community Property Law of 1947
108.530 Removal
of community property status by agreement
108.540 Removal
of community property status by death of either spouse
108.550 Reliance
on spouse’s right to deal with property in spouse’s name
PREMARITAL AGREEMENTS
108.700 Definitions
for ORS 108.700 to 108.740
108.705 Agreement
to be in writing; consideration not required
108.710 Subjects
of agreement; child support not to be adversely affected
108.715 Agreement
effective upon marriage
108.720 Modification
of agreement; consideration not required
108.725 Party
may prove agreement unenforceable; when court may require support;
determination of unconscionability
108.730 Effect
of void marriage
108.735 Statute
of limitations; defenses
108.740 Short
title; construction; severability
GENERAL PROVISIONS
108.010 Removal of wife’s civil
disabilities; wife’s civil rights same as husband’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imposed or recognized as existing as to the husband hereby are repealed; and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 Oregon as if that person were not
married.
(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 minor’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 minor’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 spouse’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 wife’s property
for husband’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 person’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
[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; repealed by 2011 c.595 §10]
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
OREGON
COMMUNITY
PROPERTY LAW,
CHAPTER 440,
OREGON LAWS
1943
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 Oregon on the _____ day of_____, 2_____, to avail ourselves of the
provisions of chapter 440, Oregon Laws 1943, being the Oregon Community
Property Law.
IN
WITNESS WHEREOF we have hereunto set our hands and seals this _____ day of_____,
2_____.
__________________
__________________
STATE OF
OREGON, )
) ss.
County of_____ )
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 Oregon
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 spouse’s right to deal with property in spouse’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.
_______________