Q: Can a written agreement be made as to the ownership of assets (house) in a marriage after the marriage has occurred?
My wife bought the house we live in prior to our marriage and is the only one listed on the mortgage. I want to make sure that no one can come after the house that she owns due to issues from my past. Is that possible?
A: If your wife is the sole owner on the deed and is the only one named on the mortgage, then you have no ownership interest and no responsibility to pay the mortgage. Your past creditors cannot make any claim to your wife's home. I do however, recommend that you and your wife prepare a comprehensive estate plan that preserves and protects her and your assets in the event one of you dies. You may also consider having a post-marital agreement prepared to address division of assets in the event of divorce or death.
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A:
In Oregon your marriage doesn't not create any type of relationship that benefits you creditors in the sense that they can now go after your wife's assets or sue her for your debts. (There is one small exception in that there is a law that makes spouses liable for the debts of their spouse incurred for the spouse's basic needs such as food clothing, shelter or medical care, but that rule would not apply to pre-marital debts.) As long as your wife keeps her property in her name only, it should not be subject to the reach of your creditors.
Similarly you might be able to declare bankruptcy without involving your wife or her assets. The extra income that your wife contributes to your household will be considered in figuring out if you meet the means test or not. So talk to a bankruptcy attorney and see what can be done to get rid of your debts.
It is never a bad idea to do basic estate planning but that has nothing to do with your immediate question, which is what your creditors can go after at the moment. Your wife could set up a spendthrift trust that would contain her property if she dies, and provide for you, but would not be subject to the claims of your creditors. So that could be helpful.
I don't think a post-marital agreement is particularly helpful unless you are on the verge of getting divorced. Agreements made after marriage but with no divorce on the horizon will probably be disregarded by the court when a divorce occurs in the future and you can't do a pre-nuptial agreement after you are married.
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