Marital Agreements: Prenups, Postnups and Divorce Agreements in Colorado

5.10.17

Imagine you’re engaged and excited about the impending prospect of sharing your life with your best friend. Topics such as, whether to send a wedding invitation to the loathed Uncle Vinny, and hunting for the perfect (yet affordable) honeymoon should be at the forefront of any couple’s minds. No couple wants to think about the depressing topics of death and divorce amidst a time meant for joyful beginnings.

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However, while divorce rates are dropping to a 40-year all time low, it is still estimated that 40-50% of all marriages will end in divorce. That rate dramatically increases for couples entering their 2nd or 3rd marriage. And if a couple beat the divorce odds, chances are good that one spouse will out-live the other, perhaps by only a few months, or maybe by years.

While prospective couples don’t always have the stomach to contemplate these sad topics, it is prudent, especially for older couples who’ve had more time to acquire property, 401Ks and other assets. In the event of the death of a spouse or divorce, there are legal options, like marital agreements that afford protection to couples and their belongings.

What are marital agreements?

Marital agreements are legal contracts made between couples who intend to be, or are currently married. These types of agreements are meant to give couples peace of mind concerning the uncertainty surrounding their financial future. Agreements can offer composure by stipulating who gets rights to what property, life insurance, retirement accounts, responsibility for debt and alimony awards in the event of the dissolution of the marriage or death of a spouse.

There are three main types of agreements, prenuptial, postnuptial and separation agreements. A prenuptial, also referred to as a prenup or antenuptial, is for couples who are intending to marry but haven’t yet married. The key factor in a prenup, is the word “intent”. For example, an agreement made between couples who are cohabitating but did not state an intent to marry, will not be enforceable as a premarital agreement, even if the couple later marries.

Couples who may already be legally married, can still acquire a marital agreement called a postnuptial. This option is beneficial for couples who forgot, or were unable to get a prenup. It can also be suitable for couples who feel that current circumstances warrant a marital agreement – such as coming into a large inheritance, the creation of a business or the discovery of a spouse’s infidelity.

For couples who have neither a prenup or postnup and are contemplating divorce, then they can enter into a separation agreement (also called a divorce agreement). This option is for couples who want to resolve their financial disputes without having to go to court.

Whether a couple gets a martial agreement prior to, or during their marriage, all martial agreements are protected under the Colorado Marital Agreement Act. Agreements address issues such as:

  • Property rights – who gets what property rights during marriage, or in the event of death or divorce.
  • Debt liability – who is responsible to pay for debt(s) during marriage, and how it is transferred in the event of death or divorce.
  • Maintenance (commonly referred to as alimony) issues – what if any alimony is to be received in the event of death or divorce.
  • Attorney fees – who will pay any legal fees if a couple has to go to court in the event of a divorce, separation or annulment.

Limitations of Marital Agreements

However, marital agreements do have some important limitations, which if breeched, can render the agreement (in whole or part) null and void. A marital agreement cannot be enforced when:

  • It adversely effects a child’s right to support – thus an agreement cannot reduce or eliminate any future child support responsibilities.
  • Abuse or domestic violence is present – an agreement cannot limit or restrict lawful remedies for victims of domestic violence.
  • It punishes a spouse for initiating divorce or separation.
  • Violates public policy.
  • Attempts to alter a court decree on legal separation or divorce.

How Colorado Statutory Law Effects Your Marital Agreement

Since marital agreements are a type of contract, they must adhere to contract law. In Colorado’s history, there have been 2 major statutory laws concerning marital agreements: Colorado Marital Agreement Act in 1986 and Uniform Premarital and Marital Agreements Act in 2012.

Affects your agreement, based on when it was signed.

The most recent statutory law (Uniform Premarital and Marital Agreement Act) only applies to agreements that were signed on or after July 1, 2014. Thus, it is necessary to discern the date of the agreement to see which statutory and case laws apply. For agreements signed prior to July 1, 2014, while the new Act does not apply, it will for any future amendments that are made to those agreements.

The act also applies to civil unions. Couples who intend to enter into a civil union, or already are, may draft an agreement that relates to the civil union.

New law adds further protections.

The new law added provisions for prenups and postnups to protect an unrepresented spouse. As it is natural for a party to trust their current or soon-to-be spouse, a person may feel that they do not need a lawyer, even when the other party does have one. While common, this mistake can have major repercussions for the unrepresented spouse, such as giving up their right to marital money, property, alimony and even committing themselves to pay current or future debt acquired by their spouse. To combat this problem, the new law requires that a person have: a) reasonable time and, b) adequate finances when deciding on whether to retain legal counsel. Additionally, if a party decides not to hire legal counsel, then a waiver of rights must be a clearly visible addition to the marital agreement.

Still leaves room for future disputes.

While both provisions should mitigate any future issues that can arise from inadequate legal representation, there is still room for future disputes. This arises because the law does not define what reasonable time is, thus allowing an unhappy spouse to contest an agreement on the basis that he or she didn’t have “reasonable time” in locating or contemplating the merits of legal help.

Things to Know – Common Problems

Marital agreements, when prepared correctly, give peace of mind to a couple entering, continuing or ending their marriage. When agreements are incomplete, missing information or contain the wrong language, room is left for agreements to be contested in the future by an unhappy spouse.

In protecting yourself, the saying “the best defense is the best offense” also applies here. Minding all your P’s and Q’s now, may later save you from a court finding your agreement unenforceable due to fraud or breach of fiduciary duty. The main reasons a court may deem a marital agreement unenforceable is when a party:

  1. a party involuntarily consented;
  2. didn’t have reasonable access to legal representation;
  3. didn’t receive adequate disclosure of finances; or
  4. notice of the waiver of rights was not included in the agreement.

Here is what you can do to avoid these common problems:

Do not use the same lawyer. A couple should not use one lawyer when obtaining a marital agreement, as conflict of interests can arise. If one party decides they do not want representation, then a clause should be added into the agreement stating they were aware but decided against legal representation. Otherwise, if a clause is not added or the party can prove that they had neither the time nor finances to retain legal representation, then the martial agreement can be rendered invalid (see Notice of Waiver section).

Importance of timeliness. While there are no stipulations regarding timeliness of an agreement, time is and should be, an important factor that couples are aware of. Time is often something that is referenced when an agreement is challenged – such as a party claiming that because an agreement was made during wedding preparations, they felt they had to agree under duress. To avoid this, agreements should be made well in advance.

Adequate disclosure of finances, assets and property. By law, both parties must provide the other with adequate disclosure of all forms of income, property and debt. Adequate is defined as being “reasonably accurate” in description and made in a “good-faith estimate” – aka being fully transparent and candid.

Hard copy signatures. Statute 14-2-303 requires that all pre- and postnups be in writing and signed by both parties. Videotaping the signing process, while not required, is a good defense against later claims of forgery or duress.

Must have the “Notice of Waiver” on the agreement if one party decides not to have legal representation, otherwise it can be found unenforceable. Additionally, the notice must be clearly displayed in the agreement:

IF YOU SIGN THIS AGREEMENT, YOU MAY BE: GIVING UP YOUR RIGHT TO BE SUPPORTED BY THE PERSON YOU ARE MARRYING OR TO WHOM YOU ARE MARRIED. GIVING UP YOUR RIGHT TO OWNERSHIP OR CONTROL OF MONEY AND PROPERTY. AGREEING TO PAY BILLS AND DEBTS OF THE PERSON YOU ARE MARRYING OR TO WHOM YOU ARE MARRIED. GIVING UP YOUR RIGHT TO MONEY AND PROPERTY IF YOUR MARRIAGE ENDS OR THE PERSON TO WHOM YOU ARE MARRIED DIES. GIVING UP YOUR RIGHT TO HAVE YOUR LEGAL FEES PAID.

Cannot create a marital agreement when divorce or separation case is pending. Colorado will not recognize or enforce any pre- or postnuptial agreements that are drafted between a couple who intend to get a divorce or separation decree.

Law of Equity. Unless an agreement otherwise stipulates, the law of equity concerning the division of assets still applies in divorce proceedings. Meaning that if an agreement leaves out a property or the interest it accumulates during a marriage, it is subject to equitable distribution should the marriage end in divorce. Please note, in Colorado equitably do not mean equal, it means fair.

Does getting a prenup doom a relationship to fail?

This argument that prenups encourage or contribute to divorce has been rejected by Colorado courts. Many attorneys and prenup couples feel that this process instead promotes a stronger martial relationship. A good attorney will make sure this language is present in an agreement so that it is not challenged in future on the basis that it contains language promoting dissolution of the marriage.

Alteration or Revocation of an agreement

An agreement is not forever, under Colorado statue 14-2-306, a marital agreement can be amended or even revoked. If a couple wish to revoke an agreement, then they will need to provide written amendments. Neither verbal agreements nor physical destruction of the original agreement is effective and will not hold up in court.

Similar to the original agreements, an alteration or revocation is not enforceable if a party can show that it was entered involuntarily or that they were not provided with a “fair and reasonable” disclosure of the property or financial obligation of the other party. Hence, all precautions that were taken with setting up and signing the original agreement, should be standard for any amendments or revocations.

What is Unconscionability and why is it important?

Under the Colorado Marital Agreement Act, it requires that an agreement safeguard a spouse’s interests in the face of the emotionally comprising situation surrounds divorce or legal separation. Even if an agreement meets all statutory requirements and was entered into under good faith and full disclosure, a court has the right to deem an agreement unenforceable if it is found to be unconscionable. For example, if an agreement waives a party’s right to alimony or maintenance and at the time of divorce is unable to financially support themselves, a court may not enforce that aspect of the agreement on the basis that it is unreasonable and unfair.

However, this does not apply to the division or property, and unless a party can prove that guidelines were not followed, then a court has no authority to review that part of an agreement. Therefore, it is critical for an attorney to review all waiver of rights concerning property, since there is no safeguard against conscionability.

What does an attorney offer?

A Colorado attorney can make sure you adhere to all statutory laws, as well as draft a well written agreement that won’t cause future headaches. Additionally, an attorney can make sure an agreement accurately reflects a client’s wishes in regard to – property rights, debt liability, estate rights, if/what any alimony is awarded and how any future attorney’s fees are paid.

Avoid Bad ideas. Attorneys can advise on any impracticable ideas that a couple may have which can render an agreement void or incite future animosity. Popular ideas, such as having a financial penalty for adultery added into an agreement is usually not recommended, as it is hard to prove in court and goes against the basic premise of a marital agreement, which is to avoid animosity between parties should divorce or separation occur.

Cover all your bases. Making sure that both parties receive adequate disclosure of finances, assets and property before an agreement is signed is paramount if it is to be enforced later, as it is common for a spouse to say that they signed without knowing all the information and is grounds for dismissal. By obtaining a financial affairs affidavit, a lawyer can make sure that all income, assets, expenses and liabilities are correctly determined, so that nothing is left out or forgotten.

Additionally, a lawyer can make sure that all courses of action (alimony payments, relinquishing property, etc.) have pertinent dates and deadlines. Otherwise a court will find these items hard to enforce, which would also effect a party’s ability to file an enforcement order should the opposing party not be in compliance with an agreement.

Balance emotion with reason. During the honeymoon phase, a party may approve of things in a martial agreement that may not be in their best interest. A lawyer is trained to look at all possibilities and will probably think of extraneous factors that a layman would not. Additionally, they offer a cool head and reasonable insight when dealing with emotionally heighten topics.

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