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Marital Agreements – Pre-Nups & Post-Nups

Let’s be honest. 

The last thing that any couple wants to discuss is a pre-nuptial or post-nuptial agreement (“marital agreement”). It’s a conversation fraught with anxiety, but also one that requires pragmatism and logic. If you or your spouse have brought up a martial agreement (or plan to do so), the conversation will be much easier if you know what the legal requirements are in Colorado, what can and cannot be included, and the appropriate timeline. 

A marital agreement is NOT an agreement to get divorced. 

Many people express concerns that their partner is “not committed” if they approach the topic of a pre- or post-nuptial agreement. While this emotional response is completely understandable, it should be understood by all involved that a martial agreement is only a practical consideration, meant to protect rights and privileges as allowed by law. 

In fact, there is specific legal authority which prohibits a marital agreement from being created in contemplation of divorce. Plainly stated, if you or your spouse plan to get a divorce, you cannot enter into an enforceable marital agreement. 

Moreover, both parties have to voluntarily enter into the agreement after having had an opportunity to discuss the terms with their own legal counsel. This is so that both parties are fully aware of their own rights, what they may be relinquishing, and what they stand to gain. 

Most people who enter into a marital agreement do so to protect family assets, businesses, trusts, or other assets that are entangled with third parties or relatives. Others wish to establish boundaries for the creation of debt (for instance, student related debt, which is a growing issue among younger couples). 

The bottom line, is that a marital agreement is NOT an agreement to get divorced, but rather an agreement to protect each other’s rights and claims on mutually agreed-upon terms. No one can force you to sign a marital agreement, and in fact, there is significant legal authority to invalidate a marital agreement in the case of duress (which can take many forms) or incapacity.  

What can a marital agreement include? 

Frankly, a marital agreement can address almost anything that is agreed upon between both parties, with some notable exceptions. Specifically, a marital agreement cannot be used to create rights or rules regarding children, is questionable with regard to provisions related to future maintenance/alimony, and can only be enforceable as to what is included in the agreement. 

With regard to children, the legal standard that the Court uses to establish an allocation of parental responsibilities (including parenting time, decision-making authority, and child support) is “best interests of the child.” This standard must be assessed and applied at the time of a divorce, and as such, cannot be prospectively assigned by the parties in a marital agreement. While many people would love to simply include a provision that in the case of a divorce, the parties shall exercise 50/50 parenting time with any children, the reality is that such a schedule may not be in your children’s best interests at the time of a divorce, and the Court is required to make a present assessment based on the current facts. So, leave the kids out of the marital agreement. 

Maintenance (previously known as “alimony”) is another sticky issue when it comes to marital agreements. While the parties can include a provision in the agreement regarding maintenance (often a waiver of one or both parties’ rights to seek maintenance at all in the case of a divorce), this must be assessed at the time of enforcement for “conscionability.” The language of the agreement can be a factor in fighting against a maintenance obligation, however, if the Court finds that it would be unconscionable for the lower earning spouse not to receive maintenance, the Court has the authority to disregard that provision in the marital agreement and award maintenance. 

Finally, a marital agreement is only as effective as the scope of the terms included. If you do not include any language in the marital agreement regarding such things as debt, personal property, future inheritances, and the like, then the Court will automatically default to State law on each of those issues, and they will likely be disputed at the time of divorce. In order for a marital agreement to be effective, it must be comprehensive, well-considered, and accurate. If it is not included, it is not protected. 

Legal requirements for marital agreements in Colorado. 

Frequently, Clients will come to our office and ask us to put together a “simple” marital agreement without realizing that there is significant work that must be done outside of drafting the contract itself. In Colorado, it is required that the parties to a marital agreement exchange a full and complete financial accounting with each other prior to signing the contract. Without a complete financial disclosure between the parties, the marital agreement may ultimately be unenforceable, and not worth the paper on which it was written. The list of financial documents to be exchanged can be daunting, and it is encouraged that both parties speak with a lawyer to ensure that they have met this requirement under the law. 

Additionally, and less specifically defined by the law, there is an issue of timing. As may be obvious, a pre-nuptial agreement is one signed prior to a wedding, and a post-nuptial agreement is one that is signed after the parties are married. 

As previously discussed, a marital agreement may be found unenforceable where there is an argument for duress. It has been found that if one party presents the other with a pre-nuptial agreement very close to the date of a wedding that has already been planned, payed for, and relatives invited, it can be considered duress. So timing is critical. If you are considering a pre-nuptial agreement, it is encouraged that you begin the process approximately six (6) months before the planned date of marriage. 

However, if you choose to enter into a marital agreement and your wedding is right around the corner, you are not out of options. Simply have the discussion with your spouse, engage with an attorney, and prepare a post-nuptial agreement that you will execute after the wedding has occurred. Similarly, if you are already married, but find that some asset or debt may benefit from a marital agreement, you can still engage in the process and create an effective and binding contract regarding that issue. 

The bottom line if you are seeking a marital agreement. 

Start early, communicate openly with your spouse about the reasons for the agreement and the terms that you wish to include, engage with an attorney, and ensure that you have complied with all State requirements.

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Of Counsel - Domestic Relations


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