While some couples view prenuptial agreements as being unromantic and pessimistic, many more couples see them as a necessity given today's age of frequent divorce. Statistically, prenuptial agreements don't make divorce more likely, and they allow couples to determine their financial destiny.
States have varying rules regarding prenuptial agreements. This article will explain Colorado's definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.
A prenuptial agreement, also called a "prenup" or "marital agreement," in Colorado, is a contract that two prospective spouses sign before marriage to decide how they will handle issues, such as property division and alimony, in a divorce.
Contrary to popular opinion, prenuptial agreements aren't just for the extremely wealthy. Many types of couples sign prenuptial agreements, even those without significant assets to protect.
You may be interested in getting a prenuptial agreement if:
There are a host of financial issues that a prenup may cover, including:
No. Colorado courts don't allow prenuptial agreements to dictate child support or child custody. Judges need to be able to decide what's in each child's best interest at the time the parents separate and won't allow parents to predetermine custody arrangements. Also, courts determine child support based on each child's needs and the parents' respective abilities to pay support, again at the time the parents separate.
Many states have adopted the Uniform Prenuptial Agreement Act (UPAA), which is a set of rules governing the enforceability of prenuptial agreements. Colorado passed the UPAA in 2014.
Under the UPAA, prenuptial agreements must be in writing, so oral contracts are invalid. Each spouse must sign the agreement. Since the agreement is a trade of specific financial terms for the marriage itself, it becomes effective only after the couple is married.
Colorado judges won't enforce a prenuptial agreement if the spouse challenging the agreement can prove:
A spouse would be under duress if the other spouse used physical or psychological harm or threats to force him or her to sign the agreement. Refusing to marry the other person unless they sign the agreement isn't enough to constitute duress. Spouses must fear for their physical or psychological safety for judges to find that they were under duress.
Courts determine that a challenging spouse didn't have access to legal representation if that spouse didn't have time to decide whether to hire a lawyer for independent advice, as well as time to locate a lawyer, get that lawyer's advice, and consider the information. For this reason, it's best to not spring a prenuptial agreement on your future spouse the day before the wedding; a court may refuse to enforce it.
Proper financial disclosure means that each spouse gives the other reasonably accurate descriptions and estimates of their property, debt, and income. The best way to accomplish this is for each spouse to prepare a certified personal financial statement and attach it to the agreement. While the court can decide that each spouse knew about the other's finances without the official document, a certified financial statement takes the guesswork out of the judge's hands and ensures that each spouse received proper financial disclosure before signing the agreement.
Courts decide on a case-by-case basis whether an agreement is unconscionable. Even if an agreement seems very one-sided, the court will usually enforce the terms the spouses agreed to when they married. A judge is more likely to find an agreement unconscionable in extreme circumstances, such as if one spouse will be left so destitute that they must receive public assistance, such as welfare or food stamps, to survive.
In Colorado, the law allows spouses to sign the prenuptial agreement without legal representation, but the contract must include a waiver, and judges may take the lack of an attorney consultation into account when deciding whether the agreement is valid or unconscionable.
In some cases, a couple's marriage isn't valid. If either party asks the court to declare the marriage invalid through a formal court process, and the judge grants the request, the law treats the marriage as if it never existed. If a couple's marriage is invalid or void, the court will only enforce a prenup to the extent necessary to avoid an unfair result.
If either spouse would like to amend or revoke a prenuptial agreement, the parties must put the amendment in writing and sign it.
If you have additional questions about Colorado prenuptial agreements, contact a local family law attorney for advice.