Prenuptial Agreements in Colorado

Learn more about prenuptial agreements in Colorado.

While some couples view prenuptial agreements as being unromantic and pessimistic, many more couples see them as an unfortunate necessity in today’s age of frequent divorce. Statistically, prenuptial agreements don’t make divorce more likely, and they can help couples determine their own 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.

What Is a Prenuptial Agreement?

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 issues, such as property division and alimony will be determined in a divorce.

Who Should Get a Prenuptial Agreement?

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:

  • you want to protect your premarital assets (assets you owned prior to marriage) from being divided in a divorce
  • you want to protect the inheritances of children from previous relationships
  • you want to avoid the future division of your premarital business interests
  • you and your spouse want to determine ahead of time how your assets will be divided in a divorce, or
  • you and your spouse want to determine whether one of you will pay alimony in the event of a divorce.

What Issues Can a Prenuptial Agreement Cover?

There are a host of financial issues that a prenup may cover, including:

  • how each spouse’s premarital assets are treated during divorce
  • how assets acquired during the marriage are treated if the marriage ends
  • what happens to either spouse’s employee benefit or retirement plans
  • how mortgage debt and credit card debt are divided
  • whether each spouse is required to have life insurance, and what happens to the policy in the event of death or divorce
  • each spouse’s right to manage or control any of the couple’s property
  • which state’s law governs the court’s treatment of the agreement
  • whether each spouse must make a will to carry out the terms of the agreement
  • whether one spouse will pay the other alimony, and if so, the amount and duration, and
  • any other matter that doesn’t violate the law.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Colorado?

No. Colorado courts don’t allow prenuptial agreements to determine child support or child custody. Judges need to be able to determine what’s in each child’s best interest at the time the parents separate; they 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.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Colorado?

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; oral agreements won’t be enforced. Each spouse must sign the agreement. Since the agreement is a trade of certain 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:

  • the spouse challenging the agreement signed the agreement involuntarily or under duress
  • the challenging spouse didn’t have access to legal representation, or
  • the challenging spouse didn’t receive proper financial disclosures from the other spouse before signing the agreement.

A spouse is 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 lawyers advice, and consider the advice. 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 had knowledge of the other’s finances in other ways, certified financial statements take the guesswork out of the judges hands and ensure that each spouse had a proper financial disclosure before signing the agreement.

Courts decide on a case-by-case basis whether an agreement is unconscionable. Judges find prenuptial agreements unconscionable only in rare cases. Even if an agreement seems very one-sided, the court will usually enforce the terms the spouses agreed to when they married. A judge may find an agreement unconscionable only in extreme circumstances, such as if one spouse will be left so destitute that they have to receive public assistance, such as welfare or food stamps, to survive. In Colorado, each spouse doesn’t have to have the opportunity to consult with an attorney prior to signing the prenuptial agreement for it to be enforceable, but judges may take the lack of an attorney consultation into account when deciding whether the agreement is unconscionable.

In a void marriage, the court will only enforce the agreement to the extent necessary to avoid an unfair result.

To amend or revoke a prenuptial agreement, the couple 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.

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