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Prenuptial and Postnuptial Agreements
Agreements entered into between couples prior to marriage are called “pre-nuptial” agreements. Similar contracts formed after marriage (but prior to divorce) are called “post-nuptial” agreements.
Such agreements allow couples to define their rights in the case of divorce or death, as well as during the marriage itself. Without such an agreement, the rights will be determined in accordance with the Uniform Dissolution of Marriage Act (UDMA), in case of divorce, or in accordance with the Colorado Probate Code (CPC), in case of death.
The History of Pre- and Post-Nuptial Agreements
Before 1986, pre-and post-nuptial agreements were considered contrary to public policy in Colorado. Opinion-makers and legislators feared that such laws encouraged divorce. However, this stance was undermined in a number of court decisions which upheld them. The Colorado Marital Agreement Act of July 1, 1986, brought more certainty and established procedures for ensuring that nuptial agreements were enforceable.
Effective July 1, 2014, the Uniform Premarital and Marital Agreement Act, Colo. Rev. Statutes §14-2-301, et. seq., (“UPMAA”) will govern all pre- and post-nuptial agreements. The UPMAA establishes important new requirements that must be satisfied for a pre- or post-nuptial agreement to be enforced.
A marital agreement must be in writing and signed by both parties to be binding. Unlike other contracts, a pre- or post-nuptial agreement is enforceable without consideration (something of value given by a party to the agreement). Likewise, no consideration is needed to amend a nuptial agreement. The agreement is effective immediately upon signing but must be signed prior to the time the parties file for a divorce or separation.
Enforceability of Pre- and Post-Nuptial Agreements
As a general rule, written pre- or post-nuptial agreements signed by both parties are enforceable. However, there are significant exceptions to this rule include the following circumstances:
- The agreement was not executed voluntarily or was signed due to duress;
- A party did not have “independent legal representation” prior to signing;
- One spouse failed to provide a reasonably complete and accurate disclosure of his or her assets, income and/or debts. Any non-disclosure or inaccuracy must be “material.”
- For agreements signed on or after July 1, 2013 (only), additional requirements apply:
- The agreement must contain a conspicuous notice that that each spouse has the legal the right to be supported by the other spouse (or prospective spouse).
- The notice must also advise the parties that, by signing the nuptial agreement, (a) they may be waiving the right to “own or control money and property” during the marriage or upon divorce or death of the other party, (b) may be agreeing to pay debts and bills of the other spouse, and (c) may be giving up the right to have the other spouse pay all or some of the legal fees.
- This notice provision does not apply if both parties had independent legal representation at the time they signed the nuptial agreement.
The Unconscionable Agreement
Even if none of the above exceptions to enforceability apply, a court may nevertheless refuse to enforce an agreement if its terms are unconscionable at the time the provisions are to be enforced. “Unconscionable” merely means unfair, which is a highly-subjective term. For example, a court my refuse to enforce a provision in which maintenance is waived by a wife who never entered the work force in order to raise the parties’ children. Similarly, court may refuse to enforce a provision waving any right to compel the other party to pay attorney fees if enforcement of the term would be unconscionable at the time of enforcement.
Property division is another matter. Generally, absent material non-disclosure or misrepresentation, the court has no power to review the parties’ agreement as to the division of property. The UPMAA does not alter this rule. It is therefore critical that any waiver of rights relating to the division of marital property be reviewed by an attorney.
Contact an Experienced Denver Marital Agreements Lawyer
The Thode Law Firm will help you with all your questions and concerns about pre-nuptial and post-nuptial agreements. Contact a leading Denver divorce lawyer for a free consultation. Call us at (303) 502-9600.