Prenuptial & Postnuptial Agreements in Colorado

Comprehensive Documents from Denver Family Lawyers

Some couples seek a marital agreement before or during marriage. This often occurs if one or both parties enter the marriage with significant assets (such as investments or retirement accounts).

In the event that a high-asset marriage becomes a high-asset divorce, marital agreements are an excellent way to maintain civility, achieve resolution, and establish each person’s property and financial rights during the legal proceedings.

As is the case with any legal document, marital agreements must adhere to certain legal guidelines and formalities, and include key statutory advisements to be enforceable. To be considered valid, a marital agreement must:

• Be signed by both spouses
• Be entered into without duress
• Grant both spouses access to their own attorney and time to retain them
• Include a signed "Notice of Waiver" if a spouse lacks access to an attorney
• Disclose the finances of both parties accurately and in good faith
• Omit non-enforceable terms (such as parenting time or other terms that violate public policy)

It is important to consult with the legal team at Denver Family Lawyers for personalized representation. We take the time to learn more about your situation and devise agreements that keep your best interests in mind.

Are you drafting a prenup or postnuptial agreement in Denver? Make sure you’re covering all your bases. Contact us at (303) 225-3343 to learn how our firm can help.

Prenups vs. Postnuptial Agreements: What’s the Difference?

A marital agreement is a general umbrella term that covers 2 specific types of marital contracts: premarital agreements and marital agreements.

While both documents detail what happens to a couple’s assets in the event of death or divorce, the key difference between the contracts lies in the time of origin. A premarital agreement (“prenup”) is signed prior to marriage, while a marital agreement (“postnup”) is signed after the marriage.

The Purpose of Marital Agreements

Whether a prenup or postnup, a marital agreement is often desirable to couples who enter a partnership with high assets. While marital contracts often have a negative connotation, there are circumstances when having a marital agreement in place can benefit both spouses, not to mention save them from unnecessary doubt or stress.

Contrary to popular belief, marital agreements aren’t reserved for America’s wealthiest couples. There are various partnerships that may stand to benefit from a prenup or postnup. Consider these common scenarios that may impact a couple’s decision to seek a marital agreement:

• One or both spouses experienced a prior divorce. In this case, it's normal for a partner to make an effort to avoid repeating mistakes or challenges.
• One or both spouses have a realistic view of divorce. While many Americans have different opinions about our country’s divorce rate, it’s no secret that some Americans approach love and marriage without rose-colored glasses. While the national divorce rate is falling, America still has the third-highest divorce rate in the world, making a marital agreement well worth it to some couples.
• One or both spouses possess significant assets. It may be helpful to compare a marital agreement to insurance. In the same way that people invest in protection for high-value assets (such as a car or home), a prenup or postnup is designed to protect your assets in a marriage.
• One or both spouses have considerable debt or intend to incur a significant amount of debt.
• One or both spouses have children from a previous marriage. A marital agreement can help protect a child’s assets and future in the event of divorce or death.
• One or both spouses own a business. A prenup or postnup can protect a business's income, resources, and assets in the worst-case scenario of death or divorce. A marital agreement can help prevent a non-owner spouse from acquiring a portion of the business after their marriage ends.
• One or both spouses are expected to receive a considerable inheritance. If a spouse anticipates coming into a great deal of money in the future, they may find it worthwhile to have a prenup or postnup.
• One or both spouses are concerned with their professional reputation. For spouses with high-profile careers or fame, a marital agreement is an effective way to protect their name, credibility, and status.

What Terms Are Included in Marital Agreements?

The heart of any premarital or marital agreement is the division of assets, debts, and other financial interests and liabilities. Common elements included in a premarital or marital contract include:

• Property division and debts. The agreement details how the couple will divide marital assets and debts (such as their home, retirement funds, and other accounts).
• Alimony and spousal support. Marital agreements can include details regarding alimony or spousal payments, such as the amount and duration of payments to be made. In some cases, a contract may include conditions that must be met to receive support.
• Business interests. Assuming either spouse holds an interest in a business, a prenup or postnup can dictate how premarital interest and appreciation during the marriage will be handled in the event of a divorce.
• Child provisions. If either spouse has children from a previous marriage, a marital agreement can enforce certain provisions regarding your child’s future, inheritance, and financial stability (such as a college savings account). Such terms can determine how and where children will be educated, which religious upbringing they will have, and which parent is responsible for the child’s college tuition.

Responsibility for various debts can also be delegated in premarital and marital agreements, such as notes on deeds of trust (mortgage debt), student loans, credit cards,medical bills, judgments, and other legal liabilities.

Agreements about the division of retirement funds are generally enforceable, but subject to state and federal rules that may limit the free transfer of these monies or require special procedures to implement the intent of the parties. Parties also commonly include provisions about life, health, and other forms of insurance in their premarital and marital agreements.

In addition to agreements about income (such as whether a spouse's income is considered separate or marital property), maintenance agreements are also a common inclusion in most Colorado premarital and marital agreements. Typically, the higher-income party seeks to waive or limit his or her obligation to pay the other party maintenance upon divorce.

Keep in mind that the court will review all maintenance agreements for basic fairness as of the date of the divorce or legal separation. The same rule applies to agreements regarding attorneys’ fees and other legal costs.

What Happens If You Don’t Have a Prenuptial Agreement?

Without a prenuptial agreement, Colorado’s marital property laws will govern the division of assets and debts in the event of a divorce. Colorado is an equitable distribution state, meaning that all marital property—assets acquired during the marriage—will be divided fairly, though not necessarily equally, between the spouses. The court takes various factors into account when deciding what constitutes a fair division, including the length of the marriage, each spouse’s economic circumstances, and contributions made to the marriage.

Marital property generally includes income earned, real estate purchased, and even retirement accounts accumulated during the marriage. On the other hand, property owned before the marriage and gifts or inheritances received by one spouse are typically considered separate property and not subject to division. However, without a prenuptial agreement in place, disputes may arise over what is considered marital versus separate property.

In addition to asset division, debts incurred during the marriage are also subject to equitable distribution. This means that both spouses may be responsible for debts, even if the debt was only incurred by one party. Without the clarity of a prenuptial agreement, these financial matters can become contentious and lead to drawn-out legal battles.

A prenuptial agreement provides a way to bypass the uncertainty and complexity of the court’s decision-making process by allowing couples to decide in advance how their assets and debts will be handled. It offers peace of mind and can protect both parties from lengthy and expensive disputes should the marriage end in divorce. For those with significant assets, business interests, or unique financial circumstances, having a prenuptial agreement can be particularly valuable.