Postnuptial Agreement in a Colorado Divorce

Why a Postnuptial Agreement?

A postnuptial agreement, commonly called a "postnup", is legally known as a “marital agreement” in Colorado, and can be thought of as a prenup after marriage. A postnup can have all of the same clauses as a prenuptial agreement, and like a prenup, can determine property and spousal maintenance rights, but not parenting or child support issues. The definition of a postnup is:

"An agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed after the spouses marry, of a premarital agreement or marital agreement."

C.R.S. 14-2-302(2) (Emphasis added).

Note the emphasized language. While a prenuptial agreement is used by a couple who intends to marry, a postnuptial agreement is intended for a couple who is already married, and intend to remain married. This means a post-nuptial agreement is not a substitute for a separation agreement used in a divorce, and it cannot be signed after one spouse has already filed for dissolution of marriage.

What is a Postnuptial Agreement?

It may seem a bit counterintuitive to say about an agreement which takes effect upon divorce, but a postnuptial agreement must be signed with the intention of remaining married, not of divorcing. And this is an important distinction. Because if an agreement is signed with the intention of divorcing then it's a separation agreement, not a post-nup.

Separation Agreement vs Postnuptial Agreement in Colorado

A separation agreement, signed at divorce, must be fair to both parties, whereas a postnup can generally be pretty one-sided. Hence, there is a temptation to use a postnuptial agreement as a substitute for a separation agreement. The marital agreements act explicitly does not apply to separation agreements:

"an agreement between spouses who intend to obtain a marital dissolution or court-decreed separation which resolves their marital rights or obligations and is signed when a proceeding for marital dissolution or court-decreed separation is anticipated or pending."

C.R.S. 14-2-303(3)(b).

The Colorado Court of Appeals has stated the reasoning behind the importance of distinguishing a postnuptial agreement, and the intent to remain married, from a separation agreement at divorce:

"The Act's requirement that present spouses sign a marital agreement prior to the filing of a dissolution action is based on public policy considerations that seek to safeguard the interests of a spouse involved in the emotionally stressful circumstances of a dissolution action."

Lafaye, at 458.

A post-nuptial agreement is like an insurance policy - executed at a time when everything is fine, but it takes effect if the marriage were to be dissolved in the future.

Pre-2014 Standard - Postnup Could Not be "In Contemplation of Divorce"

Note that the standard for a postnuptial agreement vs separation agreement is different in the 2014 UPMAA which is currently, in effect, and the Uniform Premarital Agreements Act (UPAA) which was in effect in Colorado until June 30, 2014. Previously a postnup could not be enforced if it was signed "in contemplation of divorce", but now, a couple can sign a postnuptial agreement with one eye on the idea of divorce, as long as their intent at the time of signing was to remain married:

"Wife’s argument that the marital agreement is unenforceable because it was entered into in contemplation of dissolution is unpersuasive. Under the Act, whether a marital agreement is entered into in contemplation of dissolution is no longer the test for enforceability.

Indeed, the very definition of a “marital agreement” in the Act as an agreement that modifies or waives certain rights and obligations at dissolution presupposes some degree of contemplation of future dissolution. Accordingly, instead of asking whether the parties entered into the agreement in contemplation of dissolution, the applicable version of the Act asks whether they “intend to remain married” when entering into the agreement."

Kinning, ¶¶ 28-30 (Cleaned Up).

Kinning is not the end of the issue, however:

• The decision was not published, which means it is persuasive authority, not binding precedent.
• Based upon procedural problems, the Kinning court reversed the trial court decision to uphold the postnup and sent the case back for reconsideration. The language quoted above that "contemplation of dissolution is no longer the test for enforceability" is therefore what lawyers call "dicta" - it's akin to a "suggestion" for the lower court, not the actual holding from the court of appeals.

Nonetheless, it is the Colorado Court of Appeals' current interpretation of the statute, so will likely be more persuasive on trial courts than older decisions interpreting the prior version of the marital agreements act, including the seminal Bisque case from 2001, where the court stated:

"When an agreement between present spouses is entered into "attendant upon" separation or dissolution, the agreement must be considered a separation agreement, even if it was signed prior to filing for dissolution or legal separation. In our view, this interpretation furthers the policy of safeguarding the interests of a spouse contemplating and preparing for the emotionally stressful step of dissolution of marriage."

Bisque, at 179.

Busted Postnup Not Enforceable as Separation Agreement

In the Lafaye case referenced above, once the court rejected the postnup on the grounds that it was signed while a divorce matter was pending, the wife tried to get it enforced as a separation agreement. However, that too failed - a separation agreement must be signed in contemplation of divorce, but the parties already testified that they signed the postnup intending to reconcile. Since the agreements have those different intentions behind them, it was not enforceable either way.

Postnup Effective Upon Signing

Whereas a prenup takes effect only upon marriage, with a postnuptial agreement the parties are already married, it is binding upon being signed: "A marital agreement is effective on signing by both parties." C.R.S. 14-2-307.

Modification or Revocation of a Postnuptial Agreement

Under the postnup statute, a modification to the postnuptial agreement is legal as long as it comports with the requirements for the original postnup. C.R.S. 14-2-307.

An amendment includes a "revocation." C.R.S. 14-2-302(1). So formally voiding a postnuptial agreement requires the same written/signed document as any other modification.

Postnuptial Agreement in a Void Marriage

If the couple signs a postnuptial agreement, but the marriage is later declared void, the agreement is only enforceable "to the extent necessary to avoid an inequitable result." C.R.S. 14-2-308.

Postnuptial Agreement Terms

Pursuant to C.R.S. 14-2-302(5) a prenuptial or post-nuptial agreement may address the following marital rights upon divorce or death of a spouse:

Division of Assets

A postnuptial agreement can address "a right to property, including characterization, management and ownership", C.R.S. 14-2-302(4)(b), as well as "a right to property... at legal separation, marital dissolution, or death of a spouse" C.R.S. 14-2-302(4)(d).

Property is broadly defined:

"Property" means anything that may be the subject of ownership, whether real or personal, tangible or intangible, legal or equitable, or any interest therein, including income and earnings."

C.R.S. 14-2-302(6).

Division of Debts

A postnuptial agreement can also address "responsibilities for liabilities at legal separation, marital dissolution, or death of a spouse" C.R.S. 14-2-302(4)(d).

Spousal Support, if Not "Unconscionable"

A postnuptial agreement can address spousal maintenance upon termination of the marriage. C.R.S. 14-2-302(4)(a). However, unlike most provisions which can be one-sided, a maintenance provision is not enforceable if it is: "unconscionable at the time of enforcement of such provisions. The issue of unconscionability shall be decided by the court as a matter of law." C.R.S. 14-2-309(5).

A spousal maintenance provision does not have to follow the Colorado alimony statute, but the more the spouses deviate from the "norm, the more likely a judge is to scrutinize it as being unconscionable. So a smart post nup will not completely waive maintenance, at least for a longer-term marriage, but will just provide for less support over a shorter period of time than the spouse may get absent a marital agreement.

Attorney Fees, if Not Unconscionable"

A postnuptial agreement can address "An award and allocation of attorney's fees and costs." C.R.S. 14-2-302(4)(e). But like spousal maintenance, "the waiver or allocation of attorney fees" is not enforceable if it is "unconscionable at the time of enforcement of such provisions. The issue of unconscionability shall be decided by the court as a matter of law." C.R.S. 14-2-309(5).

While this provision is new to the UPMAA, under Colorado case law even under the UPAA attorney fee provisions were enforceable as long as they were not unconscionable. Ikeler.

Rights Upon Death of Spouse

The definition of a postnuptial agreement above which includes modifying rights of spouses at the "death of one of the spouses." C.R.S. 14-2-302(5). And that includes giving up the right to survivor benefits or a share of the spouse's ERISA-qualified pension plan. Rahn.

Unenforceable Postnuptial Agreement Clauses

There are limits on the areas Colorado will allow spouses to include in a marital agreement. The following clauses will be unenforceable, however the remainder of the postnup is still enforceable:

Child Support

Similarly, a postnuptial agreement clause which "adversely affects a child's right to support" is unenforceable per C.R.S. 14-2-310(2)(a).

Domestic Violence Victims

Per C.R.S. 14-2-310(2)(b), a postnuptial agreement is unenforceable if it "limits or restricts a remedy available to a victim of domestic violence under the law of this state."

Create Fault-Based Divorce

Colorado is a no-fault state. A postnuptial agreement provision which "purports to modify the grounds for a court-decreed legal separation or marital dissolution available under the law of this state" is unenforceable. C.R.S. 14-2-310(2)(c). Contrast this to a few states which allow spouses to contract into fault-based "covenant marriages."

Penalize Spouse for Initiating Divorce

A postnuptial agreement provision which "penalizes a party for initiating a legal proceeding leading to a court-decreed legal separation or marital dissolution" is unenforceable. C.R.S. 14-2-310(2)(d).

Child Custody & Parenting

A parenting provision in a postnup is considered by the court but not binding if it is not in the best interests of the child:

"A term in a premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial responsibility is not binding on the court."

C.R.S. 14-2-310(3)

Public Policy

A postnuptial agreement provision which "violates public policy" is unenforceable. C.R.S. 14-2-310(1)(e).

Infidelity Clause in a Postnuptial Agreement

Colorado has not yet ruled on whether an infidelity clause in a marital agreement which financially penalizes a spouse for adultery, is enforceable. However, an infidelity clause likely violates the UPMAA prohibition on modifying the grounds for divorce by basing the property settlement upon one's alleged misconduct.

Moreover, even if legal, an infidelity clause could not affect spousal maintenance awards, which per C.R.S. 14-10-114(2) "shall be made without regard to marital misconduct."

There is only one exclusively no-fault state which has upheld an infidelity clause, and that case is distinguishable from a "normal" infidelity clause in that adultery simply meant the normal statutory factors would apply to alimony instead of the marital agreement. Several states have held infidelity clauses to be unenforceable attempts to circumvent no-fault divorce. For more details, see our blog post Adultery – Infidelity Clause in Prenup or Postnup Agreements.

I believe that an infidelity clause is likely unenforceable in Colorado, as our judges are more likely to concur with the reasoning of those states which find them a violation of public policy.

Requirements for a Postnuptial Agreement

The marital agreements act spreads out in several different places the permissible and impermissible clauses, defenses, etc, in a postnup, but here is a summary of everything in one consolidate list:

• Written & Signed. C.R.S. 14-2-306.
• Intent to Remain Married. C.R.S. 14-2-302(2), so spouses cannot "intend to obtain a marital dissolution" C.R.S. 14-2-303(3)(b).
• Voluntary and Not Under Duress. C.R.S. 14-2-309(1)(a).
• Access to Attorney. C.R.S. 14-2-309(1)(b).
• Notice of Rights Waived or Modified, if a spouse had no attorney. C.R.S. 14-2-309(1)(c).
• Adequate Financial Disclosure. C.R.S. 14-2-309(1)(d).
• Maintenance & Attorney Fee Clauses Cannot be Unconscionable. C.R.S. 14-2-309(5).
• Addresses Permissible Marital Rights. See above, and C.R.S. 14-2-302.

A postnuptial agreement which violates any of the above provisions may not be enforceable. See our article Attacking & Enforcing Prenuptial & Postnuptial Agreements for details.

No Quid Pro Quo Required

Finally, there is no need for a quid pro quo. C.R.S. 14-2-306 states, "The agreement is enforceable without consideration." With a postnuptial agreement, the spouses are making financial concessions in return for nothing other than the right to remain married to each other.

Do-It-Yourself Postnuptial Agreement

There is no sample postnuptial agreement template in the Self Help/Forms section of the Colorado Courts website. I have reviewed some of the inexpensive (under $100) fill-in-the-blank or assembly-type postnups, and while they may be adequate for simple situations, they are risky to use in more complex financial situations. Moreover, they are generic, rather than being drafted to comply with Colorado's UPMAA requirements.

Because of the differences in state laws, and the fact that even an adequate postnup is not enforceable if you do not comply with Colorado's requirements in its drafting or execution, reluctantly Graham.Law cannot recommend a do-it-yourself postnup. There's too much at stake to take that risk. And we are big advocates of not spending money needlessly on lawyers if you can do it yourself - we even have a Do It Yourself Divorce section of our Colorado Family Law Guide specifically to educate people how to do their own divorces.

FAQ - Postnuptial Agreement in a Colorado Divorce