Though not the most romantic concept in the world, a couple contemplating marriage in Colorado may enter into a prenuptial agreement, or a contract before marriage. Such agreements, though not common, are typically signed when one party has, or expects to have, substantial property or income. They address property and financial issues upon the couple's dissolution or legal separation, although Colorado divorce courts will not enforce prenuptial agreements in an annulment action, except as necessary to avoid injustice.
This firm does not draft prenuptial agreements, but if you are going through a dissolution and there is a prenuptial or a post-nuptial agreement, I will litigate whether the agreement is enforceable.
Requirements for a Colorado Prenuptial Agreement
The requirements for a prenuptial agreement in Colorado are similar to a standard contract, with the following exceptions:
- The prenuptial agreement, and any amendments, must be written, not oral,
- No consideration (or quid pro quo) is required, which means one party may give up important statutory rights in exchange for nothing more than the right to marry the other party,
- Each party must make fair and reasonable disclosure of his/her property and financial assets and obligations,
- Each party must voluntarily enter into the prenuptial agreement (required for all contracts, but beware of a prenuptial agreement presented to the prospective spouse on the eve of a marriage), and
- If the prenuptial agreement addresses spousal maintenance (alimony), it must not be unconscionable at the time of enforcement. That's the legal way of saying that a Colorado divorce court will not enforce a maintenance provision which is unfair at the time of divorce or legal separation, even if it was fair when the prenuptial agreement was signed.
Contents of a Colorado Prenuptial Agreement
A prenuptial agreement may address the following issues:
- Division of property and debt,
- Rights and obligations under insurance policies, wills, employee benefit plans, etc., and
- Spousal alimony / maintenance.
Colorado will treat as void any provisions concerning children, such as child custody & visitation or child support. That's because the Colorado family law court is required to consider the best interests of the children at the time of divorce or legal separation, independent of any agreement between the parties.
Colorado Post-Nuptial Agreements
A post-nuptial agreement in Colorado is identical to a prenuptial agreement in terms of what it may address. The difference is that the spouses are already married at the time the post-nuptial agreement is signed.
What separates this agreement from a separation agreement made while the parties are divorcing is that with a post-nuptial agreement the spouses have not filed for dissolution, nor is the agreement being signed in anticipation of a divorce. Instead, the purpose of a post-nuptial agreement is to preserve the marriage, albeit on new terms, not to dissolve it.
If the parties are preparing for a divorce, they should have a separation agreement, prepared in anticipation of divorce. A post-nuptial agreement which was prepared as part of the divorce process, rather than to preserve the marriage, may not be enforceable if a separation agreement should have been used instead.
Out of State Prenuptial Agreements
If a couple divorcing in Colorado has a prenuptial agreement from another state, Colorado will generally enforce the agreement, providing that it followed the law of the state where it was created. Note that any maintenance provision is treated like a Colorado prenuptial agreement - it must not be unconscionable at the time of the Colorado divorce or legal separation.