Divorce Frequently Asked Questions: Prenuptial Agreements
- I am getting divorced. Is my Prenuptial agreement binding?
Maybe. Pursuant to Colorado statute, premarital agreements are binding, absent certain exceptions set forth in C.R.S. 14-2-301 et. Seq. So long as a marital agreement is entered into in proper fashion, whether before or after the marriage occurred, it will be binding upon the parties, but for a few exceptions. A Prenuptial agreement will generally contain provisions regarding property, debt, alimony (maintenance), and attorney fees, and how those items will be dealt with in the event of a divorce. Marital agreements, whether before or after the wedding, are not valid, if they are arrived at while a divorce case is pending. Additionally, to be valid, they must be entered into voluntarily by both parties. Furthermore, there must have been a fair and reasonable disclosure of assets and liabilities provided prior to each party signing the agreement. Presuming those criteria are met, a court will generally uphold an agreement. C.R.S. 14-2-307, also indicates a Colorado divorce court does have the ability to negate the provisions of a Prenuptial agreement regarding alimony/maintenance, if it finds that the agreement is “unconscionable” at the time of the divorce as relates to the issue of spousal support. The “unconscionable” standard is more than the waiver of alimony being “unfair” and will depend on the facts and circumstance at the time. Thus, though a properly executed agreement is binding as to property and debt division, it may not be as to support. It is generally better to contact a Denver divorce attorney to discuss the legalities and formalities of a Prenuptial agreement prior to entering into one.
- My wife is challenging our Prenuptial agreement. Can she do that?
In Colorado, Prenuptial agreements are governed by the Colorado Marital Agreement Act, C.R.S. Title 14, Article 2, Sections 301-310. In common terms, a Prenuptial agreement is generally an agreement entered into between prospective spouses prior to getting married. In most instances, a Prenuptial agreement is sought by one party to protect his or her assets or income flow acquired before the marriage. Beyond protecting the corpus of pre-marital property, it is not uncommon for a Prenuptial agreement to contain provisions ensuring that no aspect of that property becomes marital during the marriage in terms of increases in value, which are generally going to be considered “marital.” It is also not uncommon for Prenuptial agreements to contain provisions regarding waivers of alimony.
Pursuant to statute, a Prenuptial agreement is presumed to be valid and enforceable, assuming the parties to it ultimately get married. However, C.R.S.14-2-307 sets forth provisions under which a Prenuptial agreement may not be enforceable. Specifically, if a court determines the agreement was not signed voluntarily it will deem the agreement essentially void. A court may also determine that a Prenuptial agreement is not enforceable if it determines that one party did not provide a “fair and reasonable disclosure” of his or her assets and financial obligations. Though Prenuptial agreements will also often contain provisions regarding a waiver of alimony, a court can also negate those provisions if it finds that the alimony aspect of the agreement is “unconscionable.” Unconscionable means more than just “unfair.” Our firm can more fully advise you regarding the subject of Prenuptial agreements and the legal reality that the terms are not always absolutely binding.