Denver Prenuptial Agreement Attorney
Premarital Agreements in Divorce Cases
In the past, premarital agreements were associated with celebrities and the very wealthy. Over the years, however, they have become more common in Colorado, among all kinds of couples, in order to reduce unpleasant surprises and antagonism in the event of divorce proceedings. The primary purpose underlying most premarital agreements is asset protection.
The Denver prenuptial agreement attorneys at Plog & Stein, P.C. can help you draft, enforce, or challenge a premarital agreement. These agreements can also be revised subsequent to marriage if both parties so desire. Marital agreements in Colorado are governed under C.R.S. 14-2-301, et. Seq., which sets forth statutory parameters your attorney must adhere to, both substantively and procedurally, to ensure the viability of your agreement should you one day divorce.
Enforceability of Prenuptial Agreements
The Uniform Premarital and Marital Agreements Act governs most aspects of premarital agreements in Colorado. Premarital agreements can be crucial during a divorce or if one spouse dies. A prenuptial agreement can cover a wide range of matters that can save you a great deal of headaches and distress in the future. Unlike other contracts, no “consideration” or quid pro quo is required to make a premarital agreement enforceable. C.R.S. 14-2-303 requires that (1) a prenuptial agreement be in writing and (2) be entered into voluntarily by both spouses in order to be enforceable. The prenuptial agreement attorneys at our Denver firm can explain to you everything you need to know about the Act.
A premarital agreement can cover the following aspects:
- Division of property and debt
- Rights under wills
- Benefit plans
- Insurance policies
- Spousal maintenance
When a court is examining whether a prenuptial agreement was entered into voluntarily, many factors, including timing and the opportunity for reflection and legal representation prior to signing will be considered. Both parties should have the chance to consult with a Denver family law lawyer and the opportunity to consider and negotiate any changes before signing an agreement. Colorado law upholds the notion that premarital agreements are binding and enforceable, so long as they are entered into voluntarily and after adequate disclose of resources and debt. A divorce court is much more likely to enforce a premarital agreement that has been openly negotiated with the assistance of attorneys than one in which a party with greater financial resources simply presents an agreement to be signed to an unrepresented and less well-off fiancé.
What Cannot Be Included in a Prenuptial Agreement?
Colorado has rules regarding what a prenuptial agreement can and cannot include. If a prenup contains an illegal or invalid element, the courts will not uphold this part of the agreement, even if the prenup has been signed and notarized. Going against the law could invalidate the entire agreement, in some circumstances. Avoid unwelcome surprises during a divorce case by making sure you and your spouse’s prenuptial agreement does not contain any prohibited terms or conditions.
No couple can include a child custody arrangement in a prenuptial agreement. Child custody is something that must be decided at the time of the divorce, either by the divorcing couple or a judge. The courts will not enforce any terms regarding the custody or care of children. A judge will sign off on a parenting plan created by both parents, or else the matter will go to court. If it goes to court, a judge will grant custody according to the child’s best interests based on facts such as the relationship between the child and either parent and any history of abuse or domestic violence.
Parenting time, also known as visitation, is also a right that a prenuptial agreement in Colorado cannot assign. A parent may have the right to visitation with a child if he or she does not have primary or partial custody. Although a joint custody arrangement is more common, a judge may order visitation instead if the family has a history of issues such as an absentee parent, substance abuse or criminal convictions. It is against the law to decide parenting time in a prenuptial agreement.
Another issue related to children that a prenuptial agreement cannot decide is child support. This is a financial award generally granted to the one parent in a divorce to help him or her pay for a child’s basic needs. The payor spouse will have to pay the other spouse to support the children. It is not possible to assign an amount one spouse will or will not have to pay in child support in the event of a divorce with a prenuptial agreement. A judge will dismiss any such arrangement. However, like custody, the couple will have the chance to agree on child support between themselves before the courts will intervene in a divorce case.
While prenuptial agreements can, and usually do, contain provisions regarding spousal maintenance, it should be noted that courts are not bound by those provisions. At the time of a divorce, the court, regardless of language in the agreement, maintains jurisdiction over the issue and can void any maintenance provisions if it determines them to be “unconscionable” at the time of the divorce. If you are wanting to deal with the issue of spousal support in your agreement, just be aware that the agreed upon provisions may not stand. In assessing conscionability, the key factor the court will look at is present income.
No prenuptial agreement in Colorado can stipulate childbearing requirements for either spouse. If one spouse tries to require the other to provide heirs or male heirs, for example, this will not be upheld in court.
A person cannot force his or her spouse to commit or tolerate illegal acts using a prenuptial agreement. The agreement cannot require a spouse to go along with criminal or gang activity, for instance, or to commit a crime to keep his or her marital rights. Any prenuptial or postnuptial agreement that involves conditions requiring illegal acts will most likely be thrown out, as a judge will have a hard time taking the entire agreement seriously.
A prenuptial agreement in Colorado cannot contain any demands or requests that do not pertain to the couple’s finances. Any personal issues, such as daily tasks or spousal duties during the marriage, are not issues a couple can decide in a prenup. The law in Colorado prohibits any clause requiring one spouse to maintain a certain weight, hair color, hair length, sexual quota, etc. The courts will not enforce a nonfinancial matter as part of a prenuptial agreement.
Disclosure of Assets & Liabilities
Before executing a prenuptial agreement, statute requires both parties to truthfully disclose their assets and liabilities. Failure to properly disclose one’s financial position may render an agreement invalid. Conversely, if full disclosure has been made, the court should enforce property division terms, even if they seem unfair at the time of divorce. However, the terms of the agreements can’t do the following:
- Violate public policy
- Be unconscionable (particularly as relates to spousal support)
- Violate any laws
For example, a prenuptial agreement cannot adversely affect any child’s right to child support. Likewise, though parties can waive maintenance or contract to specific terms regarding spousal support, courts are not bound to follow such provisions if it is determined to be unconscionable at the time of divorce.
Under the Colorado Premarital and Marital Agreements Act, a prenuptial agreement may be signed after the marriage ceremony has taken place, but bargaining positions and other issues may change once the ceremony has happened. Therefore, it is generally preferable for it to be executed by both parties before the ceremony. Colorado statute also authorizes intra-marital or postnuptial agreements to also be entered into. The formality and substance may be the same as agreements entered into prior to marriage. However, postnuptial agreements cannot be done in anticipation of a divorce or as a “separation agreement.” If you are married and contemplating formulating an agreement during the marriage, our postnuptial agreement lawyers can help.
Contact Our Experienced & Strategic Denver Premarital Agreement Lawyers!
Although they make some people uncomfortable, premarital agreements can be an effective way to protect your assets in case of divorce. It is important for both partners to consult with their own attorneys before finalizing a premarital agreement. Our law firm’s experienced prenuptial agreement lawyers can help draft, challenge, or enforce a premarital agreement. Contact us online or call our legal team at (303) 781-0322 to enlist our top-notch legal services.