Before you are married or after you have married, you and your spouse may enter into a written agreement that will govern how your financial affairs will be handled in the event of a divorce or death.
Colorado recognizes and enforces valid marital agreements. Premarital and postnuptial agreements allow parties to contractually agree to vary statutory rights concerning property, trust and income rights, maintenance and attorney’s fees in the event of a divorce and the rights to the estate of the other spouse in the event of a death during the marriage.
Under Colorado law, all property that a party owns at the time of the marriage, or receives during the marriage by gift, inheritance or distribution, is that party’s separate property. All appreciation of separate property, income, including interest dividends and trust distributions received during the marriage are marital property unless the parties reach a different agreement. These statutory rights can be waived or modified by a valid and enforceable premarital agreement or postnuptial agreement.
Spouses have statutory rights in the estate of the other spouse. These statutory rights may be modified or waived by a valid and enforceable premarital agreement or postnuptial agreement.
Parties can also agree to waive maintenance and also agree that neither party will be required to pay the attorney’s fees of the other party. However, a court can find that the waiver of maintenance and/or the waiver of attorney’s fees is unconscionable and unenforceable after a premarital agreement or a postnuptial agreement has been signed.
In order for a premarital agreement and a postnuptial agreement to be valid and enforceable under Colorado law, the parties must enter into the premarital agreement or the postnuptial agreement voluntarily and without duress. In addition, a premarital agreement and a postnuptial agreement may be invalidated if a party has not provided fair and reasonable disclosure of property or financial obligations.
The Colorado legislature enacted the Uniform Premarital and Marital Agreements Act effective July 1, 2014. Under this statute, postnuptial agreements are now called Marital Agreements. Under the statute, a premarital agreement or a marital agreement is unenforceable if: (a) the party’s consent to the agreement was involuntary or the result of duress; (b) the party did not have access to independent legal representation; and/or (c) before signing the agreement, the party did not receive adequate financial disclosure.
Marital Agreements are unenforceable to the extent that they attempt to address parental rights and responsibilities, parenting time, access, visitation, a child’s right to support, restrict a party’s remedy as a victim to an act of domestic violence, penalize a party for initiating a legal proceeding for legal separation, divorce or if the premarital or marital agreement violates public policy.
Jeremy can help you decide whether a premarital or postnuptial agreement is appropriate and will help you negotiate a premarital or postnuptial agreement. If you have signed a premarital or postnuptial agreement, Jeremy can assist you in determining whether to challenge the validity and enforceability of such agreements.