The old adage “you get what you pay for” could not be more accurate when it comes to prenuptial agreements, commonly referred to as prenups.
Prenups, by and large, are not expensive, and certainly not as expensive as not having one should a divorce become necessary. If correctly drafted, they generally hold up in court. Many can be prepared for less than a few thousand dollars. However, there are technical requirements to drafting an enforceable prenup (or postnup) in Colorado. Cutting corners at the drafting stage can become extraordinarily costly if the agreement is later challenged or deemed unenforceable.
Prenuptial agreements are created by state law. Therefore, the laws governing the drafting and enforceability of a prenup vary by state. Clearly identifying the state law under which the prenup is drafted and the state law that applies when applying it may be crucial to enforcement.
In Colorado, marital agreements signed after July 1, 2014, fall under the Uniform Premarital and Marital Agreements Act (UPMAA), which provides a standardized approach to formation, enforceability, and scope. These statutory guidelines make marital agreements clear, enforceable, and less vulnerable to challenge (C.R.S. § 14–2–301). For agreements created prior to 2014, older rules apply and are not the focus of this blog. Under the UPMAA, couples have a framework for creating financial security, transparency, and mutual respect in the event their circumstances change.
Key Legal Definitions Around Prenups
Marital Agreement
A marital agreement is a contract between two married individuals that defines their financial rights and obligations. This may include provisions addressing property division, spousal maintenance, and responsibility for debts. See C.R.S. § 14-2-302.
Premarital Agreement
A premarital agreement is a contract entered into by two individuals in contemplation of marriage. It becomes effective upon marriage and may govern financial rights and obligations during the marriage and in the event of divorce or death. See C.R.S. § 14-2-302.
Scope and Application of Marital Agreements
The UPMAA applies to all marital and premarital agreements executed on or after July 1, 2014. Agreements entered into before that date remain subject to prior Colorado law. See C.R.S. § 14-2-303.
The scope of marital agreements under the UPMAA is broad. Spouses may contract regarding virtually any financial or property-related matter, including:
• Spousal maintenance or alimony
• Division of property acquired during the marriage
• Management and allocation of individual and marital debt
• Allocation of attorney fees in the event of divorce
However, marital and premarital agreements may not govern issues of child support, parenting time, or decision-making authority. These matters are reserved to the court and must be determined based on the best interests of the child under separate laws. See C.R.S. § 14-2-310. A prenup cannot abrogate the Court’s jurisdiction over these issues.
Not all states allow you to enter into a post nuptial agreement, or “postnup,” which is a marital agreement entered into during a marriage. Colorado does, so long as your postnup was not made in contemplation of divorce.
Common Reasons Prenups Are Invalidated
The most common ways a prenuptial agreement can be invalidated include the following:
Lack of full financial disclosure
This includes failures to disclose income, assets, or liabilities. Courts often refer to these as material omissions.
Coercion or duress
An agreement signed under pressure, threats, or extreme time constraints may be unenforceable. This also includes situations where a party lacked the mental capacity to understand what they were signing.
Unconscionable terms
Provisions that are so one sided that enforcement would be fundamentally unfair. This most often arises in the context of spousal maintenance and is typically evaluated at the time of enforcement, meaning at divorce rather than at signing.
Improper execution
Each state has specific statutory requirements for execution. When individuals attempt to draft their own prenups, they frequently overlook mandatory provisions required under their state’s law.
Deficient “recitals”
Recitals are provisions that clearly state both parties understand the rights and obligations they are waiving. These sections matter far more than most people realize.
Execution:
A botched execution or notarization and you’ve got yourself something not worth the paper it’s printed on.
Considerations with respect to Trusts and Wills:
A trust or will, no matter how well drafted, does not override a spouse’s inheritance rights before a divorce is finalized. Only a properly executed marital agreement can do so. For example, if you have children from a prior relationship and you get married, in Colorado your spouse will be entitled to what’s called the “elective” share of the marital estate upon your death (whether you die intestate or testate – i.e., with or without a will). And if that share is greater than then amount you left your spouse in your will, you may have effectively disinherited your children or substantially reduced their inheritance. Thanks mom and dad.
The process of negotiating a prenuptial agreement can be emotionally charged, but it does not have to be. It is often helpful to ask why a prenup is desired in the first place, or if you are being asked to sign one, what specifically concerns you about it.
Given the complexities involved, hiring an experienced family law attorney can prevent years of litigation later. Prenups are an area where the saying “you do not know what you do not know” very much applies.
Legal note: This website is not intended to constitute legal advice or the provision of legal services. By posting and/or maintaining this website and its contents, Searcy Friedman Law does not intend to solicit legal business from clients located in states or jurisdictions where Searcy Friedman Law or its individual attorneys are not licensed or authorized to practice law.
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