A premarital agreement is a document that is signed in the best of times and read in the worst. Whether it does its job depends on choices made years earlier, usually in a hurry, often without much thought about the day it will be tested.
The Governing Law
Agreements signed in Colorado on or after July 1, 2014 are governed by the Colorado Marital Agreements Act, C.R.S. § 14-2-301 and following, Colorado's version of the Uniform Premarital and Marital Agreements Act. The Act applies the same rules to premarital agreements and to marital agreements signed after the wedding. Agreements signed before that date are governed by the prior statute and case law, which differ in important respects, so the date of signing is the first thing to check.
What the Act Requires
An agreement must be in writing and signed by both parties. Beyond that, the Act lists the grounds on which a court will refuse to enforce it. An agreement is unenforceable against a party who proves any of the following:
- The party's consent was involuntary or the result of duress
- The party did not have access to independent legal representation
- The party did not receive adequate financial disclosure before signing — a reasonably accurate description of the other party's property, liabilities, and income
- If the party signed without a lawyer, the agreement did not contain the plain-language notice of the rights being waived that the Act requires
Access to independent counsel has a specific meaning: the party must have had a reasonable time to decide whether to retain a lawyer and to locate and consult one, and, if the other party had counsel, the financial ability to hire one or the other party's agreement to pay.
The Mistakes That Void Agreements
The pattern in litigated cases is familiar. The agreement was presented days before the wedding, after the invitations went out and the family arrived, and the court finds the signature was not voluntary. A financial disclosure schedule was attached but left blank or listed a business at a fraction of its value. One party had a lawyer and the other was told a lawyer was unnecessary. The agreement was drafted by the wealthier party's business lawyer and never contained the required warnings. Each of these is avoidable, and each has cost a client the protection he or she believed was in place.
Maintenance Waivers Get a Second Look
Even a properly executed agreement has one provision that courts scrutinize at enforcement. Under the Act, a term that modifies or eliminates spousal maintenance, or that limits attorney fees, is unenforceable if it was unconscionable at the time of enforcement — not merely when signed. A waiver that leaves a spouse in genuine hardship after a long marriage, while the other spouse's wealth has multiplied, is the kind of provision a court can decline to honor. Drafting maintenance terms with a sliding scale or a floor tied to the length of the marriage is one way to reduce that risk.
What an Agreement Cannot Do
Marital agreements cannot adversely affect a child's right to support, and provisions purporting to decide parental responsibilities are not binding on the court. Terms that penalize a party for initiating a divorce are likewise unenforceable. The agreement governs the couple's finances, not the children.
Postnuptial Agreements
The same rules apply to agreements signed during the marriage. Postnuptial agreements are increasingly common when one spouse receives a significant inheritance, when a business is founded during the marriage, or when the couple simply did not get to a prenup in time. Because the parties are already married, courts look closely at voluntariness and disclosure, and the same procedural care applies.
Talk to a Denver Divorce Attorney Who Handles Complex Estates
Aaron Herzberg is a divorce attorney in Greenwood Village, Colorado, serving Denver and the Front Range, with more than 30 years of trial experience and a practice focused on high-net-worth and financially complex divorce. Done right, a marital agreement buys certainty. Done casually, it buys litigation — and the difference is decided before anyone signs.
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This publication is attorney advertising. It is educational information only, it is not legal advice, and it may not reflect the most current legal developments. Reading it does not create an attorney-client relationship. No attorney-client relationship exists until a conflicts check is complete and both parties have signed a written engagement agreement.
Read the full guides on DenverDivorce.com: Prenuptial Agreements in Colorado and Postnuptial Agreements in Colorado.
