When entering a marriage, the last thing you want to think of is divorce. That is why prenuptial agreements may be physically and mentally hard to digest for almost-wed couples.
Entering a prenuptial agreement does not mean that you have trust issues as a couple. On the contrary, it assumes that you are being honest about your current relationship and look to make arrangements for the future.
Most have this idea that prenups are only needed when one of the spouses is a high net worth individual. However, couples in Colorado sign prenuptial agreements for a variety of reasons, even when they don’t have any significant financial estate.
What is a Prenuptial Agreement (Prenup)?
Prenuptial agreements can be viewed as a legal contract that outlines the rights and responsibilities of each party when entering marriage, and occasionally include clauses on post-marriage support.
Here’s how a prenuptial agreement in Colorado works:
Similar to other states, Colorado has adopted the Uniform Premarital and Marital Agreements Act (UPPA) — a legal document standardizing the premises of prenuptial agreements.
The Colorado prenuptial agreement requirements are rather straightforward. Every prenup contract:
- Must be written, not oral
- Signed by both parties
- Does not interfere with any other premarital agreements or marital agreement signed before
- You will need to state that you are entering the prenuptial agreement voluntarily
Also, each spouse is required to fairly disclose their estate, and current financial obligations (if any).
But no quid pro quo is required. Either of the spouses may choose to give up important statutory rights merely in exchange for the right to marry the other party.
Onward, the Colorado prenuptial agreement takes effect only after you both get married.
What Can a Colorado Prenup Cover?
A couple is free to decide on the scope and content of their agreement. A sample prenuptial agreement in Colorado can outline the following:
- How assets and debts will be distributed if the marriage ends, or if either of the partners dies
- Whether each spouse will need to have a will to support the terms of these agreements further
- How each party’s employee benefits and retirement plans will be distributed
- Future alimony payments (if any)
- List any other additional provisions you may wish to include that does not violate Colorado state laws
Note: if you wish to include a clause about spousal maintenance (alimony), the statement should be unconscionable at the time of enforcement. In simple words, the Colorado court can decide during the divorce whether the alimony amount is still fair in the current situation, and rule accordingly.
Creating a Prenuptial Agreement in Colorado
You have two options to create a prenup: draft an agreement yourself or seek legal counsel. Colorado prenup laws allow any couple to sign a prenup without legal representation should you wish to cut the costs. However, in such cases, your agreement must include a waiver — a disclaimer the judge can take into account when determining if the prenup agreement was valid or not. For this reason, it’s better to have an attorney review your agreement.
Challenging a Prenup
A spouse has legal rights to challenge the prenup agreement in Colorado under the following circumstances. Either of the parties:
- Entered the agreement under coercion or duress.
- Concealed relevant financial information from another.
- Did not have the time, finance, or opportunity to seek legal advice before signing the contract.
- The prenuptial agreement is unconscionable.
Respectively, if you’d like to minimize the risks of future contests, it’s better to get advice from a local prenuptial agreement attorney. A professional family lawyer can draft a prenup that would fit your particular situation and avoid any misunderstandings in the future.
How to Make a Prenup: Step-by-Step
Here are step-by-step instructions for creating a prenup agreement together with an attorney:
- Prepare financial disclosures. Prior to entering the agreement, each spouse needs to provide a fair description and good-faith value estimates of their income, property, and debt. To avoid any future misunderstanding, it’s best to have a certified personal financial statement ready and attach it to the agreement.
- Agree on the scope of the agreement with your future spouse. The last thing you’d want is to ambush your close one with certain demands or constraints during the meeting with an attorney. Have an honest conversation beforehand and discuss the commitments you are ready to make.
- Consult with an attorney separately if you have doubts. If you are not sure about some of your decisions and their future ability to enforce them, consult with an attorney beforehand. A qualified specialist will provide you with a holistic overview of the provisions you can and cannot enforce in a premarital agreement and could suggest alternative options for protecting your interests: one example being a postnuptial agreement if you wanted to create terms after you're already married. Encourage your spouse-to-be to do the same should they have any concerns.
- Discuss any sunset provisions. A sunset clause (provision) specifies when the agreement is no longer valid. You can also use it to specify any other arrangements. For example, that the alimony payments will be hired if you stay married for a certain number of years.
- Review and sign the prenuptial agreement. Using the provided information and personal preferences, a premarital agreement lawyer will draft the final contract that well articulates the commitments and responsibilities of both parties. This agreement will be then used by the judges, should you ever decide to get a divorce.
Colorado Prenuptial Agreement Template
To facilitate the discussion with your spouse, Tolison & Williams created a sample prenuptial agreement form. Please note, a normal agreement can include much more and can get longer, so just use this as a starting point for your own agreement.
Prenuptial Agreement Sample
AGREEMENT made this 11th day of May, 2020, between [Name] ("A"), (Social Security No. ), residing at ___________________ and ("N"), (Social Security No. ), residing at ___________________; (sometimes A and B are referred to as the "Parties")
W I T N E S E T H:
Information on the parties, witnessing the agreement.
This section will describe what constitutes separate property prior to marriage, how each party can use it during the marriage, and whether another party is entitled to receive any part of it in case of a divorce.
This should cover provisions related to:
- Separate property (including income made from it during marriage)
- Business ownership and profit distribution
- Retirement accounts, pensions, 401K, and IRA accounts
This section should briefly summarize what will constitute marital property and how it will be treated during the marriage and in case of a divorce.
Set forth the provisions which will indicate the end of your marriage. Here you can be specific and say that a termination event occurs when a spouse chooses to leave the shared property, file for legal separation, or divorce.
RIGHTS OF THE PARTIES UPON THE OCCURRENCE OF A TERMINATION EVENT
Arguably, the most important section of your prenup agreement detailing your rights and responsibilities upon the marriage termination. Here you’d list all the arrangements in regards to property division, alimonies, and other arrangements.
Enforceable and Unenforceable Prenup Provisions in Colorado
A prenup is a versatile document, however, it cannot legally define or enforce all the matrimonial matters, especially during a divorce.
Colorado courts typically ensure that the following provisions of a prenup are always enforced:
- Suggest an asset division plan that fairly accounts for separate property/premarital assets of one party.
- Outline spousal support amounts.
- Decide which assets will pass along to specific recipients (e.g. children from another marriage).
- Differentiate martial and non-martial debts and their settlement terms.
Additionally, you should account for the general unenforceable provisions that exist under Colorado law.
Remember that you cannot include child support or child custody terms in your prenuptial agreement and Colorado courts will not enforce the following:
- An attempt to avoid/waive the right to receive child support.
- Take away one’s party’s right to seek custody, visitation rights, or keep relationships with their children.
In case of a void marriage, Colorado judges will also enforce the prenuptial agreement provisions to a certain extent that is deemed to avoid unfair results.
If you have further questions about drawing a prenuptial agreement in Colorado, don’t hesitate to contact our professional team for expert advice.