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Q & A
Q: What is required for a Colorado Prenuptial Agreement to be valid?
A: The prenuptial agreement, and any amendments, must be in writing, and cannot be an oral agreement.
Both parties must sign the agreement.
No consideration is required, which means one party may give up important statutory rights in exchange for nothing more than the right to marry the other party.
Each party must make fair and reasonable disclosure of his/her property and financial assets and obligations. This includes detailing what assets each spouse has, and the value of each item. As long as full disclosure has been made, the court will generally enforce the property division provisions at the time of the divorce.
Each party must voluntarily enter into the prenuptial agreement, meaning that there cannot be duress or undue influence. Courts could view a prenuptial agreement presented to the prospective spouse on the eve of a marriage with caution, as being presented with it at such a late hour may give rise to a defense of duress. Similarly, it is important that each party had ample opportunity to consult with an attorney before signing the agreement, and that no threat forced one of the parties to sign the document.
If the prenuptial agreement addresses spousal maintenance, commonly known as alimony, it must not be unconscionable at the time of enforcement. Colorado divorce courts will not enforce a maintenance provision in a prenuptial agreement which is highly unfair at the time of divorce or legal separation, even if it was fair when the prenuptial agreement was signed.
Q: What can a Colorado Prenuptial Agreement cover?
A: A prenuptial agreement may address the division of property and debt in the event of dissolution of the marriage. They may also cover the rights and obligations under insurance policies, wills, or employee benefit plans. Prenuptial agreements frequently cover spousal maintenance or alimony.
Colorado will not generally entertain any provisions concerning children, such as agreements as to child custody & visitation or future child support. This is because in Colorado domestic relation courts, they are required to consider the best interests of the children at the time of divorce or legal separation, independent of any agreement between the parties.
Q: What is a Post-Nuptial Agreement?
A: A post-nuptial agreement in Colorado is similar to a prenuptial agreement in terms of its contents. The difference is that the post-nuptial agreement is signed after the couple is already married.
The difference between a postnuptial agreement and a separation agreement is that a postnuptial agreement is made before filing for divorce, and is not made in contemplation of divorce proceedings. The purpose of a postnuptial agreement is the same as that of a prenuptial agreement. It can allocate disposition of property, debts and maintenance in the event of dissolution of the marriage.
A postnuptial agreement is not appropriate for parties who are in the process of divorce. A postnuptial agreement that was prepared as part of the divorce process, rather than to preserve the marriage, may not be enforceable if a separation agreement should have been used instead.
Q: What if I married my spouse in a different state?
A: If a couple divorcing in Colorado has a prenuptial agreement that they signed in a different state, Colorado will generally enforce the agreement, providing that it complies with the laws of the state where it was created. However, any maintenance provision will be treated like one in a Colorado prenuptial agreement, meaning it must not be unconscionable at the time of its enforcement in Colorado.
Q: Do I need a prenuptial agreement?
A: For some couples, there may not be a need for a prenuptial agreement. However, the best way to find out if you need a prenuptial agreement is to consult with an attorney about your situation. There may be things that you have not considered, such as assets and debts that could be an issue at dissolution of marriage if there is no agreement in place regarding them. Many people believe that prenuptial agreements are only for the very wealthy, but they are becoming much more common for people of all incomes.
Q: Should my fiancé and I both seek separate counsel?
A: It is always a good idea to obtain an attorney before signing a prenuptial agreement. An attorney who drafts the agreement will generally represent one party. The other party is then able and encouraged to go over the agreement with their own attorney. We would be happy to both draft, or help you review a prenuptial agreement.
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