A prenuptial agreement is helpful only if it can be enforced when it’s needed most. Many couples assume that signing a prenup guarantees their assets will be protected exactly as written, but Colorado courts don’t automatically enforce these agreements just because both parties signed them.
The circumstances surrounding the creation of your prenuptial agreement, what it contains, and how much time has passed since you signed it can all affect whether a court will uphold its terms. Colorado law provides grounds for challenging prenuptial agreements.
Whether you’re relying on a prenuptial agreement to protect your interests in a divorce or you believe an agreement should not be enforced against you, the difference between an enforceable agreement and an unenforceable one can mean millions of dollars.
This guide explores how to make sure a prenup is enforceable down the line and when it’s time to seek legal help.
What Are Valid Prenuptial Agreements in Colorado?
Colorado courts examine three critical elements when determining whether to enforce a prenuptial agreement:
Voluntarily Signed
Both parties must enter into it willingly, without coercion or undue pressure. Courts look beyond the simple act of signing to examine the circumstances surrounding the agreement’s execution.
Timing plays a crucial role in demonstrating voluntary consent. Colorado courts are particularly skeptical of agreements presented and signed under tight time constraints that leave little opportunity for meaningful review or negotiation.
The presence of financial threats or ultimatums can also invalidate an agreement. If one party threatened to cancel the wedding unless the other signed, that can demonstrate the agreement was not truly voluntary.
Fair Disclosure
Both parties must provide enough information about their financial circumstances before signing a prenuptial agreement so the other person can make an informed decision. This doesn’t mean every detail down to the penny, but it does mean a clear and fair picture of assets and debts.
Full disclosure usually includes major assets, debts, income sources, and business interests. Hidden bank accounts, undisclosed business partnerships, or failure to mention significant debts can all provide grounds for invalidating an agreement.
Representation
Colorado law doesn’t require that both parties have separate attorneys, but having independent legal representation strengthens a prenuptial agreement’s enforceability. Courts view these agreements more favorably when each party has had the opportunity to receive legal advice about their rights and the agreement’s implications.
When only one party has legal representation, courts scrutinize the agreement much more carefully. This is particularly true when there are significant disparities between the parties.
What Are the Grounds for Challenging a Prenup Agreement?
Even when a prenuptial agreement meets all requirements, there are still circumstances under which it can be challenged:
Unconscionable
An agreement may be considered unconscionable if it is so one-sided that it would be unfair to enforce it. Courts will examine the circumstances at the time of signing, including whether both parties had legal representation, whether there was full and fair disclosure of assets and debts, and whether both parties understood the agreement’s terms and implications.
Fraud, Duress, or Lack of Understanding
If one party can prove that they signed under duress, the court may invalidate it. Similarly, fraud requires showing that one party intentionally misled the other about their financial situation or about the agreement’s terms.
What Are the Limitations of Prenuptial Agreements?
While prenuptial agreements can cover a number of financial matters, there are limitations even when an agreement is legitimate. Prenuptial agreements cannot:
Prenups Cannot Limit or Waive Child Support
A prenuptial agreement cannot limit or waive a parent’s obligation to support their children financially. Child support is a right that belongs to the child, not the parents, and it’s determined based on statutory guidelines that consider both parents’ incomes, the number of overnights each parent has with the child, and other factors.
Prenups Cannot Decide Custody or Parenting Responsibilities
Similarly, a prenuptial agreement cannot predetermine issues of child custody or parental responsibilities. These decisions must be made in the best interests of the child at the time of the divorce, not before the marriage even begins. Courts will always retain the authority to decide issues related to children based on their best interests at the time those decisions need to be made.
Prenups Cannot Penalize a Spouse for Filing for Divorce
Prenuptial agreements cannot include provisions that penalize a party for initiating a divorce or seeking legal separation. Any clause that seeks to deter divorce by imposing financial penalties or other adverse consequences is not enforceable.
Prenups Cannot Restrict Protections in Cases of Domestic Violence
A prenuptial agreement cannot limit a party’s rights or remedies related to domestic violence. This includes any attempt to waive or limit claims for personal injury resulting from domestic violence, restrict access to protective orders, or otherwise undermine legal protections for victims of domestic abuse.
What Are Relevant Laws Concerning Prenups?
In Colorado, the enforceability of prenuptial agreements is governed by two primary laws, depending on when your agreement was signed:
Colorado Marital Agreement Act (CMAA)
The CMAA applies to prenuptial agreements signed before 2014. Under this law, prenuptial agreements must be in writing and signed by both parties. The CMAA does not require full financial disclosure or independent legal representation, but courts can consider these factors when determining whether an agreement is enforceable.
Uniform Premarital and Marital Agreements Act (UPMAA)
The UPMAA applies to prenuptial agreements signed on or after July 1, 2014. This law requires financial disclosure, and it requires that a party have access to independent legal representation. If they don’t use it, then the agreement must include a conspicuous notice of waiver of rights.
When to Seek Legal Representation?
While Colorado law does not mandate that both parties have legal representation when signing a prenuptial agreement, seeking independent legal counsel is highly advisable. An experienced family law attorney can help ensure that your prenuptial agreement is drafted clearly, complies with Colorado Revised Statutes, and protects your legal rights and property rights effectively.
Frequently Asked Questions
Are prenups enforceable in Colorado?
When it comes to enforcing prenuptial agreements in Colorado, the courts look at whether the agreement was signed voluntarily, whether there was fair and reasonable disclosure of financial matters, and whether the agreement complies with the Colorado Marital Agreements Act or the Colorado Marital Agreement Act (CMAA). If these standards are not met, the agreement may not be upheld.
What financial disclosures are required for a prenuptial agreement in Colorado?
A valid Colorado prenuptial agreement requires that each spouse must share an adequate financial disclosure of assets, debts, income, and any business interests. Without this level of transparency, the court may find that the agreement in Colorado was unfair and decline to enforce it.
Can a prenuptial agreement determine child custody or child support?
A prenuptial agreement cannot control child custody or child support. Colorado courts decide these issues based on the best interests of the child.
Do I need a family law attorney to sign a premarital agreement?
While not strictly required, having independent legal counsel is strongly recommended before signing a premarital agreement or postnuptial agreement. Separate attorneys help ensure that the agreement complies with Colorado state laws, protects your financial rights, and prevents future disputes.
What is the difference between an antenuptial agreement and a cohabitation agreement?
An antenuptial agreement applies to couples planning to marry, while a cohabitation agreement is a legal contract for unmarried couples who live together. Both documents can cover financial arrangements, personal belongings, and separate property, but the legal framework differs depending on whether a marriage ends in divorce or separation versus simply ending cohabitation.
Can a marital agreement protect assets from a previous marriage?
Yes. A marital agreement can safeguard individual assets, family wealth, or inheritance rights from a previous marriage. By outlining which property remains separate property and which becomes marital property, spouses can protect certain assets and avoid disputes during the divorce process or after the death of a deceased spouse, as long as there’s no increased value during the marriage.
Do I need legal representation to draft a prenup agreement?
Working with a Denver prenuptial agreement attorney ensures that the agreement is legal and provides financial security for both spouses. Attorneys help negotiate terms regarding financial information and future disputes, while ensuring the agreement complies with Colorado’s Uniform Premarital Agreement Act.
