Is there such a thing as an ironclad prenup?

Marital agreements, also known as prenuptial or postnuptial agreements, have become increasingly common in recent years. While some see them as pessimistic, these useful tools can provide a guideline of how a marriage and potential divorce will look. Typical details often involve rights and obligations for financial support, responsibility for liability or debt, property ownership, and other details unique to the marriage. They must be put in writing and signed before the wedding if it is a premarital agreement.

Generally speaking, couples should each work with an experienced family law attorney to ensure that their agreed-upon arrangement is in writing. Attorneys work extremely hard to address all conceivable issues regarding money and support; however, mitigating circumstances can leave parts or all of the agreement unenforceable.

Under Colorado law, these include:

  • Signed under duress: A spouse cannot be involuntarily coerced or forced to sign the agreement. The wealthy spouse should be careful about giving an ultimatum on the eve of marriage. “I will not marry you unless you sign this agreement” statement may invalidate the agreement based upon duress.
  • Understanding what they sign: A spouse is entitled to have legal guidance before signing this contract, although the agreement can have an explanation in plain language that accurately reflects the legalese inherent in contracts. Thus, a decision to enter into a marital agreement should be made months before a wedding, to allow adequate time for review.
  • Inaccurate financial disclosure: Sharing an inaccurate or bad faith disclosure of assets at the time of signing can nullify the contract. The more thorough the financial disclosures, the stronger the agreement will be.
  • Unconscionable enforcement: The court can rule that terms of the agreement are unreasonable and therefore an unenforceable determination, modification, limitation or elimination of spousal maintenance or waiver of attorney fees. In Colorado, the conscionability of maintenance is always reviewable by a court, even when maintenance is waived in the agreement.
  • Impacts the child: The well-being and financial support of the child are paramount. Thus parental rights and responsibility, parenting time and access to the child can be unenforceable if they are determined to be unfair or detrimental to the children.
  • Domestic abuse: Instances of abuse or violations of a court order will put the agreement in jeopardy and can lead to criminal charges.

These agreements often need to be interpreted by a judge

Disputes over marital agreements are resolved in a variety of ways, but disagreements over the language and spirit of the document often mean that a judge will need to rule, particularly if there is a complex estate that involves a large number of assets. An attorney with experience here in Colorado can be a great help to those with questions about a current or potential marital agreement.

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