A prenuptial agreement, known to many as a marital agreement or a prenup, is an optional legal contract signed before marriage. In it, a future couple decides how matters will be handled in case of a divorce. For many people that are considering marriage, prenuptial agreements can be an effective legal instrument. The contract can help you and your spouse guard your financial rights in the unhappy event of a divorce, such as safeguarding your personal assets or protecting a family business.
To be legally binding, however, a prenup must be drawn up correctly. Colorado is among the many states that have embraced a uniform act for prenuptial agreements. The contract must be in accord with the UPAA or Uniform Prenuptial Agreement Act—a set of rules that direct the enforceability of marital agreements.
Regarding enforceability, Colorado judges cannot enforce a prenuptial agreement if a spouse contesting the agreement can show that:
He or she signed it under duress, involuntarily, or without mental capacity.
As in the case of many facets of divorce law, duress or coercion can be hard to establish. However, if it can be demonstrated that the other spouse used either psychological or physical threats or harm to compel him or her to sign the premarital agreement, then the spouse may be thought of as under duress. The spouse must fear for his or her mental well-being or physical safety to constitute duress.
He or she did not have access to legal representation.
Proper legal representation is essential. The spouse must have been given sufficient time to seek independent advice from a lawyer if they wanted to. Also, they must have had the time to locate a lawyer, seek advice from a lawyer, and to consider the advice given. If those elements weren’t met, the courts may then determine that the spouse challenging the agreement did not have access to legal representation.
While being given the opportunity to consult with an attorney isn’t a necessity in Colorado, a judge may take the lack of legal consultation into consideration when determining whether such agreement should be deemed invalid.
The spouse did not receive complete financial disclosure from the other spouse prior to signing the agreement.
Before signing a marital agreement, each spouse must fully reveal their assets. This means providing each other with an exhaustive accounting. It should include accurate estimates and descriptions of all income, debt, and property. To avoid any complications, each spouse should arrange and attach a certified personal financial statement to the agreement. If it can be proven that a spouse did not fully disclose his or her assets or income at the time the prenuptial agreement was signed, there may be grounds to have the agreement thrown out.
Apart from what was just discussed, there are many other elements that may affect the legitimacy and enforceability of a Colorado prenuptial agreement. One condition is that the prenuptial agreement and any alterations to it must be in written form, and not merely an oral agreement. Both parties must also sign the premarital agreement prior to the wedding for it to be valid. Another factor is the provisions included in the agreement. While divorce court judges are not generally interested in the details of these contracts, there may be some provisions that are unlikely to hold up in court.