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Prenuptial agreements unfortunately have received a bad rap. Many people often think that asking a potential spouse to sign such an agreement indicates that the person who is asking lacks confidence in the marriage. That’s not necessarily the case. The vast majority of people go into a marriage believing that it will succeed, but we all know that we live in an uncertain world, and we also know that, unfortunately, the percentage of marriages that end up in divorce is high. If you consult with people who have gone through a divorce, you know how expensive and life-consuming they can be. A prenup certainly doesn’t make divorce an easy process, but it could make it easier – just in case it happens. These things being the case, it could be a wise decision for some couples – especially when there is a huge disparity in their assets – to consider some form of a prenuptial agreement. Bear in mind, too, that such agreements are not fixed documents. Rather, they can be tailored to the individual needs of each couple.
The Colorado Marital Agreement Act (C.R.S. 14-2-301) allows prenuptial agreements and sets out general rules for such agreements. The Act requires every prenuptial agreement to be in writing and signed by both parties. Agreements generally are enforceable unless a party claims that he or she didn’t sign voluntarily (e.g., one spouse gives the other a prenup right before the wedding), or that one spouse didn’t provide the other a fair and reasonable disclosure of the property or financial obligations of the other party. In short, if you’re going to have your spouse sign a prenuptial agreement, you better be up front with him or her. It’s also a good idea to have the signing spouse consult an attorney before signing the agreement. That makes it less likely that the spouse can later claim that he or she didn’t sign voluntarily.
Prenuptial agreements can cover all kinds of areas, including: the distribution of property upon divorce, spousal maintenance (i.e., what one spouse pays to the other monthly), distribution of life insurance proceeds, and attorney fees in case of divorce. Bear in mind, however, that prenuptial agreements may not be used to negatively impact the right of children to get child support. You can’t enforce a prenup, for example, that says you won’t be responsible for child support in case of divorce.
Aside from certain maneuvers that are not allowed, however, ultimately you can get the prenup that you want. Such agreements should be carefully drawn and not hastily entered into.