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What is a Post Nuptial Agreement

Engagement is an exciting and busy time for many couples. From telling everyone the good news to planning the wedding down to the tiny details, it can be so easy to get lost in the process that couples simply don’t take the legal ramifications of getting married in Colorado into account. On top of that, since the most severe marriage legal consequences usually don’t occur unless the couple gets divorced or a spouse dies, the legal aspects of marriage tend to get overlooked during the engagement period. Luckily, you can take steps now, after your wedding, to help secure the futures of yourself and your spouse via a post-marital agreement. This type of written contact is executed by a married couple to establish plans for the couple’s assets and address other concerns that could arise if the marriage ends. Serving the same functions as a pre-marital agreement, this is an agreement that married couples can utilize.

What You Can Include in Your Agreement

A post-marital agreement in Colorado can address many things, including asset and debt division and spousal maintenance, which is a financial support amount one spouse may have to pay to the other spouse during and/or after divorce. As long as both parties agree, there are many areas of concern you can handle in your agreement. However, Colorado law does not allow post-marital agreements to restrict the rights to child support, restrict or limit rights of domestic violence victims, or penalize a spouse for starting divorce or legal separation proceedings in a court of law.

In addition to following state laws regarding provisions, post-marital agreements must not be deemed “unconscionable” by a Colorado court. An agreement that leaves one spouse financially destitute, for example, may not be honored in full by the court even if  it’s properly executed and does not contain terms that violate state laws.

The Basic Requirements

In general, your post-marital agreement must be in writing, entered into completely voluntarily by both spouses, include reasonable and fair disclosures from you and your spouse about your debts/ assets and cannot violate any public policies. Should you wish to modify your agreement in the future`, this will need to be in writing as well. If, for example, the court learns that one spouse threatened or coerced the other spouse into signing it, the agreement will be found invalid.

A properly executed agreement is effective as soon as both spouses sign it, provided they are legally married. It is important to note that for this agreement to be enforceable, it has to be signed before any proceedings for divorce are filed.

The Benefits and Drawbacks

If you’re uncertain about whether you and your spouse need a post-nuptial agreement, it’s best to weigh the benefits and drawbacks in your particular situation. One general benefit is financial security in the event you get divorced. With a post-nuptial agreement, you can help ensure your assets don’t all end up with your former spouse.

If you have children with someone other than your spouse, you can also use this agreement to make sure assets pass to those children instead of your spouse in the event of your death. While post-nuptial agreements were once considered something that only troubled couples do, they are now recognized for the peace of mind they can give to both spouses, particularly when it comes to couples with shares in family-owned businesses or a substantial amount of assets.

The main drawback of post-nuptial agreements is court preference; the court system tends to prefer agreements entered into before the marriage, also known as premarital or prenuptial agreements. While it is not true in every case, courts tend to presume prenups are valid while also presuming that agreements made post-marriage are not valid. Additionally, if there are any serious errors in the drafting or execution of your post-marital agreement, the court may not enforce it, which means you and your spouse wasted time and resources on an invalid agreement. For this reason, it is important for both you and your spouse to have legal representation when it comes to creating and executing a post-marital agreement.

Given the impact of a post marital agreement, it is vital to create and execute the agreement properly while addressing all the areas of concern you and your spouse have and wish to include. For help with your marital agreement, contact the sophisticated and trusted attorneys at Burnham Law today.