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What is a Pre-Nuptial Agreement?

The stress, anger and unpleasant aspects of a drawn-out divorce have made pre-wedding agreements attractive to couples for many reasons. The longer a divorce goes on, the more stressful and expensive if often becomes for both parties. With a premarital agreement in writing, your divorce process can be more streamlined and less expensive than it would have been without the agreement. A prenuptial agreement also provides reassurance if you are entering your marriage with a substantial amount of assets or your spouse has a lot of debts.

What Premarital Agreements Cover

Your premarital agreement can address many topics. For example, you can use it to detail which property will remain the property of a specific spouse and what will be divided in the event of a divorce. You can also include exactly how property and debts will be divided between you. Your agreement can include all your current debts and/or assets, or it can be tailored to cover specific assets or liabilities.

Sometimes in Colorado, one spouse maybe ordered to pay the other spouse also known as spousal support, spousal maintenance or alimony. You and your spouse can dictate the terms of spousal support upon your divorce in your agreement, or you can waive the right to it entirely. It’s important to note that you cannot legally address or waive the right to child support in your prenuptial agreement in Colorado. Even if you do enter child support provisions into your agreement, the court can dismiss them outright.

When it comes to any children you and your future spouse have or will have, your premarital agreement is more limited in scope. While you can enter agreements regarding parental responsibility, decision-making and parenting time into your prenuptial agreement, the court may rule that this is not valid. Any agreements over the welfare and care of children will be closely examined by the court. If the judge does not feel your provisions are in the best interests of your children, he or she will not honor those terms even if your prenup is properly executed in all respects.

Proper Creation and Execution Matter

Premarital agreements must meet the requirements set out in Colorado law to be valid. If your agreement is found to be invalid, its terms will not be enforceable. Both parties, for example, must enter into the agreement of their own accord, and the court may consider various factors to decide whether both parties truly made the agreement voluntarily. If one spouse presented the other spouse with the agreement prior to the wedding without warning, the court may find that the surprised spouse did not have a genuine choice when it came to signing as he or she was under duress. The court will also want to know if both parties were able to consult with a family law attorney before signing and whether either party was threatened into signing the agreement. While Colorado does not require that you meet with an attorney before you sign a prenuptial agreement, the judge can take this factor into consideration if there is any question about how fair or reasonable your agreement is considering the circumstances at the time of the divorce.

For a pre-marital agreement to be considered valid, both parties need to give each other a full disclosure of all debts and assets they have. This disclosure includes details on each spouse’s assets and the approximate value of every item. As long a full and honest disclosure was made, the court will enforce the agreement’s property division terms even if they appear to be unfair when the parties divorce. The court will, however, consider whether spousal support provisions in the prenup are reasonable and fair when the parties divorce, even if full financial disclosures were made when the original agreement was created. If one spouse will be left destitute, for example, the judge may decide to award him or her support or assets that he or she did not receive under the prenup.

Both parties must sign the prenup, and it has to be in writing. You can, however, amend, revoke or change the agreement in the future, provided it is done in writing. Oral agreements are not enforceable and generally difficult – if not impossible – to prove in court, so make sure anything you do regarding your prenup is properly documented.

Your prenuptial agreement can provide you and your future spouse with valuable peace of mind for your impending wedding and your future. Speak to the experienced team at Burnham Law about your prenup agreement today to ensure that your agreement will stand up in a court of law should you decide to dissolve your marriage.