During the hustle and bustle that often accompanies an engagement, many couples fail to consider the legal ramifications of getting married. This is understandable as the most severe legal consequences of marriage tend to occur if the couple ends up getting divorced or when one of the spouses dies, and neither divorce nor death are fun topics to discuss when you’re engaged. However, having the forethought to create a marital agreement can make a big difference both upon divorce and at death. These ever important marital agreements come in two forms: pre-nuptial agreements and post-nuptial agreements.
Both pre-nuptial agreements and post-nuptial agreements are written contracts executed between a couple in order to determine what will happen to the couple’s assets in the event of divorce or death. The key difference between these two agreements is that a pre-nuptial agreement is made before the couple gets married while a post-nuptial agreement is entered into after the couple is already married. This article provides a brief overview of how post-nuptial agreements work in Colorado and then outlines some common pros and cons associated with this type of marital agreement.
Post-Nuptial Agreements in Colorado
The Colorado Marital Agreement Act, contained in sections 14-2-301 to 14-2-313 of the Colorado Revised Statutes, outlines important aspects of post-nuptial agreements in Colorado such as enforceability and the effective date of the agreement.
Enforceability: In order for a post-nuptial agreement to be enforceable in Colorado, the agreement must:
- Be in writing,
- Have been entered into voluntarily by both parties,
- Include fair and reasonable disclosures by both parties regarding their assets and liabilities,
- Not be unconscionable, and
- Not violate public policy or any laws.
Effective Date: Enforceable post-nuptial agreements in Colorado are signed after the couple is legally married and take effect as soon as the document is signed by both parties. However, the agreement must be signed before divorce proceedings are filed.
The Pros and Cons of Post-Nuptial Agreements
When deciding if you and your spouse should create a post-nuptial agreement, it is prudent to weigh the associated pros and cons as they apply to your individual situation. The American Bar Association’s website outlines several pros and cons of post-nuptial agreements. Some of the pros commonly associated with post-nuptial agreements include:
- Financial Security in the Event of Divorce: As a significant amount of marriages in the United States end in divorce it may be a good idea to have an agreement that dictates what you will take away from the marriage in the event of a divorce. A post-nuptial agreement can help ensure that your assets won’t disappear with your ex-spouse after a divorce.
- The Ability to Pass Assets to Your Children: Post-nuptial agreements can provide a convenient way to ensure that some of your assets pass to your children from a previous marriage in the event that you pass away before your current spouse.
- Indicating Your Commitment to the Marriage: Post-nuptial agreements are sometimes entered into after one spouse cheats and would like to indicate their renewed commitment to the marriage by executing a post-nuptial agreement with terms that are favorable to the other spouse.
However, post-nuptial agreements are not without their downsides. For example, legally speaking it is generally a better idea to enter into a pre-nuptial agreement rather than a post-nuptial agreement because courts tend to presume that pre-nuptial agreements are valid while presuming that post-nuptial agreements are not valid. This is because courts prefer agreements that are entered into before the marriage rather than after the fact. Additionally, if a post-nuptial agreement is drafted incorrectly and is found to be unenforceable, the couple may have wasted a good amount of time and resources for nothing.
Need Legal Advice?
If you and your spouse are considering creating a post-nuptial agreement and would like to discuss your legal options, the family law attorneys at Robinson & Henry, P.C. are here to help. Our lawyers understand that creating marital agreements is a sensitive business and are committed to drafting agreements that make their clients feel safe and secure. Contact our office in either Castle Rock (303-688-0944) or Denver (720-707-4024) today to schedule a free consultation.