Whether you are engaged or already married, no couple wants to discuss the big D’s: death and divorce. While these topics may be unpleasant, think of these dialogues as positive opportunities to look after the future welfare of your partner, learn about the consequences of divorce, and even strengthen marriage bonds. A marital agreement, both prenuptial and postnuptial, is a written contract executed between a couple to specify what will happen to the couple’s assets in the event of divorce or death.
Even if you build a happy, healthy marriage, one spouse likely will outlive the other. Marital agreements can give partners peace of mind about the financial future.
Learn More About a Marital Agreement
How a Marital Agreement Works
A Marital agreement can offer security and manage expectations by specifying what property goes to which partner in the event of the dissolution of the marriage or death of a spouse.
In short, marital agreements create financial certainties in an uncertain future, by defining things like:
- Property Rights – who gets what property during the marriage, or in the event of death or divorce.
- Debt Liability – who is responsible for paying any debt during the marriage, and how these debts would be transferred in the event of death or divorce.
- Spousal Maintenance (commonly referred to as alimony) – what, if any, alimony is to be received in the event of death or divorce.
- Attorney Fees – who pays legal fees if a couple has to go to court in the event of a divorce, separation, or annulment.
A Marital Agreement & Limitations
There are some important limitations to marital agreements: an agreement cannot reduce or eliminate child support responsibilities for either spouse.
Marital agreements also cannot punish a spouse for initiating a divorce or restrict lawful remedies for victims of domestic violence.
Waivers of spousal maintenance and attorney fee allocations can even be set aside by the court if they are deemed unfair.
An agreement can be rendered unenforceable if it is made with any of the above limitations.
Who Benefits from a Marital Agreement
Marital agreements are not just for those who are considering marriage. In fact, an agreement can be drafted whether you are engaged or already married.
A marital agreement entered into when a couple is engaged becomes effective upon marriage.
Couples who are contemplating divorce cannot enter into a marital agreement. In that circumstance, the only solution might be legal separation or divorce.
For couples who haven’t yet married, a prenuptial agreement serves to address the financial issues mentioned above during their marriage, and upon its potential dissolution.
If you bring significant assets to your marriage or if your fiancée has significant debts, a prenuptial agreement is an important way to protect yourself financially.
Robinson & Henry family law attorneys can draft a prenuptial agreement that details the assets and debts of both parties in an upcoming marriage and explain how property will be divided and support handled in the event of death or divorce.
The agreement can encompass children’s and grandparents’ rights if desired.
This option is beneficial for couples who were simply unable to procure a prenuptial agreement before their marriage became official.
It can also be advisable when a change in financial circumstances warrants a new or updated written contract – such as a large inheritance, the creation of a business, or a change in liabilities for either or both parties.
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, such as enforceability and the effective date of the agreement.
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 excessive or unreasonable,
- Not violate public policy or any laws.
Enforceable postnuptial agreements in Colorado are signed after the couple is legally married and take effect as soon as the document is signed by both parties. The agreement must be signed before any divorce proceedings are filed.
When deciding whether you and your spouse should create a postnuptial agreement, you should 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 postnuptial agreements.
Some of the benefits commonly associated with postnuptial agreements:
- 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 postnuptial agreement can help ensure that your assets stay with you should your marriage break up.
- The Ability to Pass Assets to Your Children: Postnuptial 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: Postnuptial agreements are sometimes entered into after a betrayal in the marriage when one partner wants to indicate their renewed commitment to the marriage by including terms that are favorable to the other spouse.
Downsides to Postnuptial Agreements
Courts tend to presume that prenuptial agreements are valid while presuming that postnuptial agreements are not valid. That’s because courts prefer agreements that are entered into before the marriage rather than after the fact.
Additionally, if a postnuptial agreement is drafted incorrectly and is found to be unenforceable, the couple may have wasted a good amount of time and resources for nothing.
The Marital Agreement Takeaway
When prepared correctly, marital agreements give peace of mind to a couple entering into exciting new chapters of their lives. Marital agreements can be contested in the future by an unhappy former spouse if the agreements are incomplete, have missing information, or contain the wrong language.
It’s important to consult an experienced attorney so you can avoid those types of mistakes. Our family law attorneys can ensure your marital agreement reflects your and your spouse’s needs, wishes, and preferences.
With a properly researched and executed agreement, you can resolve potential problems before they arise and prevent wasting precious time and money.
Help With a Marital Agreement
If you and your spouse are considering creating a marital 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 they are committed to drafting agreements that make their clients feel safe and secure. Call 303-688-0944 to schedule an assessment, or click here to set up the appointment online.