What You Can & Can’t Do With a Prenup

A solid prenuptial agreement requires attention to detail and timing.

In this video, attorney Marlana Caruso discusses some of the most important considerations in a prenuptial agreement.

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Create a Strong Prenuptial Agreement

Hi everybody, Marlena Caruso here, and I’m a lead attorney with the family law division at Robinson and Henry. I wanted to talk to you briefly about a few key points that you should be considering in drafting or finalizing your prenuptial agreement, but the biggest one is going to be the timing of the document.

Timing is Everything

Meaning how far in advance between signatures, negotiations, final execution of that prenup versus marriage date.

Now, there is no requirement or a deadline per se that’s found in our statutes with regards to these documents, but a good rule of thumb is going to be a minimum of three months in advance of your intended wedding date in order to finalize the document.

The reason for that is because the more in advance from the wedding date itself that you are able to conclude negotiations, get everyone’s signature signed, sealed, delivered, the less likely the agreement itself is going to be able to be attacked as far as credibility or any duress claims that might come up from your spouse in the event of a separation or a divorce in the future.

The biggest thing really to remember when we’re talking about prenups is as long as you have followed the particular statutory requirements, you dotted all your I’s, you’ve crossed all your T’s, there is a preference for enforcing the terms of your contract when it comes to a divorce or legal separation issue.

Other Prenup Tips

However, there are ways to attack them. So the more that you can close those doors from the beginning, the less of a headache you are going to have in the future from somebody trying to attack the validity of the document.

Get Your Own Attorney

The other thing to remember is that although it’s not a requirement that you both have attorneys, general rule of thumb, it is hugely advisable.

Again, credibility attacking, it’s much less likely to be found invalid if you’ve had two attorneys completely separate, completely neutral with regards to that, be able to review the document for both parties.

Okay. Again, duress claims are one way to attack these. So the more that you can do on the offset to stop that ability, the better for you.

Provisions in a Prenuptial Agreement

Maintenance Formulations

As far as formulating the agreement, a lot of clients like to put in provisions regarding maintenance. Just remember in Colorado, any term that you negotiate, whether it’s a waiver of maintenance, whether it’s a certain amount or term for maintenance, that is going to be reviewable at the time that you’re trying to actually enforce the agreement. So we can’t say that it won’t be held up, but it may not be held up. It may be held up.

Again, circumstances at the time you’re trying to enforce the agreement are going to determine whether or not that particular provision is unconscionable under our laws, meaning essentially it’s not fair and therefore will be potentially set aside.

Parental Responsibilities

You can not negotiate terms regarding parental responsibilities or parenting time in your prenup. That is never enforceable.

Now you have to allocate parenting time per our statutes as to what’s in the best interest of the children. If your children do not exist at the time that you have a prenuptial agreement drafted or it is years following the drafting of the prenup agreement, obviously a lot of things can change between now and then for say, and the court is never going to enforce any type of provision with regards to children in a prenup agreement.

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