The basics: Colorado prenuptial agreements

In Colorado, couples have the legal right to enter into contracts before their marriage ("prenuptial" or "premarital") or during the marriage ("post-marital" or "post-nuptial") that discuss property rights and other important issues. Prenuptial/premarital (sometimes called "prenups") and post-marital agreements are appropriate in many different situations, not, despite popular culture's insistence to the contrary, just when one or both parties is very wealthy.

Relevant Colorado law

These agreements must be carefully drafted and properly executed in order to be enforceable, and it is advisable that parties have them reviewed by independent legal counsel before signing. To that end, the state's version of the Uniform Premarital and Marital Agreements Act (Title 14, Article 2, Part 3 of the Colorado Revised Statutes), provides criteria that must be met before a prenup will be enforceable, as well as guidance about what types of rights can be addressed in these contracts.

Colorado Revised Statutes Sections 14-2-307 and 14-2-309 provide that premarital or post-marital agreements will not be enforced if there is proof of any of the following:

  • The agreement was signed under duress or coercion
  • One party was prevented from seeking the advice of independent legal counsel before signing
  • One party fraudulently concealed relevant financial information from the other
  • The agreement is unconscionable

Unconscionability is decided on a case-by-case basis, and it could result in an entire agreement being voided or individual provisions being stricken.

Enforceable provisions

Since premarital and post-marital agreements are so versatile, they can be used to address a range of different topics that might affect a couple in the event of a divorce. That being said, there are some things that a prenup can't do, so having a basic understanding of the types of provisions that are generally considered enforceable can be helpful. Usually courts will enforce agreements that deal with:

  • Defining assets that should be considered separate property, including family businesses or premarital assets of one party (and propose a division of assets that keeps those things in mind)
  • Delineating that certain assets pass along to specific recipients (this type of provision is particularly helpful when there are children of a former marriage and can complement existing estate planning documents)
  • Setting spousal support amounts
  • Detailing which debts should be considered marital and which belong solely to one spouse

Unenforceable provisions

Under Colorado law - as in other states that have adopted the UPMAA - there are certain types of provisions that will not be enforced, even if all other criteria for enforceability (the advice of counsel, complete financial disclosure, etc.) are present. Generally unenforceable provisions (detailed in C.R.S. § 14-2-310) include those that:

  • Attempt to waive the right for children to receive support
  • Attempt to contract away one parent's right to visit, seek custody of or maintain a relationship with children of the marriage
  • Would force a signing party to perform illegal, immoral or unconscionable acts
  • Prevent a victim of domestic abuse from seeking legal remedies to end the abuse or violence
  • Violates public policy
  • Penalize a party who files for divorce or separation

Depending on how closely intertwined unenforceable provisions are with the valid portions of a premarital agreement, the presence of voidable provisions may or may not prevent enforcement of the entire document. That, among several other reasons, is why it is important to consult qualified legal counsel before drafting or signing a prenuptial or post-nuptial agreement that could jeopardize your legal rights.