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Colorado's New Uniform Premarital And Marital Agreements Act

Daniel Noffsinger - Friday, October 10, 2014

Last year, Colorado Governor John Hickenlooper signed the Uniform Premarital and Marital Agreements Act into law. The law, however, did not become effective until just recently on July 1, 2014.

The new law provides specific guidelines for drafting premarital and marital agreements, identifies when agreements are or are not enforceable, and lists certain provisions that are void.

What are premarital and marital agreements?

A premarital agreement (or marital agreement) is an agreement between two individuals who intend to marry (or are already married) that creates, affirms, modifies, or waives one or more obligations of a spouse during or after the marriage, including divorce, separation, death or annulment. This type of agreement is commonly referred to as “prenuptial (postnuptial) agreement” or “prenup (postnup).”

Common issues addressed in these types of agreements include:

  • Spousal support;
  • Right to use property, including management and ownership;
  • Responsibility for a liability, such as a debt;
  • Right to property after marriage; and
  • Division of attorneys’ fees and costs.

What does the new law say about premarital and marital agreements?

The new law provides specific requirements that parties must follow when entering into a premarital or marital agreement. First, the agreement must be signed by both parties. Second, both parties must have voluntarily consented to the agreement. The parties cannot have executed the agreement under duress.

Third, the parties must have had access to independent legal representation. This means that a party must have had reasonable time to decide whether to retain a lawyer and to locate one. If the party did not have independent legal representation, the agreement must include a notice waiver of rights. The law provides the following example of an appropriate waiver:

“If you sign this agreement, you may be: giving up your right to be supported by the person you are marrying or to whom you are married; giving up your right to ownership or control of money and property; agreeing to pay bills and debts of the person you are marrying or to whom you are married; giving up your right to money and property if your marriage ends or the person to whom you are married dies; and giving up your right to have your legal fees paid.”
Fourth, there must have been adequate financial disclosure of a reasonably accurate description and good-faith estimate value of property, liabilities, and other income.

What types of provisions are unenforceable?

In addition to spelling out the requirements to create a binding premarital or marital agreement, the new law also identifies several terms that may not be included in these agreements. Examples of these unenforceable terms include:

  • Adversely affecting a child’s right to support;
  • Penalizing a party for initiating a legal proceeding for a separation or marital dissolution; and
  • Limiting a domestic violence victim’s right to any remedy under the law

If any of these terms are in an agreement, a court will hold the term unenforceable. What is more, a court has the right to refuse to enforce a term if it believes the term was unconscionable at the time of signing.

Contact a Colorado Family Law Attorney

Premarital and marital agreements can be effective in helping a couple manage their assets. It is important, however, that any agreement follow Colorado’s new Uniform Premarital and Marital Agreements Act. Otherwise, one runs the risk of having a term or an entire agreement rendered unenforceable by a court.

If you have any questions about Colorado’s new law and drafting premarital and marital agreements, contact Noffsinger Law today for a free consultation. The office has experience handling these types of agreements, as well as a wide range of other family law issues, including divorce, legal separation, and property distribution.