A prenuptial (or “premarital”) agreement is a contract between two people who are about to marry. It sets out what will happen to each person’s property if the marriage ends in divorce or at the death of one spouse, and it can replace the rules which Colorado law would otherwise apply. Couples who sign one are often not anticipating a divorce; more often, one or both of them have children from a prior marriage, own a business or a family property, or expect an inheritance that they want to pass to their own family.
What a Prenuptial Agreement Can Cover
A prenuptial agreement can identify each person’s separate property, decide how property acquired during the marriage will be treated, address spousal maintenance (i.e., alimony), and waive or limit the rights a surviving spouse would otherwise have in the other spouse’s estate. That last point is why prenuptial agreements so often go hand-in-hand with a Will or Trust: the agreement and the estate plan should say the same thing. A prenuptial agreement cannot adversely affect a child’s right to support.
What Makes the Agreement Enforceable
Colorado has adopted a uniform act that governs premarital and marital agreements. Among other requirements, the agreement must be in writing and signed by both parties, each party must sign voluntarily, and each party must have had access to independent legal counsel and adequate disclosure of the other’s finances. In practice, this means:
- Each party must have had access to independent counsel. Elkhorn Law can represent one party and negotiate the agreement with the other party’s attorney, or, with the informed written consent of both, represent the couple together. Before asking for that consent, we explain what joint representation means for each of you, and either party remains free to have their own attorney review the agreement.
- Each party should exchange a written summary of their assets, debts and income (e.g., retirement and 401(k) balances, life insurance, bank accounts and real property), which is usually attached to the agreement.
- The agreement should be signed well before the wedding. An agreement presented days before the ceremony invites a later argument that it was not signed voluntarily.
If you are already married, see Postnuptial Agreement.