Prenuptial Agreement & Colorado Divorce

Colorado has long upheld prenuptial agreements, so a body of case law has developed over several decades on the enforceability of prenups, and the current law, the Uniform Premarital & Marital Agreements Act (UPMAA) was adopted in Colorado on July 1, 2014. The marital agreements act sets out the legality and enforcement of premarital agreements (the legal term for a prenuptial agreement) in Colorado dissolution of marriage cases. If a couple is already married but wanting a marital agreement, see our article on postnuptial agreements.

Prior to entering into a prenup in Colorado, the parties must make reasonable financial disclosures to each other, and the agreement must be signed. They can address the division of property and alimony (to some degree, as explained below), but cannot determine parenting or adversely affect children's right to child support. While most of the time a prenup is intended to address rights upon divorce, prenuptial agreements can also cover rights to inherit under the other's estate.

Note also that while this article (and the statute) refers primarily to marriage, in Colorado a couple entering into a civil union can also have a premarital agreement. C.R.S. 14-2-305.5.

Why a Prenup?

Believe it or not, actor Alec Baldwin has a very apt quote about the purpose of a prenuptial agreement, based upon the experience from his bitter 2002 divorce from fellow star Kim Baldwin:

“If you do get married, get a prenup. It’s not about money at all. It’s about having a document that states how you’ll dissolve your marriage while you still have a shred of respect for each other.”

The Colorado Supreme Court expressed a similar sentiment way back in 1982, in a decision explaining why a prenuptial agreement (referred to in the opinion as an "antenuptial agreement") should be upheld:

"Parties to an antenuptial agreement are concerned with entering into a marriage, and removing as much uncertainty as possible from the potential division of property in the event of the death of one of the parties or of the dissolution of the planned marriage between the parties. Although their relation is confidential and fiduciary at the time of the execution of the antenuptial agreement, compelling full disclosure and good faith, there is an assumption in the law that the parties are essentially able to act independently and rationally concerning their present and future property interests in relation to their prospective marriage. Once the stringent tests of full disclosure and lack of fraud or overreaching are met, the parties are free to agree to any arrangement for division of their property, including a waiver of any claim to the property of the other."

Newman, at 733.

Prenups get media attention, thanks to the fact that they are more common in celebrity marriages and divorces. In reality, premarital agreements are rare - perhaps because they are not the most romantic concept in the world, or maybe because one is not necessary. If you have no significant premarital wealth to protect, and are not expecting a sizeable inheritance during marriage, then there may be little point in a prenuptial agreement - at least as long as you are generally satisfied with an equitable division of marital assets, and the potential for paying spousal maintenance in accordance with Colorado guidelines.

What is a Prenuptial Agreement?

A prenuptial agreement, legally known as a “premarital agreement” in Colorado, is:

“an agreement between individuals who intend to marry which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed before the individuals marry, of a premarital agreement.”

C.R.S. 14-2-302(5) (Emphasis added).

As the emphasized language suggests, a prenuptial agreement is one signed before the marriage, and is signed in contemplation that the couple is going to be married.

How Many Days Before Marriage to Sign Prenup?

The premarital agreements act does not impose any specific waiting period between signing a prenup and the wedding itself. However, as explained in more detail below, a prenup is not enforceable if it was involuntary or the result of duress, or if the spouse did not have counsel or a reasonable time to decide whether to retain counsel. So being handed a prenup as wedding members are waiting in the church is likely out.

There are several cases upholding prenuptial agreements signed days before the wedding, or even the day of the wedding. However, if your pre nup agreement was signed after 7/1/2014 when the Uniform Premarital & Marital Agreements Act came into effect in Colorado, you should view this case law with skepticism. Under the old act, there was no requirement that a spouse have access to counsel, whereas a prenuptial agreement signed just a day or two before the wedding would be easier to attack now.

So with the caveat that these cases are applicable to prenups signed before the 2014 UPMAA, Colorado courts have upheld premarital agreements signed:

• Day of the wedding. Ross. This was a unique case, however, in that the version signed on the wedding day was substantially the same as one which the wife had previously reviewed with her attorney, and she did not ask to see the attorney again when presented with the version ultimately signed.
• 1 day before wedding. Newman. The spouse had disclosures, and decided not to confer with counsel before signing the "antenuptial agreement."
• 3 days before wedding. Lopata.

Premarital Agreement Must Be in Contemplation of Marriage

At the time the prenup is signed, the parties must have intended to marry. If they sign an agreement intending to just live together, that agreement is not a valid premarital agreement in Colorado, even if they later marry.

In Green, a couple signed an agreement and married five months later, remaining married for 23 years. However, the problem was that the agreement they signed was essentially a cohabitation agreement, which did not even mention marriage, and instead stated that the couple intended to "live together", and set forth the sharing of expenses and purchase of a residence. The Court of Appeals affirmed the trial court finding that the agreement "was not an enforceable premarital agreement because the parties were not contemplating marriage when they entered into it." Green, at 203.

Premarital Agreement Void if Parties Do Not Marry

Pursuant to C.R.S. 14-2-307, "A premarital agreement is effective on marriage." That means that if there is no marriage, the prenup never takes effect.

Modification or Revocation of a Prenuptial Agreement

Once signed, a prenup can be modified by the parties. If the modification is before marriage, it is still referred to as a premarital agreement (C.R.S. 14-2-302(5)), and if after marriage, it would be a marital agreement, aka a postnup. C.R.S. 14-2-302(2).

And yes, people do modify prenuptial agreements when circumstances change. Just ask Melania Trump, who is said to have modified her prenup to Donald Trump multiple times, the most recent being after his 2016 presidential election victory when she was rumored to have held out moving to Washington D.C. unless he agreed to prenup changes.

An amendment includes a "revocation." C.R.S. 14-2-302(1). So parties cannot simply tear up a prenup to void it - a formal revocation requires the same written/signed document as any other modification.

Prenuptial Agreement When Marriage is Void

Should a marriage later be declared void (see the ground for a declaration of invalidity of marriage in our annulment of marriage article), the prenup is only enforceable "to the extent necessary to avoid an inequitable result." C.R.S. 14-2-308.

What Marital Rights Can Be Addressed in a Prenuptial Agreement?

Pursuant to C.R.S. 14-2-302(5) a prenuptial or post-nuptial agreement may address the following marital rights and obligations at termination of the marriage or death of a party:

Division of Property

A prenuptial agreement can address "a right to property, including characterization, management and ownership", C.R.S. 14-2-302(4)(b), as well as "a right to property... at legal separation, marital dissolution, or death of a spouse" C.R.S. 14-2-302(4)(d).

And what can be covered as "property" in a prenup is broadly defined as pretty much any financial interest, including income:

"Property" means anything that may be the subject of ownership, whether real or personal, tangible or intangible, legal or equitable, or any interest therein, including income and earnings."

C.R.S. 14-2-302(6).

While a spouse's separate property remains that spouse's separate property during marriage as long as it is not jointly-titled, the increases in value of that property are marital. C.R.S. 14-10-113(4). Moreover, it is error for a court to award a spouse a greater share of that increase simply because the money was based upon his separate property.

Clauses redefining marital vs separate property are probably the ones we see most frequently in prenuptial agreements - in fact, in all the divorce cases the Graham.Law attorneys have litigated which involve prenuptial agreements, I do not recall a single one which did not protect in some way separate property from becoming marital property.

Commonly, prenuptial agreements will have property clauses which define as a spouse's separate property:

• Increases in the value of separate property. Vickers.
• Assets acquired during marriage. Vickers.
• One defined asset. Goldin.

Allocation of Debt

A prenup can also cover allocation of debts, specifically: "responsibilities for liabilities at legal separation, marital dissolution, or death of a spouse" C.R.S. 14-2-302(4)(d).

While debts acquired during the marriage would normally be marital debts subject to equitable distribution as part of the marital estate, a prenuptial agreement could define as a spouse's separate debt any debts acquired by that spouse in his/her own name. Or the opposite - the parties may agree that one spouse will pay the other's separate or premarital debt upon death or dissolution.

Alimony, But Cannot be "Unconscionable"

A prenuptial agreement can address the payment of spousal maintenance upon divorce. C.R.S. 14-2-302(4)(a). However, unlike the property and debt provisions which can be completely one-sided (and "unfair"), a maintenance provision must be fair at the time of enforcement - i.e. upon divorce.

A maintenance provision is not enforceable if it is: "unconscionable at the time of enforcement of such provisions. The issue of unconscionability shall be decided by the court as a matter of law." C.R.S. 14-2-309(5).

A spousal maintenance provision does not have to follow the Colorado spousal support standards, nor Colorado's alimony formula. But the longer a marriage, the less likely a court is to accept a waiver of alimony when there is a substantial disparity between the parties' incomes. So a smart premarital agreement will not have a complete waiver, but will be stingier than the statutory guidelines, both in duration and in amount.

Attorney's Fees, But Cannot be "Unconscionable" (New in UPMAA)

A prenuptial agreement can address "An award and allocation of attorney's fees and costs." C.R.S. 14-2-302(4)(e). But like spousal maintenance, "the waiver or allocation of attorney fees" is not enforceable if it is "unconscionable at the time of enforcement of such provisions. The issue of unconscionability shall be decided by the court as a matter of law." C.R.S. 14-2-309(5).

Note that while this provision was only added to the marital agreements statute with the enactment of the UPMAA in 2014, even under the older UPAA, attorney's fees provisions were enforceable prior to that, and that a waiver of fees would be tested for conscionability. Ikeler. So the UPMAA effectively adopted this holding.

Rights Upon Death of Spouse

Though the legality of prenups in a divorce get the most attention, note the language in the definition of a prenuptial agreement above which includes modifying rights of spouses at the "death of one of the spouses." C.R.S. 14-2-302(5).

Normally a surviving spouse would have certain inheritance rights, even if cut out of the will of the deceased spouse. However, among the property rights a pre nup can affect are "a right to property and responsibility for liabilities at... death of a spouse." C.R.S. 14-2-302(4)(d).

There is some split authority nationwide as to whether the federal ERISA statute, which governs division and survivor benefits for "qualified" pension plans, allows for a waiver of rights in a prenuptial agreement. In Rahn, the Colorado Court of Appeals held that a spouse can waive in a prenuptial agreement her rights to the other spouse's ERISA-qualified retirement account, without the need for a formal QDRO:

"While we recognize that a waiver of spousal death benefits in a prenuptial agreement is not effective when the spouse later dies while the parties are still married, ERISA does not, in our view, preempt or preclude the recognition, implementation, or enforcement of an otherwise valid prenuptial agreement with regard to, as here, a dissolution of marriage proceeding."

Rahn, at 468.

What Prenuptial Agreement Provisions Cannot Be Enforced in Colorado?

Colorado will not enforce certain terms in premarital agreements, although an otherwise valid premarital agreement is not entirely void simply because it contains an impermissible term. Rather, any of the following clauses would be enforceable and therefore struck from the agreement, while the rest of the prenup remains enforceable.

Adversely Affect a Child's Right to Support

As we have written about in a different article, agreements which deprive a child of support are unenforceable as contrary to public policy. Similarly, a prenuptial agreement clause which reduces the support available to a child is also unenforceable per C.R.S. 14-2-310(2)(a).

Note that there is no prohibition on an agreement which affects a child's right to support in a non-adverse way, so the parties could agree in a prenup to support a child through college, pay support in excess of the Colorado child support guidelines, etc.

Limit Remedies of Domestic Violence Victims

Per C.R.S. 14-2-310(2)(b), a prenup term which "limits or restricts a remedy available to a victim of domestic violence under the law of this state" is unenforceable.

Modify Grounds for Dissolution

Colorado is a no-fault state when it comes to dissolution of marriage. And a prenuptial agreement clause which "purports to modify the grounds for a court-decreed legal separation or marital dissolution available under the law of this state" is unenforceable. C.R.S. 14-2-310(2)(c).

This means Colorado will not be joining the tiny number of states which allow "covenant marriages."

Penalize Spouse for Divorce

A prenup clause which "penalizes a party for initiating a legal proceeding leading to a court-decreed legal separation or marital dissolution" is unenforceable. C.R.S. 14-2-310(2)(d). This means an agreement cannot provide that a spouse waives rights to certain property, or receives less alimony, if he or she files for divorce.

Parenting Issues

Unlike other unenforceable provisions in a prenup, the child custody clause is not "unenforceable", it's just not binding should the court decide it's contrary to the best interests of the child:

"A term in a premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial responsibility is not binding on the court."

C.R.S. 14-2-310(3)

As the official comment to this section of the UPMAA explains:

"The basic point is that parents and prospective parents do not have the power to waive the rights of third parties (their current or future children), and do not have the power to remove the jurisdiction or duty of the courts to protect the best interests of minor children."

Violate Public Policy

Finally, a prenuptial agreement provision which "violates public policy" is unenforceable. C.R.S. 14-2-310(1)(e).

Infidelity Clause in a Prenuptial Agreement

There is no clear judicial precedent in Colorado on whether an infidelity clause in a premarital agreement, by which a spouse who commits adultery is financially penalized at divorce. However, such a clause would appear to circumvent the UPMAA provision discussed above which prohibit prenups from modifying the grounds for a divorce (even though the divorce itself would still be no-fault, the property allocation would be based upon fault).

Moreover, spousal maintenance must be awarded based upon statutory factors, and "shall be made without regard to marital misconduct." C.R.S. 14-10-114(2).

There is only one exclusively no-fault state which has upheld an infidelity clause, and several of them which have held them to be unenforceable as an end-run around no-fault divorce and therefore a violation of public policy. For more details, see our blog post Adultery – Infidelity Clause in Prenup or Postnup Agreements.

Although there may be reasons why a spouse would want an infidelity clause, I believe its enforceability is in serious doubt, as Colorado is most likely to adopt the reasoning from the states which prohibit punishing adultery as a violation of public policy. And, as we explain in our blog post, there are also risks a court will view such a clause as an indication that the agreement itself was overreaching or not voluntary.

Requirements for a Prenup, or How to Attack a Prenuptial Agreement

There are several requirements to have a valid prenuptial agreement under the UPMAA, as well as statutory provisions which make prenups unenforceable under certain conditions. Overall, here is what is required to have a prenuptial agreement which is both valid and enforceable:

• Written & Signed. C.R.S. 14-2-306.
• Intent to Marry, so excluded cohabitation agreements. C.R.S. 14-2-302(5).
• Voluntary and Not Under Duress. C.R.S. 14-2-309(1)(a).
• Access to Counsel. C.R.S. 14-2-309(1)(b).
• Explicit Notice of Rights Being Waived or Modified, if the spouse had no counsel. C.R.S. 14-2-309(1)(c).
• Adequate Financial Disclosure. C.R.S. 14-2-309(1)(d).
• Maintenance & Attorney Fee Clauses are Not Unconscionable. C.R.S. 14-2-309(5).
• Addresses Permissible Marital Rights & Obligations, as discussed above and in C.R.S. 14-2-302.

A prenuptial agreement is subject to attack if it violates one of the above provisions. For more information on attacking the legality of a prenup, see our article Attacking & Enforcing Prenuptial & Postnuptial Agreements. Note that the above grounds are for prenuptial agreements executed under Colorado's Uniform Premarital and Marital Agreements Act. The prior UPAA was harder to attack, and the marital agreements article points out which of the grounds only apply to the new statute, and which apply to the prior one as well.

No Consideration Required

Finally, there is no need for a quid pro quo. C.R.S. 14-2-306 states, "The agreement is enforceable without consideration." This means that a spouse is giving up valuable financial rights in a prenuptial agreement without getting anything of value in return, beyond the right to marry the other party.

Prenuptial agreements can be, and usually are, one-sided, stacked in favor of the spouse with greater financial resources. And other than the spousal maintenance and attorney fee provisions, prenups are enforceable no matter how one-sided or "unfair" they may appear, as long as the proper process was followed.

Do-It-Yourself Prenuptial Agreement

The Self Help/Forms section of the Colorado Courts website does not have a sample prenuptial agreement template. I have reviewed some of the inexpensive fill-in-the-blank prenups, and while they may be adequate for simple situations, they may not work in more complex financial situations - i.e. the very situation which causes a spouse to want a pre-nup to begin with.

Moreover, they are not written to comply with Colorado's UPMAA requirements. So even if the prenup may appear adequate, it will not be enforceable if you do not scrupulously follow Colorado's requirements for the procedure or contents of a prenup.

The risk of not discovering problems until years later when you try to enforce a non-compliant premarital agreement means that Graham.Law is reluctantly unable to recommend the do-it-yourself route with a prenup. And we do not believe in needlessly spending money on lawyers for simpler tasks people can do on their own - after all, we have a Do It Yourself Divorce section of our Colorado Family Law Guide to educate people how to do their own family law cases.

FAQ - Colorado Prenuptial Agreement