Creating and signing a prenuptial agreement can be among the most significant things a person can undertake in a lifetime. Prenuptial agreements – or “prenups” – are contractual tools used by couples to predetermine certain outcomes in the event of a divorce in the future. As we’ve discussed in the past, Colorado has specific rules which govern the enforceability of prenuptial agreements; we won’t recite these again here, but it’s enough to say that these requirements must be observed strictly to produce a valid contract. Today, we’d like to focus on the issues and considerations which should be discussed and resolved prior to signing a prenuptial agreement.
Considerations on Property Division
When most people think of prenups, they think of well-propertied individuals who are trying to preserve their assets as best as they can, sometimes in a seemingly “selfish” or guarded manner. These days, prenups have become far more common throughout society, including among middle and working class adults, and so the association with the top 1% is no longer founded; but, prenups are still primarily used in order to prearrange the division of property in a hypothetical future divorce.
Nearly all forms of property can be referenced in a prenuptial agreement – marital property, separate property, debts, bank accounts, insurance policies, stocks, bonds, vehicles, pets, and other tangible personal property, and so forth. Individuals can determine how certain property will be classified (i.e. wages remain separate, certain acquisitions remain separate, etc.), how certain property will be managed, how debts will be allocated, etc.
One of the key things that those contemplating a prenuptial agreement should keep in mind is that these agreements are governed by many of the core principles which apply to other contracts. In other words, when you create a prenup, you will need to ensure that everything is consistent with the same principles which apply to non-prenup contracts. This means, among other things, that there cannot be any gross imbalance or unconscionability, duress, coercion, and so on. If a person wants to use a prenup as a means of dominating or intimidating the other party, for instance, that person will almost certainly end up creating an agreement which is unenforceable.
Another thing which should be remembered is that these contracts can be modified, by mutual agreement, after they are initially put into place. This means that you shouldn’t consider a prenuptial agreement to be “set in stone,” even if it’s executed properly and takes effect after the marriage begins. You still have an opportunity to potentially modify the agreement, but again this requires mutual acceptance, as well as adherence to the other applicable contract principles.
Considerations on Spousal Maintenance
Spousal maintenance is the other major thing which is often referenced in a prenuptial agreement. Individuals can use prenups to determine all the various aspects of spousal maintenance: how much spousal maintenance will be paid, the frequency or regularity of payments, and so forth. This is also one of the reasons why some spouses may be reluctant to consent to a prenuptial agreement. In some cases, as we know, spousal maintenance can be necessary in order to “bridge the gap” between married life and single life; if you contract to disallow maintenance altogether, you need to reflect carefully on the severity of this decision.
Prenups Cannot Predetermine Custody / Child Support
If you’re trying to use prenups to alter child custody issues or child support, you need to know that these things cannot be privately determined by a prenup. Child custody and child support are matters settled by the courts – or, even if settled privately, they are subject to court approval – and so you can’t use prenups to impact these matters at all.