Future couples across the country are choosing to execute premarital agreements more and more frequently. Future couples in the State of Colorado are no exception to this trend. More and more often, we see prospective newlyweds using these agreements to predetermine the fate of many things in the event of a divorce. Importantly, prenups are being used not just by the wealthy, but by couples of all income levels and socioeconomic backgrounds. This is because more people realize the benefits of prearranging how certain things will be carried out if a divorce happens.
As readers likely know, a prenuptial agreement essentially allows couples to predetermine certain outcomes if a divorce happens in the future. Typically, these agreements involve predetermining how premarital assets will be divided; but, as we will see, a whole variety of things may also be included in a prenup. In this post, we will discuss common things included in a prenup, and then go over how Colorado views these agreements from a legal perspective.
What May Be Included in a Colorado Prenuptial Agreement
Prenuptial agreements may be used to control the fate of a wide range of things. In addition to the most familiar thing – premarital assets such as liquid funds or real estate – other things such as retirement plans and employee benefits can also be included within a prenup. What’s more, couples may also contract for things such as mortgage debt or credit card debt; so, couples can divide up the debt in advance to determine who pays for what, or what percentage each person pays. Couples can also contract for inheritance for children from previous relationships. Couples also routinely contract for things such as life insurance, control of property, which state law applies, etc.
Child Support Not Includable
Many prospective couples are interested in whether child support may be pre-arranged in a prenuptial agreement. This makes sense, because couples want to avoid stress and minimize the financial costs of developing support arrangements in the future. The answer, however, is that support arrangements may not be includable in these agreements. The reason is that judges need to be able to have direct influence over support arrangements to ensure that these arrangements are in the best interests of the child.
Colorado Adopted the Uniform Premarital and Marital Agreements Act in 2014
What factors determine the enforceability of Colorado prenuptial agreements? How are these agreements perceived and analyzed by Colorado courts? Back in 2014, the State of Colorado passed the Uniform Premarital and Marital Agreement Act (UPMA), and the UPMA provides rules which pertain to the enforceability of prenups. In addition to offering a couple of unique things, the UPMA also essentially codifies a couple of points directly from the common law of contracts.
To begin with, the UPMA states that a prenuptial agreement must be in writing and must be signed by both parties to be enforceable. In other words, these agreements cannot be made verbally. The UPMA also lays out grounds on which a spouse may challenge the enforceability of an agreement. A spouse can challenge by claiming that he or she didn’t have the opportunity to secure legal counsel before signing, or a spouse can contend that the other spouse did not properly disclose his or her financial information.
The UPAA takes directly from the common law of contracts when it refers to the issues of duress and unconscionability. A spouse may challenge the enforceability of an agreement by claiming that he or she signed under duress, which essentially means under a kind of intense pressure or threat of harm. Courts will analyze this type of claim on a case-by-case basis, using precedent while taking the specific facts of a given situation into consideration. A court may also invalidate an agreement on the basis on unconscionability, which is a concept also borrowed from standard contract law. Unconscionability basically relates to the relative bargaining power between the parties and holds that agreements that unfairly benefit one party may be rendered unenforceable based on concerns of equity.