How a Marital Agreement Works
Many couples choose a marital agreement because they can offer security and manage expectations by each party. Martial agreements specify who gets what property in the event of the dissolution of the marriage or if one of the spouses passes away.
Marital agreements help create financial certainties in an uncertain future, by defining things like:
- Property Rights – who gets what property during the marriage, or in the event of death or divorce.
- Debt Liability – who is responsible for paying any debt during the marriage, and how these debts would be transferred in the event of death or divorce.
- Spousal Maintenance (commonly referred to as alimony) – what, if any, alimony is to be received in the event of death or divorce.
- Attorney Fees – who pays legal fees if a couple has to go to court in the event of a divorce, separation, or annulment.
Very smart. Very resourceful. Addresses all options.Jason C.
It is important to understand that there are some limitations to what can be agreed to in a marital agreement. For example, the marital agreement cannot reduce or eliminate child support responsibilities for either spouse. Marital agreements also cannot punish a spouse for initiating a divorce or restrict lawful remedies for victims of domestic violence.
It is very common to have a waiver of spousal maintenance and attorney fees in a marital agreement. However, those provisions can always be reviewed by the Court and can even be set aside by the Court if they are deemed unfair.
Who Benefits from a Marital Agreement
Marital agreements can be drafted whether you are engaged or already married.
A marital agreement entered into when a couple is engaged is called a prenuptial agreement becomes effective when the couple gets married.
For couples who are not yet married, a prenuptial agreement serves to create expectations of property ownership during the marriage and what will happen to that property upon the couple’s potential marriage dissolution.
If you bring significant assets to your marriage or if your fiancée has significant debts, a prenuptial agreement is an important way to protect yourself financially.
Curtis Law Firm family law attorneys can draft a prenuptial agreement that details the assets and debts of both parties in an upcoming marriage and explain how property will be divided and support handled in the event of death or divorce.
This option is less common than the prenuptial agreement and is for those couples that did not create a prenuptial agreement prior to getting married.
If, after getting married, a change in financial circumstances occurs such as a large inheritance, the creation of a business, or a change in liabilities for either or both parties, a postnuptial agreement might be beneficial to protect assets in the event of a divorce or protect you against your spouse’s potential future debts.
The Colorado Marital Agreement Act, contained in Colorado Revised Statutes §§14-2-301 through 14-2-313, outlines important aspects of post-nuptial agreements, such as enforceability and the effective date of the agreement.
It is important to note that couples who are contemplating divorce cannot enter into a post-nuptial agreement. In that circumstance, the only solution might be legal separation or divorce.
In order for a post-nuptial agreement to be enforceable in Colorado, the agreement must:
- Be in writing,
- Have been entered into voluntarily by both parties,
- Include fair and reasonable disclosures by both parties regarding their assets and liabilities,
- Not be excessive or unreasonable,
- Not violate public policy or any laws.
Postnuptial agreements in Colorado are enforceable if they are signed after the couple is legally married and take effect as soon as the document is signed by both parties.
There are pros and cons that should be considered when deciding if a postnuptial agreement is a good idea.
Some of the pros commonly associated with postnuptial agreements include:
- Financial Security in the Event of Divorce: As a significant amount of marriages in the United States end in divorce it may be a good idea to have an agreement that dictates what you will take away from the marriage in the event of a divorce. A postnuptial agreement can help ensure that your assets stay with you should your marriage break up.
- The Ability to Pass Assets to Your Children: Postnuptial agreements can provide a convenient way to ensure that some of your assets pass to your children from a previous marriage in the event that you pass away before your current spouse.
- Indicating Your Commitment to the Marriage: Postnuptial agreements are sometimes entered into after a betrayal in the marriage when one partner wants to indicate their renewed commitment to the marriage by including terms that are favorable to the other spouse.
Downsides to Postnuptial Agreements
Courts tend to presume that prenuptial agreements are valid while presuming that postnuptial agreements are not valid. That’s because courts prefer agreements that are entered into before the marriage rather than after the fact.
Additionally, if a postnuptial agreement is drafted incorrectly and is found to be unenforceable, the couple may have wasted a good amount of time and resources for nothing.
When prepared correctly, marital agreements give peace of mind to a couple entering into exciting new chapters of their lives. Marital agreements can be contested in the future by an unhappy former spouse if the agreements are incomplete, have missing information, or contain the wrong language.
It’s important to consult an experienced attorney so you can avoid those types of mistakes. Our family law attorneys can ensure your marital agreement reflects your and your spouse’s needs, wishes, and preferences.
With a properly researched and executed agreement, you can resolve potential problems before they arise and prevent wasting precious time and money.
Contact the family law attorneys at Curtis Law Firm today at (720) 408-7726 to get the expert legal advice and representation you need.
We have staff members who speak Spanish.
We make ourselves available to help accommodate your schedule.
Affordable Legal Representation
We make good legal help attainable with Small retainers and payment plan options.
Family changes can be emotionally hard. We help make it easier.