What Are Post-Nuptial Agreements?
During the hustle and bustle that often accompanies an engagement, many couples fail to consider the legal ramifications of getting married. This is understandable as the most severe legal consequences of marriage tend to occur if the couple ends up getting divorced or when a spouse dies.
Of course, neither topic is fun to discuss when you’re engaged. However, having the forethought to create a marital agreement can make a big difference both upon divorce and at death.
This article covers how post-nuptial agreements work in Colorado, as well as some of their pros and cons.
Talk to a Family Law Attorney about a Post-Nuptial Agreement
If you and your spouse want to learn more about post-nuptial agreements and how one could benefit your union, schedule a case assessment with a member of our Family Law Team. Call 303-688-0944 or you can set up the meeting yourself when you click here.
The Basics of Marital Agreements
In Colorado, pre-nuptial agreements and post-nuptial agreements are called marital agreements. These are written contracts executed between a couple in order to determine what will happen to their assets should the marriage end in divorce or death.
The key difference between these two agreements is that a pre-nuptial agreement is created before the couple gets married while a post-nuptial agreement is entered into after the couple weds.
Post-Nuptial Agreements in Colorado
The Colorado Marital Agreement Act outlines important aspects of post-nuptial agreements in Colorado, such as enforceability and the agreement’s effective date.
Enforcement of a Marital Agreement
In order for a post-nuptial agreement to be enforceable in Colorado, it must:
- be in writing and signed
- be entered into voluntarily
- include adequate financial disclosures
- contain rights being waived
- include reasonable terms
- both parties have sufficient time to review the terms
- not violate any laws
Waiving Your Rights
Some spouses will agree to give up certain rights upon divorce. For instance, a spouse may agree to no or limited alimony. Others may agree to give up the right to have their legal fees paid by the other spouse. And some could agree to let go of certain property if the marriage ends.
Any of these types of rights a spouse waives must be clearly listed in the agreement.
Reasonable Terms
The Colorado Marital Agreement Act also requires certain provisions to be reasonable at the time the agreement is enforced.
Specifically, terms related to how alimony is determined, modified, limited, or eliminated must be found to be reasonable by a court if the agreement is ever enforced. CRS § 14-2-309
For instance, a court may deem it unconscionable for a spouse to receive the $100 a month in spousal support even though the two parties signed the agreement. What is considered unconscionable is determined on a case-by-case basis by a judge.
Effective Date
Enforceable post-nuptial agreements in Colorado are signed after the couple is legally married and take effect as soon as the document is signed by both parties. However, the agreement must be signed before divorce proceedings are filed.
The Pros and Cons of Post-Nuptial Agreements
When deciding whether you and your spouse should create a post-nuptial agreement, it is prudent to weigh the pros and cons as they apply to your individual situation.
Some of the pros commonly associated with post-nuptial 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 post-nuptial agreement can help ensure your assets won’t disappear with your ex-spouse after a divorce.
The Ability to Pass Assets to Your Children
Post-nuptial 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
Post-nuptial agreements are sometimes entered into after one spouse cheats and would like to indicate their renewed commitment to the marriage by executing a post-nuptial agreement with terms that are favorable to the other spouse.
Some Cons to Post-Nuptial Agreements
Post-nuptial agreements are not without their downsides. Legally speaking it is generally a better idea to enter into a pre-nuptial agreement rather than a post-nuptial agreement. Why? Courts prefer agreements that are entered into before the marriage rather than after the fact.
Additionally, if a post-nuptial agreement is drafted incorrectly and is found to be unenforceable, the couple may have wasted a good amount of time and resources for nothing.
Talk to a Lawyer About Creating a Post-Nuptial Agreement
If you and your spouse are considering creating a post-nuptial agreement and would like to discuss your legal options, our Family Law Team can help.
Our lawyers understand that creating marital agreements is a sensitive business, and they are committed to drafting agreements that make their clients feel safe and secure. Call 303-688-0944 to schedule a case assessment.
