Challenging and Enforcing Prenuptial and Postnuptial Agreements

Marital agreements can help parties determine what will happen in the event of divorce. There are a number of requirements that must be met in entering into such agreements. For example, prior to entering into a prenuptial agreement (prenup) or postnuptial agreement (postnup), the parties must make reasonable financial disclosure to each other and the agreement must be signed. Agreements can address property division and alimony/spousal maintenance, but not parenting or a reduction of child support obligations as these areas remain under the jurisdiction of the court.

A prenup is an agreement entered into before marriage. A postnup is an agreement entered into after marriage in contemplation of continuing the marriage. If an agreement is entered into in contemplation of divorce, that is a separation agreement. Marital agreements not meeting statutory requirements will be subject to challenge. Ensure that your agreement is clear and well drafted.

One customary part of a marital agreement specifies what state law will govern a marital agreement because state law varies and parties may be contemplating a relocation. If a marital or premarital agreement was signed in another state and the agreement provided that the law of the other state governs, then Colorado will apply the law of that state rather than Colorado law if enforcing or deciding a challenge to the agreement. Marital agreements are not public documents unless a party brings an action to enforce or challenge the agreement in court.

The Uniform Premarital & Marital Agreements Act contains requirements for prenups and postnups. There must be:

• a written and signed document
• adequate financial disclosure
• access to counsel
• a rights wavier notice for a party who chooses not to obtain counsel
• fundamentally fair spousal maintenance/alimony and attorney’s fees provisions

An agreement is not enforceable without adequate financial disclosure. A good disclosure method is to use a sworn financial statement and provide supporting documentation. However, this is a detailed and time-consuming method and not absolutely required. It does however offer the best protection against allegations of a lack of adequate financial disclosure. It is best to make the disclosures a part of the agreement itself, so if challenged it is clear to all what disclosure was made.

Agreements are not enforceable unless both parties have reasonable access to counsel. This does not mean that they have to consult with counsel. However agreements are the most solid and less subject to challenge when both parties consult with counsel. Counsel must be independent, meaning that the parties can not consult with the same attorney. If one party can not afford to pay legal fees and the other party can, it is wise for the party who can to pay the expense for the other.

If a party chooses not to consult with counsel, the agreement must contain a waiver of rights stating in this or similar language:

If you sign this agreement, you may be:

• giving up your right to be supported by the person you are marrying or to whom you are married.
• giving up your right to ownership or control of money and property.
• agreeing to pay bills and debts of the person you are marrying or to whom you are married.
• giving up your right to money and property if your marriage ends or the person to whom you are married dies.
• giving up your right to have your legal fees paid.

If an agreement satisfies all of the statutory requirements, then there is no basis for challenge. This is why it is important that agreements be properly drafted. Public policy favors upholding agreements between parties. The spouse challenging the marital agreement has the burden of proof to show that the agreement or a part of it is not enforceable.

An agreement could be challenged if it was entered into under duress, however the bar is high to establish duress. An agreement can be challenged on the grounds of inadequate financial disclosure for a failure to provide a

reasonably accurate description and good-faith estimate of value of property, liabilities, and income. An agreement can be challenged based on a lack of access to counsel or the lack of waiver language if a party chose not to consult with counsel. A spousal maintenance award may be considered unconscionable if it leaves a spouse without sufficient property or income to meet reasonable needs.

How can an attorney help in Colorado Springs divorce and family law matters? An attorney can assist you in drafting marital agreements and explaining your rights and obligations in relation to them.

A Colorado Springs divorce and family law attorney can guide you through marital agreements by negotiating, mediating and litigating. This allows you to focus on moving forward to a better future rather than on spending your time trying to figure out the overly complex court system. Contact us at 719-344-5523 or complete our online form to set up a free thirty-minute informational consultation.