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Prenuptial Agreements

May 2017

In Colorado, parties contemplating marriage may enter into a prenuptial agreement. Prenuptial agreements can address property and financial issues in the event of a divorce, and are generally entered into when one party has substantial property and desires to keep their property separate from the marriage. When contemplating a prenuptial agreement, it is imperative to confer with an attorney to make sure the prenuptial agreement complies with Colorado Law and will make it more likely to be upheld when needed.

A domestic relations court in Colorado may void a prenuptial agreement based on the following non-exhaustive list of factors:

  • Adequate Financial Disclosures C.R.S. § 14-2-309(d) and (4): Were there proper financial disclosures between the parties? This inquiry goes to a parties' knowledge of what they were giving up at the time the agreement was signed. The Court may void a prenuptial agreement if it finds that a party failed to disclose significant assets prior to the execution of the agreement. Adequate financial disclosure requires that the parties provide a reasonably accurate description and good faith estimate of value of property, liabilities, and income of other party; or that each party has adequate knowledge or a reasonable basis for having adequate knowledge of the same.
  • Not Voluntary C.R.S. § 14-2-309(1)(b): This inquiry seeks to make sure that each party's agreement was knowing, voluntary, and without coercion. The Court may void an agreement if it finds that one party was under duress or intoxicated at the time of execution. When was the prenuptial agreement presented for signature? If the prenuptial agreement was signed in the eleventh hour before the wedding ceremony, it is possible that the agreement was signed under duress and was not a voluntary act. Duress is pressure exerted upon a person to coerce that person to perform an act they ordinarily would not perform. Was a party intoxicated at the time of the signing of the agreement? As a result of intoxication where they unable to understand what they were signing? All the above could be an argument that the prenuptial agreement was not entered into voluntarily and therefore not enforceable at the time of divorce. In some circumstances, it is best to have a video recording of the actual signing of the prenuptial agreement to preserve evidence that the agreement was entered into voluntarily.
  • Representation by an attorney C.R.S. § 14-2-309(c): Did the party waiving their marital rights have access to funds to hire an attorney? In almost all situations it is best that both parties are represented by their own independent counsel during the formation of a prenuptial agreement. If the party who benefits from the prenuptial agreement and the other party was not or denied access to funds to hire an attorney it is possible that the court will void the agreement.

The purpose of drafting a prenuptial agreement is to protect assets in the event of divorce. It is imperative to have an attorney advise and draft an agreement that will be enforceable years, if not decades into the future. The Attorneys at the Law Offices of Brandon R. Ceglian P.C, can help you your prenuptial agreement drafting needs. 

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