Hoping for the Best and Planning for the Worst

By Denise M. Gonzales

In case you missed it, January 26, 2018 was National Spouses Day.  Not to rain on the celebration but according to the National Center for Health Statistics, Colorado ranks #10 in the top states where couples are likely to get divorced, with 3.7 divorcees per 1,000 people. While most have the best intentions when choosing to marry and then remarry, statistics show that later marriages are even more likely to end in divorce than the first marriage. Subsequent marriages often consist of the couple and their children from previous relationships, so the demand for prenuptial agreements is on the rise.

While the thought of “Will you marry me?” followed by “Can we sign this prenup in case it doesn’t work out?” is unsettling to most, and it is not as uncommon as it once was.  Most of us may have thought of prenuptial agreements as only for the very wealthy, but that is no longer the case.  Sure, there are those instances where the very wealthy want to ensure that the family wealth stay with the family bloodlines and out of reach for the ever-present gold-digger.  However, with the rise of blended families and the reality that divorce is more common in subsequent marriages, the need to ensure that one spouse’s assets, regardless of how modest they may be, don’t end up with the step-children rather than the biological children, is a real and legitimate concern.

A prenuptial agreement is an agreement between both parties and is executed prior to the marriage and describes how assets and debts will be allocated should one party die or the parties divorce.  In order to have a valid prenuptial agreement, it must be in writing and signed by both parties. Each party affirms that they are entering into the agreement voluntarily and have accurately disclosed their assets and current financial circumstances to the other.  Both parties must have had an opportunity to seek independent legal counsel prior to signing and the agreement itself cannot be unconscionable.  While there are certain issues that cannot be included in a prenuptial agreement (i.e., custody, visitation rights and child support for joint children), Colorado courts will enforce a valid prenuptial agreement that adequately sets forth the parties’ agreement related to the division of separate premarital property, non-marital debts and spousal support.  So, while bringing up the issue of a prenuptial agreement is not the most palatable subject, based on the martial statistics of today, insisting on one may be the best decision one makes.


From the February 2018 Pollart Miller Newsletter