Marital Agreements

Marital Agreements 2018-10-25T10:50:14+00:00

Marital Agreements Attorneys

All marital agreements are contracts. They must be crafted carefully and fairly to be enforceable. In 2014, Colorado passed the “Uniform Premarital and Marital Agreements Act” which changed the prior law for all marital agreements signed after July 1, 2014. It is important that you completely understand your rights and obligations when entering into these marital contracts. At Pollart Miller Family Law, our experienced and professional family law attorneys are ready to help you draft or review a Colorado prenuptial or postnuptial agreement. Our attorneys will explain the legal terms and consequences of your marital agreement. Whether you are ready to get married or want to share property after you are already married, Pollart Miller will clarify the details for you.

Why Enter Into a Marital Agreement?

The purpose of a marital agreement is to clarify and set forth the rights and responsibilities each will have with regard to property, support and finances in the event of divorce, legal separation or the death of either or both of you. A prenuptial agreement is a marital agreement that is executed before the marriage takes place, while a postnuptial agreement is an agreement that is executed after the marriage. Colorado divorce courts will not enforce a marital agreement so long as it is properly executed, contains no invalid provisions, was not entered into under duress, was based upon valid and complete information, and is not unconscionable.

Requirements for a Colorado Prenuptial Agreement

A Colorado prenuptial agreement is like a standard contract except that:

  1. No consideration is required.
  2. The contract must be in writing.
  3. Both parties must make a fair and honest disclosure of all property, assets, incomes and financial obligations.
  4. Must not be made entered into under duress or pressure.
  5. Each party must have adequate time to seek an independent attorney of their choosing.
  6. Must not be unconscionable.
  7. An agreement that concerns alimony must not be unfair at the time of enforcement. The time of enforcement is the time of divorce or legal separation.
  8. All language regarding children will be treated as void.

Requirements for a Colorado Postnuptial Agreement

A postnuptial agreement is executed during a marriage in order to clarify and set forth the rights and responsibilities each will have with regard to property, support and finances in the event of divorce, legal separation or the death of either or both of you. All rights and obligations required for a prenuptial agreement are also required for a postnuptial agreement.

Out-of-State Prenuptial Agreement

Typically, if a couple is divorcing in Colorado but crafted the prenuptial agreement in another state, Colorado will enforce the agreement, so long as it is not unconscionable. The agreement must follow the law of the state in which it was created. A provision regarding alimony must not be unfair at the time of the divorce or legal separation.

How Pollart Miller Family Law Can Help

Our family law attorneys make sure the terms of a marital contract are comprehensive and that your intent is reflected in the writing. We can represent you in court to challenge a marital agreement if it is unconscionable at the time of divorce or legal separation.

What Is the Difference Between Marital Property and Separate Property?

Owning property is an important factor in the economic development of individuals. It symbolizes both personal and professional growth and builds wealth over time. The possession of property also gives individuals the exclusive right to use their resources as they see fit, when they need to. In most societies, ownership of property has often been used as a yardstick of measuring their success.

When property is acquired during marriage, then the term takes a different turn altogether because those who are enjoined in the marriage are usually bound by marital property law. When couples want to divorce the aspect of marital and separate property comes up in court proceedings. It is important to understand the difference between marital and separate property as interpreted by the law.

The process of divorce involves the division of property, which can be quite an overwhelming and complex activity. The term property usually encompasses a wide spectrum of things and objects, including tangible assets as well financial investments and retirement interests. There are differences between separate and marital property that is usually interpreted in law.

Separate Property

Separate property includes property or properties that either spouse owned prior to the marriage union that was maintained as the separate property of that spouse. Moreover, inheritance received by either the husband or the wife during periods of the marriage or before is usually classified as separate property, so long as it was not co-mingled.

Typical gifts from the husband, spouse or even a third party (including relatives) may also be viewed as a separate property during a divorce proceeding.  However, the increase in the value of separate property, absent a marital agreement, will likely be considered marital property.

Marital Property

Marital property, on the other hand, is all assets that were acquired by either spouse during marriage, regardless of how the asset may be titled. For instance, 401K and stock options obtained in the name of one spouse will be considered marital property when such property was acquired during the marriage. There are exceptions to marital property designation in cases where the parties had a validly executed pre-nuptial or post-nuptial agreement.

During the process of divorce in Colorado, the marital property is divided “equitably”. This does not mean that marital property is always divided equally . The court will take into consideration the respective contributions of each spouse to growth of the overall marital estate.  However, each case is unique. To get specific information on your divorce case, contact Pollart Miller LLC for a personal consultation.

Are Premarital Agreements Good?

A premarital agreement is a tool that most people relate to the wealthy, but even for those who are not of the upper class society, one would think that a premarital agreement would make things less complicated in a future divorce settlement. However, according to one consulting group, premarital agreements can have the opposite effect if they are poorly drafted.

Because these agreements are really nothing more than a financial statement, the attorney drafting the prenuptials should have full disclosure and a good understanding of the couple’s financial situation. Some things they may want to take into account include:

  • The separate assets each party wants to protect and how a decrease or increase in value might affect those items.
  • How income will be generated by the couple and possible changes in careers that might occur during the marriage.
  • If expenses will be paid jointly or separately.
  • How debts or assets incurred during a marriage would be allocated in a settlement.

The document should also be written using concise and clear language. Ambiguous terms can lead to confusion and misunderstandings. Accounting terminology should also be well-defined. Using examples is an excellent way of portraying exactly what is meant by a phrase or statement.

If a couple is going to have a premarital agreement, they should also have a way to monitor it during their years of marriage. Unexpected changes in life can completely alter the effectiveness of a prenuptial agreement. The agreement may need revised by an attorney at times if a couple wants to retain the best resolution in the event of a divorce. Once a divorce process has started, if the premarital agreement is outdated, it can muddy up the waters instead of streamlining a settlement.

Source: divorcesource.com, “Premarital Agreements,” David Melton & Associates, accessed Feb. 1, 2018