Most couples walking down the aisle on their wedding day don’t think they will ever be walking up the steps of a courthouse to file divorce papers. But most couples also know statistics show that marriages can and often do end well before “`til death do us part.” That’s why many Colorado couples decide to prepare and execute a prenuptial agreement prior to their wedding day to govern property division, spousal maintenance and support, financial obligations, and other matters in the event that the marriage doesn’t work out.
Usually, a couple will prepare a “prenup” because one of the spouses has significantly more assets than the other. That wealthier spouse will see the prenup as a way of limiting their post-divorce liabilities to their former spouse to amounts less than the law would provide in the absence of such an agreement. The other soon-to-be spouse may see no problem with agreement, either because they think it’s fair or because they believe the document will be shoved away in a drawer somewhere, never to be seen again since they will live happily ever after.
But when happily ever after doesn’t materialize, one spouse may no longer want to be bound by the prenuptial agreement they signed years or decades ago. If they want to get out of the agreement or have it declared unenforceable, they will need more than buyer’s remorse to get a Colorado judge to throw the agreement out.
Duress, Lack of Lawyer or Waiver, Failure to Fully Disclose
In 2013, Colorado enacted the Uniform Premarital and Marital Agreements Act. (the “Act”). Applying to all prenuptial agreement signed on or after July 1, 2014, the Act governs what can be contained in such agreements, what is required for them to be valid, and the limited reasons why such an agreement will be declared unenforceable.
As a preliminary matter, it should be noted if both spouses want out of the agreement, they are free to revoke it if the revocation or amendment is in writing and signed by both parties.
Absent both parties wanting out of the agreement, a written and properly executed premarital agreement can be found unenforceable if the party against whom enforcement is sought proves:
- the party's consent to the agreement was involuntary or the result of duress;
- the party did not have access to independent legal representation, which means that before signing, the party didn’t have a reasonable time to:
- decide whether to retain their own lawyer; and
- locate a lawyer, obtain the lawyer's advice, and consider the advice provided; and
- the other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation.
- unless the party had their own lawyer at the time the agreement was signed, the agreement did not include a notice of waiver of rights or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement. This notice needs to be conspicuously displayed, and be written in language substantially similar to the following: “if you sign this agreement, you may be:
- giving up your right to be supported by the person you are marrying;
- giving up your right to ownership or control of money and property;
- agreeing to pay bills and debts of the person you are marrying;
- giving up your right to money and property if your marriage ends;
- giving up your right to have your legal fees paid.”
- before signing the agreement, the party did not receive adequate financial disclosure. “Adequate financial disclosure” means that the party receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party or has adequate knowledge or a reasonable basis for having adequate knowledge of the other party’s finances
In addition to these specific bases for declaring a prenup unenforceable, a judge can void a prenup if he or she concludes that the provisions relating to the determination, modification, limitation, or elimination of spousal maintenance or the waiver or allocation of attorney fees are unconscionable at the time of enforcement of such provisions. The judge has wide discretion in determining whether the provisions of a prenup are so oppressive as to be “unconscionable,” but it requires more than simple unfairness.
If you are getting divorced and wish to be released from the obligations or limitations of a Colorado prenuptial agreement, your ability to do so will depend on the circumstances of its execution, the current state of financial affairs between you and your spouse, and the skill of your Colorado divorce lawyer in convincing the judge to set the agreement aside.