If you are divorcing and want your Colorado prenuptial agreement overturned, you need more than a change of heart.
You Will Need More Than Buyer’s Remorse To Get Out of a Colorado Prenup
Most couples don’t enter their marriage thinking they will ever be walking up the courthouse steps to file divorce papers, so they do not give much thought to signing a prenuptial agreement.
Unfortunately, however, statistics show almost half of all marriages end well before “’til death do us part.” That’s why many Colorado couples decide to prepare and execute a prenuptial agreement before their wedding day to govern property division, spousal maintenance and support, financial obligations, and other matters just in case the marriage doesn’t work out.
Usually, a couple enters into a “prenup” because one of the spouses comes into the marriage with significantly more wealth or assets than the other. That wealthier spouse may ask for a prenuptial agreement to limit their post-divorce liabilities and obligations to less than they otherwise would be under Colorado law in the absence of a prenup. The other spouse may consent to the terms of the agreement. After all, they think the stipulations are fair or believe that the document will never become an issue or concern because they will live happily ever after.
Sometimes, however, a party may enter into a prenup based on misrepresentations or a lack of full disclosure by their soon-to-be spouse regarding the actual state of their financial affairs. Other times, a spouse is unfairly pressured or coerced into signing the agreement or doesn’t get an opportunity to consult with an attorney before doing so.
In those cases, a spouse who foresees divorce on the horizon may want to overturn or change their Colorado prenup, and an El Paso County judge may agree that they have grounds for doing so.
However, you need more than buyer’s remorse to get a Colorado prenuptial agreement overturned or changed. A spouse who wants a judge to throw out a prenup they signed years ago will need to prove that the agreement was so unfairly negotiated and outrageously skewed in one side’s favor that enforcing it would be inherently unjust.
Colorado law is quite specific regarding what circumstances would meet that threshold.
The Colorado Uniform Premarital and Marital Agreement Act
In 2013, Colorado enacted the Uniform Premarital and Marital Agreements Act (the “Act”), which applies to all Colorado prenuptial agreements signed on or after July 1, 2014. The Act governs what Colorado prenuptial agreements can contain, what is required for a prenup to be valid, and the limited reasons why a judge could declare a prenup unenforceable. Prenups entered into before that date are governed by a previous statute, the Colorado Marital Agreement Act, which provides fewer protections and less clear provisions regarding when a judge can invalidate a prenup.
The Act only comes into play when one spouse wants the agreement thrown out and the other wants it enforced. If both spouses no longer wish to be bound by its terms, they are free to revoke the agreement, so long as they put the revocation or amendment in writing and both parties sign.
Related: Is Divorce 50/50 in Colorado?
Bases For Overturning Colorado Prenuptial Agreements
Absent both spouses’ agreement to disregard their prenup, a judge can find a written and properly executed premarital agreement (unwritten prenups are never valid) to be unenforceable if the party seeking to get out of the agreement proves one of the following five points.
The Party Consented To the Agreement Involuntarily Or Under Duress
“Duress” that could invalidate a prenup involves much more than a threat to call off the wedding or a similar ultimatum, even if the spouse springs the prenup on the morning of their wedding day. For duress to be sufficient to strike down a prenup, the pressure or threats must be so flagrant as to cause fear of physical or psychological harm.
No Chance To Review With a Lawyer
If one party did not have access to independent legal representation before signing the agreement, an El Paso County judge might find cause to support a claim of invalidity. This means that the party seeking revocation or change did not have reasonable time before signing the agreement to:
- decide whether to retain their own attorney; and
- locate an attorney and obtain and consider their advice; and
- the other spouse is represented by a lawyer and has the financial means to retain an attorney, or the other spouse agrees to pay the reasonable costs of independent legal representation.
The Prenup Did Not Include a Notice of Waiver of Rights
Unless both spouses have their own attorney when signing the agreement, a prenup must include a notice of waiver of rights or a clear, plain language explanation of the marital rights or obligations the agreement is modifying or waiving. This notice must be conspicuously displayed and contain language substantially similar to the following:
“By signing this agreement, you may be:
- giving up your right to financial support from the person you are marrying;
- giving up your right to own or control money and property during the marriage;
- giving up your right to property and money upon divorce;
- agreeing to pay the debts and bills of the person you are marrying; and
- giving up your right to have your attorney’s fees paid or reimbursed.”
The Spouse Did Not Receive Adequate Financial Disclosures
“Adequate financial disclosure” means that, before signing the prenuptial agreement, both spouses receive a reasonably accurate and complete description and good-faith estimate of the value of any property, income, and liabilities of the other spouse. If this did not occur, or one spouse hid assets from the other, there may be cause to alter the prenup.
Other Unconscionable Terms
In addition to the above specific bases for declaring a prenup invalid, Colorado judges can void a prenup if they conclude that the agreement’s provisions are unconscionable at the time of their enforcement.
The judge has broad discretion in determining whether the provisions of a prenup are so oppressive as to be “unconscionable.” Still, you can rest assured that they will require more than simple unfairness.
Colorado Prenuptial Agreements Are Binding, But Are Not Always Bullet-Proof
Are you getting divorced and wishing to be released from the obligations or limitations of a Colorado prenuptial agreement? You need sound advice from an experienced Colorado Springs divorce attorney. A knowledgeable and skilled family law attorney will review your prenup and the rest of your case and provide you with the information you need to make sound decisions.
Don’t make the mistake of assuming there is no way out of your prenuptial agreement. Contact the experienced and compassionate family law attorneys at Perkins Law in Colorado Springs today to arrange for your free initial consultation.