Addressing Validity of Pre- and Post-Nuptial Agreements

Addressing Validity of Pre- and Post-Nuptial Agreements.

Colorado recognizes the validity of marital agreements. These sorts of agreements are governed by the Colorado Marital Agreement Act, §14-2-301, et seq, C.R.S. Colorado recognizes the enforceability of agreements between both prospective spouses and between present spouses. Unlike most contracts, the enforcing party does not need to demonstrate the existence of consideration. However, a marital agreement must be in writing and signed by both parties (§14-2-303, C.R.S.).

A full examination of marital agreements would be the worthy subject of an entire seminar, but in the context of client intake for a dissolution of marriage case, a few critical points should be discussed.

First, if maintenance is an issue, a marital agreement’s provisions as to spousal maintenance will not be enforced if the provisions are unconscionable at the time of enforcement. An agreement is unconscionable if it is not fair, reasonable and just. In re Christen, 899 P.2d 339 (Colo.App. 1995).

Second, a practitioner should inquire as to the circumstances of the parties at the time of the execution of the marital agreement. The agreement must be voluntary. In addition, both parties must have received a fair and reasonable disclosure of the other party’s property and financial obligations.

If your client is seeking to avoid the provisions of a validly executed marital agreement, the most productive line of attack is usually in the area of disclosures. The client and attorney should develop a discovery plan that will unearth all details of the spouse’s financial circumstances at the time of the agreement. This can then be compared with the disclosure actually provided. Litigating an inadequate disclosure case can be quite expensive, and the client should properly advised in that regard prior to embarking on this strategy.

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By Rich Arnold, Esq.