Prenuptial agreements were once considered only for the very rich. Still, many spouses today put a prenup in place before their marriage to act as an insurance policy against something they hope will never happen but wish to be prepared for “just in case.” Some spouses also sign prenups before their marriage as a portion of their estate planning.
A well-executed prenuptial agreement is enforceable in court should a marriage end in divorce, but if your prenuptial agreement doesn’t withstand court scrutiny, a judge could find it invalid. Before considering a prenup, it’s important to know how to avoid later invalidation by a court during divorce. Call our Denver prenuptial agreement lawyers to discuss your options at (303) 451-0300.
Even if one spouse wishes to sign a prenuptial agreement to leave the marriage with nothing should it end in divorce, a judge will throw out the agreement on the grounds that’s it’s egregiously unfair.
Although Colorado doesn’t require spouses to make an exact 50/50 division of their marital assets, the state strives to meet the standard of a “fair and equitable” division. A prenup that benefits only one spouse or leans heavily in favor of one spouse over the other is not typically enforceable.
A valid prenuptial agreement requires each spouse to submit a signed affidavit listing all of their premarital assets, including property, bank accounts, and financial holdings. Hiding separate assets or failing to disclose them in the agreement will nullify the agreement in court.
Although a prenup may still be binding if one spouse lacks legal counsel as long as they sign a waiver, the other spouse must be able to show that they gave their partner plenty of time and opportunity to hire a lawyer and review the document. It’s also critical to allow time for negotiation before the final draft of the contract. Rushing a spouse into a prenuptial agreement without giving them ample time to carefully review the terms with a family lawyer representing their best interests invalidates the agreement.
One of the questions a court asks before enforcing a prenuptial agreement is, “Was the agreement entered into freely by both partners?” The court interprets rushing a partner to sign the agreement, springing the document onto a partner close to the wedding date, or using threats or intimidation against a partner as signing under duress or pressure. The court will toss out a prenup signed under duress.
The court requires the language of a prenuptial agreement to be legally sound. Including invalid or unenforceable terms on a prenup gives the court grounds to discard the entire document. For instance, a prenuptial agreement in Colorado or elsewhere cannot include child custody decisions. The court makes these decisions based on the child’s best interests at the time of the divorce—something that spouses cannot anticipate or predict before the marriage.
If a judge nullifies a prenuptial agreement, the terms of the divorce must meet the state’s “fair and equitable division of assets” standard either by the spouses reaching a settlement agreement or by presenting their arguments to a judge over each disputed matter in a contested divorce process.
A prenuptial agreement protects each spouse’s separate assets and creates the terms for the division of marital assets in the event of a death or divorce. The intention is to prevent a contentious divorce process.
A valid prenuptial agreement puts mutual protections in place while the relationship is at its most loving and generous best. To avoid having a prenup thrown out when it matters most, call Ciancio Ciancio, Brown P.C. for experienced legal counsel throughout the process of creating and signing an enforceable agreement.
