Colorado has long upheld prenup and postnup agreements, so a body of case law has developed over several decades on the enforceability of prenups, including adopting the Uniform Premarital Agreements Act in 1986, and finally the current law, the Uniform Premarital & Marital Agreements Act, which became effective in Colorado on July 1, 2014.
The marital agreements act sets out the requirements to enter into premarital agreements (the legal term for a prenup) and marital agreements (the legal term for a post nup), and is the starting point both for purposes of drafting agreements, or for attacking prenuptial or postnuptial agreements in court.
Prior to entering into a prenup or postnup, the parties must make reasonable financial disclosures to each other, and the agreement must be signed. They can address the division of property and alimony (to some degree, as explained below), but cannot determine parenting, or adversely affect children's right to child support.
Three quick tips to avoid challenges to a prenup or postnup, or to successfully defend your agreement if it is attacked:
Since both prenups and postnups have the same requirements, they are covered by the same statute, with the real difference between them being the timing:
Both of the uniform marital agreements acts share a lot of common features, so pre-nup or post-nup agreements from any time in the modern era in Colorado or the other states which have adopted one of the uniform acts will be largely the same. But before you know how to attack or defend a marital agreement, you have to know which act's requirements apply to it.
Colorado was a pioneer in adopting the Uniform Premarital and Marital Agreements Act, which, per C.R.S. 14-2-303(1), applies to a prenup or post nup entered into in this state from July 1, 2014 onwards. While this article focuses on this UPMAA, it will highlight the more significant changes from the UPAA where applicable.
The only other state which has adopted the UPMAA is North Dakota, in 2013. And I am unaware of moves in any other states to move from the older UPAA to the newer UPMAA.
If the couple signed a marital agreement between July 1986 and June 2014, then the older Uniform Premarital Agreements Act (UPAA, but adopted in Colorado as the Marital Agreement Act) applies. Here is a link to Colorado's version of the UPAA in effect until 2014.
If a marital or premarital agreement was signed in another state and designated that state law as controlling, then Colorado will also apply the law of that state which was in effect when the agreement was signed, and not void the agreement just because it does not comport with Colorado law now:
"The validity, enforceability, interpretation, and construction of a premarital agreement or marital agreement are determined:
(a) By the law of the jurisdiction designated in the agreement if the jurisdiction has a significant relationship to the agreement or either party at the time the agreement was signed and the designated law is not contrary to section 14-2-309 or to a fundamental public policy of this state; or
(b) Absent an effective designation described in paragraph (a) of this subsection (1), by the law of this state, including the choice-of-law rules of this state."
C.R.S. 14-2-304(1).
And very few states have actually adopted the UPMAA since it was promulgated in 2012 - thus far, only Colorado and North Dakota! Another 26 states plus Washington D.C. are still using the UPAA, while the remaining 22 states have not adopted any uniform law on prenuptial or postnuptial agreements (that is not to say that they do not recognize marital agreements, just that their own law may not resemble either of the uniform marital agreement acts).
If you have a pre-nuptial agreement or post-nuptial agreement from another state which designates that state's laws as applying, even in a Colorado divorce the court will need to examine the law in effect in that state, at the time the agreement was signed. However, note part (b) above - even if a prenup or postnup was signed in another state, if it does not have a choice of law clause designating that state's laws as applying, then Colorado law applies.
The UPAA and UPMAA are generally similar in their requirements, but they do have a few significant differences which are relevant when defending or attacking a marital agreement. Here's a brief summary of the differences, and the requirements of the UPMAA are discussed in more detail below:
The Uniform Premarital & Marital Agreements Act contains a number of requirements for a prenup or postnup to be enforceable, and even if the agreement as a whole is valid, requirements for a specific clause to be enforceable.
Attacking a marital agreement means proving that one of the requirements was not met, while defending one means the opposite - showing that the agreement complies with the law.
"A premarital agreement or marital agreement must be in a record and signed by both parties." C.R.S. 14-2-306. A record can be a physical or electronic document. C.R.S. 14-2-302(7).
Pursuant to C.R.S. 14-2-309(8), a prenup or postnup which is not in a record and signed is not enforceable.
Interestingly enough, a prenup or postnup does not need to be a standalone document, but could be one small part of a larger document:
"While most premarital agreements and marital agreements will be stand-alone documents, a fragment of a writing that deals primarily with other topics could also constitute a premarital agreement or marital agreement for the purpose of this act."
Official Comment to section UPMAA section 2 (C.R.S. 14-2-302).
There is no requirement that a marital agreement be filed or recorded anywhere, and the first time any third party may even know it exists is when a dissolution of marriage is pending.
In Zander, the Colorado Supreme Court rejected the wife's attempts to enforce an alleged oral agreement from years previously that in case of divorce, each would keep their own retirement accounts and inheritances. See our blog post about oral prenups and postnups not being enforceable for more details about this case.
As there is no need for a quid pro quo, a marital or premarital agreement can be (and usually is) one-sided. A spouse can give up valuable rights without getting anything of value in return beyond the right to marry or stay married to the other person. C.R.S. 14-2-306. So a prenup or postnup cannot be attacked because "he got everything."
As indicated above, this is one of the more significant changes from the UPAA to the UPMAA. Under current Colorado law:
"A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves sought proves. [b]efore signing the agreement, the party did not receive adequate financial disclosure under subsection (4) of this section."
C.R.S. 14-2-309(1)(d) (emphasis added).
And the bolded term, adequate financial disclosure, means the party:
"(a) Receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; or (c) Has adequate knowledge or a reasonable basis for having adequate knowledge of the information.".
C.R.S. 14-2-309(4) (emphasis added).
As discussed above, the UPMAA expands the disclosure requirement from Colorado's UPAA enactment, which required "a fair and reasonable disclosure of the property or financial obligations of the other party." Note also that while the model UPMAA has a provision for a spouse to waive disclosures (the missing subsection (b) in section 309(4) above), Colorado did not adopt that, so no waiver is permitted. Prenup or postnup disclosure is only unnecessary if the spouse has adequate knowledge of the other's finances.
Note that while Colorado requires expansive disclosures for dissolution of marriage actions, the disclosures required for a prenup or a postnup are far more abbreviated. So while the couple is certainly free to use the Colorado courts sworn financial statement and supporting asset schedule as guidance for their disclosures, that level of detail would be overkill for marital agreements, most of which contain an appendix (rather than a separate document, so there can be no doubt as to the disclosures provided) listing each spouse's incomes and the descriptions and values of each of their assets and debts.
As disclosures are among the more hotly-contested issues when attacking or defending marital agreements, Colorado has plenty of court opinions on the adequacy of disclosures going back 60 years. Many of them will not apply to prenups or postnups signed from 2014 onwards, particularly where courts found as reasonable disclosures without actual values.
So with that caveat in mind, here are the descriptions from marital agreements which Colorado courts have adjudicated prior to the 2014 UPMAA, and either accepted, or been found lacking:
The Colorado Supreme Court's 1982 Lopata decision is considered the seminal case on disclosures required in pre-UPAA cases. There, the court stated:
"Fair disclosure is not synonymous with detailed disclosure such as a financial statement of net worth and income. The mere fact that detailed disclosure was not made will not necessarily be sufficient to set aside an otherwise properly executed agreement. Where the agreement was freely executed, the fact that one party did not disclose in detail to the other party the nature, extent, and value of his or her property will not alone invalidate the agreement or raise a presumption of fraudulent concealment. Fair disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other. Each party has a duty to consider and evaluate the information received before signing an agreement since they are not assumed to have lost their judgmental faculties because of their pending marriage."
Lopata, at 955 (Emphasis added) (Cleaned Up).
The agreement is not enforceable against a party when "the party's consent to the agreement was involuntary or the result of duress." C.R.S. 14-2-309(1)(d).
Summarizing Chapter 30:20 of the Colorado Pattern Civil Jury Instructions, duress means a person was not acting of his own free will due to [detail the act/threat from the other party].
Not all threats are duress; just those which are improper. "Threats to do what one may lawfully do is not duress." Heald. And in the context of domestic relations, a Florida court held that threatening not to marry is not duress:
"The husband's ultimatum that he would not marry the wife without a prenuptial agreement does not constitute duress because there is nothing improper about taking such a position."
Francavilla, at 525.
There is only one published Colorado decision where a pre-nuptial agreement was invalidated due to duress, although in that case the duress was also accompanied by other bad behavior including "constructive fraud" and "overreaching." In Linker, a 1970 decision applying pre-UPAA law, the court rejected a 1960 prenuptial agreement signed by the parties less than two months after they met, and just three weeks before they were married:
New UPMAA requirement, not mentioned in the UPAA. A premarital or marital agreement is not enforceable if the party against whom enforcement is sought "did not have access to independent legal representation." The agreement is not enforceable against a party when "the party's consent to the agreement was involuntary or the result of duress." C.R.S. 14-2-309(1)(b).
And the act then explains what this access means:
"A party has access to independent legal representation if:
(a) Before signing a premarital or marital agreement, the party has a reasonable time to:
(I) Decide whether to retain a lawyer to provide independent legal representation; and
(II) Locate a lawyer to provide independent legal representation, obtain the lawyer's advice, and consider the advice provided; and
(b) 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."
C.R.S. 14-2-309(2).
That's a lot to digest, but in short, access to a lawyer means both time to decide whether to retain, and then if desired, to find and consult with a lawyer. And if the other party has counsel, access also means the other party paying for the lawyer if the party cannot afford one.
For agreements executed after July 1, 2014, the UPMAA overrules older cases such as Lopata or Ingels which held that lack of counsel is not a ground to challenge a marital agreement.
In addition to explicitly requiring access to counsel, another new addition to the UPMAA is the requirement that if a party chooses not to consult with counsel, the agreement must contain an explicit waiver of rights "conspicuously displayed, substantially similar to the following, as applicable:"
If you sign this agreement, you may be:
Giving up your right to be supported by the person you are marrying or to whom you are married.
Giving up your right to ownership or control of money and property.
Agreeing to pay bills and debts of the person you are marrying or to whom you are married.
Giving up your right to money and property if your marriage ends or the person to whom you are married dies.
Giving up your right to have your legal fees paid.
There is no requirement that the waiver be bolded; that is simply used in this article so the language stands out). There is not yet any reported case law in Colorado interpreting what "substantially similar" means - so nothing on how close a waiver really must be.
As for "conspicuously displayed", if in doubt, a civil attorney who knows the UCC may be able to help, since the Official Comment to this section of the UPMAA notes:
'Conspicuously displayed'. follows the language and standard of Uniform Commercial Code § 1-201(10), and incorporates the case-law regarding what counts as 'conspicuous.'"
If the agreement addresses spousal maintenance (alimony) or attorney’s fees, it must not be unconscionable at the time of enforcement. C.R.S. 14-2-309(5). That's the legal way of saying that a court in Colorado will not enforce a maintenance provision which is unfair at the time of divorce or legal separation, even if it may have seemed fair at the time the agreement was drafted.
In order to determine if you have grounds to challenge a prenuptial or postnuptial agreement, re-read the above section about the requirements of such agreements. If a marital agreement satisfies all of the requirements, then there is no basis for the court to reject it (with the potential exceptions of maintenance and attorney's fees). Conversely, a spouse pushing for enforceability who took shortcuts and did not comply with the requirements of the UPAA or UPMAA will have a hard time defending it.
The biggest challenge a spouse wishing to challenge a postnuptial or prenuptial agreement is that public policy favors upholding them. In the early days of prenuptial agreements (when they were still called "antenuptial agreements", spouses would at times challenge them as being contrary to public policy in that they deviated from statute or encouraged divorce.
Those challenges were rebuffed, and in the process a large body of law has developed holding the opposite, that marital agreements are actually favored in the law. (See, e.g., Bartle, a 1950 supreme court case, Franks, a 1975 supreme court decision, and Ingels, a 1979 court of appeals decision). And a 1982 court of appeals decision even discussed how prenups encourage marriage, not divorce:
"The State of Colorado has an interest in marriage, and marriage is favored over less formalized relationships which exist without the benefit of marriage. Undeniably, some marriages would not come about if antenuptial agreements were not available. This may be increasingly true due to the frequency of marriage dissolutions in our society, and the fact that many people marry more than once."
Newman, at 731 (Cleaned Up).
The spouse challenging the marital agreement has the burden of proof to show that the agreement, or a clause, is unenforceable. C.R.S. 14-2-309(1). See also Lopata.
There is no one set process to determine the validity of a prenup or postnup. A party could file a motion under C.R.C.P. 57 seeking a declaratory judgment that the agreement is enforceable (or not enforceable), and the court could conduct a hearing on just that issue.
At times, a judge will simply litigate the legality of the agreement at the same final orders hearing where financial issues are being addressed. This is less optimal from the client perspective, as it means both sides will have to go through the time and expense of preparing to litigate an entire case, when most of that preparation may be moot if the marital agreement is upheld.
At Graham.Law, we have seen some poorly-drafted prenups that look like they were cobbled together from a bunch of disparate, and even contradictory, clauses. One small comfort for the spouse challenging the agreement may be that if the other spouse's attorney drafted a poorly-written document, then ambiguities are construed against the drafter. Allstate.
But if an agreement is clear, then you cannot attack it by saying "that's not what we meant" - the parol evidence rule prohibits introducing extrinsic evidence to create ambiguities, or to explain the meaning of an agreement unless on its face it is ambiguous as to be unclear. Janicek.
As discussed above in the "requirements" section, this is a tough challenge, with only one reported case where a spouse successfully challenged a marital agreement based upon involuntariness grounds. Linker.
Moreover, a situation where previously a spouse could argue duress due to being presented with a prenup within a day or two of the wedding as guests were flying into town is now handled by the requirement that the spouse have access to counsel.
As the cases above cite, agreements signed before the UPAA came into effect in 1986 required very little in the way of disclosures - just general approximations, not even a breakdown of assets.
The UPAA improved things by requiring "a fair and reasonable disclosure of the property or financial obligations of the other party." But there is very little case law on what that actually means - just the one decision holding that a blank asset list was inadequate. Seewald.
Finally, with the UPMAA, the disclosure required is more explicit, with the required "adequate financial disclosures" defined as "a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party." So now values of assets and debts are required, as well as income.
The UPMAA still does not require an explicit breakdown of the value of each individual asset or liability, but it seems like it would be hard to waive an interest in the appreciation of a spouse's assets without at least stating the value of each asset class (e.g. "bank accounts", "vehicles", "real property", etc). And these do not need to be precise figures - a good faith estimate will suffice.
Moreover, if the disclosures are not built into the prenup itself, proving that they were even provided may be a losing "he-said, she-said" battle, as in Seewald. So it is foolish not to include the disclosures in the marital agreement itself.
A well-written prenuptial or postnuptial agreement leaves little to chance - instead of saying the husband is worth $2.5m, it will include an appendix of assets and liabilities for each spouse which lists individual accounts/assets, along with the approximate value of each.
As this is a new requirement in the 2014 UPMAA, there are no reported Colorado decisions applying the access to counsel clause. But this is not just a token amount of time - it means a "reasonable time" to decide whether to seek a lawyer, then to locate a lawyer, then obtain advice, then consider the advice provided. That's a lot of steps, so it seems that a minimum of a week, and potentially even a few weeks, may be required to satisfy this requirement. Certainly presenting a prenup the morning of the wedding would no longer work.
And note also that if there is a financial imbalance, a spouse who hired her own counsel to draft the prenup must also provide the funds to her fiancé or spouse without sufficient funds to afford to pay for counsel.
Another challenge which only applies to prenups or postnups after the 2014 UPMAA, this one would be an interesting challenge. The statute contains very specific waiver language to use when a spouse did not confer with counsel. And while a prenup or postnup does not have to copy it verbatim, if the language deviates too much, it may not be deemed "substantially similar."
"Close only counts in horseshoes and hand grenades, and in marital agreements."
Carl O. Graham, adding to a quip attributed to Frank Robinson.
And no burying the waiver in small print in the middle of a large paragraph of legalese - the waiver must be conspicuous.
Recall that a prenup or postnup can be heavily one-sided in favor of the richer spouse when it comes to property and debts. But that is not the case for alimony or attorney's fees. There, an unconscionable provision is not enforceable.
One Colorado court applied the conscionability standard as resulting in a spouse being unable to support himself:
"In our view, unconscionability in the context of the Act as applied to a maintenance agreement exists when enforcement of the terms of the agreement results in a spouse having insufficient property to provide for his reasonable needs and who is otherwise unable to support himself through appropriate employment."
Seewald, at 735.
A smart marital agreement won't have a complete waiver of maintenance, regardless of how long a couple has been married, as that is more likely to result in an unconscionability finding if there is a substantial disparity in incomes. So instead, the agreement may provide that the lower-earning spouse waives the right to maintenance if the parties were married under 5 years (Colorado spousal maintenance guidelines would normally start to consider maintenance at 3 years).
And then instead of maintenance being for somewhere between 1/3 and 1/2 the duration of the marriage, maybe have the duration be 1/4, or even a bit less. (An agreement with a fixed duration without regard for the length of the marriage is risky - 1-2 years of maintenance may well not be unconscionable for a 5-6 year marriage, but it may be for a 20-year marriage).
Finally, as to the amount of alimony, if the spouses' combined incomes is under $240,000/yr, then figure out what the "suggested" alimony may be with our free Colorado spousal support calculator. And then provide for an amount which is more than zero, but substantially less than the guidelines.
So the end result? Let's assume that under the Colorado guidelines the higher-earning may expect to pay $5000/mo maintenance for 5 years. That's a total of $300,000 of alimony over time, whereas an agreement which provides for $2500/mo for 3 years results in a total alimony obligation of $90,000. There are no guarantees a judge would accept this, but there's no harm in trying, if you are the higher income-earner, and being somewhat reasonable is more likely to succeed than being unreasonable.
Should a prenup or postnup contain an infidelity clause which purports to award a spouse less property if he/she committed adultery, such clause is open to attack. Colorado has not yet ruled on the legality of infidelity clauses, but basing a property settlement on fault appears to violate the UPMAA prohibition on modifying the grounds for divorce.
Moreover, per C.R.S. 14-10-114(2), adultery cannot affect spousal maintenance, as alimony awards "shall be made without regard to marital misconduct."
I believe the odds are a Colorado court will not enforce an infidelity clause as a violation of public policy - see our blog post Adultery – Infidelity Clause in Prenup or Postnup Agreements for more details.
Except for alimony, the grounds for challenging a prenup or postnup depend upon whether the process was fair, not whether the outcome was fair. Assuming a marital agreement was drafted by a competent attorney who created a well-written marital agreement which followed the procedural and disclosure requirements of the UPAA or UPMAA, a challenge to the property/debt provisions is highly unlikely to succeed.
And that leaves just spousal support to attack, and the outcomes are unpredictable. Even a well-drafted marital agreement may end up being deemed unconscionable by the judge looking at circumstances years later at the time of divorce.
A prenuptial agreement, known as a premarital agreement in Colorado, is an agreement which a couple enters into intending to marry which addresses financial issues such as property, debt and alimony, upon death or divorce.
Prenups work, and are a great way to protect a spouse's substantial separate property. However, prenups need to follow the requirements of the Uniform Premarital & Marital Agreements Act, including being voluntary, each spouse provided adequate financial disclosures, and all terms comport with the act and do not violate public policy.
If both spouses agree, a prenuptial agreement can be revoked by signing a modification which revokes it. If, at divorce, one only spouse wants to try to nullify it, that spouse must prove to the court that grounds exist to not enforce the agreement, such as an impermissible term, duress, or lack of adequate financial disclosures.
At the time they are signed, prenuptial and postnuptial agreements are not public records. At the time of a divorce, however, in order to enforce a prenup it must be filed with the court, although usually agreements are still not open to the public.
When a prenuptial agreement is signed, each spouse can keep their own copy in a safe, private place, and there is no need to file it with the court or any government agency. However, if a divorce is filed, then the agreement will be filed with the court as part of that dissolution of marriage proceeding.
