Prenuptial and Postnuptial Agreements in Colorado

How Colorado Treats These Agreements

Colorado follows the Uniform Premarital and Marital Agreements Act, found at C.R.S. 14-2-301 through 14-2-313. It governs agreements signed on or after July 1, 2014. Agreements signed before that date are judged under the older law that applied when they were signed.

The Act covers two kinds of agreements. A prenuptial agreement, which the statute calls a premarital agreement, is signed by two people who plan to marry. It takes effect when the marriage happens. A postnuptial agreement, which the statute calls a marital agreement, is signed by spouses who are already married and intend to stay married. It takes effect as soon as both spouses sign it, under C.R.S. 14-2-307.

The formal requirements are simple. Under C.R.S. 14-2-306, the agreement must be in writing and signed by both parties. Nothing of value needs to change hands to make it binding. A spoken promise, however sincere, is not enough.

What an Agreement Can Cover, and What It Cannot

These agreements are mostly about money and property. A couple can decide in advance:

• Which property stays separate and which becomes marital property if the marriage ends
• How property and debts would be divided in a divorce or legal separation
• Whether spousal maintenance, which many people call alimony, will be paid, limited, or waived
• How attorney fees would be handled
• What each spouse would receive if the other dies, including rights that would otherwise arise under inheritance law

Colorado draws firm lines around children and fairness. Under C.R.S. 14-2-310, a term is not enforceable if it harms a child's right to support, limits the remedies available to a victim of domestic violence, changes the legal grounds for divorce or legal separation, punishes a spouse for filing for divorce, or violates public policy. Terms about parenting time or decision making for children are never binding on the court. A judge decides those questions based on the child's best interests at the time, not based on what the parents agreed years earlier.

There is one more safeguard worth knowing. Even in an otherwise valid agreement, a term that limits or waives spousal maintenance or attorney fees will not be enforced if it is unconscionable, meaning grossly unfair, at the time of enforcement. The court looks at that question when the divorce happens, not when the agreement was signed. Circumstances can change a great deal between a wedding day and a divorce filing, and Colorado law accounts for that.

The Four Requirements That Make an Agreement Enforceable

C.R.S. 14-2-309 lists the grounds for challenging an agreement. As of this writing, an agreement is unenforceable against a spouse who proves any one of the following:

1. The agreement was not voluntary

Consent must be free of duress. An agreement presented as a surprise on the eve of a wedding, with pressure to sign or else, invites exactly this challenge. Time and open discussion are the best protection.

2. There was no real access to a lawyer

Each person must have access to independent legal representation. That means a reasonable amount of time to decide whether to hire a lawyer, to find one, and to get advice before signing. If one person has a lawyer and the other cannot afford one, the represented person may need to agree to pay for the other's independent counsel.

3. An unrepresented person did not get the required plain language warning

If someone signs without their own lawyer, the agreement must contain a conspicuous notice of waiver of rights, or a plain language explanation of what is being given up. The statute itself supplies model wording, written the way a person actually talks, covering rights to support, to property, to money if the marriage ends or a spouse dies, and to having legal fees paid. Skipping this notice can sink the whole agreement.

4. There was no adequate financial disclosure

Before signing, each person must receive a reasonably accurate description and a good faith estimate of the other's property, debts, and income, or must already have adequate knowledge of those finances. Hiding an account or lowballing a business's value is one of the most common reasons agreements fail.

The spouse challenging the agreement carries the burden of proof. But the practical lesson runs the other way. If you want an agreement that lasts, build all four protections in from the beginning.

Postnuptial Agreements: Same Rules, Different Timing

Married couples can sign a marital agreement at any point during the marriage, and Colorado holds it to the same standards as a prenuptial agreement: voluntary consent, access to independent counsel, the plain language notice for anyone unrepresented, and honest financial disclosure. Couples often reach for one after a major change, such as an inheritance, the launch of a business, or a fresh start after a rough patch.

One important distinction. An agreement signed when a divorce or legal separation is already underway, or about to be filed, is a separation agreement. That is a different tool governed by different rules, and it requires court review. If your marriage is at that stage, the agreement you need is not a postnuptial agreement.

Changing or canceling an existing agreement also has a rule of its own. Under C.R.S. 14-2-306, an amendment, which the statute defines to include a revocation, must be in writing and signed by both parties, just like the original agreement.

We draft and review these agreements with Colorado's enforcement rules in mind, because an agreement is only worth what it is worth on the day someone tests it. If you are planning a marriage or weighing a marital agreement, reach out and we will talk through your situation.