What makes a prenuptial agreement valid?

Prenuptial agreements, or for short, Prenups, are not as common in Colorado Springs as they are in places like Hollywood or New York City. That doesn’t necessarily mean they don’t exist in the Springs. In fact they have come across my desk a few times since I have started practicing law. A lot of times, the Prenups I see are usually being challenged by a party who is in disagreement with the terms.

The history of the Prenup has been far from static to say the least. Colorado revised the laws regarding Prenups in 1986 and 2014. This blog will discuss what makes a valid Prenup post 2014 revisions following the statutes set forth in C.R.S. 14-2-301 through 14-2-313. I find the easiest way to begin explaining Prenups is to start with how they are unenforceable.

Limitations

First, parties cannot contract anything that would put the child’s right to support at jeopardy. In other words, parties generally cannot predetermine what child support is going to be. This is because the factors determining child support are unpredictable at the time of contracting.  The best example of this is when parties contract in a Prenup that there shall be no child support if they ever get divorced. This type of provision is absolutely off limits. Parties cannot contract away a child’s right to support. Colorado statutes are incredibly protective of children and want to make sure they are receiving the proper support.

That being said, a prenuptial agreement may not delegate custody arrangements and responsibilities. The fact of the matter is parties cannot predict what circumstances they will be under if a divorce were to occur. Life is always changing, so to follow a parenting plan created years before children are even born is beyond unrealistic.

The next limitation is one that restricts a remedy available to a victim of domestic violence under the law. An example of that would be a Prenup with terms that state a party cannot seek a protection order against the other.

Another limitation is a Prenup provision that would penalize a party for initiating a legal proceeding regarding divorce or a legal separation. Colorado Courts are very particular about divorces—they will not force anyone to continue to be married to someone if they choose not to. In other words, if one person wants a divorce, they can proceed and there is no stopping it. As a result, a Prenup may not state that a party cannot request a divorce or a legal separation.

The catch-all limitation is the final limitation. You cannot have any provisions in your Prenup that violates Public Policy. What does that actually mean? Well it means that it is really, really broad! Easy examples for this are provisions that would create an outcome that is illegal.

Requirements

The limitations set forth the nature of what Prenups can and cannot do. Now as far as requirements Prenups must have a few requirements:

  1. A Prenup agreement must be written and signed by both parties.
  2. The parties must voluntarily consent.
  3. Each party must have access to independent legal representation before signing.
  4. The parties must exchange a full financial disclosure prior to signing.

So long as you follow these simple rules, a Prenup may be an enforceable document. Contact us at Springs Law Group if you’re interested in us drafting or even review a Prenup Agreement!

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