NOT EVERY PRENUP HOLDS UP IN DIVORCE PROCEEDINGS

Prenuptial agreements may seem unromantic, or even worse, evidence of greed or a lack of commitment to the marriage. However, prenuptial agreements — called premarital agreements in Colorado — can be very practical. The fact of the matter is that not every marriage will last forever, and, moreover, executing a prenup can open the door to honest conversations about finances and married life, which can serve a couple well even if they never divorce. However, if not properly executed, a prenup may not hold up in court later on.

Prenups are essentially contracts, and they must be written to be enforceable in court. In addition, prenups generally cannot be signed the day before the wedding — such an agreement may be considered to have been entered under coercion or a court may determine the parties didn’t have time to properly read the final document or it full consideration before signing. Therefore, the document may not be enforced. If a person is pressured by their partner, their partner’s attorney or their partner’s family to sign the prenup, this may render the agreement invalid.

Prenups can also have invalid provisions. For example, while a prenup can address many financial issues, such as property division and spousal support, child support is determined by the state via statutory formulas and based on the child’s best interests. Therefore, child support provisions in a prenup will generally be deemed invalid. Prenups also cannot contain any clauses that violate the law. It is possible, however, for a court to enforce the legal provisions in the prenup while striking the unlawful ones. Moreover, prenups cannot be so one-sided that a party would suffer unconscionable consequences should the document be enforced.

Prenups are only valid if each party fully and completely disclosed all sources of income, all assets and all debts. If one or both parties fail to do so, the final agreement may be unenforceable.

As this shows, a prenup cannot be hastily entered into, nor can it be patently unfair. The proper formalities must be met for it to be valid. Therefore, it is advisable that both parties seek independent legal guidance, to ensure that their rights and interests are upheld, and that the final agreement will be enforceable.