No Legal Advice Intended: This information is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.
What are Marital Agreements?
"Martial agreement" is Colorado's term for what are generally known as prenuptial (prenups) and post-nuptial agreements. Marital Agreements are contractual agreements entered into by spouses or soon-to-be spouses to describe how their assets, debts, and marital expenses will be treated during the marriage and in the event of divorce. Additional agreements can be made about alimony (spousal maintenance), sharing of expenses, and waiver of estate rights. By defining their agreements, couples can avoid later disputes and the uncertainty of the effect of divorce laws.
What's the difference between a prenuptial agreement, a premarital agreement, a postnuptial agreement, and a marital agreement?
A prenuptial agreement and a premarital agreement are the same thing. Colorado statutes use the term premarital agreement, rather than prenuptial agreement. So we refer to prenuptial agreements as premarital agreements here. Similarly, postnuptial agreements are called marital agreements in Colorado.
Postnuptial marital agreements function in the same manner as premarital agreements, it just means they are entered into after marriage. Though it may be surprising, you can enter into an agreement after you are married just the same as before marriage. However, you cannot do this if divorce is expected as a way to avoid the divorce process. So it cannot avoid an already impending divorce. Hence, premarital agreements are more common.
Why would I want to enter into a marital agreement with my spouse?
1) You and your spouse do not agree with how default divorce law would apply to your situation.
A marital agreement allows you to enter into a contract that modifies how the law would otherwise apply without a contract.
For example, many people are surprised to learn that basically all assets and debts acquired during the time of marriage are considered "marital property." This includes any income, any retirement benefits (except social security), any business, any increase in value in any property that does remain separate. The default law makes all such property fair game for division in divorce.
In fact, the judge must consider it in the value of the marital estate when deciding if there is an "equitable division." Colorado applies a rule of "equitable division" to marital property. Though the law does not require everything be divided 50/50, this is the result in most cases.
Additionally, property (all property, including cash) brought into a marriage and titled to both parties is presumed to be a gift to the marriage. That means it is considered in equitable division of property. So if you own a house before marriage and add your new spouse to the title or sell the house for another house during the marriage, the entire value of the house is considered marital property in the absence of an agreement. This can also occur as easily as depositing funds into a joint bank account with your spouse. Fighting against these presumptions in court in a divorce case is very expensive.
2) You or your spouse come into the marriage with differing asset or debt values.
A marital agreement is the safest way to keep separate property separate. This includes assets and debts. Common concerns are when a spouse has substantial assets they wish to define as their own, or a spouse has substantial debts they wish to not affect the other spouse, or a spouse receives trust funds or inheritance they with to keep separate.
3) You or your spouse have non-joint children you wish to provide for.
Remember the marital property concept above? That can give priority to your spouse over other family members you may wish to provide for in the event of your death. Though you can describe how you would like to provide for family members in a Will, there are default laws providing for your spouse that will supersede your Will in the absence of an agreement. You generally cannot disinherit your spouse, unless you have an agreement to do so. Marital agreements help ensure your estate plan carries out your wishes and your loved ones do not end up in a legal battle after your death.
4) Define how joint expenses are shared during the marriage.
Some relationships function better with clear agreements on how regular expenses are shared. You can define these agreements in your marital agreement.
5) Waive claims to alimony (spousal maintenance).
One reason parties enter marital agreements is to address spousal maintenance, or what used to be called “alimony.” Under Colorado law, spousal maintenance may be awarded if one spouse makes a significantly higher income than the other spouse, the spouse requesting maintenance can show a need, the spouse who has to pay maintenance has the ability to pay, and the marital property division is not enough to financially sustain the spouse requesting maintenance.
A marital agreement can be used to agree that in the event of dissolution of marriage or legal separation, neither party owes the other spousal maintenance or agree to a specified amount and term of maintenance.
6) A marital agreement can clarify and streamline the divorce process.
A marital agreement can clarify how you will proceed in the divorce process and how your marital agreement will apply.
Tell me more about the concept of "marital property."
A marital agreement can be used to agree that in the event of dissolution of marriage or legal separation, neither party owes themaintenance or agree to a specified amount and term of maintenance.
Under Colorado law, all property acquired by either party after the date of marriage is generally considered marital property. Marital property also includes any gains in values of separate property. How property is titled is not determinative, which means that even if one spouse has titled property solely in their name alone, that property is still considered marital property. You can use a marital agreement to contract around this aspect of the law. For example, a marital agreement can include a provision that any property titled in one spouse’s name alone is their separate property and only jointly titled property is to be considered marital property in the event of dissolution of marriage or legal separation.
Aren't marital agreements only for celebrities and the super wealthy?
Use of marital agreements is on the rise in younger generations. A January 2021 Wall Street Journal article noted that millennials are increasingly using marital agreements to address separate finances, student loan debt, and intellectual property (like social media account and usage). The taboo of discussing finances is waning. Older generations know the benefits from either experiencing divorce first hand or witnessing it with friends. We prepare marital agreements on a flat fee rate at a fraction of the cost of our retainer for a divorce. Marital agreements provide peace of mind to know what will occur in the event of divorce.
If we have children together, can we define issues related to them?
Parental responsibilities and child support terms agreed to in a marital agreement are not binding on the court. So while you may try to include these items, they are likely not determinative later especially if you have no children together yet and have little idea what your parenting arrangement in the future will look like.
What's the process for having a marital agreement prepared?
We discuss your situation in a consultation with you and discuss your goals with the agreement. We then send you a Flat Fee Agreement to review and sign and you make the flat fee payment. We then send you a questionnaire specific to your scenario so we can draft the specific terms. We prepare a draft of the terms and provide it to you for review. We also provide you a form to describe your assets and debts. Disclosure of assets and debts by each party is a requirement for a valid marital agreement.
You then provide your partner the draft for their review. We then make any edits and finalize the agreement to be signed and notarized by you and your partner.
Can you advise my partner on the agreement too or do we need two attorneys?
The law is clear that we cannot give any advice to your partner on a marital agreement. We will suggest your partner review the agreement with their own attorney. This helps create a valid agreement.
My partner had a marital agreement drafted up, do you review them?
Yes, we can review and give you advice on marital agreements you've been provided by a partner. We charge a lower flat fee for this service than for drafting an agreement.
Contact us to discuss your situation.
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