Prenup and Premarital Agreements in Colorado Divorce

“Prenup” “pre-nuptial” and “pre-marital” agreements are essentially all terms that mean the same thing. They are agreements that people enter into prior to their marriage which attempt to limit the normal rules of property distribution and maintenance which apply in a Colorado divorce.

What happens when someone wants to break a prenup in a Colorado divorce? Or someone tries to have the court not enforce the prenup in your divorce?

Our Summit County divorce lawyers at Newland Legal are focus exclusively on serving the needs of the mountain community and a select clientele. This article will discuss the ins and outs of how a premarital agreement can be upheld or thrown out by an experienced divorce lawyer in Summit County, Colorado. In particular, this blog is going to focus on the old law of the Colorado Marital Agreement Act which covers Colorado divorce prenups signed before July 1, 2014.

 What rules govern a premarital agreement in Colorado divorce?

Colorado adopted the Uniform Marital and Premarital Agreement Act (UMPAA), which went into effect on July 1, 2014. The date that the parties entered into the pre-marital agreement determines which law applies. If you entered into a premarital agreement before, July 1, 2014, then the UMPAA does not apply when interpreting your document in a Colorado divorce in Summit County.

Instead, the Colorado Marital Agreement Act (CMAA) applies. C.R.S. § 14-2-303(2)(“(2) This part 3 does not affect any right, obligation, or liability arising under a premarital agreement or marital agreement signed before July 1, 2014”). This means that a reviewing court will look to the standards for enforceability developed by statute and caselaw prior to July 1, 2014.

What defenses exist in divorce to enforcing a Colorado prenup under the CMAA?

Under the CMAA, there were only two grounds for challenging the validity and enforceability of a premarital agreement in general: (1) voluntariness and (2) inadequate disclosures. However, the CMAA followed an earlier decision in the seminal Newman case by codifying the holding that a court may review spousal maintenance terms for unconscionability at the time of divorce or enforcement. See In re Marriage of Ikeler, 161 P.3d 663, 668 (Colo. 2007).

How can your Summit County lawyer challenge your prenup?

Voluntariness is rarely upheld as a defense in Colorado. There is only one case in Colorado where a prenuptial agreement was invalidated based on involuntariness, but that court also found the existence of “constructive fraud” and “overreaching”. Linker v. Linker, 470 P.2d 921 (Colo. App. 1970). In reality, voluntariness will not be a valid defense in your Summit County divorce case if your lawyer is trying to throw overcome the terms of your prenup.

Disclosures are a much more often used defense. The seminal case is Estate of Lopata, 641 P.2d 952 (1982), which said:

“Fair disclosure is not synonymous with detailed disclosure such as a financial statement of net worth and income….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 impending wedding.”

This means that your lawyer in a Colorado mountain divorce needs to look very carefully at what was disclosed during the negotiation of your premarital agreement. What assets were hidden? Did you receive all of the material information you needed to understand the value of your spouse’s property? This is especially true in Summit County where ownership in family land can often amount to millions of dollars worth of value.

What should my lawyer argue about inadequate disclosures in my Colorado divorce?

The inquiry around adequacy of disclosures should be viewed as determining whether the party challenging the agreement had a reasonable understanding of the other person’s financial situation in light of the premarital agreement. See IRM Newman, 653 P.2d 728 (Colo. 1982) (Wife had worked as husband’s bookkeeper prior to marriage and knew he was a man of “substantial wealth.”).

Spousal maintenance arguments for your divorce lawyer in Summit County, Colorado

Provisions governing the payment or non-payment of spousal maintenance (also commonly called alimony) are subject to heightened scrutiny in a Colorado divorce. This means that courts will look at these provisions with a more skeptical eye than the rest of your premarital agreement. Even in Summit County divorces, the judge will look to determine whether a provision saying no spousal maintenance will be paid is unconscionable.

The unconscionability analysis will be limited to evaluating the provisions regarding spousal maintenance at the time of enforcement. See C.R.S. 14-2-307(2); In re Marriage of Ikeler, 161 P.3d 663, 667 (Colo. 2007) (“CMAA states that an otherwise enforceable marital agreement "is nevertheless unenforceable insofar, but only insofar, as the provisions of such agreement . . . relate to the determination, modification, or elimination of spousal maintenance and such provisions are unconscionable at the time of enforcement of such provisions.").

The court will ask this question: “if I were to enforce the premarital agreement and deny one spouse any spousal maintenance today, at the time of divorce, would this be unconscionable as against public policy in Colorado?” If the answer is “yes”, then the Court can order your spouse to pay spousal maintenance even if it was supposedly waived by the terms of your prenup.

Fighting against enforcing a prenup in Colorado divorce requires experienced attorneys

Only the top Colorado divorce attorneys are intimately familiar with the issues surrounding trying to throw out a premarital agreement. At Newland Legal, we pride ourselves on staying up to date on cutting-edge strategies to help our clients get a fair share of everything in a divorce. That includes fighting to overturn unfair premarital agreements in mountain divorces in Dillion, Breckenridge, Frisco, and Silverthorne.

When you are faced with the tough decision of filing for divorce in Summit County, you need a lawyer that knows the mountain community and is not intimated by complex Colorado divorce issues.

Do you have a complicated divorce with a premarital agreement in Summit County, Colorado? Contact the experienced lawyers at Newland Legal today if you need to talk with a lawyer ready to fight for you in Summit County to get your fair share. Contact us at (303) 948-1489 or by email to zach@newlandlegal.com.