4th Jan 26 8:49 am
JamieAccording to the Institute of Family Studies, divorce rates are declining in the United States. The organization determined that in 2025, marriages were more likely to succeed than in any other decade since the 50s. While this might be encouraging for many spouses, it still makes sense to exercise a healthy degree of caution when approaching marriage. This caution often materializes in the form of post-nuptial agreements, which are contracts that could help spouses feel more confident about the future.
A post-nuptial agreement can dictate various aspects of a potential divorce in the future, including property division and spousal maintenance (alimony). However, post-nuptial agreements are subject to numerous limitations in Colorado. Spouses who wish to create post-nuptial agreements should be aware of these limitations, and a family law attorney in Colorado could educate them on this subject. Expand upon this discussion by contacting Colorado Divorce Law Group at (720) 593-6442.
Post-nuptial agreements generally have limited enforceability compared to prenuptial agreements. The latter type of agreement goes into effect before a couple signs their marriage contract, while the former goes into effect afterward. Why are prenuptial agreements more enforceable than postnuptial agreements? While there is some debate on the matter, many argue that there is less potential for coercion and pressure before marriage.
Before signing a prenuptial agreement, both individuals are free to simply walk away from the contract, the engagement, or the entire relationship – with no strings attached. After these individuals are “locked in” to marriage, however, one might argue that they have less freedom to enter into voluntary agreements. After all, the marriage is already in effect at this point. Regardless of what a spouse does or agrees to, divorce is always a possibility after they sign a marriage contract.
As a result, some family court judges may scrutinize post-nuptial agreements more closely. In particular, they may be wary of coercion, pressure, manipulation, duress, and other issues that can make post-nuptial agreements unenforceable. If someone only agrees to sign this document because they were pressured into doing so by their spouse, the agreement may not carry much weight in court. However, this is not to say that all post-nuptial agreements are unenforceable. When spouses approach these contracts carefully and with mutual respect, they can achieve important goals in terms of divorce planning and overall relationship stability. Those who wish to learn more about the enforceability of post-nuptial agreements may contact Colorado Divorce Law Group.
Post-nuptial agreements are mostly limited to financial matters. Clauses on subjects like child support and child custody are off-limits because only the family courts of Colorado can make these decisions. The argument is that if parents were free to make private decisions about child custody without court oversight, these decisions could conflict with the best interests of the children. In some cases, these private agreements could physically endanger children after divorce. Parents might feel frustrated upon learning about this limitation. After all, most parents believe that they should be able to decide what is in the best interests of their own children. While these feelings may be understandable, parents should accept the reality: Family courts will always have the final say on child-related matters during divorce.
As a result of this limitation, many family law attorneys in Colorado recommend that spouses avoid mentioning anything related to their children in their post-nuptial agreements. This includes not only child custody and parenting schedules, but also child support. Under certain circumstances, it may be possible to make decisions about some aspects of parenting with a postnuptial agreement. For example, parents might use a postnup to agree on certain educational, religious, and healthcare decisions for their children if a divorce should ever occur.
If these decisions do not involve physical custody (the amount of time the child spends with each parent), they may stand a better chance of approval from the court. Parents might also make “suggestions” about child custody via their post-nuptial agreements, with the understanding that these suggestions carry absolutely no weight in court. If these suggestions seem reasonable to a family court judge, they may form the basis of a legally enforceable child custody agreement.
Although this might seem somewhat obvious, post-nuptial agreements cannot force anyone to do anything illegal. This is a more common mistake than many spouses realize, as it is relatively easy to include clauses that break unknown or obscure laws. For example, a postnuptial agreement might force a spouse to violate a tax regulation with some kind of complex transaction. A postnuptial agreement might also require a spouse to violate certain corporate laws, such as self-dealing. Even if spouses feel confident that their post-nuptial agreements enforce no unlawful acts, it may be worth having these documents reviewed by legal professionals to confirm that this is the case. Even just one of these errors could make the entire contract unenforceable. As the Colorado Judicial Branch notes, contracts that violate public policy are also generally “void and unenforceable.”
Post-nuptial agreements only apply to the spouses who sign them. As a result, these contracts cannot force anyone other than the spouses to do anything. This is a basic reality of contract law, and it applies to all formal agreements in Colorado. If someone does not sign a contract, that contract has no power over them. Again, this might seem relatively obvious, but spouses often mistakenly assume that their post-nuptial agreements apply to third parties.
For example, a post-nuptial agreement might require a spouse to withdraw money from an account owned by a third party and give that money to the other spouse. However, this transaction cannot occur without the consent of the third-party account holder. As a result, this clause would be unenforceable. A post-nuptial agreement might also require a spouse to divide their stock options. But if these stock options are not yet earned or “vested” by the employee, the contract cannot force the employer to comply with this arrangement.
While divorce rates may be falling in the United States, spouses must accept the reality that many marriages eventually fail. While prenuptial agreements are arguably more reliable and legally enforceable, post-nuptial agreements can still help spouses achieve numerous goals. That said, spouses who try to push post-nuptial agreements beyond their legal limitations may encounter serious issues in the event of a divorce.
In some cases, the post-nuptial agreement could become unenforceable. Careful planning should be a priority for all spouses who wish to create post-nuptial agreements, and they may choose to work alongside family law attorneys in Colorado during the drafting and negotiation stages. Continue this discussion by contacting the Colorado Divorce Law Group at (720) 593-6442.
