Blog

A strong prenuptial agreement can prevent a contentious divorce, protect the financial interests of both spouses, and provide a solid foundation to the marriage. Creating a prenuptial agreement that is valid, fair, and protective of both spouses requires effective negotiation, honesty, and respect. Each party to the prenup may want to have his or her own lawyer look over the drafted document before signing it. If you are ready to create a prenuptial agreement, consider contacting the Colorado Divorce Law Group at (720) 593-6442 to learn more about prenups and discuss your options for protecting your assets.

What Is a Prenuptial Agreement?

A prenuptial agreement is a premarital agreement about expectations during the marriage or about how to resolve matters if the marriage ends in divorce. According to the Colorado General Assembly, a premarital agreement occurs between two individuals who are planning to marry. The document gives each party the opportunity to guarantee, change, or give up one or more marital rights or obligations while married or when there is a legal separation, dissolution of the marriage, death of a spouse, or any other specified event.

Why Couples Should Have a Prenuptial Agreement

There are many reasons for a couple to have a prenuptial agreement. The most common reason is that the document can make divorce easier and a little less painful because there are fewer opportunities to argue over who gets what. A prenup can specifically reduce arguments over finances, which can be one of the biggest issues in a divorce. Other reasons to have a prenup include:

• Helping to protect the interests of children from a previous marriage and other loved ones
• Creating financial roles or expectations for each spouse so that each knows what to expect (e.g., one spouse pays the mortgage while the other spouse pays all other bills)
• Building trust by exposing all assets before the marriage begins

How Well Do Prenups Hold Up in Court?

A properly drafted and executed prenup is legally binding and will usually be upheld in court. However, any prenuptial agreement can be challenged during a divorce. There are several steps, therefore, that couples can take to be sure their prenup will be upheld if they divorce.

What To Include

To create a strong prenuptial agreement, couples will want to make sure the document is fair and has full financial disclosure. Full financial disclosure includes all assets, including cash, real estate, art, and cryptocurrency. Both parties will typically want to have an attorney look over the drafted document before they sign and make plans to sign it well before the wedding.

Additionally, the National Notary Association recommends having the signatures notarized to add an extra layer of protection. The notary verifies that each party is who they say they are and must keep a record of the official act in his or her journal. Properly notarized signatures are binding in court.

What Not To Include

While prenuptial agreements can cover many aspects of marriage and of what the couple is willing to do in the event of divorce, there are some things that can make a prenup invalid. Neither party can include provisions for child support, including avoiding or waiving child support. Additionally, neither party can include provisions for custody of any existing or unborn children, such as taking away custody or visitation rights or limiting one spouse’s parent-child relationship in any way.

What Does a Fair Prenup Look Like?

Each prenup is unique because it is based on the specific needs of the couple who creates it. However, there are some important features that help to create a fair, strong prenuptial agreement. Some of these features include:

• Not disproportionately benefiting one party
• Protecting both parties’ premarital property and assets and any inheritances that they have already received or are expecting to receive
• Ensuring that both parties are responsible for their own premarital debts and liabilities
• Providing a clause to protect each spouse in the event of the other’s death, identifying how the surviving spouse will be taken care of
• Outlining the couple’s future financial goals, such as having joint or separate accounts, providing college tuition for their children, or investing in real estate
• Providing adequately for both spouses in the event of divorce
• Outlining other financial issues that may be important for the couple if divorcing, such as dividing mortgage and credit card debt, controlling or managing the couple’s joint assets, dividing joint assets, or settling any other matter that can legally be included. The Colorado Divorce Law Group can help a couple determining what can or cannot be included
• Using clear and plain language with no excessively technical terms, legalese, or unnecessary details
• Giving both parties adequate time to review the drafted document so that they can ask questions and fully understand the agreement before signing it
• Having the document signed well in advance of the couple’s wedding

Signing a Prenup After Marriage

Couples who did not create a prenuptial agreement prior to marriage can create a document that serves the same purpose after they are married. This document is called a postnuptial agreement, indicating that it was implemented after the couple was married. Postnuptial agreements are frequently created when at least one spouse has a significant, unexpected financial change, such as starting a successful business or receiving an unexpected inheritance.

Postnuptial agreements are not always as strong as prenuptial agreements. Prenups are considered stronger because both parties are still legally single and are free to walk away if an agreement cannot be made. With a postnup, the couple is already married and may already have mingled assets, making the parties more likely to sign—simply because it is easier than not signing—even if they do not fully agree. Even though a postnuptial agreement is more likely to be scrutinized and may not be upheld in court, it may be the best option for a couple who did not create a prenuptial agreement. The document can be drafted just like a prenup and has the same legal requirements about what can and cannot be included.

Contact an Experienced Attorney for Help Creating a Strong Prenuptial Agreement Today

If you are getting married soon, a prenuptial agreement may help you build a good foundation for your marriage and protect your assets in case of a divorce. Templates are available online that can help you and your future spouse start discussing the matters to include in your agreement. To discuss the specifics of your impending marriage and your options for creating a strong prenuptial agreement, consider contacting an experienced attorney at the Colorado Divorce Law Group by calling (720) 593-6442 to schedule a consultation today.