With nearly 50% of all marriages now ending in divorce, it is not unusual for couples to sign a prenuptial agreement, or marital agreement, as it is now called under Colorado law. While it is important for couples to be optimistic about their future together, it is also imperative, as it is in the formation of any legal partnership, to discuss the financial concerns that will arise in the unfortunate event that the partnership fails.

When No Marital Agreement Exists: 
Under Colorado law, the marriage contract assigns property rights for each spouse. For couples who do not have a prenuptial agreement, Colorado law will determine who owns the property that was acquired during the marriage, as well as what happens to that property in the event of death or divorce.The Colorado divorce statute provides that each party is entitled to retain his or her separate property. Marital Property Marital property is defined as assets acquired from the date of marriage to the day of the divorce decree. Marital property is to be divided equitably, but not necessarily equally. This means that if the matter goes to court, the division may be a percentage other than 50/50.

Creating a Valid Marital Agreement:
A Marital Agreement may call for a severely one-sided property division, and as unfair as the property division may seem, the Court will uphold the agreement as long as both parties made full and reasonable financial disclosures to the other prior to signing the agreement, as well as both parties knowingly and voluntarily signing the agreement. This means that both parties understand the agreement and how it alters their rights under Colorado law. As long as those two requirements are met, the agreement will be enforced.

Spousal support, or maintenance as it is known in Colorado, is a different story. The parties can agree to waive spousal support if they divorce, or agree to a particular amount in advance of a divorce. However, if the agreement is unfair at the time it is to be enforced, then the court can strike this provision of the marital agreement, although the rest of the agreement will not be jeopardized.

Agreements regarding children’s issues such as visitation are not likely to be enforceable, although a properly structured agreement regarding child support could be enforceable. Conclusion The marital agreement should fully detail the financial arrangements that will take place in the event of divorce or death.

Having a well-drafted agreement in writing can streamline the court case in the event that divorce becomes unavoidable. It is important that couples negotiate and have the agreement written in a way that is clear, binding, and legally sound. It is important for parties to seek the advice of counsel in preparing such agreements based upon the magnitude of rights, which are involved.