Attacking and Defending Prenuptial Agreements

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Kalamaya | Goscha has extensive experience attacking or defending the enforceability of a prenup or marital agreement in a divorce. Below are avenues to set aside a prenup or marital agreement. Ryan and Amy have also discussed this topic on their podcast Divorce at Altitude in episode 41 and episode 108.

Procedural Fairness: Voluntariness

A premarital agreement is unenforceable if it is not voluntarily signed. The Uniform Colorado Act does not define voluntariness and there are no Colorado cases addressing the meaning of the term as used in the Act. The time given to a party and ability to consult independent counsel are frequently cited as factors by other courts in determining whether a premarital agreement is signed voluntarily.

Time Given to Sign

The time given to a party before signing is always cited as a factor in the reported premarital agreement case law. No Colorado case has dealt with the enforceability of agreements signed on the eve of a wedding. However, the Uniform Colorado Act explicitly requires that before signing a premarital agreement an unrepresented party must have had reasonable time to: (1) decide whether to retain a lawyer to provide independent legal counsel, and (2) locate a lawyer, obtain a lawyer’s advice, and consider the advice provided. This process takes time.

Ability to Consult Independent Counsel

Access to independent counsel is a recognized factor in analyzing whether a party voluntarily signed a premarital agreement. The Colorado Court of Appeals noted the importance of independent counsel before passage of the CMAA in In re Marriage of Ingels. The court stated, “[W]hile it would have been prudent on husband’s part to provide wife with independent counsel, his failure to do so does not render the antenuptial agreement void per se.” Further, under the Uniform Colorado Act, if only one party is represented by a lawyer, the unrepresented party must either: (1) have the financial ability to retain a lawyer, or (2) the represented party must agree to pay the reasonable fees and expenses of independent legal representation for the unrepresented party. Beyond Ingels, no Colorado court has addressed the lack of independent counsel in evaluating a premarital agreement.

Change in Circumstances

Although nearly impossible, a spouse seeking to attack the validity of a Colorado prenup may successfully argue that a change in circumstances justifies a court finding that the state’s interest in the welfare of a divorced spouse outweighs the freedom to contract. A court may consider factors such as (a) whether there are children, (b) the length of the marriage and (c) if there was a detrimental reliance on the marriage. But a person considering a Colorado prenup should never assume that a change of circumstances will allow them to wiggle out of an otherwise valid agreement.

Violation of Public Policy

Similar to a change of circumstances, there are several topics where the sanctity of contract will be overridden by Colorado public policy. For example, a provision on child support or religious training for children will be invalidated by a Colorado court. Moreover, agreements where a party waives spousal maintenance or attorneys’ fees may be unenforceable if it would be “unconscionable” under Newman v. Newman and In re Marriage of Ikeler, respectively. Whether a provision is unconscionable is determined at the time of the Colorado divorce.

Fraud, Duress or Undue Influence

A contract must be agreed to voluntarily. The same principle applies to a Colorado prenup. If a person is forced into signing a prenup, it will be unenforceable. Factors such as the time between the execution of the prenup and the wedding, or whether Colorado lawyers are involved will be relevant. But the threat of calling off the wedding is not enough for duress or to invalidate a prenup.

Lack of Disclosure and Independent Counsel

Parties to a Colorado prenup need to disclose their financial circumstances. However, there isn’t a bright-line rule on what is sufficient disclosure for a binding prenup. And as referenced above, lack of independent counsel may be considered when a court evaluates whether parties voluntarily and knowingly entered into the agreement. The best practice is for a party negotiating a prenup to (a) hire a Colorado lawyer, and (b) produce as much detail about their finances as possible. Those details should include bank, mortgage and investment statements, copies of pay stubs, appraisals for businesses or real estate and information about any contingent or prospective assets such as trusts or inheritances.