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March 14, 2002: Prenuptial Agreements

Q: With all of these high profile divorces occurring, I am curious about what exactly is a prenuptial agreement.

A: A nuptial agreement can either be prenuptial (before marriage) or postnuptial (after marriage). Typically, postnuptial agreements are rarer because there is less incentive to sign such a document once the marriage has been finalized.

The exact nature of the document differs significantly from state to state. It can be a true marriage contract where rights and duties are set out such as doing dishes, taking out the garbage, or even frequency and kinds of sex. Or it can be executed to modify legal rights involving marriage partners that are provided for in the statutes and in common law. Colorado tends toward this end of the spectrum.

Typically, nuptial agreements can either cover divorces or inheritance or both.

As you can imagine, these documents are continuously the center of major emotional battles with litigation swirling around them. Attacks are often launched employing arguments that the attorney never fully explained the significance of what was being signed or the rights that were being given up; or that the attorney really represented the other party so the complainant never had true legal representation; or that the lawyer failed to divulge all of the advantages to one party so that party could insert provisions into the document to create equal benefits; or that the attorney forced execution of the document to the complainant's detriment. I believe you see the pattern.

So a number of years ago our courts in Colorado indicated that if a document were signed by both parties and by two attorneys, then the likelihood of overturning the document would be remote. Thus, by involving an attorney for each side, the traditional arguments were removed, not to mention protecting the poor attorney who usually was trying to help but suddenly found himself or herself the target.

There are other guidelines given by the Court, such as property to be covered by the document must be adequately described, points not covered in the nuptial agreement will be excluded, etc. Thus, do not expect to read too often in Colorado about these high profile nuptial fights attempting to invalidate the contract, at least if two lawyers were involved.

A few years ago, nuptial agreements were often viewed with suspicion by the general public. But today they are being signed not only by the second marriage couples or by couples in which one partner has significantly more assets than the other, but also by first time couples who want to clarify legal and property rights. But here in Colorado the process needs to be done the right way.

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