The process of drafting and preparing a Marital Agreement (or prenuptial or postnuptial agreement) can seem a bit intimidating and uncomfortable for many people. However, carefully planning your process can minimize the anxiety both parties experience.
In our experience weve observed that the best approach to presenting the idea of a prenuptial agreement to the other person is to simply talk to the other person about it first, rather than drafting the agreement and having an attorney present it to your spouse-to-be. Your individual case is unique as to how and when you first discuss it with the other person, but generally approaching it in an informal manner will help lessen the anxiety experienced by the other person. Having the other person participate in the process from the very beginning creates an atmosphere that the prenuptial agreement will be our agreement, rather than something viewed as his or her agreement. When first discussing this with your significant other, keep an open mind and listen to his or her concerns. Let them know that you want to make an agreement that you feel is fair to both of you.
Once youve had an opportunity to discuss the idea with the other party, the next step is meeting with an attorney to discuss your goals and objectives. While it is not necessary to have an attorney prepare your marital agreement, we strongly encourage this, as a properly drafted agreement will be enforceable, whereas a poorly prepared agreement may be thrown out of court.
When starting the process, its important to begin as soon as possible before your wedding date. Trying to prepare a prenuptial agreement a week before your wedding puts unneeded stress on everyone, and there may be issues later as to whether both parties had sufficient time to think over the agreement. Giving yourself ample time allows time for issues that may come up during the process, and also minimizes the discomfort sometimes associated with the process.
A prenuptial agreement will be enforceable as long as both parties have made fair and reasonable disclosure of their finances and have entered into the agreement voluntarily. The financial disclosures can be somewhat informal, such as preparing a listing of assets or debts, or it can be more formal, with exchange of financial documents such as bank statements and tax returns. The approach youll want to choose will depend on your level of comfort and your individual situation.
Voluntarily entering into the agreement focuses on whether youre signing the agreement of your own free will. Its very important for each party to retain an individual attorney to review the agreement with them, so they know what rights they may be giving up under Colorado law. Additionally, each party should have sufficient time to sleep on it before signing. If you enter into a prenuptial agreement, youll want to make sure you have all your agreements in writing. Verbal promises not put into the written agreement wont be enforceable later.
When each party has prepared financial disclosures and they both agree upon the form of the agreement, the next step is to sign the agreement. The formality of signing the agreement again depends on the wishes of the parties, as it can be rather informal or a ceremony complete with a videotaping, like the process used in signing wills. Once the agreement is signed, each party should keep a copy with original signatures. After signing the document, you are not required to file it anywhere, and thus your agreement will be kept confidential. In the unfortunate event you do divorce, however, it may be necessary to file the agreement with the court.
Prenuptial agreements can cover a number of subjects, including conduct during the marriage in addition to allocation of assets and debts. The parties can make agreements regarding maintenance such as whether it will be left open if the parties divorce, or a pre-determined amount based upon the length or the marriage. However, a court will not honor a maintenance agreement if it is grossly unfair at the time the parties divorce. The parties can also make agreements regarding children, but a court will review these provisions and may refuse to uphold these provisions. With the exception of maintenance and children, as long as the prenuptial agreement was voluntarily entered into and the parties made appropriate financial disclosures, the provisions of the prenuptial agreement will be valid.
In sum, its best to start the process as early as possible. Each party should retain their own attorney to advise them of the legal significance of the prenuptial agreement, as well as to advise as to what rights they may be waiving by signing the agreement. Prenuptial agreements can have long-lasting effects; they are important documents to be taken seriously.
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