How to make Prenuptial Agreements stick

Once you have decided to get married or have a civil union, you may decide that you need a Premarital (aka Prenuptial) Agreement with your soon to be spouse or partner.  There are several things that may make it more likely that your Premarital Agreement will endure.

In Colorado, if a party proves any one of four items, the Agreement is unenforceable.

  1. the party’s consent to the Agreement was involuntary or the result of duress;
  2. the party did not have access to independent legal representation;
  3. the Agreement did not include a notice of waiver of rights or an explanation in plain language of the marital rights obligations being modified or waived by the Agreement if the party did not have independent legal representation; or
  4. before signing the Agreement, the party did not receive adequate financial disclosure from the other party.

A consideration of time and basic fairness may also help your Premarital Agreement endure.  Although there is some case law upholding Premarital Agreements that were signed on the day of the wedding, it is prudent to have a longer period of time from the beginning of the negotiations and drafting of the Agreement and the signing.  It is not hard to imagine how a much shorter period of time would make it more difficult to understand all of the legal ramifications of the Agreement and what marital rights are being changed or waived.

In order for most contracts to be valid, the parties need to be in agreement (bargain and acceptance) and something of value has been exchanged for something else of value  (consideration).  A Premarital Agreement should include an element of basic fairness.  Due to the nature of a Premarital Agreement, the Agreement may be somewhat one-sided but it should not be completely lopsided.  The Premarital Agreement should be fair when it is made and may not be unconscionable (as to certain elements) at the time of the enforcement.