Some people view prenuptial agreements as a cynical statement about marriage. However, people who have interests in family businesses, have employment benefits that were earned prior to the marriage or are the potential beneficiaries of trusts or inheritances may want the security of knowing that certain assets can be protected from disruption in the event of a divorce or protected from probate claims on death. The reality is that no marriage lasts forever. Whether there is a divorce or one of the parties passes away, every marriage will end at some point. A prenuptial is simply a hedge against that reality. It can protect financial interests and take much of the conflict and uncertainty if there is a divorce proceeding or prevent estate litigation and preserve careful succession plans in the event of death. The attorneys of Hogan Omidi, PC, can draft or review your marital agreement or cohabitation agreement so that you (as well as your partner) have peace of mind as you embark on your life together.
From Kathleen’s interview for the Masters of Family Law series on ReelLawyers.com.
When Is A Prenup Or Postnup Appropriate?
A prenuptial agreement, also known as a premarital or antenuptial agreement, is a written legal arrangement between two people who are getting married. The primary purpose of a “prenup” is to identify and preserve separate property interests. A valid prenuptial supersedes the presumptive classification and division of assets under Colorado’s equitable distribution statute if there is a divorce and can supersede the provision of state law setting forth the entitlements of a surviving spouse when the other spouse dies. A prenuptial agreement may be merited:
- When one party brings significant assets to the marriage
- When both parties own assets they want to keep separate
- To protect a business or professional practice from divorce claims
- To preserve inheritance rights of children from a prior marriage
- In anticipation of a future inheritance
The agreement specifies “mine and yours” for purposes of property division in the event of a divorce or the death of either spouse. It might also specify how the couple’s affairs will be managed, including steps to avoid commingling of separate property during the marriage. Prenuptials cannot dictate custody of children or child support. The parties can stipulate a limit on spousal support, or entirely eliminate the right to spousal support. However, those types of provisions are subject to court review if there is a divorce. If the court finds the spousal support prohibition to be patently unfair, it could strike that provision while upholding the remainder of the agreement.
A postnuptial (aka postmarital agreement or postnup) is an agreement signed at any point after the couple has married. If one spouse starts a business, for example, the couple may agree to exclude it from the marital estate. A postnuptial can also protect an inheritance or proceeds of a lawsuit received by one party during the marriage.
See our page on Colorado cohabitation agreements. Even if you are not getting married, it is prudent to protect your property rights.
Our Role Is To Protect Your Interests
The lawyers of Hogan Omidi, PC, can help craft a clear and enforceable prenuptial/postnuptial. Assets must be fully disclosed and both parties must be allowed time to review the document without coercion or ultimatum. If you have been asked to sign a prenup, we can gauge whether it is fair and within your best interests. Call our Denver law office at 303-416-5697 or contact us online.