• 08
  • November
    2011

Don't laugh, but the recent divorce of a famous celebrity and her basketball player husband got me thinking about marriage contracts or better known as "prenups." Although the couple had a prenuptial agreement, I was curious what would happen if it were considered invalid or unenforceable. What would make it unenforceable? What would happen to their assets if that were the case?

In Colorado, Title 14, article 2, part 3 of the Colorado Revised Statutes sets forth the Colorado Marital Agreement Act. A marital agreement or "pre-nuptial agreement," is entered into prior to marriage or during the marriage, but before divorce proceedings have commences. The agreement must be signed by both parties and involve complete disclosure of property and financial obligations if applicable. The marital agreement becomes effective upon marriage by the parties if signed by both parties or if it contains the parties' signatures if they are already married. If the parties entered into a marriage later declared invalid, the marital agreement will only be enforceable to the extent necessary to avoid unfair results.

While the agreement must contain each party's John Hancock (signatures), there may problems with the marital agreement. A marital agreement is unenforceable if one or both parties were under duress and did not voluntarily sign the agreement. An assessment of all facts and circumstances are needed to prove or disprove a duress claim. Further, the agreement is unenforceable if there was fraud or a party did not disclose property or financial obligations to the other party before signing. Another concern is the unconscionability of the terms of the agreement. If there is a claim regarding the conscionability of the terms, a court must determine whether or not the terms of the agreement are unconscionable and therefore unenforceable.

Please contact us at Stowell P.C. if you and your partner are considering a marital agreement before getting married or if you are contemplating divorce and would like to protect your assets.