Note – in 2021, the Colorado Supreme Court upheld the Court of Appeals decision that an oral agreement is not a valid marital agreement. See our new blog post for a discussion of the higher court’s decision.

Postnuptial Agreement Must be Written, not Verbal

The Court of Appeals just confirmed what should have already been clear from the statute – only a written separation agreement is enforceable in Colorado.

Colorado has adopted the Uniform Premarital and Marital Agreements Act, as more completely discussed in the Prenuptial & Postnuptial Agreements article in the Colorado Family Law Guide. And per , “A premarital agreement or marital agreement must be in a record and signed by both parties.” Seems pretty clear and unambiguous.

In Zander,1In re: Marriage of Zander, 2019 COA 149. the wife alleged that 10 years prior to dissolution, the parties had verbally agreed that each would keep their inheritance and premarital retirement accounts as their separate property. Note – ordinarily, under Colorado law, as long as such assets were kept separately titled, only the original principal amount brought into the marriage would remain separate property, while any increase in value during the marriage would be a marital asset subject to division.

The husband denied there was any such agreement, and other than the testimony of the parties, the only evidence of an agreement was ambiguous at best.

The wife’s argument was that the statute in the Uniform Dissolution of Marriage Act (UDMA) governing the disposition of property in a dissolution, C.R.S. 14-10-113(2)(d), simply provided that: “‘marital property’ means all property acquired by either spouse subsequent to the marriage except… Property excluded by valid agreement of the parties.” Since that provision contained no requirement that the agreement be in writing, under the common law a verbal agreement should be binding.

The trial court was sufficiently persuaded there was a verbal postnuptial agreement, and held that since C.R.S. 14-10-113 did not require a written agreement, a verbal agreement is binding, notwithstanding the plain language of the Colorado Marital Agreements Act (the precursor to the Uniform Premarital and Marital Agreements Act in effect at the time of the alleged agreement) which requires the agreement be in writing.

The Court of Appeals reversed, finding first that when two statutes have a potential conflict, they must be read in such a way as to harmonize them, and avoid the conflict. And if that is not possible, the specific provisions control over the general provisions in a different statute.  ¶ 13.

The court then reasoned that since the UDMA (C.R.S. 14-10-113) did not define what was required for a “valid agreement”, the two sections could be harmonized by applying the specific requirements for a postnuptial agreement from the Colorado Marital Agreements Act:

“To conclude otherwise would mean that spouses in a dissolution of marriage proceeding could always exclude certain marital property, even if they did not have a written agreement. Such a conclusion would be inconsistent with the language contained in [the marital agreements act]”

Zander.2In re: Marriage of Zander, 2019 COA 149, ¶ 16.

The court’s conclusion – no oral post-nuptial agreement:

“In sum, we conclude that the more specific CMAA provision requiring a marital agreement to be in writing prevails over the general UDMA provision at section 14-10-113(2)(d). Thus, the district court erred in construing ‘valid agreement’ in section 14-10-113(2)(d) to include an oral marital agreement. Contrary to the court’s determination, the alleged oral agreement here is not valid and enforceable because it does not meet the statutory requirements under the CMAA.”

Zander.3In re: Marriage of Zander, 2019 COA 149, ¶ 29.

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