With more than 20 years of litigating in Colorado courts either the validity of premarital agreements and marital agreements (aka “prenuptial agreements” and “postnuptial agreements”), or, more commonly, litigating how to interpret ambiguous prenup clauses, the Graham.Law attorneys have seen it all. We’ve seen a few excellent prenups – and they tend not to be litigated, as the would-be challenger (hopefully) realizes that a costly fight would be futile. And we’ve seen some really, really lousy prenuptial agreements, which cost the most to defend.
If you have not already read our post on the differences between do-it-yourself prenups and one drafted by a Colorado premarital agreement attorney, you should. In short, we are big believers in educating clients to handle their own matters, have a section of our Colorado Family Law Guide dedicated to do it yourself family law, and we provide links to Colorado family law forms wherever possible. But a premarital agreement is one of those very few areas of family law where, even if for an “uncontested” matter, the stakes are too high to take chances.
What separates agreements drafted by reputable family law firms from the fill-in-the-blank marital agreements you can find on the internet, or from the cookie-cutter prenups an attorney may provide for a few hundred dollars, is that we actually know what we’re doing. We understand the law, the process, we take the time to learn your goals. Finally, we draft a marital agreement which meets your requirements, and meets Colorado’s marital agreements statute at every stage, both procedural, and substantively.
Our Process For A Solid Premarital Agreement
If you are looking for a quick and easy marital agreement, I urge you to reconsider. Ultimately, Graham.Law cannot help unless we have the time it takes to do it properly. Our process takes weeks, but results in a premarital agreement which is about as “bulletproof” as can be, which protects your assets and will remain enforceable years or decades later when it’s really needed.
Talk to Your Future Spouse
This one is on you, not the lawyers. Long before the wedding (i.e. months, not weeks) you need to discuss with your fiancé your desire for a premarital agreement, what generally your concerns are, and why. If your future spouse is going to flat-out reject a prenup, you need to know that before your plans go too far, so you can decide which is more important – the marriage or the premarital agreement.
And here’s where truly knowing your fiancé will help, because you need to objectively view his response. Do not assume a “no” means “maybe later”, and spend money/time planning the wedding and obtaining the prenup, only to learn late in the process that he really did mean “no.” Even a non-committal “we’ll talk about it” is not exactly embracing the concept of a premarital agreement.
Only if your betrothed is receptive to a prenup do you then move onto the next step.
Start Premarital Agreement Process At Least 60 Day Before Wedding
There is no set amount of time before a wedding that a premarital agreement must be signed. In the old days of the Uniform Premarital Agreements Act (UPAA), courts upheld premarital agreements presented to a fiancé just days before the wedding, as the examples we discuss in our prenuptial agreement article show.
The days when a more affluent spouse could get away with that kind of tactic have long since passed. In 2014, Colorado adopted the Uniform Premarital & Marital Agreements Act (UPMAA) which, despite the very similar name as its predecessor, has a more stringent marital agreement process than the UPAA. And a rushed premarital agreement which may have satisfied the older statute would not withstand scrutiny under the UPMAA standard which requires additional disclosures, reasonable time to obtain counsel, and even paying for your fiancé’s lawyer, if necessary.
For more information on the importance of these changes, see our article on attacking and defending premarital and marital agreements in the Colorado Family Law Guide.
Sixty days is not a magic number – more time is better, but if the other party already has a good family law attorney onboard, it may be possible to start this process in less time. But that would be pushing it – trying to hand a prenup to a fiancé who is doing last minute wedding planning will not go over well.
Understand & Help Shape What You Want in a Prenup
What are you trying to accomplish? Is a prenuptial agreement really necessary, or would keeping your separate assets segregated work almost as well for you? I encourage you to read our post asking if you really need a premarital agreement to meet your needs.
Are you trying to protect assets in case of divorce, protect children from a prior marriage at your death, or both? Or simply make sure the marriage lasts before your spouse should be entitled to a share of what the law defines as marital? Are you firm in your objectives, or somewhat flexible, willing to have give and take, to keep the person you love happy?
We make sure that your goals are attainable, and suggest how you can best accomplish them. And if they would result in a premarital agreement which is unenforceable under Colorado law, we’ll advise you how to tamp the goals down to better pass legal muster. (By way of example, see our post on Infidelity Clauses in a Prenup for some of the problems with “lifestyle” clauses which try to regulate a spouse’s conduct during marriage).
Gather All Relevant Information
Simply saying you want to protect the family business is not enough. We need to know how the business is set up, who your partners are, what role your fiancé has in the business, or if your fiancé will have a future role during the marriage. Does the business generate a profit, or are you still investing to grow it? Have you had any offers to buy the business, or are you expecting any major contracts in the near future?
Are you the beneficiary of a family trust? Is it revocable or irrevocable? Are you in good health? Do you have a prior spouse, or children from a prior marriage you are supporting?
If you have a residence, is it jointly-titled with the right of survivorship, or are you tenants in common? (It matters for a marital agreement).
We do a deep dive into your finances not out of sheer curiosity, but so we can truly understand and serve your needs. And also because we will need to comply with Colorado’s more stringent financial disclosure requirements.
“Adequate Financial Disclosures”
Financial disclosures are a critical component of the information gathering stage. Colorado’s Uniform Premarital & Marital Agreements Act requires “adequate financial disclosures”, which is defined as “a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party.” C.R.S. 14-2-309(4)(a).
Don’t be fooled by the word “adequate” – you need specifics. Our firm utilizes similar disclosures as are used for a dissolution of marriage, except that a breakdown of your expenses is not required. We will need details, and documents, verifying your income, assets, and debts, all of which will be set out in Schedule A to your prenuptial agreement (your fiancé/spouse’s finances will do the same on Schedule B). While a do-it-yourself prenup may simply recite that disclosures were provided, unless they are actually specified in the agreement, you are opening yourself up to “he-said, she-said” battles in the future over disclosures.
The disclosures we will need include:
- Income – breakdown of income from all sources, combined with pay stubs, 1099s, K-1s, etc, plus 3 years of tax returns
- Financial Accounts – current statements for every account you have, bank, investment, retirement, credit card, loan, etc.
- Real Estate – your holdings, purchase documents, mortgage statements and any appraisals you have (no need to get one, but if you happen to already have one, we will need it).
- Business – a good faith estimate of value and the reason for that belief, as well as 3 years of business tax returns, profit & loss statements and balance sheets. And, if applicable, any appraisals or offers to buy.
- Trust Fund – a copy of the trust instrument, financial records, and the details of your income and value of your share.
- More – while we do not typically get down in the weeds with specific vehicle values or household goods, if you have high end vehicles, RVs, or valuable collectibles, we will need the specifics.
President Reagan once said “trust, but verify.” Just as you want a prenuptial agreement for your own peace of mind, your future spouse may, during the negotiation phase, ask for additional information.
Write and Revise the Premarital Agreement Until You Are Satisfied
We don’t have a one-size-fits-all template waiting for you when you first walk into our office, only needing your name and signature to be final – that would be no better than a do it yourself prenup. Only after we understand your situation, and have all of the necessary documentation, can we actually draft the marital agreement for you.
The result is a custom document which starts with clauses which have stood the test of time, then adapts them with clear language to accomplish your goals, not the goals from our last client.
Negotiate With Your Fiancé
As indicated above, before even contacting Graham.Law, you should make sure your future spouse is onboard with having a premarital agreement. If you have not discussed your desire for a prenup, having the first mention of one come from a lawyer is a bad idea. And during the drafting process, even before we present the draft prenup for your fiancé’s review, you should at least let your fiancé know what’s happening, to avoid unpleasant surprises later.
Your future spouse must have the meaningful opportunity to find and consult with a lawyer, and if retained, to consider that lawyer’s advice before signing a marital agreement. Moreover, under the UPMAA when the more affluent spouse has counsel but the other spouses lacks the financial ability to retain counsel, you also need to offer to pay for her attorney. In reality, this offer will be extended in most cases except where your spouse is independently wealthy. It’s a small price to pay to help ensure the final agreement is enforceable.
Negotiating a prenup is not like a business deal where you walk away and hire the competition if talks break down – it means abandoning the wedding and person you love, not finding a different widget supplier.
And the more intense the process, the worse it portends for the upcoming wedding. So absolutely no threats. While it is technically okay to say that you will not marry without a premarital agreement (as long as it’s not on the eve of the wedding), is that really the way you want to embark on the next stage of your life?
The goal is a respectful process which has give-and-take – just like most marriages! And recognize that just as you want a premarital agreement to protect your interests, the person you love also has concerns and interests which the final agreement needs to take into consideration.
So once we have drafted your premarital agreement, be flexible, and ready for changes. While you may stand firm on a central goal, if you have a “take it or leave it” approach on all major points, you risk alienating your fiancé.
In most litigation, browbeating is not an effective way to impose your will on the other side, but for a couple engaged to be married, the approach is counter-productive, to say the least. Unlike litigation, in the prenup/postnup process you can’t say “I’ll see you in court” if negotiations break down. Ultimately, if you cannot reach an agreement on your terms through a friendly, non-confrontational process, your choices are to make more concessions, or to not marry.
Finally, during the negotiation stage there may be material changes to parts of the agreement. That’s where having an experienced premarital agreement attorney comes in – a change to one clause may affect other provisions of the agreement, and only an attorney who drafted and knows every word in the document will understand how to incorporate such changes without introducing ambiguities or contradictions.
Sign The Agreement
This stage is somewhat of an anticlimax, but the law requires that the agreement be in writing and signed by both parties. Then, you should keep a good-quality scan of the signed original (and even the signed original, if you desire, but having an electronic copy will suffice, and is less likely to be lost over the years).
Obey the Prenup
Like the first step in this process (approaching your fiancé), this last step is also up to you to handle. After spending the time and money for a quality premarital agreement, don’t let the agreement become a piece of paper you forget about, only dusting it off if the marriage goes south.
During the marriage, you must comply with the terms of the prenuptial agreement, don’t commingle marital and separate funds, and fulfill all of the obligations which you undertook. Ignoring the agreement risks you not meeting a critical requirement to protect your property, and, in extreme cases, a court could deem both spouses to have abandoned the prenup.
The agreement can be modified or revoked, but not by writing on it, or tearing it up. Both a revocation or a modification must be in writing, with the same formalities as the original agreement. So please talk to your lawyer before making changes on your own which could be invalid, or if you have any questions on what to do, or what not to do, during the marriage.
Why Does A Premarital Agreement Cost So Much?
The purpose of a well-prepared prenuptial agreement is to protect your assets without going to court! Sure, if you do have to litigate, you want to win, but an agreement which is obviously “bulletproof” on its face tends to dissuade spouses from challenges.
Our marital agreement process is laborious. And you can expect to pay at least $2500 if we are drafting the agreement, or less if we are responding and negotiating the terms of a prenup prepared by a different lawyer.
If you reach out to the better family law firms in the state, you’ll find that most of them have a similar process, and that results in similar costs. We don’t charge this to run up fees (most of us already have more work than we can handle), but because in the end, you pay more when you cut corners.
Some attorneys will quote fees in the hundreds, not the thousands. But consider how abbreviated the process must be if the attorney is only charging for 1-2 hours of work to do everything – there’s no time to actually incorporate your goals into an agreement, much less comply with the disclosure and other statutory requirements.
If a premarital agreement is worth doing, then it’s worth doing right. Paying a lawyer to draft the agreement properly at the outset is far less expensive in the long run than paying a lawyer in the future to fight over what that bargain basement prenup really means.
Premarital Agreement FAQ
What is a prenuptial agreement?
A prenuptial agreement is one which two people enter into before marriage which resolves financial issues upon death or divorce, and may address obligations during marriage. Such an agreement “opts out” of the default Uniform Dissolution of Marriage Act provisions.
How to nullify a prenuptial agreement?
A premarital agreement can be revoked by both spouses signing an agreement to revoke it. Or, at divorce you could try to persuade a judge that the agreement is unenforceable, but that is a long shot.
Are prenuptial agreements public record?
Not until they need to be enforced. There is no requirement to record them with the county, so the documents only see the light of a courtroom during a dissolution of marriage action, or when one spouse’s estate is being probated.
Can you amend a prenuptial agreement after marriage?
Yes – but you cannot make pen & ink changes to the prenup. Amendment requires a new agreement, which during the marriage is a postnuptial agreement, which complies with the same procedural and procedural requirements as the original prenup.
Award-Winning Colorado Springs Premarital Agreements Attorney
U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.
For more information about our top-rated El Paso County family law firm, contact us by filling out our contact form, calling us at (719) 630-1123 to set up a free consult, or click on:
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