
The North Dakota Supreme Court recently held that a prenuptial agreement signed just two days before the wedding was still valid and that the other spouse had sufficient time to confer with counsel because she had been presented with the agreement several weeks previously.
Why does a North Dakota ruling matter to Colorado? Because they are the only two states that have adopted the Uniform Premarital and Marital Agreements Act (UPMAA). Colorado replaced the earlier Uniform Premarital Agreements Act (UPAA) in 2014. As discussed in our Attacking & Enforcing Prenup & Postnup Agreements article in the Colorado Family Law Guide, the two statutes have several significant differences.
So when the only other sister state with the same prenuptial agreement statute issues a ruling interpreting that statute, it can be a persuasive authority here in Colorado.
Access to Counsel Requirement
Marital Agreements Act Requirement
One of the requirements in the UPMAA, which is not found in its predecessor, is that a premarital or marital agreement is not enforceable if the party against whom enforcement is sought “did not have access to independent legal representation.” The agreement is not enforceable against a party when “the party’s consent to the agreement was involuntary or the result of duress.” C.R.S. 14-2-309(1)(b).
“Access to independent legal representation” means that before signing a premarital or marital agreement, the party has a reasonable time to:
“(I) Decide whether to retain a lawyer to provide independent legal representation; and
(II) Locate a lawyer to provide independent legal representation, obtain the lawyer’s advice, and consider the advice provided.”
Offer to Pay for Counsel
There is an additional requirement in the UPMAA. If one party is represented by counsel and the other does not have the financial ability to retain counsel, the party with a lawyer must agree to pay reasonable fees and expenses for the other’s legal representation. C.R.S. 14-2-309(2).
To protect a premarital agreement in Colorado from attack years later in a divorce, a good practice, and our firm’s strong recommendation, is that a financially-advantaged party who has counsel should always offer to pay for the other’s legal representation during the prenup process. Trying to save a few thousand dollars now opens the prenup up to attack in the future, with the now-spouses quibbling over whether the financially disadvantaged one actually could afford counsel at the time. The phrase “penny-wise but pound-foolish” comes to mind.
North Dakota Ruling on Access to Counsel
Last month, the North Dakota Supreme Court issued a ruling interpreting the UPMAA’s access to counsel provision. In Olson, the future husband presented his fiance with a premarital agreement just two days before the wedding – a horrible idea if the goal is to have a rock-solid agreement immune from procedural attack. Under that agreement, each of them kept their separate property held on the day of the agreement, which was $11.5 million for the husband and $387K for the wife.
The parties separated and filed for dissolution of marriage two years later. The trial court upheld the prenup’s validity, and the wife appealed. The Supreme Court upheld the trial court and the validity of the prenuptial agreement.
Access to Counsel Not Require Presence of Counsel
The trial court found that the wife had reasonable time to access independent legal representation before signing the prenuptial agreement but chose not to retain a lawyer. Although a mere two days may seem woefully inadequate, this doesn’t tell the whole story:
- The husband had made the wife aware of the need for a prenup several times “long before their engagement and long before their wedding.”
- The husband gave the wife a draft prenup about three weeks before it was signed by putting it on the kitchen counter (as was their common practice).
Despite scheduling the signing for just two days before the wedding, the wife could have sought counsel at any time to discuss a prenup after the husband first mentioned it, even before their engagement. Moreover, the trial court found that even signing the prenup two days before the wedding still gave the wife time “that day or the following day” to call a lawyer. (Note – perhaps that judge has never been married, but the week of a wedding is typically pretty busy!)
The ND Supreme Court held that the trial court’s ruling was not “clearly erroneous”, so it upheld the determination that the facts above provided her with reasonable time to satisfy the UPMAA’s counsel requirements. Olson ¶9.
Adequate Financial Disclosure
The wife also argued that the husband’s financial disclosures were inadequate.
UPMAA Financial Disclosure Requirement
The UPMAA requires financial disclosures: “A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves sought proves… [b]efore signing the agreement, the party did not receive adequate financial disclosure under subsection (4) of this section.” C.R.S. 14-2-309(1)(d) (emphasis added).
The bolded term, adequate financial disclosure, means the party:
“(a) Receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; or (c) Has adequate knowledge or a reasonable basis for having adequate knowledge of the information.”
C.R.S. 14-2-309(4). (Note that Colorado did not adopt a provision (b) from the model statute that North Dakota did adopt which allows a waiver of disclosures, but waiver was not at issue in Olson).
Adequate Knowledge of Financial Information
Although not evident in the ruling, it sounds as if the husband did not provide the wife with the full, required financial disclosures as part of the prenup process, relying instead on her knowledge of his finances. The trial court found that the wife “had adequate knowledge or a reasonable basis for having adequate knowledge” of his finances because:
- The couple lived together for 5 years before signing the prenup.
- The wife had observed the husband’s day-to-day involvement in his assets and managed some of his properties.
- The couple shared a home office, where the wife would organize the husband’s business records.
- The husband openly discussed his earnings, the number of businesses he owned, and the value of his assets.
- The parties provided a detailed list of assets and liabilities in balance sheets attached to the prenuptial agreement.
As with the access to counsel issue, the ND Supreme Court found the trial court ruling upholding the reasonableness of the disclosures was not “clearly erroneous.” ¶14.
Voluntariness & Duress
The UPMAA provides that “a premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves (a) the party’s consent to the agreement was involuntary or the result of duress.” C.R.S. 14-2-309(1).
The wife’s further argued that she did not voluntarily consent to the agreement. Both the trial court and ND supreme court rejected this argument:
- The wife was a successful businesswoman who had also started a non-profit and previously ran a website business,
- She owned and managed rental properties
- She had a college degree majoring in business
- She had been through a prior divorce with a separation agreement.
Finally, the wife argued that the agreement was not enforceable as it was unconscionable at the time of signing, highlighting the parties’ unequal bargaining power. As this pertains to a provision of the model UPMAA that North Dakota adopted but Colorado has not, it is sufficient to note that the court also rejected that argument.
Conclusion
Don’t be Mr. Olson!
Although the North Dakota courts ultimately upheld his prenuptial agreement, it is easy to conceive how judges with different sympathies could find that he cut too many corners and the agreement was invalid. At Graham.Law, we follow a rigorous process for marital and premarital agreements. Yes, it’s a more laborious process, but it complies with Colorado’s onerous statutory requirements. And that brings the peace of mind to:
- Know that your prenup will protect the hundreds of thousands, or millions, of dollars at stake and
- Reduce significantly the likelihood of your spouse even trying to challenge the prenup. Every procedural flaw is a weakness that can be exploited.
So don’t expect us to schedule a signing a few days before a wedding or to skimp on financial disclosures. A court has never rejected a marital agreement because one spouse over-disclosed finances, but the opposite is not true!
And even if the court were to uphold a prenup where the attorney didn’t fully comply with the statute, having to litigate causes needless legal fees and heartache that could have been avoided by doing it right at the outset.
Award-Winning Colorado Prenuptial Agreement Counsel

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