How does the prenuptial process work?

The process of drafting and preparing a Marital Agreement (a prenuptial or postnuptial agreement) can be intimidating, however, carefully planning your process can minimize the anxiety.

In our experience, we have observed that the best approach to presenting the idea of a martial agreement to the other person is to simply talk to them about your plan, rather than drafting the agreement and having an attorney present it. Generally approaching a marital agreement in an informal manner will help to reduce the anxiety experienced by your spouse-to-be. When first discussing this with your significant other, it is important to listen to his or her concerns, and let them know that you want to make an agreement that you feel is fair.

Once you have had an opportunity to discuss the agreement, the next step is meeting with an attorney to discuss your goals and objectives. While it is not necessary to have an attorney prepare the document, we strongly encourage this, as a properly drafted agreement will be enforceable, whereas a poorly prepared one may not be accepted by the court.

When starting the process, it is important to begin as soon as possible before your wedding date. Trying to prepare a prenuptial agreement a week before your wedding will create unnecessary stress, and there may be issues later as to whether both parties had sufficient time to consider and discuss the agreement. Giving yourself ample time to discuss any differences of opinion will minimize the discomfort sometimes associated with the process.

A prenuptial agreement will be enforceable as long as both parties have made fair and reasonable disclosure of their finances and have entered into the agreement voluntarily. The financial disclosures can be somewhat informal, such as preparing a listing of assets or debts, or it can be more formal, with exchange of financial documents such as bank statements and tax returns. The approach you choose depends on your level of comfort and your situation.

Voluntarily entering into the agreement focuses on whether you are signing the agreement of your own free will. It is very important for each party to retain an individual attorney to review the agreement with them, so they know what rights they are giving up under Colorado law. Additionally, each party should have sufficient time to consider the agreement prior to on signing it. If you enter into a prenuptial agreement, you will want to make sure you have all your agreements in writing. Verbal promises are not enforceable.

When each party has prepared financial disclosures and they both agree upon the form of the agreement, the next step is to sign the agreement. The formality of signing the agreement again depends on the wishes of the parties, as it can be rather informal or very formal, complete with a videotaping, like the process used in signing wills. Once the agreement is signed, each party should keep a copy with original signatures. After signing the document, you are not required to file it anywhere, and thus your agreement will be kept confidential. In the unfortunate event you do divorce, however, it may be necessary to file the agreement with the court.

Prenuptial agreements can cover a number of subjects, including conduct during the marriage in addition to allocation of assets and debts. The parties can make agreements regarding maintenance such as whether it will be left open if the parties divorce, or a pre-determined amount based upon the length or the marriage. However, a court will not honor a maintenance agreement if it is grossly unfair at the time the parties divorce. The parties can also make agreements regarding children, but a court will review these provisions and may refuse to uphold these provisions. With the exception of maintenance and children, as long as the prenuptial agreement was voluntarily entered into and the parties made appropriate financial disclosures, the provisions of the prenuptial agreement will be valid.

When creating a marital agreement, it is always best to start the process as early as possible. Each party should retain their own attorney to advise them of the legal significance of the prenuptial agreement, as well as to advise as to what rights they may be waiving by signing the agreement. Prenuptial agreements can have long-lasting effects; they are important documents to be taken seriously.