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Understanding premarital agreement enforcement in a divorce

Some Colorado couples decide to take steps to have protection if the union ends in divorce and will have a premarital agreement. In layman terms, this is also referred to as a prenuptial agreement or a "prenup." This document is designed to shield one or both parties from losing substantial assets if the marriage does not work out. However, there are important factors to remember with a premarital agreement and this can play a major role in whether it is enforceable or not if the couple divorces.

When there is a premarital agreement, the document will be unenforceable if the party that agreed to it did so involuntarily or because of duress that he or she was under. A person signing a premarital agreement should have access to independent legal representation. If this was not the case, then the document might be unenforceable. If there was no legal representation and there was not a notice waiving the right to have it, then the agreement could be unenforceable. A party signing a premarital agreement should have adequate financial disclosure.

Regarding legal representation, it will be viewed as the party having had access to it if the following circumstances were in place: there was reasonable time to decide whether to have independent representation and the person was able to find legal representation to get advice. If the other party was represented by a lawyer and could pay for a lawyer for the signing party, this must be agreed to or the agreement might be unenforceable.

The person signing the agreement must be aware that by doing so, he or she might be surrendering the right to alimony, ownership of property and money, agreements to pay bills and debts, and the right to have money and property should the other person die. There must be a good-faith estimate of the value of the property, the income and liabilities of the other party or has reason to believe there is sufficient knowledge.

When there is a divorce, the division of assets, alimony and other aspects of the portfolio will be important as part of the settlement. With a premarital agreement, these factors could already have been addressed and the party who signed the agreement at the behest of the other party should be aware of whether the agreement is enforceable or not. A lawyer who understands all aspects of divorce can help.

Source: leg.colorado.gov, "14-2-309. Enforcement.," accessed on April 10, 2018

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Mary Kay Kramer, P.C.
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