A marital agreement is a contract between 2 parties. It’s typically what we call a pre-marital agreement which is a contract between 2 parties who are contemplating marriage.
Colorado has enacted a Colorado marital agreement act so there are specific provisions. In this act that govern marital agreements. Parties who are already married may decide that they want to go ahead and enter into a marital agreement in order to define their rights and responsibilities moving forward.
For example, the parties have been married and one of the parties stands to inherit money from a relative. Perhaps the parties are married and they want to make provisions for children who are step- children, not born of the marriage.
The purpose of a pre-nuptial or pre-marital agreement is to define your rights going into a marriage relationship. It doesn’t mean that you think you are going to get divorced or that your marriage is going to fail. It’s really more of a practical approach in order to protect assets that you have going into the marriage.
We typically see a pre-marital agreements with couples who are a little older. Perhaps they have been married before. Perhaps they’ve been working for awhile and they’ve been able to accumulate assets and they want to protect those assets.
You can contract with your perspective spouse regarding how you are going to handle your assets and your debts in the unfortunate event that you get divorced. This helps eliminate a lot of strife and conflict moving forward. In other words if your rights are clearly defined then and that eliminates a lot of the need for litigation.
You can for example decide that I am going to keep this piece of property, that’s my property and I am going to keep it in the events of a dissolution of marriage.
You can also make provisions regarding distribution of certain assets. What you can’t do however, is contract regarding parental responsibilities, rights regarding the children. The court always retains jurisdiction over the children, over child support, over parenting rights and decision making. Obviously because it is in the best interest of the children to do so. You can’t contract away your parental rights in a pre-marital or post-marital agreement.
While you can agree to waive spousal support, which is also known as maintenance or alimony in a pre-marital agreement or post nuptial agreement, the court will look at that waiver at the time that a dissolution proceeding is filed in order to determine whether or not that agreement is conscionable. The court is not going to enforce an unconscionable agreement regarding maintenance alimony. Because essentially there’s a public policy background or reason for that. We don’t want to see someone be destitute or be basically unable to support themselves because of a pre-marital post-nuptial agreement.
Along with that one of the aspects the court will review at the time of the dissolution of a marriage proceeding is attorney fee provisions and this goes along with the maintenance and alimony waiver. The court is going to review a waiver for the right to receive attorney fees from the other party at the time that a dissolution of marriage proceeding is filed.
The advantage of having one of these types of agreements, a pre-marital or post marital agreement, is certainty. In other words you know that you have established your rights and you have expectations moving forward as to who is going to be responsible for example paying certain debts and who is going to be responsible for maintaining certain assets and who would get those assets in the event of a dissolution of marriage proceeding.