Think Of A Prenup As Marriage Insurance
Most people realize that marriage brings with it numerous legal and financial privileges. But what about the risks of marriage? In our culture, many people understand that the legal status of being married is not a guarantee that a marriage will last. The easy availability of no-fault divorce makes losing one’s life savings a real and sobering possibility if a marriage fails. Older couples, wealthy individuals and people with children from previous relationships are often extra interested in prenuptial agreements.
Even engaged couples who can’t fathom their marriages breaking up someday may see the value of transparency that a prenup can provide. To be valid, a premarital agreement must include full disclosure of assets by both spouses. A prenup typically spells out who would keep what in case of a divorce. It can also address mutual understandings such as what type of religious education a couple’s children will receive.
For a personalized explanation of the benefits and process of a prenup, meet with our family law attorney at the Law Offices of Shawn H. Smith.
What If You Are Already Married And Desire The Protection A Prenup Can Provide?
Married people have the same opportunity that engaged couples do to craft private contracts spelling out who would own which property if they ever get divorced.
A postnuptial agreement can solidify mutual decisions about asset ownership and other issues of great importance to either spouse. For example, one spouse may inherit a piece of real estate and propose using a postnup to clarify its potential fate before investing marital assets in its renovation and upkeep.
Married couples may use postnups to protect businesses, to set finances aside while working on reconciliation after a time of marriage troubles, or to prevent financial uncertainty in case of divorce.
What Makes A Marital Agreement Enforceable?
A prenuptial or postnuptial agreement can be a valuable tool for protecting your assets from divorce, but only if it can be enforced. In Colorado, there are specific requirements that make these agreements enforceable, including:
Mutuality: Both parties must enter the agreement voluntarily. This means you and your partner should not feel pressured or coerced into signing.
Complete transparency: Full and fair disclosure of assets and liabilities is also crucial. Each party needs to be transparent about their financial situation, ensuring that both sides are making informed decisions.
Careful documentation: The agreement must be clearly laid out in writing and signed by both parties. Courts will typically not enforce verbal agreements or unsigned documents.
Reasonableness and fairness: The terms of the agreement must be deemed fair and reasonable at the time of signing. If a court finds the agreement to be unconscionable or grossly unfair, it may not be enforced.
Independent counsel: Finally, each party should have the opportunity to consult with their own attorney. There would be an apparent conflict of interest if both parties were counseled by the same attorney. Having independent legal advice can help ensure that the agreement is fair and that both parties fully understand the terms.
Can You Draft Your Own Marital Agreement Without A Lawyer?
Legally speaking, you are allowed to create your own marital agreement and do not need to consult a lawyer. However, just because you can do something doesn’t mean you should.
You typically need the help of a knowledgeable family law attorney to meet all of the enforceability requirements stated above. An experienced lawyer will understand the laws of the state and what is considered reasonable and fair. They will also know how to document the agreement clearly and ensure that the language in the contract leaves no room for confusion or interpretation.
Have both parties fully disclosed all of their assets and debts? This question is difficult to answer when simply relying on someone else to act in good faith. A good lawyer will independently verify the disclosures made by both parties and/or ask follow-up questions to reduce the likelihood that assets were omitted by mistake.
Finally, having two attorneys involved is one of the strongest ways to prove that each party had the opportunity to review and understand what they were signing and that they signed the agreement of their own free will.
Request A Consultation To Discuss The Steps Involved In Creating A Prenup Or Postnup
Can a prenuptial or postnuptial agreement protect someone’s assets from a spouse’s creditors or a potential lawsuit against one’s spouse? Discuss this and other questions on your mind with our lead lawyer, Shawn H. Smith.
Mr. Smith can help you and your fiancé(e) or spouse put teeth in your premarital or post-marital agreement. As a family law attorney with years of experience, he will walk you through the steps necessary to make your prenup or postnup enforceable.
To schedule a consultation about your goals and objectives in considering a prenup or postnup, call us at 970-387-6858 or send an email inquiry for a prompt response.