How to Make a Colorado Prenuptial Agreement Hold Up

Colorado names four specific ways an agreement fails. Work through them before you sign and there is little left for a challenge to stand on.

No prenuptial agreement is immune from challenge, and a promise that one is should make you cautious. What you can do is remove the grounds a challenge would rest on.

Colorado is unusually helpful here, because the statute lists those grounds. This page works through them in the order they would come up.

First, Which Law Applies to You

Colorado adopted the Uniform Premarital and Marital Agreements Act, and it governs agreements signed on or after July 1, 2014.¹ An older agreement is judged under the law in place when it was signed, which is a different set of tests.

That matters if you are reviewing an agreement rather than writing one. Advice written for the older act, or for another state, will not match what a Colorado court applies today.

The act also does not reach every agreement between spouses. One signed when a dissolution or legal separation is anticipated or pending is a separation agreement rather than a marital agreement, and different rules apply to it.

It does reach couples who are not marrying. The same part governs agreements made by prospective or present parties to a Colorado civil union, along with the case law construing it.

The Formation Basics

The bar for forming one is low. The agreement must be in a record and signed by both parties, and it is enforceable without consideration, meaning neither of you has to give the other something in exchange.² A premarital agreement takes effect on marriage.

There is no notarization requirement in Colorado. Notarizing is fine and some people prefer it, but an agreement is not void for want of a notary.

An agreement that is not in a record and signed by both parties is unenforceable. That is the one formation failure worth worrying about.

The Four Ways an Agreement Fails

The real work is in the enforcement section, which names four defenses. A party resisting the agreement has to prove one of them, and each is worth closing off deliberately.³

Involuntariness or duress

The first defense is that consent was involuntary or the result of duress. This is where timing lives, and it is why signing on the eve of the wedding is a problem.

No Colorado statute sets a minimum number of days before the ceremony. What creates the risk is the pressure that comes with a date, deposits paid, and guests booked.

The practical answer is to start the conversation early in the engagement and sign well before the logistics take over. Early is a strategy rather than a rule.

No access to independent legal representation

The second defense is that the party did not have access to independent counsel. Access does not mean each of you had a lawyer, but it does mean each of you realistically could have.

The test has two halves. The party needs a reasonable time to decide whether to retain a lawyer, and to locate one, get advice, and consider it.

The second half is the one people miss, and it is conditional. It applies where the other party is represented by a lawyer. In that case the first party must have been able to afford one, or the represented party must have agreed to pay reasonable fees and expenses.

No notice of waiver of rights

If a party did not have independent counsel when signing, the agreement itself has to carry something. That is either a conspicuous notice of waiver of rights in the statutory form, or a plain-language explanation of the marital rights being modified or waived.

Conspicuous is doing real work in that sentence. Buried in the body in the same type as everything else is not what the statute describes.

Inadequate financial disclosure

The fourth defense is that a party did not receive adequate financial disclosure before signing. Disclosure is adequate if the party received a reasonably accurate description and a good-faith estimate of value of the other’s property, liabilities, and income.

The estimate of value is where disputes start, particularly with a business or an interest in a trust. A list of assets without values is not what the statute describes.

There is one alternative to receiving disclosure, and only one. The party already had adequate knowledge of the other’s finances, or a reasonable basis for having it.

Colorado did not adopt the uniform act’s option to waive disclosure, and that subsection is reserved in the Colorado text. A signed waiver will not substitute for actually exchanging financials.

Describing what you own is also what makes the agreement work later. Separate property has to be traceable to be treated as separate, which is the same problem that shows up in Colorado property division.

Drafting one, or reviewing one you were handed?

The four defenses are easier to close off before signing than to argue about afterward. Schedule a free consultation with Johnson Law Group and we will walk through where your agreement stands.

What You Can and Cannot Put In

Several categories of term are unenforceable in Colorado. A term cannot adversely affect a child’s right to support or limit a remedy available to a victim of domestic violence.⁴

It also cannot modify the grounds for dissolution, penalize a party for filing, or violate public policy. A term defining custodial responsibility is considered but not binding on the court.

Maintenance is different from what older material suggests. Colorado expressly allows the parties to waive maintenance in a premarital or marital agreement.⁵ Enforceability is then tested under the same enforcement section as everything else.

There is one additional check on maintenance and attorney fee terms. Those provisions can be refused if they are unconscionable at the time of enforcement, which is years after signing rather than at the moment you sign. The court decides that question as a matter of law.

So a maintenance waiver that was fair when written can still fail if circumstances have changed enough. That is worth understanding before you rely on one.

What Belongs in the Agreement

The useful items are narrower than the usual list. Identify premarital property and say how it is treated on divorce or death, since that sets the starting point for everything else.

Then address pre-existing debt, what happens to separate property placed into joint names, and support for children from a prior relationship. Those four cover most of what people actually need.

Resist the urge to legislate the marriage itself. Terms about housework, weight, or behavior invite a public policy argument and put the rest of the agreement in play.

Starting the Conversation

The hardest part is usually raising it, not drafting it. The framing that works is the one that is true for you, whether that is a business, a professional practice, or children from an earlier relationship.

It helps to treat it as the first of several financial conversations rather than a one-off negotiation. Couples who can discuss this can usually discuss the rest.

It also helps to know what you are protecting against. Understanding how a Colorado divorce divides property makes it much clearer which terms are worth the conversation and which are not.

Frequently Asked Questions

Does a Colorado prenuptial agreement have to be notarized?

No, and this is a common misconception. Colorado requires the agreement to be in a record and signed by both parties, and it is enforceable without consideration. An agreement that is not in a record and signed by both parties is unenforceable.

How long before the wedding should we sign?

No Colorado statute sets a deadline. Timing matters because a party can argue consent was involuntary or the result of duress, and signing close to the ceremony is what makes that argument available. Signing early in the engagement is a strategy rather than a rule.

Do we both need our own lawyer?

Not strictly, but each party needs access to independent legal representation. That means a reasonable time to decide, locate a lawyer, get advice, and consider it. It also means the financial ability to retain one, or the other party agreeing to pay reasonable fees.

Can a Colorado prenup waive spousal maintenance?

Yes. Colorado expressly allows parties to waive maintenance in a premarital or marital agreement. Maintenance and attorney fee terms carry an extra check, because they can be refused if they are unconscionable at the time of enforcement rather than at signing.

What cannot go in a Colorado prenup?

A term cannot adversely affect a child’s right to support or limit a remedy available to a victim of domestic violence. It also cannot modify the grounds for dissolution, penalize a party for filing, or violate public policy. Terms defining custodial responsibility are considered but not binding on the court.

Talk With a Colorado Family Law Attorney

Most agreements that fail do so for reasons that were easy to avoid at the time. Disclosure, timing, and whether both of you had a real chance at advice account for nearly all of it.

Johnson Law Group drafts and reviews Colorado prenuptial agreements, and you can learn more about our approach on our Colorado family law page. You can find our offices in Denver, Colorado Springs, Commerce City, Englewood, and Fort Collins.

You can also read about the background and experience of the attorneys on our team. Schedule a free consultation and we will tell you what your agreement would need to stand up.

Sources