Many people are familiar with prenuptial agreements, and a significant number of engaged couples file enforceable prenuptial agreements before their marriage. A prenuptial agreement takes effect as soon as the marriage takes place. While it’s less commonly considered, it’s not too late to protect yourself and your spouse after the marriage—even if you’ve been married for many years.
A postnuptial agreement serves a similar purpose as a prenup, but spouses and their attorneys draft this contract during their marriage. You can contact our divorce attorney at Ciancio Ciancio Brown, P.C. to walk you through the legal process.
A postnuptial agreement—or postnup—is a legal contract drafted between married spouses with the help of an attorney. The contract details the disbursement of their assets in the event of a divorce or their death. The contract addresses legal issues that may arise, including the fair and equitable division of their marital assets, retention of the family home, and each spouse’s responsibilities during the marriage. For example, one spouse may agree to pay the mortgage while the other contributes to a retirement fund.
Creating a postnuptial agreement does not mean the spouses intend to divorce. In fact, under Colorado section 14-2-302, the law describes a postnuptial agreement in the following way:
“An agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event.”
A well-executed postnuptial agreement is legally enforceable.
Drafting a postnuptial agreement does not necessarily convey an expectation of divorce. A postnup brings peace of mind to married spouses and ensures the protection of their assets, real estate property, and family heirlooms in the event the marriage ends in divorce or death. Spouses commonly create postnuptial agreements for the following reasons:
Postnuptial agreements cannot address child custody or child support matters in case of a divorce. Instead, the spouses may make a settlement agreement with mutually acceptable terms or a judge will decide on child custody by determining what is in the child’s best interests at the time a divorce takes place. Child support orders must adhere to the state’s formula and are not a legal matter that spouses can address in a prenup or postnup agreement.
A postnuptial agreement must be entered into willingly by both spouses and drafted by a qualified attorney. The agreement may not violate state laws. For instance, it may not waive the obligation to pay child support. A postnuptial agreement is only valid and enforceable if both spouses submit full financial disclosures showing their full income, assets, and liabilities.
The agreement must be a written and signed contract. Oral agreements are not legally enforceable. Finally, the terms of a postnuptial agreement may not be egregiously unfair to one spouse. Instead, it must be fair and reasonable when signed.
A prenuptial agreement should be carefully constructed to protect the interests of both parties. Unlike a divorce settlement agreement, prenup and postnuptial agreements are often created when spouses are at their most loving best toward each other, offering lasting protection to both parties.
Call a postnuptial agreement lawyer at Ciancio Ciancio Brown, P.C. to discuss your wishes so we can begin a legal strategy for mutual protection and peace of mind.
