Family Law Newsletter
| Publication year | 1982 |
| Pages | 1882 |
1982, July, Pg. 1882. Family Law Newsletter
During the past year and one-half, the preparation and interpretation of pre-nuptial agreements have become an increasingly integral part of family practice. Although the use of pre-nuptial agreements has been on the increase since September 1980, there has been very little litigation and statutory change in this area of law since that time.(fn1)
A pre-nuptial agreement is a contract entered into between the prospective spouses in contemplation and consideration of their forthcoming marriage.(fn2) The agreement is executory in nature until the contemplated marriage actually occurs.(fn3) The primary purpose of the pre-nuptial agreement is to define and fix the respective property rights of the spouses prior to their marriage. Therefore, the agreement may contain provisions defining each spouse's property rights during the marriage; upon the death of either spouse; upon dissolution of marriage; or upon the occurrence of any or all of the above. Pre-nuptial agreements have long been recognized in Colorado as valid and enforceable.(fn4)
Although the modern trend has been to uphold provisions in a pre-nuptial agreement fixing or waiving maintenance,(fn5) the Colorado Court of Appeals refused to enforce a waiver of maintenance in such an agreement in In Re the Marriage of Newman.(fn6) If Newman is upheld, then any maintenance waivers included in a pre-nuptial agreement despite that holding should make specific reference to C.R.S. 1973, § 14-10-114, as amended, and the criteria contained therein. The provision should state that the parties have given due consideration to each of the statutory criteria and feel that, based upon the separate property which is being set aside to each of the spouses, maintenance is neither presently desirable nor contemplated in the future. Further, a severability clause should be added to protect the remainder of the agreement.
The initial inquiry in determining the validity of any pre-nuptial agreement is whether or not the parties entered into the agreement with full knowledge of its consequences after a full and fair disclosure of all relevant information by each spouse.(fn7) The most recent development regarding full knowledge and fair disclosure comes from the Colorado Uniform Probate Code ("Code"), C.R.S. 1973, § 15-11-204. In 1981, the Colorado legislature amended and codified the fair disclosure requirement by adopting § 2204 of the Code. The section now reads as follows:
The rights of election of a surviving spouse and the rights of the surviving spouse to exempt property allowance, family allowance, and homestead exemption may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or...
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