Chapter 2 - § 2.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 2.1 • INTRODUCTION

When spouses divorce or legally separate, their rights are governed by the Uniform Dissolution of Marriage Act (UDMA), C.R.S. §§ 14-10-101, et seq. In the event of the death of a spouse, the surviving spouse's rights are set forth in the Colorado Probate Code (CPC), C.R.S. §§ 15-10-101, et seq. Premarital and marital agreements (historically referred to as "marital agreements" in Colorado), however, allow parties to determine and define specific rights and obligations between them during their marriage and in the event of death or divorce in a manner that can differ from what would occur under the UDMA or the CPC.¹ Given the increasing complexity of family relationships, and a desire to transfer wealth to individuals who are not children of the marriage, such agreements play a significant role in the termination of spousal relationships. The scope of this chapter is limited to the role of these agreements in the family law arena, not estate and probate matters.

Historically, because they were thought to promote or encourage dissolution of marriage, premarital and marital agreements were considered unenforceable or were disfavored in some states, based on public policy considerations. However, from very early on, Colorado courts have generally upheld such agreements, at least where they were not too overreaching. For example, in 1913, the Colorado Supreme Court upheld an antenuptial agreement signed the day before the wedding. Wilson v. Wilson, 132 P. 67 (Colo. 1913). Under Colorado's present law, this agreement might not be enforceable. In 1982, the Colorado Supreme Court, noting that freely executed antenuptial agreements had been previously upheld by Colorado courts, ruled that such agreements were not void as against public policy. Newman v. Newman, 653 P.2d 728, 731-32 (Colo. 1982).

Colorado has three standards that govern the construction and enforceability of premarital agreements and marital agreements. The date on which a particular agreement was entered governs which standards apply.

For agreements entered into before July 1986, there was no Colorado statutory authority.

In 1986, Colorado enacted the Colorado Marital Agreement Act (CMAA), C.R.S. §§ 14-2-301, et seq. It was Colorado's version of the Uniform Premarital Agreement Act (UPAA). The CMAA differs from the UPAA in several important areas, including recognizing postnuptial agreements as well as prenuptial agreements, referring to both of them as "marital agreements."...