Chapter 2 - § 2.3 • COLORADO MARITAL AGREEMENT ACT (CMAA) — 1986 TO JUNE 30, 2014

• Jurisdiction: Colorado

§ 2.3 • COLORADO MARITAL AGREEMENT ACT (CMAA) — 1986 TO JUNE 30, 2014

Note: All statutory references in § 2.3 are references to the CMAA in effect prior to June 30, 2014. Readers who wish to access the CMAA will have to look at the archived statutes.

§ 2.3.1—Colorado Marital Agreement Act Versus Uniform Premarital Agreement Act

When Colorado adopted the CMAA, C.R.S. §§ 14-2-301, et seq., in 1986, it made several significant changes to the original text of the Uniform Premarital Agreement Act (UPAA), upon which it is based. This included bringing postnuptial agreements, in addition to prenuptial agreements, within its scope. Collectively, they are defined as "marital agreements" at C.R.S. § 14-2-302(1). Other significant changes from the UPAA included eliminating unconscionability as a basis for seeking to set aside a marital agreement (except in the narrow context of the unconscionability of a maintenance waiver), C.R.S. § 14-2-307(2), and eliminating the failure to voluntarily waive the right to receive financial disclosures from the party as a basis to set aside the agreement. The effect of these revisions was to make it easier to enforce marital agreements in Colorado under the CMAA than was originally intended by the UPAA.

§ 2.3.2—Statutory Formalities

Under the CMAA, a marital agreement must be in writing and signed by both parties, and is enforceable without consideration. C.R.S. § 14-2-303.

§ 2.3.3—Effective Date

A marital agreement becomes effective upon the parties' marriage, if signed by both parties prior to and in contemplation of the marriage, or upon execution if signed by the parties after their marriage. C.R.S. § 14-2-305.

§ 2.3.4—Permissible Agreements Under CMAA

The parties to a marital agreement may, pursuant to C.R.S. § 14-2-304(1), contract with respect to a wide variety of rights or obligations. However, the determination, modification, or elimination of spousal maintenance is subject to the court's review for unconscionability. Also, a provision determining the allocation of attorney fees is similarly subject to a review for unconscionability. See "Attorney Fee Waivers" in § 2.3.6.

§ 2.3.5—Impermissible Agreements Under CMAA

Child Support

A marital agreement may not adversely affect the right of a child to receive child support. C.R.S. §§ 14-2-304(3) and -310; In re Marriage of Ikeler, 161 P.3d 663, 670 (Colo. 2007). However, provisions that benefit minor children, including the establishment of trusts, educational accounts, and the like, should generally be upheld. Additionally, the children may have standing as third-party beneficiaries to assert a contractual right in their own name concerning any contractual provisions that operate to their benefit.

Parenting Time and Parental Responsibilities

The court is not bound to honor parents' agreements with respect to parental responsibilities or parenting time. Although the parties may establish a mutually agreeable schedule, the court must make a determination, upon the entry of a decree of dissolution of marriage or legal separation, or at the time of death, as to whether provisions of the marital agreement are in the best interests of the children.

Public Policy

A marital agreement may not include any matter in violation of public policy or any statute imposing a criminal penalty. See C.R.S. § 14-2-304(1)(i).

§ 2.3.6—Enforcement

Marital agreements are presumed to be valid if they meet the statutory requirements of the CMAA, and the burden of proof is on the party seeking to avoid enforcement to show otherwise. C.R.S. § 14-2-307(1). Under this subsection, a marital agreement is not enforceable if the party against whom enforcement is sought proves either involuntariness (the party did not execute the agreement, amendment, or revocation voluntarily) or nondisclosure (before execution of the agreement, amendment, or revocation, such party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party). Furthermore, under § 14-2-309, provisions in a marital agreement regarding the determination, modification, or elimination of spousal maintenance are unenforceable if such provisions are unconscionable at the time of enforcement, as decided by the court as a matter of law. Additionally, a court is not bound by the provisions of a marital agreement for the waiver of attorney fees if such provision is unconscionable at the time of enforcement, as decided by the court. This is not included in the CMAA, but rather is a matter of case law, as discussed under "Attorney Fee Waivers," below.

Voluntariness

There are no Colorado cases that specifically define "voluntary" in the context of a marital agreement. In other contexts, however, "voluntary consent cannot be the result of duress, coercion, or any other form of undue influence." People v. Walter, 890 P.2d 240, 244 (Colo. App. 1994); see also Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608, 612 (Colo. 1998) ("A contract is voidable on the grounds of duress if a party's manifestation of assent is induced by an improper threat that leaves no reasonable alternative."). In a criminal context, voluntary consent has required that the party making a waiver be specifically advised of the rights he or she is giving up. Martin v. People, 27 P.3d 846, 859 (Colo. 2001) ("[U]nder the mandatory parole regime, an offender must be advised of the possible prison sentence as well as the additional term of...