Chapter 2 - § 2.4 • UNIFORM PREMARITAL AND MARITAL AGREEMENTS ACT (UPMAA) — EFFECTIVE DATE JULY 1, 2014

• Jurisdiction: Colorado

§ 2.4 • UNIFORM PREMARITAL AND MARITAL AGREEMENTS ACT (UPMAA) — EFFECTIVE DATE JULY 1, 2014

Twenty-nine years after it drafted the Uniform Premarital Agreement Act (UPAA), the Uniform Law Commission promulgated a new Act, the Uniform Premarital and Marital Agreements Act (UPMAA).

Just as Colorado adopted the UPAA shortly after it was enacted (revising and renaming it as the Colorado Marital Agreement Act), Colorado also adopted the revised UPMAA. The history of the UPMAA is summarized in an excellent article by Barbara Atwood and Brian Bix in the ABA Family Law Quarterly. Barbara Atwood & Brian Bix, "A New Uniform Law for Premarital and Marital Agreements," 46 ABA Fam. L.Q. (Fall 2012). Ms. Atwood was the chair of the Drafting Committee, and Mr. Bix was the Reporter for the Act. The authors state, "[o]ur hope is that the new Act, if widely adopted, will bring needed clarity, uniformity, predictability, and fairness to private ordering in family law and estate planning." Id.

The UPMAA took effect in Colorado on July 1, 2014, 28 years after the CMAA was enacted. The new Act repeals and reenacts, with amendments, the CMAA. In actuality, little is left of the old Act, although it continues to be the controlling law for all marital agreements entered into between 1986 and June 30, 2014.

Much of the prior case law interpreting the CMAA will continue to be relevant for construing the UPMAA. Therefore, the discussion of that case law is not repeated here. As of January 2016, there were no published Colorado appellate cases involving the UPMAA.

§ 2.4.1—Major Differences Between the CMAA and UPMAA

In reviewing the differences between the UPMAA and the prior CMAA, it is important to understand that the UPMAA was intended to be a revision of the UPAA and that Colorado long ago made significant changes to the UPAA when it originally adopted it as the CMAA in 1986. The biggest difference between the UPAA and UPMAA is that the latter includes postnuptial agreements, referred to as marital agreements, within its scope. As Colorado's revision of the UPAA made this change almost 30 years ago, this is nothing new to Colorado family law practitioners. For a helpful side-by-side comparison of the differences, see Susan Boothby & Kim Willoughby, "Colorado's New Uniform Premarital and Marital Agreement Act," 43 Colo. Law. 57 (March 2014).

In the new Act, premarital agreements are between individuals "who intend to marry" (C.R.S. § 14-2-302(5)), while marital agreements are between spouses "who intend to remain married" (C.R.S. § 14-2-302(2)). With this latter definition, one can envision challenges to marital agreements entered into in the instance where the spouses were not convinced they would remain married and wanted to formalize their rights and obligations in the event of a future divorce. Arguably, the CMAA's definition of marital agreements — "an agreement . . . between present spouses, but only if signed by both parties prior to the filing of an action for dissolution," modified by subsequent case law regarding timing of the agreement versus divorce action — is a better definition than the UPMAA definition. See In re Marriage of Lafaye, 89 P.3d 455 (Colo. App. 2003), and In re Marriage of Bisque, 31 P.3d 175 (Colo. App. 2001). A prudent move by drafters of marital agreements would be to include language that the parties, at the date of execution of the agreement, intend to remain married. While this isn't necessarily binding in an action challenging the agreement, it should be at least helpful.

The new Act eliminates the CMAA's list of items that can be included in a marital agreement (C.R.S. §§ 14-2-304(1) to (2.3) (pre-July 1, 2014)) on the basis that the definitions in the new Act make it clear what the Act covers and does not cover, so that list is no longer necessary. Atwood & Bix, supra at 336.

§ 2.4.2—Scope of the UPMAA

C.R.S. § 14-2-303(3) sets forth the scope of the Act. It does not affect any right, obligation, or liability in a premarital agreement or marital agreement signed before July 1, 2014. (Note that under the CMAA, any such agreements are defined as "marital agreements." Amendments to prior agreements, however, are subject to the terms of the UPMAA. See C.R.S. §§ 14-2-302(1), (2), and (5).) The UPMAA also does not apply to any agreement regarding marital rights and...