Chapter 36 - § 36.1 • INTRODUCTION TO MARITAL AGREEMENTS

• Jurisdiction: Colorado

§ 36.1 • INTRODUCTION TO MARITAL AGREEMENTS

§ 36.1.1—Historical Overview

Modern premarital agreements evolved out of "jointure," an early common law estate in lands intended to provide for the lifetime of a wife upon the death of her husband. The Statute of Uses, enacted in 1536 in England, changed the original purpose of jointure into a method of barring dower to the wife, which allowed for free alienation of lands. In the United States, jointures were legal bars to dower if they met certain state law requirements. These agreements were reviewed by courts for their reasonableness and fairness under both rules of law and equity.

Premarital agreements evolved from these early contractual arrangements as a means by which prospective spouses secured certain property rights in themselves and their children upon the death of a spouse. However, premarital agreements that addressed issues upon divorce were void as against public policy. See Samuel Green & John V. Long, Marriage and Family Law Agreements (Wiley 1984 & Supp. 1997). According to the state, which was a third party to actions relating to marriage, such agreements encouraged divorce and destabilized marriages. Since states did not want the wife to become a ward of the state, courts held that a prospective wife should not be bound by a premarital waiver of support.

This position changed in 1970 when the Florida Supreme Court held that premarital agreements addressing asset division and support requirements upon a divorce were no longer void ab initio as contrary to public policy. Posner v. Posner, 233 So.2d 381 (Fla. 1970). Colorado's first case giving validity to premarital agreements that contained divorce provisions was In re Marriage of Franks, 542 P.2d 845 (Colo. 1975). Now, the prevailing view among the states is that premarital agreements addressing property and support rights upon divorce promote marriage rather than encourage divorce. All states and the District of Columbia accept premarital agreements as a permissible means of contracting between spouses as long as such agreements were validly made. Even though all states recognize these agreements, enforceability of premarital agreements varies among the states.

§ 36.1.2—Development of Uniform Laws and State Statutes Relating to Marital Agreements

Before 1986, there were no Colorado statutes permitting marital agreements; therefore, Colorado marital agreements entered into prior to July 1, 1986, are governed by prior case law. The Colorado Supreme Court first upheld the enforcement of a premarital agreement in the context of a divorce proceeding in 1975 in Franks. In 1979 and 1980, three separate Colorado Court of Appeals cases addressed challenges to the validity of a premarital agreement: In re Marriage of Ingels, 596 P.2d 1211 (Colo. App. 1979); In re Marriage of Stokes, 608 P.2d 824 (Colo. App. 1979); and In re Estate of Lebsock, 618 P.2d 683 (Colo. App. 1980). Then, in 1982, in Newman v. Newman, 653 P.2d 728 (Colo. 1982), the Colorado Supreme Court resolved a perceived conflict in two of these court of appeals rulings regarding the application of the unconscionability test to marital agreements. The Newman decision held that property provisions of a premarital agreement are not subject to review for unconscionability at the time of enforcement (in this case, divorce). Rather, parties seeking to invalidate a premarital agreement can do so only if they can demonstrate "nondisclosure, fraud, or overreaching" at the time the agreement was made. Id. at 733. The Newman opinion did hold, however, that maintenance provisions of the same agreement may become "voidable for unconscionability occasioned by circumstances existing at the time of the marriage dissolution." Id. at 734.

Similarly, nationwide before 1983, states did not have statutes specifically authorizing premarital agreements. Consequently, courts made decisions about such agreements on a case-by-case analysis. In response to the lack of certainty and due to the increase in demand for these agreements, the National Conference of Commissioners on Uniform State Laws (NCCUSL) drafted the Uniform Premarital Agreement Act (UPAA) in 1983. 9 B.U.L.A. 369 (1987). The UPAA has been adopted in at least 26 states and the District of Columbia, in whole or in part.¹ Some states have adopted their own version of the UPAA, and even those states that have adopted the UPAA have differing enforceability standards. So, in reality, the desired uniformity has not been achieved. Colorado has not adopted the UPAA. Instead in 1986, Colorado enacted the Colorado Marital Agreement Act (CMAA) (see discussion in § 36.2.2).

The NCCUSL completed drafting a new uniform marital agreements act in...