Chapter 36 - § 36.2 • REQUIREMENTS FOR AN ENFORCEABLE MARITAL AGREEMENT IN COLORADO

• Jurisdiction: Colorado

§ 36.2 • REQUIREMENTS FOR AN ENFORCEABLE MARITAL AGREEMENT IN COLORADO

Colorado now has three acts that recognize the validity of marital agreements. These are (1) the Colorado Uniform Dissolution of Marriage Act, found at C.R.S. §§ 14-10-101, et seq.; (2) the Colorado Marital Agreement Act (CMAA), enacted in 1986 and found at C.R.S. §§ 14-2-301, et seq.; and (3) the Uniform Premarital and Marital Agreements Act (UPMAA), enacted in 2014 and found at C.R.S. §§ 14-2-301, et seq., which is Colorado's version of the 2012 Uniform Act.

The UPMAA is effective in Colorado for marital agreements or amendments to marital agreements signed on or after July 1, 2014.¹⁰ Although the CMAA is effectively repealed, the CMAA will still apply to any agreement signed prior to July 1, 2014, regardless of the date of enforcement. The UPMAA also recognizes and applies to an agreement signed before and during a civil union in Colorado.

Colorado also has three standards for the enforceability of marital agreements, each applied depending on when the agreement was entered into. See Susan L. Boothby and Kim Willoughby, "Colorado's New Uniform Premarital and Marital Agreements Act," 43 Colo. Law. 57 (March 2014), and the appended chart comparing Colorado law applicable to pre-July 1986 agreements; agreements entered into between July 1, 1986, and June 30, 2014; and post-June 30, 2014 agreements.¹¹

A waiver of the rights of a surviving spouse to a deceased spouse's estate may also be addressed in a marital agreement. The requirements for such a waiver are also treated differently, depending on whether the waiver was signed prior to or after July 1, 2014.

§ 36.2.1—Statutory Requirements for an Enforceable Marital Agreement in Colorado — UPMAA (On or After July 1, 2014)

Colorado adopted most, but not all, of the provisions of the 2012 Uniform Act. This discussion highlights those provisions of the UPMAA, as adopted in Colorado, that differ from the 2012 Uniform Act.

Under the UPMAA, a marital agreement must be in a record and signed by both parties. C.R.S. §§ 14-2-306 and -309(8). A "record" is defined as "information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form." C.R.S. § 14-2-302(7) (effective July 1, 2014). The term "sign" means "[t]o execute or adopt a tangible symbol" or "[t]o attach to or logically associate with the record an electronic symbol, sound, or process." C.R.S. § 14-2-302(8) (effective July 1, 2014).

The UPMAA specifically identifies when a marital agreement will be unenforceable. Generally, unenforceability is determined as of the date the agreement is signed, with the few exceptions noted below.

Voluntary Consent, Access to Counsel, and Financial Disclosure

A marital agreement will be unenforceable if the challenging party's consent to the marital agreement was involuntary or the result of duress. C.R.S. § 14-2-309(1)(a) (effective July 1, 2014).

The UPMAA requires that the party against whom enforcement is sought had meaningful access to independent legal representation. C.R.S. § 14-2-309(1)(b) and (2) (effective July 1, 2014). Independent legal counsel means that a party has had a reasonable time to: (1) decide whether to retain a lawyer to provide independent legal counsel; and (2) locate a lawyer, obtain a lawyer's advice, and consider the advice provided. Id. The party must also have the financial ability to retain a lawyer or the other party must agree to pay the reasonable fees and expenses of independent representation.

A marital agreement will be unenforceable unless a party either (1) had independent legal representation at the time of signing as described above, or (2) had access to independent legal representation and the agreement contained either an explanation in plain language of the marital rights or obligations being modified or waived, or a notice of waiver of rights conspicuously displayed and substantially similar to the following:

If you sign this agreement, you may be:

Giving up your right to be supported by the person you are marrying or to whom you are married.
Giving up your right to ownership or control of money and property.
Agreeing to pay bills and debts of the person you are marrying or to whom you are married.
Giving up your right to money and property if your marriage ends or the person to whom you are married dies.
Giving up your right to have your legal fees paid.

C.R.S. § 14-2-309(1)(b), (1)(c), and (3) (effective July 1, 2014).

A marital agreement will also be unenforceable if, before signing the agreement, the challenging party did not receive adequate financial disclosure. Receipt of adequate financial disclosure may be satisfied either (1) by providing a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; or (2) if the party has adequate knowledge or a reasonable basis for having adequate knowledge of such information. C.R.S. § 14-2-309(4) (effective July 1, 2014). As part of this financial disclosure, parties should also disclose any interest in trusts. See the discussion at "Trust Income and Assets" in § 36.3.1 of this chapter.

The UPMAA departs from the 2012 Uniform Act in that it did not enact the provision of the 2012 Uniform Act allowing waiver of financial disclosure. Section 9(d)(2), Uniform Premarital and Marital Agreements Act.¹²

Also, the 2012 Uniform Act had an alternative provision to allow an inquiry into whether the marital agreement was unconscionable at the time of signing or whether enforcement of a term would result in serious hardship for a party because of material change in circumstances. Section 9(f), Uniform Premarital and Marital Agreements Act. This alternative was not adopted by the Colorado legislature.

Maintenance, Attorney Fees, and Other Unenforceable Provisions

Even if a marital agreement complies with the enforceability provisions of C.R.S. § 14-2-309, certain provisions of an agreement will nevertheless be unenforceable to the extent such provisions modify, limit, or eliminate spousal maintenance or waive or allocate attorney fees, and such provisions are deemed unconscionable at the time of enforcement of such provisions. C.R.S. § 14-2-309(5) (effective July 1, 2014). Unconscionability is to be decided by the court as a matter of law. Id. C.R.S. § 14-2-309(5) was revised to clarify that such exception applies to both a premarital agreement and a marital agreement as defined under the UPMAA; however, that statutory revision only applies to agreements executed on or after August 5, 2015.¹³

The 2012 Uniform Act required spousal support "to the extent necessary to avoid...