Chapter 36 - § 36.6 • PRACTICAL SUGGESTIONS

• Jurisdiction: Colorado

§ 36.6 • PRACTICAL SUGGESTIONS

If a client desires a marital agreement, it may be a good idea for the client and the spouse or prospective spouse to discuss the provisions before the attorney becomes involved. Whether this discussion is appropriate clearly depends upon the relational dynamics that exist between the parties. Sometimes attorneys can be the buffer between the parties to deal with difficult issues. Determining expectations of both individuals can help the attorneys provide legal counsel and suggest alternatives. It may be helpful to negotiate a term sheet summarizing the desired provisions before drafting the agreement.

The attorney drafting marital agreements must be aware of and knowledgeable about family law, probate law, and, if applicable, tax law. Family law will determine statutory rights and responsibilities in the event of a divorce, and what a marital agreement can and cannot alter. Estate or probate law will determine the statutory rights and responsibilities in the event of one spouse's or partner's death during the marriage or civil union. For a client to make an informed and voluntary waiver, the attorney must clearly explain the individual's legal rights and potential tax costs in both the divorce and death contexts, with and without the marital agreement. To that end, and depending upon the situation, it may be advisable to co-counsel with a family law, probate, or tax attorney.

Drafting for a mass waiver of all statutory rights may be unnecessary and inappropriate for many clients. It is better to specifically define which rights are being waived and retained. Use of vesting provisions can increase benefits to a party based on the length of the marriage. Also, when specific dollar amounts are specified in the agreement, the agreement should address standard of living and inflation issues.

The attorney must know what is required for an enforceable agreement and be aware of recent cases interpreting agreements. Due to the mobility of society, counsel should advise the client about the impact moving to another state may have on a marital agreement prepared under Colorado law. For instance, if the Colorado agreement addresses spousal support, some states do not allow such agreements to modify or eliminate spousal support and, consequently, would not enforce such a provision or possibly the entire agreement. Colorado law will still apply to find provisions unconscionable.

It is important that a client who signed a marital agreement while a resident of Colorado engage local counsel in the new state of residence in the event of a move. This is particularly true for a client moving to a community property state. Most community property states require, among other things, that a marital agreement be recorded. McClanahan, Community Property Law in the United States § 8:2 (1982 & Supp. 1992). Without compliance with the community state's statutory requirements, the mobile client will find himself or herself with a possible creation of a community property regime after the move, in conflict with the marital agreement. The Colorado marital agreement should specifically address the possibility of a client's move to a community property state. The marital agreement should not only provide for a waiver of any community property and quasi-community rights that may be created in the future, but also should require that the parties take such action as may be required to enforce the intent of the Colorado marital agreement should the parties move to a community property state.⁴¹

Also, not all states recognize post-marital agreements. A possible provision to include in the agreement is one that specifies that Colorado law applies to questions about validity and interpretation. UPMAA, C.R.S. § 14-2-304 (effective for agreements signed on or after July 1, 2014). The UPMAA expressly permits parties to choose the law...