5 Common Myths About Prenuptial Agreements

What Is a Prenuptial Agreement?

A prenuptial agreement is a premarital contract that is drafted and signed before a couple’s marriage. It is a legally binding contract that outlines how important issues will be dealt with in the future. While prenuptial agreements have a reputation for only dealing with divorce-related topics, they serve a much broader function and are a lot more versatile than people believe.

Colorado law defines premarital agreements as:

“an agreement between individuals who intend to marry which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or on the occurrence or nonoccurrence of any other event.”

Prenuptial agreements are specifically focused on marital obligations or rights such as spousal maintenance, property rights, and responsibility for liability. Other marital obligations include property rights and liability responsibility in the event of legal separation, divorce, or death. There are also often provisions for attorneys’ fees.

For a premarital agreement to be officially recognized, it needs to be recorded and signed by both parties. The premarital agreement then becomes effective on the marriage of the two individuals.

Keep reading for five common myths about prenuptial agreements.

Myth #1: Prenups Are Only for the Wealthy

Because many people assume that prenuptial agreements only preserve and protect the wealthy, they believe only the wealthy can benefit from them. This is not the case! While you can use a prenuptial agreement to deal with a wealth disparity or to protect certain assets from property division, prenuptial agreements deal with a wide range of issues that apply to most people. In fact, many people can benefit from premarital contracts, even when they do not have substantial assets or property.

For example, if you have children from a previous relationship who need financial protection, own a business, or want to keep premarital assets from converting to marital property, you may benefit from a prenuptial agreement. Couples who enter a marriage with debt also use prenuptial agreements to specify whose responsibility that debt is. In most cases, you can include any legal matter you want in your prenup, provided it does not violate Colorado law.

Myth #2: You Can Make Custody Determinations in a Prenup

In Colorado, you cannot outline parenting responsibilities such as parenting time, access, visitation, child support, or other custodial issues in a premarital agreement. When making these determinations, the courts must always act in the best interest of the child, which may conflict with the wishes outlined in a prenup. Consequently, these terms in a prenuptial agreement are deemed unenforceable.

Myth #3: Prenups Are Iron-Clad, and the Courts Always Adhere to Them

Prenuptial agreements are designed to be mutually beneficial to both parties. While the courts will consider the terms of a premarital agreement, they are not bound to adhere to them. In extreme situations, when a prenuptial agreement is deemed to be significantly detrimental or harmful to one spouse, the courts will not stick to it.

Situations in which a prenup is unenforceable may include:

  • When it was signed under force or duress
  • One or both of the parties did not have access to independent legal representation
  • When signed without legal representation, the agreement did not contain a waiver of rights
  • When a waiver of rights is signed but lacked the marital rights or obligations being amended and/or the rights being waived are not explained in plain language
  • One or both parties did not receive appropriate or adequate financial disclosure before signing

Myth #4: Signing a Prenuptial Agreement Means You Will Get Divorced

Many people believe that asking a partner to sign a prenup is an indication that they lack faith in the relationship. This is not the case. Pre- and post-nuptial agreements are an important part of estate planning. As legal documents, they can help couples plan for their future, and not just for a potential divorce. Prenuptial agreements often provide provisions and instructions for what to do with specific property and assets in the event of one person’s death.

Myth #5: You Do Not Need a Lawyer to Make a Prenup

While, technically, you do not need a lawyer to draw up and sign a prenuptial agreement, it is strongly recommended. To have a premarital agreement recognized when there was no legal representation involved, you must have a waiver of rights included, among other requirements. This waiver must be completed correctly, or you risk your agreement being rendered unenforceable.

It is highly recommended that you work with a lawyer familiar with estate planning and divorce law. Your lawyer will ensure that your best interests are protected and that your prenuptial agreement is handled correctly.

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