You Should Prenup

Getting married and deciding to merge your life and your finances with another person in a legal way is a huge decision. And once the decision to marry is made, there are numerous other decisions that follow, too, such as what type of wedding you’ll have, how you will divide household tasks and earnings, and what your parenting style will be (if you decide to have children, that is). One conversation that you and your future spouse should have when discussing your life plans is in regards to the value of a prenuptial agreement. At Divorce Matters, we believe that prenuptial agreements can be valuable tools that, in the event of a divorce, allow for clarity and mitigate conflict. Here are some reasons why you should consider a prenup–

You Want to Protect Separate Property

There is a strong chance that you, your future spouse, or both of you are entering the marriage with separate property that you each find valuable, and would hate to lose in the event of a divorce. This might include family heirlooms, a family business, or even personal cash reserves. What’s more, you and your spouse may want to keep income and assets separate over the course of the marriage. If any of these are true, then creating a prenuptial agreement can help to ensure that both of you have protection, and that in the event of a separation, you will have the right to keep your assets.

Protect Yourself from Debt

Just as you may want to protect your personal assets, and your spouse theirs, so may you want to protect yourself from incurring any of your spouse’s debts. Suppose your spouse has credit card debt when entering the marriage, is a sole proprietor and has business debt, or plans to accumulate debt in the future by attending graduate school or pursuing another personal endeavor – whatever it is, if you do not want to be liable for that debt in the event of a divorce, you need to include a provision in your prenuptial agreement regarding this.

Mitigate Conflict in the Event of Separation

Surely, no one marries with the intent of getting divorced. But even the best of marriages are trying, and sometimes, the stress of marriage is too much for a couple to handle. If you and your spouse do decide to divorce, you can at least take comfort in the fact that the divorce process will be relatively straightforward if you have a prenuptial agreement, as you will not have to worry about working together to reach a determination about how property should be divided.

Call Our Lakewood Divorce Attorneys Today to Learn More

As you plan for your future and your relationship, don’t rule out the formation of a prenuptial agreement. A prenup can have myriad benefits, and can actually be a positive for couples. To learn more or start the process of forming your prenuptial agreement today, call our team at Divorce Matters directly or send us a message requesting more information.

What is a Prenup and What Do I Include in It?

No one walks down the aisle imagining one day they will be racing to divorce court. Nevertheless, a high percentage of marriages end in divorce. Savvy couples certainly contemplate that one day their marriage might end, and they want to plan for what will happen if that day should, unfortunately, come to pass.

Prenups are Contracts

In a divorce, a court must untangle a couple’s finances, which includes dividing marital assets and debts, as well as deciding whether one spouse will pay the other alimony, called “spousal maintenance.” However, you don’t need to leave this up to the judge. Instead, before getting married, you can decide what will happen and include these agreements in your prenuptial agreement.

Prenuptial agreements also can identify what will happen in the event of death. For example, a surviving spouse is entitled to a share of the estate, regardless of what is stated in the will. This “elective share” will depend on the length of your marriage and can be 5-50% of your estate. If a spouse wants to give up their elective share, they can do so in a prenuptial agreement.

What to Avoid Including in a Prenuptial Agreement

You can’t decide everything in a prenup, no matter how well drafted it is. For example, you can’t decide child custody or child support. Colorado judges make decisions about children according to what is in the child’s best interest, and they will completely ignore any prenuptial provision that tries to decide these issues.

You also shouldn’t include any provisions that are unconscionable or against public policy. For example, you shouldn’t include a provision that penalizes a spouse for initiating a separation or divorce, which is likely void.

What to Include in Your Prenup

Most prenuptial agreements deal with the following:

  • How marital assets will be divided. Marital assets are assets you acquired while married, not assets you brought into your marriage.
  • How your marital debts will be divided. Like marital assets, these are debts you incurred while married.
  • Whether one spouse will pay alimony to the other.

To be legal, your prenuptial agreement must meet the following requirements:

  • The agreement must be in writing.
  • Both spouses must sign the agreement voluntarily.
  • Both spouses must make full disclosure of their assets and liabilities before signing the agreement.
  • Both spouses should retain their own attorneys to review the prenuptial agreement.

Additionally, make sure to sign the prenuptial agreement at an appropriate time””neither too close to the wedding nor too soon before you walk down the aisle.

Deciding Whether to Get a Prenuptial Agreement

Prenuptial agreements are not for everybody. For example, your future spouse might be opposed to signing one. Unless you want to call off the marriage, you might need to forego a prenuptial agreement and, in any event, should not pressure your spouse to sign one.

Also, consider that you can sign a “postnuptial” agreement after you get married. This postnup can include all of the information that you would include in a prenuptial agreement. The only difference is that you sign it after getting married.

Nevertheless, prenuptial agreements sometimes make sense. For example, you might be embarking on a second marriage and already have children. In the event of your death, you want all of your assets to go to your children from your first marriage. In this situation, your second spouse can waive their elective share if you die before they do.

Contact a Denver Divorce Lawyer Today

Prenuptial agreements have many wrinkles to them, and couples should carefully consider whether to sign one and what to include in it. To analyze whether a prenuptial agreement is right for you, speak with a Denver prenuptial agreement lawyer at Divorce Matters. To schedule your consultation, call 720-408-7469.

How To Have The Talk ”“ About A Prenup

The date is set. The venue is rented. The rings, dresses, and tuxes are ready and you’ve gone cake tasting. But there’s still a conversation you have not had with your fiancé(e) ”“ are you going to get a prenuptial agreement?

It’s not a romantic conversation to have. “Hey, honey, I love you so much and I can’t wait to spend the rest of my life with you. But”¦”

Prenuptial agreements are an incredibly valuable and underutilized tool for couples to ensure that they preserve their property after divorce. So, here are a few tips to help you break the ice without scaring your fiancé(e) away:

  1. Be straightforward. Beating around the bush will just introduce unnecessary uncertainty. Show your future spouse that you have a level-headed and sensible approach to the marriage. Who knows? Maybe (s)he is thinking the same thing.
  2. Timing is key. Plan a time when you are both in a positive mood and you have time for the in-depth discussion of a potential prenup.
  3. Don’t start antagonistically. “I want a prenup” is probably not the best way to start the conversation. Try something more delicate ”“ “Honey, I know this isn’t a comfortable subject, but we’re getting married soon and I’d like to discuss a prenuptial agreement.”
  4. Be reassuring. Let your future spouse know that you aren’t having this discussion because of cold feet or to withhold your property from him or her. Let him or her know that this discussion is about protecting each other’s financial independence.
  5. Be transparent. Honesty is a key component of marriage, after all.

Our Denver divorce attorneys suggest that you discuss with your spouse and your lawyer whether a prenup is the right fit for your family.

Can You Challenge A Prenup? Even In High-Asset Cases, You Can

The prenuptial agreement. The single greatest tool a person has to prevent losing their property in divorce. Through prenuptial agreements, couples can stipulate how certain property is divided after a future divorce. While you mostly hear about prenups in the context of celebrity marriages or high-powered couples, prenups are useful for all marrying couples who have property they wish to protect.

But what happens when the divorce pops up and one party disagrees with the prenup? Is it possible for that party to challenge the prenup? Aren’t prenups, especially in high-asset cases, ironclad?

Yes, you can challenge a prenup. No, prenups are not always ironclad. Here’s an example of a high-asset case that resulted in the destruction of a prenup to the benefit of a woman fighting her very wealthy husband for her fair share.

Elizabeth Patrakis vs. Peter Petrakis

Peter Petrakis, a Long Island millionaire, married his ex-wife Elizabeth in 1998. Three months prior, he gave Elizabeth a prenuptial agreement to sign stipulating that he would retain all marital assets upon divorce, but that Elizabeth would get $25,000 for every year they were married. Elizabeth waited until four days before the wedding before finally signing, after Peter promised that the agreement would be torn up when the two had kids. He did not honor his promise.

Elizabeth’s attorneys argued that Peter had defrauded her with this promise, which the courts found to be true. As such, the prenup was thrown out.
Prenuptial agreements are not often voided, but there are plenty of reasons one might be. If a prenup is not in writing, it can be challenged. If a prenup is signed under duress (four days before the wedding, for example), it can be challenged. If there are unconscionable provisions in the prenup, it can be voided. See our page on prenuptial agreements for more reasons a prenup can be torn up.

Our Denver family law firm can help you draft a prenuptial agreement for your marriage as well as challenge one if the need arises.

Can You Challenge A Prenup?

An ironclad prenup is the best way for a person to preserve their assets following divorce. While prenups are generally a good idea, there are plenty of ways for someone to end up with one that is unsatisfactory or unfair.

Prenups have to be done a certain way to be valid. You may have grounds to contest the terms of a prenup if any of the following are true:

  • If the terms of the prenup are “unconscionable,” then the prenup cannot be enforced. What does unconscionable mean? Basically, if the prenup is excessively unfair to one party and will leave that party destitute upon divorce, generally, the court will not enforce it.
  • If you are coerced into signing a prenup, whether by your spouse-to-be or even an attorney, you could have the prenup thrown out.
  • If the prenup contains invalid provisions, or terms that violate other laws, the prenup can be thrown out, although it is also possible for the court to strike the invalid pieces and enforce the rest of the prenup’s terms.
  • If you are rushed into signing a prenup, the prenup may be unable to be enforced. In many ways, rushing a prenup is akin to coercion.
  • If you have not read the prenup (if your spouse includes it in a stack of papers, for example, and asks you to sign them quickly) then it is possible to have the prenup nullified.
  • If one spouse lies or fails to provide complete information about income, assets and debts, it is possible to throw out the prenup.

Prenups are a very valuable tool for marrying couples, but they are not infallible. As with all matters relating to property and family law, you should speak to a family law attorney about the terms of your prenup.

If Any Of These 4 Things Are True, You Need A Prenup

“But I don’t need a prenup. We love each other so much.”

While that may be true, that’s not the point.

“We’d always be friends, even if we got divorced. My spouse would never try to take my fortune.”

You’d be surprised.

If any of the following things are true about your upcoming marriage, you should definitely consider a prenuptial agreement to protect your property following divorce.

  1. You have a business that you love. You’ve grown it from the ground up and it’s your baby. You better have a prenup. In all likelihood, that business is your most valuable asset, and business valuation in divorce is always messy. For a spurned spouse, getting a share of that business could be priority number one to ensure his or her financial future, and if you haven’t taken precautions, it is very possible for all of that growth to go down the drain.
  2. You plan to stop working to become a stay-at-home mom or dad. Get a prenup. It’s always great to have one parent around to keep the kids fed, clothed and in school, but think about what would happen if you were to get a divorce 5, 10 years in the future. That’s a long period of not honing career skills. A long period of not making business connections and building your résumé. When divorce hits, you won’t have anything to fall back on, and you’ll find yourself scrambling to manage your finances in addition to having to deal with the stress of divorce. Go with the sure thing ”“ get a prenup.
  3. You will be receiving an inheritance soon. Typically, inheritances are considered separate property, so you might think that under no circumstances will your inheritance be within reach of your ex-spouse. You would be wrong. If you fall behind on your mortgage payments, for example, and need to dip into your inheritance to pay for the marital home, that can lead to your inheritance becoming commingled, or mixed, with your marital assets. In that case, it can convert to marital property, and marital property is divided equitably in Colorado divorces.
  4. You and your spouse have different financial priorities. Suppose you are a saver, and your spouse is a spender ”“ it could be clothes, it could be cars, it could be anything. If one of you has a lot of assets, but the other has a lot of debt, a prenup can ensure that you don’t end up losing all of your assets to pay for debts you did not incur.

If you have any doubt in your mind, get a prenup. And even if you don’t have any doubt, it’s still something you should seriously consider.

Our Denver divorce attorneys can help you make sure your property is safe before you decide to get married.

You NEED These 4 Things In Your Prenup

Awkward as they may be to discuss with a future spouse, prenups are without a doubt one of the most powerful tools you have at your disposal to protect your property if divorce happens down the road. But just having a prenup is not enough ”“ you have to make sure that your prenup is comprehensive, inclusive and substantive.

Four Considerations When Drafting Your Prenup

  1. Your prenup should be fair. Not necessarily equal ”“ that’s a different beast entirely ”“ but fair. If you get a divorce and your spouse decides to challenge your prenup, the courts will have to be sure that the prenup does not contain any unconscionable provisions. Prenups should be drafted to meet the reasonable needs of each spouse following divorce while also addressing changes in circumstances that may occur during the marriage.
  2. Sign the prenup early ”“ before your wedding invitations go out. Springing a prenup on your spouse shortly before the wedding ceremony does not give them adequate time to seek independent counsel and the courts may interpret this as duress. If a prenup is signed under duress, then certain provisions of the prenup or even the whole thing could be thrown out.
  3. Both parties must present thorough and detailed financial statements. Lying about assets is a zero-sum game. Bank accounts, tax returns, real estate, cars, loans ”“ don’t leave anything out. A financial advisor could be very helpful here.
  4. Both parties should have independent counsel. You and your spouse both need individual representation to ensure that both of your needs’ are being looked after without any conflict of interest.

Divorce Matters Can Help With Your Colorado Prenup Needs

If you follow these steps, you have a good chance of ensuring that your prenup remains valid when the time for divorce comes. Give our team if you have any questions or need help with your prenup in Colorado.

Our Denver divorce attorneys do everything in our power to ensure an equitable distribution of marital assets after divorce.

Can I Negotiate a Prenup with an Attorney?

Nobody likes talking about prenuptial agreements (prenups). It’s just about the least romantic conversation you can have with the person you are planning to spend the rest of your life with. And yet, prenups are an incredibly versatile tool for helping someone protect his or her finances if the marriage does not work out or as part of an estate plan.

Some fiancés may be intimidated if presented with a prenup draft and not know what to do. A person may feel like they must sign the document as presented. However, this is not the case. Both parties should each have a lawyer, and a first draft can be just the starting point of a negotiation where both parties are satisfied with the end result.

Colorado Prenup Process

For a prenup to be valid, though, there is a specific process that must be followed. Colorado governs prenups under the terms of the Uniform Premarital and Marital Agreements Act, which sets forth the guidelines that determine the validity of a prenup. Knowing these guidelines ”“ and whether your prenup is valid or not ”“ can save you and your pocketbook a lot of stress if and when divorce arises. Here are the key points of the act summed up:

  • The prenuptial agreement is not enforceable if either party signs it under duress. Prenups must be voluntarily entered into by both parties. If duress can be proven, the prenup can be voided.
  • Before signing the prenup, both parties are required to fully disclose all property and assets. If either spouse has hidden property or simply fails to disclose everything, then it is possible for the prenup to be thrown out.
  • Prenups are official, legally binding agreements and must be in writing. Oral agreements cannot be enforced.
  • Prenups can be challenged if one spouse did not have access to legal representation prior to signing the agreement. This discourages one spouse from, for example, springing the prenup on his or her spouse the day before the wedding. Always present and negotiate a prenup long before the actual wedding date.
  • The prenup can be challenged partially or entirely if it contains unlawful clauses. This may include, but is not limited to, clauses regarding child support or child custody.

Contact a Denver Prenuptial Agreement Attorney

The Denver divorce attorneys at Divorce Matters can help you craft the right prenuptial agreement to ensure that your separate property is protected.

Prenup or Postnup? Pros and Cons

According to a survey by the American Academy of Matrimonial Lawyers, more and more couples are ensuring their financial futures post-divorce by signing prenuptial and postnuptial agreements. More than half of the attorneys surveyed noted an increase in postnuptial agreements from 2009-2012, and 63 percent reported an increase in prenuptial agreements from 2009-2012.
Have you considered one of the two for your marriage? If not, here is a simple breakdown of what these agreements are and which one is right for you.

What is a Prenup?

Prenups are essentially private contracts signed before marriage and determine how a couple will divide property upon the dissolution of the marriage. Many people don’t like to think about prenups ”“ it is definitely not a romantic conversation to have ”“ but prenups serve an important role and can help make divorce a much cleaner, less contentious process. Additionally, prenups can be used to make financial decisions in the event of one spouse’s death; this is important if you have a significant estate and wish to ensure that your assets are distributed to the parties you want them to go to.

For younger couples, prenups can also be beneficial. One way to look at the idea of a prenup is it is a contract the couple draws up themselves, instead of using Colorado’s divorce laws as a default. Couples getting married are typically generous with each other when drafting a prenup, which avoids arguments and drawn out disputes in the event of a divorce.

What is a Postnup?

Postnuptial agreements are essentially private contracts made after the wedding. The difference is postnuptial agreements can be used as a type of legal separation: couples can stop the marital property from accumulating, or agree that one pays spousal support if the couple wishes to physically separate, but not divorce. Sometimes, if one spouse is entering into a business or equity partnership, the postnup may be required to ensure the business will not be affected in the event of divorce. For these purposes, post-nuptials are very effective, but should only be entered into if each spouse has their own individual lawyer to make sure they are upheld in court.

The divorce attorneys at Divorce Matters provide professional advice to divorcing couples throughout the state of Colorado.

Prenups – Not Just for Celebrities

When you hear the word “prenup,” you might think of celebrities or high-paid business executives fighting over who gets to keep the elephant ice sculpture in the summer home’s foyer. But prenuptial agreements are not just for the moneyed elite to cover their finances in case of divorce. Prenups are incredibly versatile agreements that can be useful for many married couples.

What Can a Prenup Cover? What Can’t a Prenup Cover?

Prenups can help to ensure your property rights, including financial responsibilities for the marital home should the marriage end. They can also simplify the process of determining who has the rights to property owned prior to and obtained during the marriage. Debts, insurance policies, wills, employment benefit plans, etc. can also be allocated between the two spouses. You can also determine spousal support (known as maintenance in Colorado) through a prenup.

Colorado courts do not consider prenup provisions concerning children, including child custody, visitation or child support. The reason for this is because in our state, the judge must consider the best interests of the children at the time of divorce, independent of prior agreements the parents may have made. After all, things change ”“ especially between a wedding and a divorce.

The process of negotiating a prenup with your spouse can be awkward; after all, nothing shatters a romantic moment like asking “So who gets the house when we break up?” Open communication, therefore, is incredibly important in setting up a prenup. If you have any questions about whether a prenup is right for you, visit our prenup Q&A or speak with a family law attorney.

Divorce Matters ”“ Denver Family Law Attorneys