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When is a premarital agreement unenforceable in a divorce?

Colorado couples who have one or both spouses being of significant means will often want to have a premarital agreement as a means of protection if the marriage does not last. The premarital agreement must adhere to the law when it is written and completed, otherwise it could be declared invalid. There are certain foundational requirements for a premarital agreement that should be considered when there is a divorce and the validity of the agreement is in dispute. Understanding the law when it comes to a premarital agreement is imperative.

When there is a premarital agreement or a marital agreement signed after the couple is married, it can be unenforceable if the party who agreed to it did so in an involuntary manner or because he or she was under duress. Such agreements may also be unenforceable if one or both spouses did not have independent legal counsel, or there was independent legal counsel, but there was no waiver of rights in the agreement. Premarital or marital agreements may also be unenforceable if there was no financial disclosure.

The language in the waiver of rights must be conspicuously displayed in the agreement and have certain basic terms so the signing party understands what it entails. It should inform the person that he or she is surrendering the right to receive support from the person to whom he or she is getting married or is already married. There will be a surrender of ownership or control of money and property. There is an agreement to pay the debts and expenses of the person to whom he or she is getting married or is already married.

There will be adequate financial disclosure if there was an estimation of the value of the property and other assets the other party has and the description of the assets was done in good faith. When there is a plan to get married and one party has a major financial advantage over the other party, it is common that there will be a premarital agreement. Not all agreements are enforceable. When there is an issue with these agreements as often arises in a high asset divorce, understanding what one's rights are is imperative.

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