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Does a Prenup Always Hold Up in a Divorce?

You had considerable assets prior to marriage so a prenuptial agreement made good sense. If you're now planning to divorce, you might think that a prenuptial agreement means splitting up is smooth sailing as far as those assets are concerned. However, depending on certain circumstances, such a premarital agreement may be invalidated if your spouse and his or her attorney choose to contest it. Since each prenuptial agreement is unique, the validity of your document depends on various factors.

Voluntary Agreement

Neither party should sign the agreement under duress. If your spouse claims he or she was forced to sign the agreement, a court may invalidate it. Proving duress is not easy, but there are situations which give relevance to your spouse's claim. For example, if the document is dated the day before or day of the wedding, the court might agree that your spouse signed under duress or undue influence.

One Lawyer Serving Both Parties

Under Colorado law, it is not illegal for the same attorney to represent both parties when drawing up a prenuptial agreement, but it is a bad idea. Courts may consider the fact that your spouse did not have a separate attorney when evaluating whether both of you knew what you were entering into via a premarital agreement.

Financial Disclosure

Information about finances contained in the prenuptial agreement must be valid. Under Colorado law, both parties must disclose "fair and reasonable" information about their assets and liabilities. The more detail, the better. Include pay stubs, bank and brokerage statements, mortgages, real estate and business appraisals. If you are named in a family trust, include that fact.

If you deliberately or inadvertently left out substantial financial information, the court may declare the prenup invalid.

Change in Circumstances

The prenuptial agreement was written at a particular time in life. If your economic circumstances have changed considerably, all or part of the prenup may not hold up. The court takes into consideration children of the marriage, the length of the marriage and the detrimental effect the agreement may have on the other spouse.

Unenforceable Elements

Some provisions in a prenuptial agreement are not enforceable. These include child support or child custody arrangements or a child's religious upbringing. The premarital agreement cannot appear to encourage divorce, so it should not include language stating a spouse will receive a large amount of money upon divorce.

Contact an Attorney

If you are considering divorce, you need the services of an experienced family law attorney. We work hard to help our clients achieve favorable outcomes. Contact us at 303-500-5738 or 866-428-3981.

Source: http://denbar.org/docs/07Feb_TrustEstate.pdf

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Law Offices of Rodger C. Daley

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