Some older couples decide to enter into a Marital Agreement because they have children by previous relationships, and their want those children, not their new spouse, to inherit their assets. Unless there is a Marital Agreement, a spouse may claim one-half of the estate of a deceased spouse.
A couple can enter into a Marital Agreement either before or after they get married. If they are not yet married, the agreement is called a Premarital Agreement. If they are already married, it is titled a Marital Agreement. Either one is legal and enforceable if the parties have jumped through all the hoops required by Colorado law.
Couples also can enter into a co-habitation agreement, in which they agree that they are not married, and spell out their agreements for living together. Such agreements state that they have no intention to be married by either common law or in a marriage ceremony. They also may specify how the couple plans to share the expenses of their shared home and what arrangements they want to have in the event their relationship fails. This can include agreements about one party moving out of their shared home if the relationship ends.
Generally, when there is a Premarital Agreement or a Marital Agreement, a key component is full disclosure by both partners. This means disclosure of all assets and liabilities. There will be attachments to the agreement for each spouses, stating their assets and liabilities. Unless there is such disclosure, the agreement probably will not be enforceable.
Another important component is representation. If one partner is represented by an attorney, then the agreement may not be unenforceable if the other spouse does not also have an attorney. In 2013, the Colorado Legislature adopted the Uniform Premarital and Marital Agreements Act, which provides that, for agreements signed on or after July 1, 2014, a premarital agreement or marital agreement is unenforceable if the party against whom it is being enforced “did not have access to independent legal representation . . .” Colorado Revised Statutes § 14-2-309(1)(b). This statute spells out what “access to independent legal representation” means. The couple cannot be represented by the same attorney. “Independent” legal representation means that each of the spouses has her or his own counsel.
A Marital Agreement should spell out what happens on either the death of one spouse or divorce. Some agreements also address what will happen in the event that the parties physically separate and live apart from each other.
Marital and Premarital agreements can be tricky, and couples who are considering entering into such an agreement should have legal representation.