Top Five Problems With Your DIY Pre-Nuptial Agreement

Discussing a Pre-Nuptial Agreement can feel like a wet blanket during one of the most exciting times for a couple. However, for those couples who need or want a Pre-Nuptial Agreement, meeting with an experienced attorney is a must.

The thought of involving attorneys makes many people cringe, due to stereotypes that attorneys will make things more complicated or contentious. However, drafting a Pre-Nuptial Agreement without the help of experienced counsel can result in unintended consequences. Today, we discuss the top five reasons why you should consult an experienced attorney when drafting a Pre-Nuptial Agreement.  

1.     IT FAILS TO CLEARLY IDENTIFY HOW PROPERTY WILL BE DIVIDED UPON DEATH OR DIVORCE.

In Colorado, Pre-Nuptial Agreements are interpreted narrowly. This means that, if separate property is not specifically identified in the document, it may be treated as marital property. A Pre-Nuptial Agreement may also unknowingly define “separate property” too narrowly, resulting in a finding that the parties did not intend for the property

2.     IT DOES NOT CONTAIN A WAIVER OF RIGHTS.

Unless both parties are represented by an attorney, a Pre-Nuptial Agreement must contain an explanation of the rights that are being waived. This explanation must be in “plain language” must be conspicuously displayed, and must include specific items addressed in Colorado’s statutes.

3.     IT WAS SIGNED ON THE EVE OF THE WEDDING DATE.

Colorado law requires that both parties have access to an independent attorney before signing a Pre-Nuptial Agreement. This includes having time to: (1) decide whether to hire an attorney; (2) hire an attorney; and (3) consider the attorney’s advice.

4.     ONLY ONE PARTY WAIVES SPOUSAL RIGHTS ON DEATH.

When a spouse dies, Colorado law provides statutory rights to the surviving spouse. Parties can waive these rights in a Pre-Nuptial Agreement. However, these rights must be waived by both parties to be enforceable.  

5.     IT IS NOT IN WRITING AND SIGNED BY BOTH PARTIES.

Although Colorado recognizes verbal contracts, a Pre-Nuptial Agreement must be in writing and signed by both parties to be enforceable.

Are you considering a Pre-Nuptial Agreement? Call Katelyn today to discuss.