Many couples who sign a prenuptial agreement never need to think about it again, remaining in a happy marriage for the rest of their lives. But when a marriage does end in divorce, the prenuptial agreement can help simplify the process considerably.
How does a divorce work with a prenuptial agreement? Learn more from Colorado divorce attorneys below.
Ensuring a Prenuptial Agreement Is Legally Enforceable
If you go to divorce court with a prenuptial agreement, the judge would first ensure that it is legally enforceable. These agreements are generally only enforceable if:
- The terms abide by state law.
- The terms are not "unconscionable," meaning they would leave one spouse completely without resources at the time of enforcement.
- Both parties made full financial disclosures and did not hide any assets when the agreement was drafted.
- Both parties signed the agreement voluntarily, prior to the wedding.
- Both parties had adequate time to review the document and access independent legal representation before signing it.
If you do not agree with the terms of a prenuptial agreement and are now going through a divorce, it may be worth having an attorney review it for violations of any of these criteria. Showing that the document is not legally enforceable could lead the court to override its terms and default to standard state laws.
Separating Assets and Awarding Spousal Maintenance According to the Prenup
If the court deems your prenup legally enforceable, it will adhere to the terms in the document for marital property division and spousal maintenance awards. Alternatively, you and your spouse might follow a prenup even if you don't go to court for your divorce, as long as both parties agree to follow its terms.
Your prenuptial agreement might dictate any of the following, depending on the terms you agreed to:
- How you will divide assets you both brought into the marriage
- How you will divide certain assets acquired during the marriage
- How you will divide asset appreciation on separate property
- Whether one spouse will owe the other spousal maintenance, and how much/for how long
- How you will divide both pre-marital and marital debts
- What will happen to a business owned by one or both spouses
- Who can retain ownership of a pet and how you will divide care expenses
Having a prenup in place can prevent disputes regarding property division and spousal maintenance. And as actor Alec Baldwin famously said, a prenup lets you determine "how you’ll dissolve your marriage while you still have a shred of respect for each other."
Having these discussions in advance may lead to fairer, more positive outcomes compared to if you were to have them in the middle of the divorce process, when emotions may be high.
What if Both Parties Disagree With the Prenup?
If your prenup is valid and enforceable, you will generally need to follow its terms, even if one of you disagrees with them now. But if you both disagree with the prenup at the time of your divorce, you might be able to modify its terms. This would involve drafting a separation agreement that you mutually negotiate and sign, replacing the applicable provisions of the prenup.
You may have had the best of intentions when you created your prenuptial agreement, but it can be challenging to predict how you will feel about topics like property division and spousal maintenance years or decades down the line. Your family law attorney can help you navigate a separation agreement that overrides the prenup, if you and your spouse both agree to do so.
Consult a Divorce Attorney in Parker, CO
How does divorce work with a prenuptial agreement? What is the difference between legal separation vs. divorce? Our attorneys at Palmer Family Law can answer these and other questions as they pertain to your legal process in the Colorado family court system.
Whether you need representation in a divorce or help drafting a prenuptial agreement, contact us today at 720-399-7434.