Marital Agreements

By Linda Leitz - Last updated: Thursday, April 20, 2017 - Save & Share - Leave a Comment

If you are going to get married and you and/or your fiancé has some financial history, a marital agreement is worth exploring. The term pre-nuptial or pre-nup generally refers to an agreement where people getting married set out how they’ll handle issues – usually financial issues – in their marriage. Colorado is one state that allows agreements after a couple is married.  A financial advisor with expertise in these matters is a great person for you and your fiancé to consult on the terms you want, but ultimately you each need to have a separate attorney for legal advice on the agreement.

One common area to address in a marital agreement is how assets and debts are allocated in the event of a divorce. In Colorado, and many other states, assets that an individual brings to the marriage, has given to them during the marriage, or inherits during the marriage is separate property – not marital, so belongs only to one spouse – as long as it’s kept in that one spouse’s name. If assets increase in value, the growth is marital. A marital agreement can address this by saying that increases in separate property and/or income from separate assets are also separate. Debt is handled the same way, but debts are also contracts. Whoever signs for the debt is liable to the lender for it.

Spousal maintenance, which is what Colorado calls alimony, is also often addressed. A few years ago a Colorado statute giving guidelines for spousal maintenance was put into place. The formula can be found at https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=71. Most judges tend to go with the guidelines, but a judge can use discretion. This is another area where a couple can agree on spousal maintenance in a marital agreement.

Why would a couple construct a marital agreement when they’re already married? Perhaps one of them starts a business and there is concern about either the potential liability or the potential upside to the business. If a couple is arguing about money, each of them being willing to take responsibility for their own decisions – and documenting that in an agreement – might make both spouses more comfortable.

Do you think that you’ll keep things easy by just living together? Better think again. If you get married and don’t have an agreement on how to handle your finances if you divorce, there are courts and laws with some general guidelines on how to settle things. If you live together, there aren’t a lot of protocols for deciding how to legally split things up. You can – and should – have a cohabitation agreement. It would cover some of the same things as a marital agreement. You can talk about how each of you divide assets and debts you’ve acquired jointly.

Legal agreements aren’t romantic. But neither are arguments about money. Think of the agreement like home insurance – you hope you’ll never need it, but if you do, you’ll be glad it’s there.

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