Marital Agreements & Cohabitation Agreements

Relationships Made Easy By Marital And Cohabitation Agreements

Are you planning on getting married, but want to decide in advance what to do if the marriage does not last “forever?” Or, are you married, but realize that if you do get divorced, you want it go as smoothly as possible without a lot of expense and tension? A “marital agreement,” which is sometimes referred to as a “prenuptial agreement” if it is entered into before a marriage, is an effective way to minimize attorney fees and emotional stress if you get divorced. It can also be used as an effective wealth protection tool to keep assets from third-party claims or as a method of defining how to deal with financial and other arrangements on a day-to-day basis.

Marital Agreements

To be effective, a marital agreement must be between present spouses or between prospective spouses. A marital agreement must be in writing and be signed by both parties before a divorce or legal separation lawsuit is filed. If you are not yet married, the agreement will take effect upon marriage. Although the law does not specifically require financial disclosure in writing to the other party, it is a good idea to make sure that each party makes a written financial disclosure to the other party regarding assets, liabilities, and income. Without the disclosures, enforceability may be a problem. Oral marital agreements generally are not enforceable, although creative lawyering could give some hope of enforcement.

Cohabitation Agreements

“Cohabitation agreements” are similar to marital agreements, but are entered into by unmarried persons who live together. Colorado courts have not specifically decided whether such agreements can be enforced. However, assuming such an agreement is in writing and is signed by all cohabitants after adequate disclosure to each other regarding financial matters (if the agreement relates to finances), it should be enforceable. Examples of the types of matters dealt with in a cohabitation agreement are: use of rooms, stereos, TVs and other household equipment; house maintenance duties; guest use of residence; and income, property, and expense sharing.

What Can Be Agreed To In The Agreement

Parties may agree to many terms in a marital agreement. For example, the parties may agree with respect to: the acquisition, disposition, management, and control of any property; the disposition of property upon separation, divorce, death, or any other event or non-event; the determination, modification, or elimination of spousal maintenance (alimony); and any other matter, including the personal rights or obligations of either party, not in violation of public policy or any statute imposing a criminal penalty. Marital agreements may not adversely affect the right of a child to child support. If a party will lose health care benefits by divorcing, a marital agreement may be used to spell out the terms by which the parties will live apart (while allowing them to remain married), so that health care benefits are not lost.

Modifying And Enforcing The Agreement

After a marital agreement becomes effective, it can be amended or revoked only by a written agreement signed by both parties. A marital agreement, amendment, or revocation is not enforceable if the party against whom enforcement is sought proves that the agreement, amendment, or revocation was not signed voluntarily, or that prior to signing, there was not a fair and reasonable disclosure of the property or financial obligations of the other party. Provisions regarding maintenance and payment of attorney fees are not enforceable if, at the time enforcement is sought, enforcement would be unconscionable. If the marriage is declared “invalid” (that is, if there is an “annulment”), the marital agreement is only enforceable to the extent necessary to avoid an inequitable result.

Conclusion

Entering into a marital or cohabitation agreement should not be looked at as an adversarial process. Instead, it should be viewed as a realistic and fair way to provide for each other’s reasonable needs if things in a relationship don’t work out as planned and to restrict confusion and anxiety while the relationship is working. Although it may not be easy to discuss a marital agreement or a cohabitation agreement with a significant other or roommate, the financial drain and emotional hardship associated with terminating a relationship absent such an agreement far outweighs the tension associated with negotiating the agreement.

Gregg A. Greenstein is a shareholder in the law firm of Frascona, Joiner, Goodman and Greenstein, P.C., a Colorado law firm. His practice areas include Real Estate, Litigation, Family Law, Divorce, and Adoption. Contact Gregg Greenstein.

Disclaimer -- Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

GREGG A. GREENSTEIN