In my original 2014 article about prenuptial and postnuptial agreements, I shared the basics of how these agreements are formed and enforced. This updated article looks at recent Colorado case law and new legal developments regarding prenuptial and postnuptial agreements.
What is a Prenuptial or Marital Agreement in Colorado?
A premarital agreement is an agreement between two people who intend to marry that affirms, modifies, or waives a marital right or obligation, including a property right, on dissolution of the marriage. See C.R.S. § 14-2-302(4)(d), (5). An agreement that is signed by both parties and complies with the Colorado Uniform Premarital and Marital Agreements Act, C.R.S. §§ 14-2-301 to -313, (2021), is effective upon the parties’ marriage and is enforceable without consideration. See C.R.S. §§ 14-2-306, 14-2-307, 14-2-309, (2021). For parties to waive a property right, their premarital agreement must state that they are giving up rights to money or property if their marriage ends. C.R.S. § 14-2-309(3).
Duress, Coercion, and Time Pressure When Signing a Prenup or Postnup
For a premarital agreement or marital agreement entered into after July 1, 2024, it is unenforceable if a party against whom enforcement is sought proves that the “party’s consent to the agreement was involuntary or the result of duress.” § 14-2-309(1)(a), C.R.S. 2023. A premarital agreement or marital agreement entered into before July 1, 2024 can be unenforceable if it was not entered into voluntarily. The person asserting unenforceability has the burden of proof on the unenforceability issue. In re Marriage of Kinning, 2023 WL 12052426, at *3 (Colo. App. 2023) (not selected for official publication)
An agreement may be voidable and unenforceable if a party’s manifestation of assent is induced by an improper threat that leaves that party no reasonable alternative. See Vail/Arrowhead, Inc. v. Dist. Ct., 954 P.2d 608, 612 (Colo. 1998); see also In re Marriage of Fiffe, 140 P.3d 160, 163 (Colo. App. 2005) (premarital agreements should be construed in the same manner as other contracts).
If the premarital agreement or marital agreement was entered into based on the exertion of pressure by threats or even by physical compulsion, that’s not enough to make the agreement void. It must also appear that the force or threats employed actually subjugated the mind and will of the person against whom they were directed, and were thus the sole and efficient cause of the action which he took. Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 521 (Colo. App. 2006) (quoting Wiesen v. Short, 43 Colo. App. 374, 376, 604 P.2d 1191, 1192 (1979)).
Whether duress exists so that an agreement was not “voluntarily” entered into is ordinarily a question of fact to be determined according to the circumstances of the case. Premier Farm Credit, PCA, 155 P.3d at 521.
Recent Cases: Examples of Duress and Coercion Claims
In the 2023 Kinning case, the validity of the marital agreement was upheld even though the following facts were in evidence:
- Because wife and her attorney “delayed the case significantly,” the signing of the agreement “took place right up against their holiday departure”;
- The husband’s “controlling behavior,” as described by wife, didn’t subjugate wife’s mind or render her susceptible to any pressure exerted by husband; and
- The wife “had access to joint accounts and credit cards,” and her spending had “no limit.”
- The husband “demanded” that she sign the marital agreement “within hours” or not go on the family vacation abroad.
- The wife’s former addiction and mental health counselor, who said that husband “exerted control” over wife’s “life choices” and that “she was really afraid if she balked at any of his requests … she would be abandoned.”
- The wife was suffering from depression, anxiety, and fear of abandonment at the time she signed the marital agreement.
In another recent Court of Appeals case, the wife explained that she eventually signed the agreement because husband would not stop “pressuring” and “badgering” her to sign, and she “needed to get out of the situation” because she was afraid husband would “snap.” That was not enough to find that the agreement was void. In re Marriage of Bailey, 2025 WL 716404, at *1 (Colo. App. 2025) (not selected for official publication).
In a 2025 Court of Appeals case, the husband failed to prove he entered into the marital agreement due to duress. In the case of In re Marriage of Watters and Watters, 2025 WL 865141, at *2 (Colo. App. 2025) (not selected for official publication), the husband alleged that:
- The wife subjected him to years of manipulation, demeaning comments, and “bull[ying],” creating an environment in which he felt pressured to comply with her demands even if he disagreed with them;
- The wife threatened to withhold sex unless he signed the agreement;
- The wife manipulated him by saying she did not trust him and that signing the agreement was necessary to rebuild that trust;
- The wife issued an ultimatum, saying their marriage would end and he would have to “fight to see” the children if he refused to sign the agreement; and
- The wife coerced him into signing the agreement even though she knew of his devout Catholic faith and his belief that divorce was “one of the largest sins.”
It is difficult to prove that a premarital agreement or marital agreement was not voluntarily entered into due to duress or coercion.
Do Maintenance (Alimony) Payments Continue After Death?
Sometimes, spouses agree to specific maintenance terms in a premarital agreement or marital agreement. In a 2017 Court of Appeals case, it was established that unless the premarital agreement or marital agreement specifically says that the paying party’s maintenance obligation continues after the paying party dies, the death of the paying party ends the deceased parties’ maintenance obligations. Even if the premarital agreement or marital agreement says that the agreement is “binding on and inures to benefit of parties’ heirs, assigns, and personal representatives,” the maintenance obligation will end and the dead party’s estate is not bound to continue making maintenance payments. Marriage of Williams, 410 P.3d 1271 (Colo. App. 2017).
Financial Disclosures and Prenuptial Agreement Enforceability
Written financial disclosures are not required in order to have a valid and enforceable marital agreement or premarital agreement. But they are usually a good idea. The current version of C.R.S. § 14-2-309(4) says:
A party has adequate financial disclosure under this section if the party:
(a) Receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; or
(b) [Reserved]
(c) Has adequate knowledge or a reasonable basis for having adequate knowledge of the information described in paragraph (a) of this subsection (4).
A prior version of the statute said: a premarital agreement is not otherwise enforceable if the party opposing enforcement proves (1) that “[s]uch party did not execute the agreement … voluntarily” or (2) that “[b]efore execution of the agreement … such party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.” See C.R.S.§ 14-2-307(1)(2000); In re Marriage of Goldin, 923 P.2d 376, 380 (Colo. App. 1996) (“Absent involuntary execution or unfair and unreasonable disclosure …, a marital agreement is enforceable.”).
In the Bailey case, decided under the prior version of the statute, the Court of Appeals determined that being “generally aware” of the other party’s circumstances satisfies the “fair and reasonable disclosure” requirement:
While the trial court did not make explicit findings as to whether wife was provided with “a fair and reasonable disclosure” of husband’s finances, see § 14-2-307(1)(b), C.R.S. 2000, because the court found that wife was generally aware of husband’s finances, we agree with husband that wife received a “fair and reasonable” disclosure of husband’s financial information as a matter of law.
In re Marriage of Bailey, 2025 WL 716404, at *4 (Colo. App. 2025) (not selected for official publication)
In addition, the Court of Appeals in the Bailey case said:
“[f]air disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other,” In re Estate of Lopata, 641 P.2d 952, 955 (Colo. 1982), and a party’s “general knowledge of the extent of [the other party’s] assets, … even though she may have been unaware of their exact value,” may constitute sufficient disclosure. In re Marriage of Ingels, 596 P.2d 1211, 1214 (Colo. App. 1979).
But because general knowledge of the other party’s assets is sufficient, even where the parties may have failed to include an exhibit listing their assets, we conclude as a matter of law that the trial court’s finding that wife generally knew of husband’s assets less than a month before her execution of the PMA was sufficient to satisfy the CMAA’s reasonable and fair financial disclosure requirement. See Rahn, 914 P.2d at 465; Ingels, 596 P.2d at 1214.
Bailey, 2025 WL 716404, at *4-5.
Are Signed Deeds Giving Property to a Spouse Valid Marital Agreements?
No, it is not according to the Colorado Supreme Court. In a 2021 case, the Colorado Supreme Court decided that an interspousal transfer deed executed by the husband, which purportedly conveyed a home to the wife as her separate property, was not a “valid agreement” Colorado marital agreement laws and, thus, home remained subject to presumption of marital property in marriage divorce proceedings. In re Marriage of Blaine, 480 P.3d 691 (Colo. 2021).
In that case, only the husband signed the deed and the wife did not sign it. The result may have been different if both parties signed the deed.
Are Oral Agreements Valid Marital or Prenuptial Agreements?
No, they are not valid marital or premarital agreements under Colorado law. In 2021, the Colorado Supreme Court examined whether the divorce law statute which said that property acquired during the marriage is not marital property if there is a “valid agreement” excluding the property as marital property exists. The divorce statute did not say whether the agreement could be an oral, spoken agreement.
In the case of In re Marriage of Zander, 480 P.3d 676, 680–81(Colo. 2021), the Colorado Supreme Court decided that the term “valid” is ordinarily and naturally understood as referring to something that is effective and enforceable under the law. Because premarital and marital agreement law requires that those kinds of agreements have to be in writing and signed, the parties’ oral agreement to exclude retirement accounts as marital property in a divorce was not enforceable.
Can Spouses Abandon or Cancel a Prenup or Marital Agreement?
Sometimes, the parties sign a premarital agreement or marital agreement and then during the marriage, they take action or fail to act in ways which would indicate that they didn’t really care about the premarital agreement or marital agreement. That issue was addressed in the case of In re Marriage of Watters and Watters, 2025 WL 865141, at *1 (Colo. App. 2025) (not selected for official publication). In the Watters case, the parties married in 1999 and had three children. The parties entered into the marital agreement sixteen years later.
During the marriage, the parties did things with their property and with mortgage payments that were arguably inconsistent with their marital agreement. While the Court of Appeals in the Watters case decided that that marital agreement was not abandoned, the Court of Appeals discussed how the law works in this area:
Parties may also agree to abandon or rescind a marital agreement in its entirety. See In re Marriage of Young, 682 P.2d 1233, 1236 (Colo. App. 1984) (premarital agreement was abandoned and rescinded by the parties’ mutual consent, as evidenced by their pooling and holding their property in joint tenancy).
A marital agreement may be abandoned or rescinded by mutual consent, including by consent implied from the parties’ actions or conduct. See id. (citation omitted). But such actions or conduct “must be positive, unequivocal, and inconsistent with intent to be further bound by the contract.” Id. (citation omitted).
Whether parties have abandoned or rescinded a marital agreement through their actions or conduct is a factual question for the court to decide. Id.
Watters, 2025 WL 865141, at *4.
Language Barriers and Enforceability of Prenups
In a Boulder trial court decision, the judge decided that a wife who spoke Vietnamese and only spoke and wrote conversational English when the premarital agreement was signed did not enter into the premarital agreement voluntarily and said the premarital agreement was not enforceable. The judge noted the “acute difference between understanding the literal meaning, as opposed to the legal significance, of language.” The judge relied in part on the Colorado Supreme Court case of Linker v. Linker, 470 P.2d 921 (Colo. 1970):
… at the time the [wife] signed the antenuptial agreement she was unsophisticated and understood very little English; had no knowledge as to her property rights as the wife of a Colorado citizen; did not understand the purported legal effect of the agreement; nor had any knowledge of the actual value of [Husband’s] assets.
The judge also relied on the fact that the husband never provided a fluent Vietnamese-speaking lawyer with sufficient time to counsel the wife on a knowing decision and that the wife spending two hours with a lawyer was “woefully inadequate to both translate the agreement into Vietnamese and explain the underlying legal significance of the agreement to Wife.
Conclusion: Key Takeaways for Prenuptial and Marital Agreements in Colorado
Premarital and marital agreements continue to be available as a way for parties to protect assets, avoid paying certain debts, manage divorce case maintenance and attorney fee obligations and allow the parties to decide their own futures. But there are many situations which can lead to the marital or premarital agreement being set aside or interpreted differently than one or both of the parties anticipated when they signed the agreement.
Care should be taken when entering into a marital or premarital agreement. For more detailed advice or to discuss your unique situation, feel free to contact me.
