Do Prenups Have the Final Say in a Divorce?

So you're going through a divorce and you have an existing prenup. You might be thinking everything has already been decided, so there's no point in trying to change it. Or perhaps the terms of the prenup are keeping you in a marriage you'd prefer to leave. Or on the flip side - you think everything you want is guaranteed because of the prenup, so all will be well when you leave.

But a prenup isn't necessarily ironclad. Like all contracts, its enforceability comes down to a thorough examination of the language itself and the parties representing it. From the circumstances under which it was initially signed to the inclusion of things that aren't binding in Colorado, there may be more wiggle room than you thought.

What could change?

There are plenty of terms contained within a prenup that might be questionable or reason for the entire document to be thrown out. If you work with an experienced divorce attorney, they will know what to look for in a prenup. Some of the more common issues include:

  • Did both of you have lawyers when you signed it? If not, it may not be legally binding.
  • Did one of you sign it under duress? Perhaps you felt pressured to sign it or you were threatened. If that's the case, the prenup may not be legal.
  • Did you both fully disclose your assets before you signed? If there was any dishonesty or withholding of information, the prenup could be null and void.

What shouldn't have been included in the first place?

Most issues concerning children won't be enforced. If you added terms about child custody, child support and parenting time in your prenup, those are not usually considered legally binding in Colorado Courts.

While it's fairly common to include terms about spousal support in a prenup, oftentimes that is also not going to upheld in court. The "unconscionability standard" is something the courts will take into consideration. In layman's terms, that means that if something was seemingly "fair" at the initial time the prenup was written, but is no longer fair when the divorce is actually happening, it will not be enforced.

Prenuptial agreements are oftentimes a smart move, but they don't necessarily have the final say. It's important to work with an experienced divorce attorney to ensure you get all that you are entitled.