Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.
Sign up to join this community
Is it possible to sign a prenup after marriage (still married but post-nuptial).
If a couple is married, but now wants to ensure each keep their respective properties, is this possible? Can a “post-nuptial” agreement be made that ensures property is kept by the original owners (not split)?
If a couple is married, but now wants to ensure each keep their respective properties, is this possible? Can a “post-nuptial” agreement be made that ensures property is kept by the original owners (not split)?
Yes.
This is often called a "marital agreement" although it is sometimes called a "post-nuptial." In Colorado and many other states, it is governed by the "Uniform Premarital and Marital Agreements Act." Colorado Revised Statutes § 14-2-301, et seq.
As defined in that Uniform Act (a National Council of Uniform State Laws model for states to adopt if they don't want to draft their own act):
"Marital agreement" means an agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at legal separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed after the spouses marry, of a premarital agreement or marital agreement.
Colo. Rev. Stat. § 14-2-302(2).
The general rule is that:
A premarital agreement or marital agreement must be in a record and signed by both parties. The agreement is enforceable without consideration.
Colo. Rev. Stat. § 14-2-306. Oral pre-marital and post-marital agreements, and unsigned pre-marital and post-marital agreements are not enforceable. Colo. Rev. Stat. § 14-2-309(8).
But, generally speaking, the person seeking to enforce it must also show that it was signed with full financial disclosure and disclosure of the risks involved in signing it, when each party has access to independent legal counsel, while not under duress, and that is was not unconscionable when signed, or when it was about to be enforced. Colo. Rev. Stat. § 14-2-309.
Colorado's formalities requirements are somewhat more strict the the majority rule of U.S. law, but in general, marital agreements are allowed in every state, but are highly restricted in how they can vary rights relating to children.
A waiver of inheritance rights at death that does not change the rights of the parties upon divorce, or a reclassification of specific community property of a couple from a community property state as separate property, can also be entered into, and is arguably a marital agreement, but is often done with fewer formalities.
Whether and how courts will give affect to such an agreement varies by jurisdiction-specific statutes. For example, in British Columbia, the Family Law Act, s. 92 says:
spouses may make agreements respecting the division of property and debt
These agreements are not always enforceable. See s. 93, which describes the reasons for which the court can set aside an agreement.
This is the typical approach in Canada: agreements may be made, but courts can set them aside in certain circumstances.
