Colorado Prenuptial Agreements: Using Duress to Invalidate a Prenup

Prenuptial agreements in Colorado entered into after July 1, 2014 are governed by the Uniform Premarital and Marital Agreement Act (UPMAA).  Prenuptial agreements in Colorado are formally known as “premarital agreements” but are more commonly referred to as prenuptial agreements or prenups.  Antenuptial agreements is a term also used, but is less common.

Under the UPMAA as enforced in Colorado, a prenuptial agreement is an agreement made between two people who intend to marry.  The agreement itself does not become effective until the actual marriage takes place. Contrary to popular public opinion, a prenuptial agreement does not contemplate divorce; in fact, an experienced Colorado prenuptial agreement attorney will specifically mention in the agreement that the purpose is not to contemplate divorce, but rather to facilitate a harmonious marriage.

In general, the validity and enforcement of prenuptial agreements are favored in Colorado.  It is also a common misconception that a prenup is not enforceable or that they are otherwise easy to get out of.  If drafted properly by an attorney, a prenuptial agreement is very much enforceable in Colorado.  However, for prenuptial agreements entered into after July 1, 2014, there are four grounds for challenge: (1) involuntary consent or duress; (2) one party was not given reasonable access to an independent attorney; (3) proper disclosures were not stated in the case of non-represented parties; and (4) lack of proper financial disclosures.

The purpose of a prenuptial agreement is not to contemplate divorce—it is to facilitate a harmonious marriage.”


This article will explore the first ground for challenging the validity of a prenuptial agreement in Colorado: involuntary consent or duress.  Future articles will discuss the other four grounds. Signing a Prenuptial Agreement Under Duress

Entering into a contract involuntarily or under duress is a general defense to contract law and the concept applies to prenuptial agreements in Colorado.  The party who is challenging the validity of the prenup based on duress has the burden of proof to prove to a court that he or she did not sign the contract voluntarily.  Historically this has been a high burden to prove.

 

A threat to cancel the wedding unless a prenuptial agreement is signed does not invalidate the prenup.

In Colorado, the fact that a prenuptial agreement was entered into a very short time before the wedding is not proof enough that it was entered into under duress.  There is no set amount of time that a party must have access to the prenup before signing, but so long as the party had adequate time to contemplate and review the document, the amount of time alone is not dispositive of duress.  Further, a threat of cancelling the wedding or not going through with the marriage if the prenuptial agreement is not signed is not enough to show duress.  Many courts have held that a party requesting a prenuptial agreement has the right to not marry the intended spouse if the agreement is not signed, and to request the future spouse enter into the agreement does not constitute duress.  In order for a prenuptial agreement to be invalidated by reason of duress, the party seeking the invalidation must show that his or her free agency was practically destroyed and that entering into the agreement was not of his or her own free volition.  The threat of not going through with the marriage does not rise to the level of duress that courts require in order to invalidate a premarital agreement.

There are other scenarios in which a court may find that the prenup was entered into under duress, such as by physical force or threat of physical force, but those instances are (thankfully) rare.

If you have signed a prenuptial agreement and I want to get out of it, you may be able to show duress in extreme circumstances, but generally speaking, this is not the most common or effective claim to get out of a prenup.

An attorney who works with prenuptial agreements in Colorado may be able to help—just reach out to us at 720-999-5517 and we’ll chat about it.