By: Beth Andersen
It’s February and love is in the air. When it comes to matters of the heart, lawyering up may not be quite as romantic as diamonds, roses and chocolates. That said, several legal documents can be instrumental in forming, sustaining and protecting your primary relationship whether it is an engagement, marriage, civil union, first apartment together, newborn baby or blended family.
After all, marriage is a contract. Once you say, “I do,” legal issues and obligations arise. In fact, because Colorado is a common law marriage state, marriage does not necessarily require a walk down the aisle, exchange of vows or even a marriage license. In Colorado, when someone says, “We don’t need a license and a piece of paper to show our love and commitment,” that may be quite literally, and legally, true.
Whether you decide to hire a lawyer or draft a marital agreement or estate plan, you should at minimum know your rights, responsibilities and how to protect yourself. A litany of documents from prenups to postnups to cohabs, wills, trusts and powers of attorney can formalize the relationship, set expectations, and make sure you are both on the same page when it comes to defining your relationship. In fact, when it comes to things like adding your spouse to your estate plan, it may well be the MOST ROMANTIC and loving thing you ever do. To find an overview and some common mistakes to avoid, read on.
A prenuptial or premarital agreement, commonly called a prenup, is entered into by both parties before a marriage. Usually a party of means wants to protect his or her wealth from the less monied spouse by having them sign an agreement to do things like waive maintenance (alimony) and give up some of their interest in the marital value of assets.
Colorado arguably had minimal requirements for prenups before it adopted the Uniform Premarital and Marital Agreements Act in 2014. Now it is no longer your father or mother’s prenup. Prenuptial agreements must follow requirements to ensure there is no duress, that both parties had access to counsel, that both parties had a reasonable amount of time to review the agreement, and that the finances of both parties were fully disclosed.
Prenups are not necessarily bad or contrary to love and trust. Financial disputes are one of the main, if not THE main, causes of marital strife. A couple’s ability to disclose, discuss and negotiate finances before they marry may well put them ahead of the crowd when it comes to having the skillage for a successful marriage. Sometimes a business agreement or family will requires a prenup to protect against the risk of divorce. Other times, the prenup provides assurance to family members or children from a prior marriage that their interests are protected.
Given what is at stake, I strongly urge both parties to hire counsel and to prepare and negotiate a well-written agreement. No matter how much you are in love, get your head in the game and read and understand what you are signing. Some family attorneys claim they can get any prenup thrown out in court. I do not believe this is true. However, given that a prenup may be examined by a judge, make sure it is compliant with the law, not some half-baked piece of paper downloaded and printed from the internet.
A postnuptial or marital agreement, sometimes called a postnup, is essentially a premarital agreement signed AFTER the couple marries. While this might seem like a bad sign or roadmap to divorce, a key requirement of a valid postnup is that it is NOT signed in contemplation of divorce.
I have found one of the main reasons a couple signs a postnup is that they just did not get the prenup done in time and now they are married, still wanting to finalize that agreement. Other reasons for a postnup may be an inheritance, protecting children from a prior relationship, or commencing on a new business venture with one party wanting to protect what they have or shelter themselves from risk. Again, the ability to get real about money issues and negotiate them is a key skill in marriage. A postnup may give peace of mind to both parties.
A postnup, like a prenup, must comply with the requirements of the Uniform Premarital and Marital Agreements Act. Both parties should have (or be offered) counsel, disclose finances, and have time to sign and consider the agreement without duress.
I have written a number of cohabitation agreements, also called cohabs. These may prevent a couple from being “accidentally married” under Colorado common law. They also define a couples’ rights if they break up but are not married.
For example, if you are married, you have a right to things like maintenance (alimony) and appreciation in the value of marital assets like a home. On the other hand, you are exposed to giving these things away or being stuck with another parties’ debt. A long, drawn out court hearing to decide if you even are married may not be a good idea – and yet it often comes to this when a couple breaks up. This is no surprise when the appreciation in a house may be hundreds of thousands of dollars. Better to agree HOW you want to share and divide things in advance.
Now that same-sex couples can marry, Colorado’s civil union law may seem less necessary. However, several civil unions exist. You may be surprised to know, also, that civil unions are NOT limited to same-sex couples.
I am not exactly sure why someone would prefer a civil union to a marriage at this point, but it is an option. Again, with a civil union, the parties may want to sign an agreement defining their relationship including inheritance rights and rights if they break up. A dissolution of a civil union follows the same steps as a divorce in Colorado so there is just as much at stake, just as many reasons for an agreement to protect both parties’ rights.
An estate plan is not just a will, although that is a key estate planning document. It also includes powers of attorney to cover choices about finances and health care when you are alive but unable to speak for yourself. It also includes a living will to govern end-of-life choices.
Many of our estate planning clients are older couples in blended families. They want an estate plan that gives rights and inheritance to each other while also protecting children from prior relationships. Because stepchildren do not automatically inherit from stepparents, this is a common issue to address with estate planning. So too, a person may want to ensure that their children from a prior relationship DO inherit some things, such as a house, without the new spouse getting everything. An estate plan can protect all these goals.
Estate plans are a key first step to wealth building. For young couples, it shifts focus to the children, future generations and your financial legacy. You worked hard to earn and save money; you want to have a say in how it is distributed after your death. An estate plan is also a way to ensure your spouse has a voice in life decisions such as health care, end-of-life choices and finances if an accident prevents you from speaking for yourself. And if you are NOT married, an estate plan is ESSENTIAL because your partner may well have NO rights, and get shoved aside, in the event of your death.
Bottom line, if you love your partner, put it in writing. After the chocolate has been eaten and the roses have wilted, an estate plan will live on and protect the one you love when you no longer can.
To get started on a personalized estate plan that ensures all of your goals are met, contact Andersen Law PC for a free consult at 720-922-3880.