By Jacob Castonguay and Shiloh Miller

It may seem like a hassle to hire an attorney to help you and your spouse draw up written marital agreements. Further, it may seem especially unnecessary given that you and your spouse likely entered into a marriage with trust and do not expect to get a divorce. It is understandable to think that you don’t need an official written document to protect your interests or define your relationship with your trusted significant other. 

With all of this in mind, perhaps you are doubting or neglecting the need to seek counsel to help you draft legal documents that could protect your wealth, estate, or other assets in case of a divorce. However, establishing these agreements by no means suggests your marriage is headed down the road toward divorce. Rather, it is the responsible action to take and can actually strengthen your ability to discuss and negotiate as a couple, setting the foundation for a transparent, well-defined relationship.

A ‘marital agreement’ is usually a signed separation agreement, parenting plan, memorandum of understanding (MOU) or other stipulation or agreement between the parties. However, a recent Colorado case, In re the Marriage of Zander, 2021 CO 12, addresses what happens when that agreement is NOT signed. By the way, it is never a good idea to have oral agreements or even to imply an agreement by an exchange of emails. One way to avoid this is by putting ‘confidential negotiation’ or Colorado Rules of Evidence (CRE) Rule 408 in the beginning of any text or email negotiating an agreement.”

Read on to learn how In re the Marriage of Zander, 2021 CO 12 emphasizes the importance of going to these necessary and manageable lengths to ensure that your marital agreements are written and signed for full validity and protection. 

Wife in Case Argues Property Is Excluded From Equitable Division

In re the Marriage of Zander features the divorce of a couple and the division of their marital property. During divorce proceedings, the Uniform Dissolution of Marriage Act (UDMA) calls on the district court to divide any marital estate between parties and it defines this marital estate as “all property acquired by either spouse subsequent to the marriage” See C.R.S. §§ 14-10-113(1)-(2). However, a party can exclude certain property from being subject to this equitable division if they can prove that it meets one of four exceptions found in §14-10-113(2)(a)-(d). These four exemptions are listed below: 

  1. “Property acquired by gift, bequest, devise, or descent.” 
  2. “Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent.” 
  3. “Property acquired by a spouse after a decree of legal separation.” 
  4. “Property excluded by valid agreement of the parties.” 

In the case of In re the Marriage of Zander, the wife wanted to exclude her retirement and inheritance accounts from equitable distribution during dissolution. She claimed that she and her spouse had verbally agreed to treat these accounts as separate property. Her argument was that the oral agreement with her ex-husband to exclude these assets adhered to the “valid agreement of the parties” described in §14-10-113(2)(d) of the UDMA. The wife even pointed to several pieces of evidence to indicate that, at the time, her husband had acted in ways that suggested his accordance with the verbal agreement. 

For example, when the couple entered into the oral agreement, they made an amendment to their living trust that removed their retirement accounts from that trust. The wife brought this amendment up as evidence of the initiated oral agreement. She also exhibited an email that the husband had sent to his children from a prior marriage stating that those children were to be full beneficiaries of his retirement account. The wife claimed that this suggested that the husband had made his retirement account separate property and that his wife would have no interest in it, thus denoting their verbal agreement. 

Evidence of Oral Agreement Isn’t Enough

This evidence would seem to imply that the oral agreement was “valid” because both parties had behaved in a way that signaled their following of the deal. However, despite such proof, the Colorado Supreme Court still upheld that the “oral agreement was not a valid agreement because Colorado statutory law required that all agreements between spouses be in writing and signed by both parties” See In re the Marriage of Zander, 2021 CO 12, ¶ 3. 

The court points to several sections of the Colorado Marital Agreement Act (CMAA) that confirms this written and signed requirement. Section 14-2-302(1) establishes that a marital agreement is an “agreement between present spouses, but only if signed by both parties prior to the filing of an action for dissolution of marriage or for legal separation.”

Section 14-2-303 goes on to require that any agreement must “be in writing and signed by both parties,” and Section 14-2-305 reaffirms that any agreement only becomes valid “upon the signatures of both parties.” Lastly, Section 14-2-306 specifies that any amendments or revocations on these agreements are also only effective “by a written agreement signed by both parties.” 

The repetition of these “written and signed” requirements really hammers home the message that in order for an agreement to be valid in court, you and your spouse must have your contract in writing and signed by both parties. Even substantial evidence indicating that a verbal agreement was made will not be enough to protect your interests, assets and property if your contract is not in writing and signed. 

Moral of the story? Better to be safe than sorry. Take the time to draft your marital agreements with an attorney who understands the law, and there is no better place to start than Andersen Law PC. Not only will these written marital agreements support your interests in the long run, but they can help you and your spouse lay the foundation for a trustful and transparent relationship. 

To get started drafting your written marital agreements, contact Andersen Law PC at 720-922-3880 for your free consultation. 


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