Marital Legal Separation and Property Settlement Agreement where Minor Children and Parties May have Joint Property or Debts and Divorce Action Filed
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Colorado, but does include
basic and other provisions.
General Summary: Separation and Property Agreements
may be entered into before a divorce is filed to be effective when signed.
They may also be used after the divorce is filed. The terms of the
Agreement, except terms providing for the allocation of parental responsibilities,
support, and parenting time of children, are binding upon the court unless
it finds, after considering the economic circumstances of the parties and
any other relevant evidence produced by the parties, on their own motion
or on request of the court, that the separation agreement is unconscionable.
Discussion: Separation and Property Settlement Ageements
are governed by the following provisions of the Colorado Marital Agreement
Act:
Statutes:
Title 14 Domestic Matters
Article 2 Marriage and Rights of Married Women
Part 3 Colorado Marital Agreement Act
Short title: This part 3 shall be known and may be cited
as the "Colorado Marital Agreement Act". Section 14-2-301.
Definitions: As used in this part 3, unless the context otherwise
requires:
(1) "Marital agreement" means an agreement either between
prospective spouses made in contemplation of marriage or 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.
(2) "Party" means any person who has entered into a marital agreement.
(3) "Property" means an interest, present or future, legal or equitable,
vested or contingent, in real or personal property, including income and
earnings. Section 14-2-302.
Formalities: A marital agreement shall be in writing and signed
by both parties and is enforceable without consideration. Section
14-2-303.
Content:
(1) Parties may contract with respect to:
(a) The rights and obligations of each of the parties in
any of the property of either or both of them whenever and wherever acquired
or located;
(b) The acquisition, disposition, management, and control of any
property;
(c) The disposition of property upon separation of the parties,
dissolution of the marriage, death of either party, or the occurrence or
nonoccurrence of any other event;
(d) The determination, modification, or elimination of spousal
maintenance;
(e) The making of a will, trust, or other arrangement to carry
out the provisions of the marital agreement;
(f) The ownership rights in and disposition of the death benefit
from a life insurance policy;
(g) The rights and obligations in benefits available or to be available
under an employee benefit or retirement plan, except to the extent federal
law prevents a binding agreement with respect to such rights and obligations;
(h) The choice of law governing the construction of the agreement;
and
(i) Any other matter, including the personal rights or obligations
of either party, not in violation of public policy or any statute imposing
a criminal penalty.
(2) Unless the marital agreement provides to the contrary, a waiver
of "all rights upon death" (or equivalent language) in the property or
estate of a present or prospective spouse is:
(a) A waiver of all rights to the elective share, exempt
property, family allowance, and homestead exemption of the waiving party
in the property of the other;
(b) A waiver of the statutory priority of the waiving party to
serve as personal representative, executor, or administrator of the estate
of the other; and
(c) A renunciation and disclaimer by the waiving party of all benefits
that would otherwise pass to him or her from the other by intestate succession
or by virtue of the provisions of any will executed before the marital
agreement. Provisions of a will executed before the marital agreement are
given effect as if the waiving party:
(I) Disclaimed all interests passing to him or her under
the will; and
(II) Became disqualified to serve as personal representative, executor,
administrator, or trustee.
(2.3) Unless the marital agreement provides to the contrary, a revocation
of "all benefits passing upon death to the relatives of my spouse" (or
equivalent language) is a revocation of all benefits that would otherwise
pass upon death to the relatives of the spouse from the revoking party
by virtue of the provisions of any will executed before the writing. Provisions
of a will executed before the writing are given effect as if the relatives:
(a) Disclaimed all interests passing to them under the
will; and
(b) Became disqualified to serve as personal representative, executor,
administrator, or trustee.
(2.5) For purposes of this section, "relative" of an individual's spouse
means a person who is related to the spouse by blood, adoption, or affinity
and who, if the individual and the individual's spouse were divorced, would
not be related to the individual by blood, adoption, or affinity.
(3) A marital agreement may not adversely affect the right of a
child to child support. Section 14-2-304.
Effective date of agreement: A marital agreement becomes effective
upon marriage, if signed by both parties prior to marriage, or upon the
signatures of both parties, if signed after marriage. Section 14-2-305.
Amendment - revocation: After a marital agreement becomes
effective, it may be amended or revoked only by a written agreement signed
by both parties. The amended agreement or revocation is enforceable without
consideration. Section 14-2-306.
Enforcement:
(1) A marital agreement or amendment thereto or revocation
thereof is not enforceable if the party against whom enforcement is sought
proves that:
(a) Such party did not execute the agreement, amendment,
or revocation voluntarily; or
(b) Before execution of the agreement, amendment, or revocation,
such party was not provided a fair and reasonable disclosure of the property
or financial obligations of the other party.
(2) A marital agreement or amendment thereto or revocation thereof
that is otherwise enforceable after applying the provisions of subsection
(1) of this section is nevertheless unenforceable insofar, but only insofar,
as the provisions of such agreement, amendment, or revocation relate to
the determination, modification, or elimination of spousal maintenance
and such provisions are unconscionable at the time of enforcement of such
provisions. The issue of unconscionability shall be decided by the court
as a matter of law.
(3) A marital agreement or amendment thereto or revocation thereof
that is otherwise enforceable shall not be unenforceable because by the
terms of such agreement, amendment, or revocation the rights or obligations,
or both, of one or both parties change or expire because of the passage
of time or the occurrence or nonoccurrence of any other event. Section
14-2-307.
Invalid marriage: If the marriage of the parties is declared
to be invalid, the marital agreement is enforceable only to the extent
necessary to avoid an inequitable result. Section 14-2-308.
Limitations of actions: Any statute of limitations applicable
to an action asserting a claim for relief under a marital agreement is
tolled during the marriage of the parties. However, equitable defenses
limiting the time for enforcement, including laches or estoppel, are available
to either party. Section 14-2-309.
Effective date - applicability:
(1) Except as provided in subsection (2) of this section,
this part 3 shall take effect July 1, 1986, and shall apply only to marital
agreements that become effective on or after said date. All such marital
agreements entered into prior to July 1, 1986, shall be governed by the
laws then in effect.
(2) The provisions of the amendments to section 14-2-304 (2), as
contained in House Bill 96-1342, shall take effect July 1, 1996, and shall
apply only to marital agreements which become effective on or after July
1, 1996. section 14-2-310.
14-2-301. Short title. This part 3 shall be known and may be cited
as the "Colorado Marital Agreement Act".
Separation agreement:
(1) To promote the amicable settlement of disputes between
the parties to a marriage attendant upon their separation or the dissolution
of their marriage, the parties may enter into a written separation agreement
containing provisions for the maintenance of either of them, the disposition
of any property owned by either of them, and the allocation of parental
responsibilities, support, and parenting time of their children.
(2) In a proceeding for dissolution of marriage or for legal separation,
the terms of the separation agreement, except terms providing for the allocation
of parental responsibilities, support, and parenting time of children,
are binding upon the court unless it finds, after considering the economic
circumstances of the parties and any other relevant evidence produced by
the parties, on their own motion or on request of the court, that the separation
agreement is unconscionable.
(3) If the court finds the separation agreement unconscionable,
the court may request the parties to submit a revised separation agreement,
or the court may make orders for the disposition of property, support,
and maintenance.
(4) If the court finds that the separation agreement is not unconscionable
as to support, maintenance, and property:
(a) Unless the separation agreement provides to the contrary,
its terms shall be set forth in the decree of dissolution or legal separation,
and the parties shall be ordered to perform them; or
(b) If the separation agreement provides that its terms shall not
be set forth in the decree, the decree shall identify the separation agreement
and shall state that the court has found the terms not unconscionable.
(5) Terms of the agreement set forth in the decree may be enforced
by all remedies available for the enforcement of a judgment, including
contempt, but are no longer enforceable as contract terms.
(6) Except for terms concerning the support, the allocation of
decision-making responsibility, or parenting time of children, the decree
may expressly preclude or limit modification of terms set forth in the
decree if the separation agreement so provides. Section 14-10-112.
Case Law:
"Nuptial agreements, whether executed before or after the marriage,
are enforceable in Colorado and a nuptial agreement will be upheld unless
the person attacking it proves fraud, concealment, or failure to disclose
material information."). In re Estate of Lewin, 42 Colo. App.
129, 595 P.2d 1055, 1057 (1979)
Prior to its incorporation in a dissolution decree a "separation
agreement" is a contract between the parties to a marriage. In
re Marriage of Deines, 44 Colo. App. 98, 608 P.2d 375 (1980).
The purpose of the "separation agreement" is "to enable divorcing parties
to reach an amicable out-of-court settlement of their claims to the property
of the other. . . ." Newman v. Newman, 653 P.2d 728, 733 (Colo.
1982). However, before a "separation agreement" concerning property
is incorporated in the dissolution decree, it is subject to review by the
district court under section 14-10-112(2) for unconscionability. In
Re the Marriage of Manzo, 659 P.2d 669 (Colo. 1983)
Before a Colorado court incorporates property division provisions
of a "separation agreement" into a dissolution decree, it should first
review the provisions for fraud, overreaching, concealment of assets, or
sharp dealing not consistent with the obligations of marital partners to
deal fairly with each other, and then look at the economic circumstances
of the parties which result from the agreement, including a determination
whether under the totality of the circumstances the property disposition
is fair, just and reasonable. In Re the Marriage of Manzo,
659 P.2d 669 (Colo. 1983).
