50-Question Extended FAQ: Postnuptial Agreements in Colorado
By Matthew C. Clawson, Colorado Family Law Attorney
SECTION I — BASIC DEFINITIONS & PURPOSE
Foundational Questions:
1. What is a postnuptial agreement in Colorado?
A postnuptial agreement—legally called a marital agreement—is a written contract signed by spouses after marriage to define financial rights and obligations.
C.R.S. § 14-2-302(2).
2. How is a postnup different from a prenup?
A prenup is signed before marriage; a postnup is signed after marriage but is immediately effective under C.R.S. § 14-2-307.
3. Why do couples sign postnuptial agreements?
For financial clarity, asset protection, inheritance planning, business protection, or rebuilding trust.
4. Are postnuptial agreements legally enforceable in Colorado?
Yes—if they meet the requirements of the UPMAA, C.R.S. §§ 14-2-301–310.
5. When is a postnup effective?
Immediately upon being signed by both spouses.
C.R.S. § 14-2-307
6. Do both spouses need to intend to stay married?
Yes. If spouses intend divorce, the agreement is a separation agreement, not a postnup.
C.R.S. § 14-2-303(3)(b).
7. Is a Colorado postnuptial agreement enforceable without consideration?
Yes. No exchange is required other than agreeing to remain married.
C.R.S. § 14-2-306
8. Do courts favor or disfavor postnuptial agreements?
Courts enforce valid postnups but scrutinize them whenever coercion, duress, or unfairness is alleged.
9. What is the UPMAA?
The Uniform Premarital and Marital Agreements Act—the Colorado law governing prenups and postnups.
10. Does Colorado require a specific form to create a postnup?
No. There is no state form, and DIY templates often fail to meet UPMAA requirements.
SECTION II — VALIDITY & ENFORCEABILITY
11. What makes a Colorado postnup valid?
It must be:
- Written & signed (C.R.S. § 14-2-306)
- Voluntary
- Supported by full disclosure (§ 14-2-309(1)(d))
- Signed with counsel or notice
- Not unconscionable (§ 14-2-309(5))
- Intended to remain married
12. What makes a postnup invalid?
- Coercion or duress
- Lack of independent counsel or waiver
- Inadequate financial disclosure
- Unconscionable terms
- Signed during a divorce
- Violates public policy (§ 14-2-310)
13. What is “unconscionability” in the context of a postnup?
An agreement is unconscionable if it leaves one spouse unfairly disadvantaged under current circumstances.
14. Does the timing of signatures matter?
Yes. Signing during a crisis, ultimatum, or imminent divorce increases risk of invalidation.
15. Does a postnup need to be notarized?
Not required by statute, but strongly recommended to establish authenticity.
16. Can a postnuptial agreement be enforced if one spouse was pressured?
No. Voluntariness is mandatory under C.R.S. § 14-2-309(1)(a).
17. Can a spouse challenge the agreement years later?
Yes—commonly challenged during divorce proceedings.
18. Who has the burden of proof in a validity challenge?
The spouse contesting enforceability bears the burden under C.R.S. § 14-2-309(2).
19. How do courts determine whether each spouse had adequate financial disclosure?
They review:
- Income documents
- Tax returns
- Bank statements
- Business records
- Liabilities
- Property valuations
20. What if a spouse intentionally hides assets?
The agreement may be set aside for lack of disclosure.
SECTION III — POSTNUP CONTENT: WHAT CAN & CANNOT BE INCLUDED
21. What financial terms can a Colorado postnup include?
Spousal maintenance, property rights, debt allocation, attorney fees, death rights.
C.R.S. § 14-2-302(4).
22. Can a postnup limit or waive spousal maintenance?
Yes, unless the waiver is unconscionable at enforcement.
C.R.S. § 14-2-309(5).
23. Can a postnup classify property as separate or marital?
Yes—property rights are a primary purpose of postnups.
24. Can a postnup control what happens to property on death?
Yes, including estate rights and pension survivor benefits.
25. Can a postnup allocate debts?
Yes. Spouses may agree on responsibility for current and future liabilities.
26. Can spouses agree on attorney fees in a divorce?
Yes, but the term must not be “unconscionable.”
C.R.S. § 14-2-309(5).
27. Can a postnup include financial penalties for adultery?
Likely invalid—Colorado prohibits fault-based penalties.
C.R.S. § 14-2-310(2)(c) & public policy.
28. Can a postnup waive child support?
No. Any clause adversely affecting a child’s right to support is unenforceable.
C.R.S. § 14-2-310(2)(a).
29. Can parenting time or custody be included?
Provisions may be written but are never binding.
C.R.S. § 14-2-310(3).
30. Can a postnup prevent a spouse from filing for divorce?
No. Clauses penalizing a spouse for filing dissolution are invalid.
C.R.S. § 14-2-310(2)(d).
31. Can a postnup structure how future income is divided?
Yes. Income is property under C.R.S. § 14-2-302(6).
32. Can a postnup protect interests in a business or professional practice?
Yes—business valuation, growth, and ownership can be predetermined.
33. Can a postnup govern jointly owned property?
Yes, including real estate and jointly titled assets.
SECTION IV — PROCEDURAL REQUIREMENTS
34. Do both spouses need separate attorneys?
Not required but highly recommended.
If a spouse is unrepresented, they must sign a statutory notice of waiver.
C.R.S. § 14-2-309(1)(b)–(c).
35. What financial documents are typically exchanged before signing?
- Tax returns
- Pay stubs
- Bank statements
- Business records
- Retirement statements
- Mortgage/loan statements
- Investment accounts
36. How long does it take to create a postnup?
1–6 weeks depending on complexity and attorney review.
37. Should both spouses negotiate terms?
Yes. Courts look for fairness in negotiation and absence of pressure.
38. Does Colorado require witnesses?
No, but witnessing/notarizing strengthens enforcement.
39. Can spouses sign electronically?
Yes, as long as signatures meet “in a record” requirements under C.R.S. § 14-2-306.
SECTION V — POSTNUP MODIFICATIONS & REVOCATION
40. Can a Colorado postnup be modified?
Yes—modifications must be written and signed by both spouses.
C.R.S. § 14-2-307
41. Can a postnup be revoked?
Yes—revocation requires a written, signed agreement.
C.R.S. § 14-2-302(1).
42. Can spouses make oral changes to a postnup?
No. Oral changes are unenforceable under the UPMAA.
43. Can a postnup survive reconciliation after separation?
Yes, if both spouses reaffirm it or if the agreement does not state otherwise.
SECTION VI — SPECIAL SITUATIONS
44. Is a postnup valid if the marriage is later declared invalid (void)?
Only to the extent necessary to avoid an inequitable result.
C.R.S. § 14-2-308
45. Can a postnup control rights in a military retirement?
Yes—Colorado allows waiver or modification of military retirement rights consistent with federal law.
46. Can a postnup regulate rights in ERISA pensions or survivor benefits?
Yes. Colorado recognizes such waivers under case law (e.g., Rahn).
47. Do same-sex couples have the same rights to postnups?
Yes—Colorado law applies equally to all marriages.
48. Can immigration status affect a postnuptial agreement?
Yes—financial support provisions may be scrutinized if tied to immigration sponsorship.
49. Can a postnup protect one spouse from the other's creditors?
Yes—allocation of liability is permitted, though not always binding on third-party creditors.
50. Is a postnuptial agreement recommended for high-asset marriages?
Absolutely. It reduces risk, preserves wealth, protects businesses, and minimizes future litigation.
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Matthew C. Clawson, Colorado Family Law Attorney
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Legal Disclaimer- This article is for informational purposes only and does not constitute legal advice. Reading this content or contacting the attorney does not create an attorney-client relationship. Legal decisions and outcomes depend on the specific facts of each case. Colorado laws may change, and you should consult a licensed attorney for advice tailored to your circumstances. No guarantee is made regarding the accuracy or completeness of the information provided.