Vail Daily column: What is a nup? | VailDaily.com

Vail Daily column: What is a nup?

What, exactly, is a “nup?” Well, “nuptial,” actually.

The dictionary defines the word as, “of or relating to marriage.” Black’s Law Dictionary concurs, defining it as, “pertaining to marriage; constituting marriage; used or done in marriage.” So “nup,” it seems, pertains to the state of wedded bliss.

Now let’s add some appendages to the word. “Pre” and “post” will suit our purposes. “Pre,” you may know, means “before.” “Post” means the ship has set sail or “after” some event. Stitching it all together, a “pre-nup” agreement logically means one entered into before wedding vows are exchanged and a “post-nup” agreement means an agreement entered into after marriage. By the way, a “pre-nup” and an “ante-nup” are exactly the same thing, “ante” and “pre” in this context having equal meaning.

A CONTRACT BETWEEN PARTIES

What is worth bearing in mind is that, at the end of the day, a nuptial agreement contemplates at least the possibility of divorce. It asks the question, before the flames of divorce are raging, “How will we sort out our marital affairs if this one day doesn’t work out?”

You’ll note, above, that the compound words: pre-nup, post-nup and ante-nup are all followed by the word agreement. And that’s really the operative part here. What we are talking about — whether occurring before or after marriage — is an agreement or contract between the parties.

In a very big picture view, contracts change something, whatever the particular circumstances that may be. For example, I don’t need a contract to breathe because that is the status quo and, one may argue, my natural right. But let’s say I want to breathe some of that flavored oxygen purveyed by one of those ubiquitous vendors on the Vegas strip. Then, I must enter into a contract (whether written or oral) to do so. As I have no right to breathe their minty O2 through their proffered cannulae, I must reach agreement with the vendor if I wish to do so.

In a not-so-big-but-still-expansive view of the law of contract, one may generally enter into an agreement with another to do anything so long as the “thing” agreed to is not illegal, immoral or otherwise prohibited. A simple example would be where I agree to buy your car for a specific sum and we exchange your car for my money. But money is not the only thing that may be exchanged; the parties may equally exchange rights, privileges, obligations, or virtually anything else of value.

Now, you may be asking, “Haven’t we gone a little far afield here? What’s this got to do with marriage?”

The answer is straightforward. A pre-, ante- or post-nup agreement is a contract between the parties to change the rights they would each enjoy as a consequence of their marriage to one another.

In the absence of a “nup” agreement, each party has certain rights recognized at law. A “nup” agreement, however, changes that. What’s more, a “nup” agreement may change one thing, several things or a whole pickle barrel full of things.

PREPARING FOR DIVORCE

I have seen (and drafted) nuptial agreements as focused as changing who gets what in the event of divorce and those as detailed as prescribing who among the married couple will perform what chores. There is no right or wrong here; it is simply what works best for the couple. What is worth bearing in mind is that, at the end of the day, a nuptial agreement contemplates at least the possibility of divorce. It asks the question, before the flames of divorce are raging, “How will we sort out our marital affairs if this one day doesn’t work out?”

Broadly speaking, in this state, what comes into a marriage during the marriage, by whatever means it comes into the marriage, is marital property. Exceptions are things that come into the marriage by inheritance or gift. Earnings during the marriage are, for example, considered a marital asset even if the earnings of the parties are unequal. Say one party, however, inherits property during the marriage; the inheritance remains his or her own separate property and not a marital asset.

What was owned separately before the marriage remains separate, but any appreciation on that asset during the marriage is marital. Say, for example, the wife owned a million-dollar home at the time of marriage. Say, too, at the time of divorce, the home has increased in value to $1.5 million. While the first million in value remains hers, the half-million dollar “increase” is a marital asset to be split. It is worth noting, too, that Colorado is an “equitable division” state which means that if divorce occurs, the marital assets are to be divided “equitably,” which often (but not always) means, in most circumstances, about equally.

Probably the most common thing that nuptial agreements change is how marital assets are to be defined. Often, income is agreed to remain separate property rather than marital and, equally often, appreciation on what began as separate property is considered separate even if the increase occurred during the marriage.

It is a misconception that a nuptial agreement can be entered into only before marriage. As a nuptial agreement is simply a contract altering the rights of parties which they may freely enter into, absent incapacity, duress or coercion, the parties may alter their rights either before marriage or at any time during the marriage — thus the availability of pre- and post-nup agreements.

While divorce rates tick up or down over the years, the sad fact is many marriages ultimately end in divorce. No matter how well planned the split is, when a marriage fails, there is almost always stress. A well-crafted “nup” agreement, can, however, ease that at least a bit of the pain as the parties have determined, in advance, who is entitled to precisely what.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.