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Vail Daily column: What’s up with prenups and postnups?

While perhaps a bit expansive, a basic precept of the law of contract is that two parties can agree to do virtually anything under the sun so long as it is legal. Hold that thought and we’ll circle back to it in just a second.

First, though, what exactly is a “nup”? In short, “nup” is short for “nuptial,” the state of being in wedded bliss, as in married, hitched, legally conjoined as man and wife or, more recently, as man and man or wife and wife; ‘tis a complex world we live in.

In any event, Webster’s tells us that “nuptial” means “of or relating to marriage or the marriage ceremony,” the second part of which will, in a moment, require a brief diversion. “Pre” means “before” and “post” (as in tie me to the hitching post? — oops, no, that’s presumably another kind of post), means “after.” Putting it all together a prenup (known also as an antenup) means something before a wedding and a postnup means something after. Just what it means is the subject of this column



IT’S A CONTRACT



OK, what I started out saying was that two parties could agree to do most anything by contract. Including, as it turns out, enter into an agreement that dictates their martial rights and obligations. If such a contract is entered into before the marriage, it is bestowed with the name a prenup or prenuptial agreement, an agreement entered into before marriage.

Logically, a postnup or postnuptial agreement is one entered into after marriage that disposes of and directs the happy couple’s marital rights. Prenups and postnups are both contracts which we will further vivisect in just a moment.



COLORADO IS DIFFERENT

But first, as I said, a quick aside. As I mentioned the word nuptial can refer to the state of marriage or the wedding ceremony itself. You have likely heard folks say that the betrothed will be exchanging nuptials on the day appointed for their marriage.

But lo and behold, besides cannabis for all, Colorado is a little different; it is one of only nine states that recognize “common law” marriage. What this means is that in these states — Colorado among them — you don’t have to get married to get married. Huh? OK, not exactly. But what it does mean is that the happy couple can skip the marriage ceremony entirely and still get hitched. In Colorado, you can get married, sans the formalities, simply by the couple holding themselves out as husband and wife, consenting to the marriage, cohabitating (although there is some dispute about whether this is even necessary) and having the reputation in the community as being married.

As a quick caveat, although a couple in this state can get married without all the folderol of a wedding ceremony, if one day each takes off for greener pastures, even common law marriages must be dissolved by formal divorce proceedings.

By-the-by, “betrothed” means that a promise to marry has been exchanged; it can also mean “to give in marriage” but really, isn’t that what marriage is all about?

So, however one gets married — ceremonially or via common law — once one is married, he or she succeeds to certain marital rights.

What a prenup (or a postnup if the agreement is not entered into until after the marriage) does, is change all that or change some of that as the couple desires and they decide between them.

A FEW EXAMPLES

A quick example here might help.

Say after a period of marriage (let’s make this up and say ten years), the couple decides they would be happier without each other. Let’s say one of the individuals in the couple makes substantially more money than the other. In such circumstance, it would not be usual for the higher-earning partner to be obliged to pay the lower-earning partner alimony (or what this state calls spousal maintenance) in some reasonable amount for some reasonable period of time. However, if the parties elect to waive maintenance should they one day divorce, so long as neither is unduly pressured to do so and doing so is “fair” under all the circumstances, if they jot it down in a prenup (or a postnup), should the unhappy day one day blossom, the court will likely honor their agreement.

One more example, if you will allow me. Generally, all property that comes into the marriage by whatever means becomes marital property, owned equally by both. The three broad exceptions are property acquired by gift, inheritance or that was owned by one or the other of the parties before they were married (although increases in value of separate property will generally be considered marital property).

Again, let’s say one party earns much more that the other. That notwithstanding, the higher- and lower-earning parties share-and-share-alike in the couple’s joint earnings; who brought in what is simply disregarded. Marriage is a team sport and individual stats don’t count. But let’s say the couple is more of the bent of “what’s mine is mine and what’s yours is yours.”

So long as it is memorialized in writing in a prenup or a postnup, they can change what would otherwise be the legal presumption of all-for-one and one-for-all.” In other words, should they so chose, the couple’s “stuff” can be kept completely and totally separate.

WHATEVER THE COUPLE WANTS

Two other things deserve mention.

First, a prenup (or a postnup) can change one thing, a few things or nearly everything depending on what the couple wants. I have seen prenups so detailed that they literally spell out who will perform what chores throughout the marriage. I have also seen them change only one or two things (like keeping income separate) that the couple may wish bent to their desires.

The second thing — and you’ll notice I keep throwing in postnups along with prenups — although a prenup is a more traditional way of modifying marital obligations, there is no reason whatsoever that a couple deciding after the marriage that they’d like to change things cannot. A postnup will hold up to the same scrutiny as an agreement entered into prior to the nuptials.

OK, one last thing; if a married couple one day pops out kiddlings, one cannot by way of a prenup or a postnup run away from the obligation to support one’s kids. Not that you ever would, but some things are always just a legal no-no.

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.


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