Jill Klancke & David Cook
In today's society entering into financial marital agreements prior to marriage is becoming pretty common. I've heard friends and clients say that they find the idea of entering into such an agreement contrary to a loving relationship. That is just not so. To me, that's like comparing apples and broccoli. The divorce rate in the United States is 50%. Everyone reading this has as likely a chance of going through a divorce as they do staying in a marriage for life. And how many of us out there are already on our second marriage? A financial agreement has nothing to do with how much you love someone at the moment; it has everything to do with where, and to whom, you want your assets to go in the event of your death or divorce.
Sometimes called a "pre-nuptial (before marriage) or post-nuptial (after marriage) agreement, both agreements have one thing in common – a wide belief that they do not work. Oh, but they do. You have heard about famous people for whom the martial agreement failed to help the spouse with assets. That is invariably because that same spouse concealed certain assets from their future husband or wife. If a signor of a marital agreement "forgets" about his $5 Million ranch in Idaho, the agreement is subject to being broken. Failure to fully disclose is the kiss of death. But if both parties are legally capable of agreeing and disclose everything about their finances to the other, such agreements are fully enforceable.
Marital agreements are commonly used in two situations. 1.) One person has significantly more assets than the other and wants to protect them, 2). In second (or more) marriages, one or both people want to be sure that their children from a prior marriage receive the bulk of their estate and not the new spouse.
Marital agreements can be written so that property/income divisions are determined in the event of the death of a spouse or the couple's divorce. Some are based on splitting assets depending on the length of the marriage. They can allow for some reallocation of assets or a total "I keep mine/you keep yours" result. Obviously the latter becomes more difficult the longer the parties are married. While post-marital (after marriage) agreements are legal in Colorado, they are not legal in every state.
The objection that these agreements are not "romantic" -that it takes some of the bloom off the rose of marriage to already be discussing divorce may be true, but the ugly prolonged divorce or, maybe worse, the ugly prolonged probate contest between your children and your second spouse is not exactly "moonlight and magnolias" . We sign Wills every day that accomplish the exact same purpose of a pre-nuptual or post-nuptual without guilt or belief it belittles our relationship with our spouse and family. How is a marriage agreement really so different?
Finally, the best advice if you really want to keep the "bloom on the rose" and focus on the loving relationship is to sign the agreement weeks, not hours, before the wedding. You'd be surprised how many individuals leave it to the last minute when it can all be dealt with calmly long before that walk down the aisle.
Jill Klancke & David Cook
Klancke & Cook, Attorneys at Law
2833 S Colorado Blvd
Denver CO 80222