No Pre-Nup Is Air Tight

The Colorado Supreme Court was not impressed when a husband with $10 million dollars of net worth and $300,000 a year of income then tried to use his pre-nuptial agreement to prevent a court from awarding $63,082 of court costs and attorneys’ fees to his wife.  His wife at the time of the divorce had no means of support, was the mother of their triplets, and her “mental and physical health deteriorated” during the four year marriage.Colorado law favors pre-nuptial agreements.  But, they have their limits.  All seven Justices of the Colorado Supreme Court, albeit for different reasons, were clear that this limit had been reached in a case it decided today

In this divorce, the couple entered into a valid pre-nuptial agreement prohibiting an award of attorneys’ fee in any future divorce, at a time when the couple was childless and the wife was “healthy and gainfully employed.”  But, as noted above, by the time they divorced, four years later, things had changed.

The four Colorado Supreme Court Justices in the majority held that the attorneys’ fee award could be invalidated because it unconsionably violated public policy.  Three dissenting justices took a narrower view and held that the attorneys’ fee award could be invalidated because it was part of an alimony award.

Colorado law allows alimony awards to be invalidated when they are unconscionable when considered at the time of the divorce.  Other permissible provisions of a pre-nuptial agreement can be invalidated only because they violate public policy.  The dissenting judges argued that violations of public policy apply only to provisions of a pre-nuptial agreement that are invalid when entered into by the parties.

This is one of the few cases where Colorado courts have refused to uphold a pre-nuptial agreement which was valid when entered into, and it will thus serve as a benchmark for future litigatants.  The case also provides a roadmap to trial judges who want to insure that an attorneys’ fee award to a spouse with a pre-nup is upheld on appeal.

It is also worth noting that the marital agreement was still a worthwhile investment for the husband.  The property of the husband and wife were still divided based on the agreement.  So the husband remained a wealthy man, and the wife left the marriage with little besides an alimony and child support awards, and time with the couple’s children.

Technical note: Colorado law usually uses the term “marital agreement” rather than “pre-nuptial agreement”, the term “maintenance” rather than “alimony,” and the term “dissolution of marriage” rather than “divorce.”  This article uses the colloquial terms as they are more widely understood by general public.

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Andrew Oh-Willeke

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